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Table of Contents
- Can you be convicted of drink driving if you were not driving at the time?
- What the prosecution has to prove
- Sitting in a parked car is usually not driving
- Police can charge you hours after the driving
- What happens if the test was taken unlawfully
- Can the prosecution prove you were driving?
- What you’re facing if you are convicted
- Common questions
- Get advice before you say anything else
Can you be convicted of drink driving if you were not driving at the time?
Yes, but only if police prove you were driving, or that you were sitting in the driver’s seat and trying to put the car in motion. If they can’t prove one of those things, the charge fails whatever your reading was. Being over the limit near a car is not an offence in New South Wales.
That distinction comes up more often than people expect. Police frequently turn up after the driving has finished. Someone crashes and walks home, a neighbour calls it in, or a driver pulls over and falls asleep. In those cases the reading is rarely the problem. The problem for the prosecution is proving who was behind the wheel, and when.
What the prosecution has to prove
The main drink driving offences sit in section 110 of the Road Transport Act 2013 (NSW). Every range, from novice through to high range, is committed in one of a small number of ways. You either:
- drove a motor vehicle, or
- occupied the driving seat of a motor vehicle and attempted to put it in motion, or
- held a full licence and sat next to a learner driver while they drove (this limb doesn’t apply to the novice range offence).
“Drive” is defined in section 4 of the same Act. It includes being in control of the steering, movement or propulsion of a vehicle. So the offence attaches to a moment of actual driving, or an actual attempt to get the car moving, not to a general state of being drunk with car keys in your pocket.
Timing is part of it. The alcohol has to have been in your breath or blood at the moment you drove. That’s why the gap between the driving and the test matters so much.
Driving under the influence, in section 112, is built the same way: drive a vehicle, or occupy the driving seat and attempt to put the vehicle in motion.
Sitting in a parked car is usually not driving
Sleeping in the back seat isn’t driving. Sitting in the passenger seat isn’t driving. Sitting in the driver’s seat with the engine off, waiting for a lift, is neither driving nor an attempt to put the car in motion.
It gets harder when the engine is running, the keys are in the ignition, or the car has rolled forward. Police often treat those facts as proof that you were trying to drive. They are evidence, not proof. The magistrate has to be satisfied beyond reasonable doubt that you were actually attempting to put the vehicle in motion.
If you’ve been charged after being found asleep in a parked car, the small details decide the case. Where the keys were. Whether the engine was running. Whether the car was in gear. Which seat you were in. What you said to police. That last one matters most, because these charges are usually proved out of the driver’s own mouth.
Police can charge you hours after the driving
Being out of the car when police arrive doesn’t end it. If there’s evidence you drove earlier while over the limit, you can be charged. That evidence usually comes from a crash scene, a witness, CCTV, or an admission at the front door.
Two rules in Schedule 3 of the Road Transport Act 2013 limit what police can do once the driving has stopped.
The two hour rule
Clause 2 of Schedule 3 says a police officer cannot require you to submit to a breath test or breath analysis after two hours have passed from the event that gave them the power to test you. That event is the driving, the attempt to put the car in motion, or the supervising of a learner.
The two hours matters for a second reason. Under clause 31 of Schedule 3, if the breath analysis was carried out within two hours of the driving, the reading is taken to be your reading at the time you drove, unless you prove it was lower. Outside two hours that shortcut disappears, and the prosecution has to do real work to connect a reading taken at a police station to a person driving on a road earlier that night.
Police cannot breath test you at your home
Clause 2 of Schedule 3 also says police cannot require you to submit to a test, analysis or sample at your home. This one comes up constantly. A person drives home, police follow up a report and knock on the door, and the test happens in the driveway or the front room.
What counts as “home” isn’t always obvious. The front yard, a shared driveway in a unit block, the street outside, a garage: these get argued about, and the answer depends on the layout and the facts. But if the test was taken at your home, the reading may be inadmissible, and a drink driving prosecution without a reading is usually in serious trouble.
What happens if the test was taken unlawfully
Where police test you outside the two hour window or at your home, the usual step is an application to exclude the reading under section 138 of the Evidence Act 1995 (NSW), which deals with improperly or illegally obtained evidence. The court weighs how serious the breach was against the value of the evidence, so exclusion is not automatic. It has to be argued, and it has to be argued with the right material in front of the court.
If the reading goes, the prosecution is usually left trying to prove the offence from observations alone, which is a much weaker case.
Can the prosecution prove you were driving?
What you’re facing if you are convicted
For a first offence with no other major offence in the previous five years, section 110 sets these maximums: 20 penalty units for novice, special and low range (a penalty unit is currently $110, so $2,200); 20 penalty units or nine months imprisonment or both for mid range; and 30 penalty units or 18 months imprisonment or both for high range.
Disqualification is separate and comes from section 205. For a first major offence in five years, novice, special and low range carry automatic disqualification of six months, which the court can reduce to no less than three months. Mid range carries 12 months automatic, reducible to no less than six. High range carries three years automatic, reducible to no less than 12 months. Police can also suspend your licence immediately, or within 48 hours, under section 224.
A court can still deal with the matter without recording a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999. That’s a discretionary outcome and it has to be earned with proper preparation.
Common questions
Can police breath test me in my driveway?
Possibly not. Schedule 3 prevents a police officer requiring a test at your home, and a driveway attached to your home will often fall within that. It depends on the property and where the officer made the requirement, so the exact layout matters.
What if I only moved the car a few metres in a car park?
Distance doesn’t matter. Being in control of the steering, movement or propulsion of the vehicle is enough to be driving. Whether police could lawfully breath test you is a separate question, because their power under Schedule 3 depends on a reasonable belief that you were driving on a road.
I admitted to police that I had been driving. Is that the end of it?
No, but it makes the case harder. Admissions are often the strongest evidence the prosecution has on the driving element. Whether the admission is admissible, and what it actually established, still has to be examined. Get advice before you say anything further.
Do I have to go to court, or can I just pay a fine?
Low, special and novice range first offences can sometimes be dealt with by penalty notice, which involves a fine and a suspension rather than a court appearance. Mid range and high range matters go to the Local Court. If you’ve received a court attendance notice, you or a lawyer have to appear.
Get advice before you say anything else
If police have charged you with drink driving over an incident where you weren’t behind the wheel when they arrived, the case turns on evidence that can be tested. Call Blackridge Law on 02 9159 9010 to talk through what actually happened and what the prosecution can prove.
This article is general information about the law in New South Wales and is not legal advice. Every case turns on its own facts, so please contact us about your situation.