In Australia, the dangers of drink-driving are well known. We have almost all viewed and been exposed to the government funded Road Safety Commission television advertisements and educational campaigns. It is generally common knowledge amongst license holding Western Australian’s that driving with a blood-alcohol level of over 0.05% is illegal. However, not many people know that sitting in a stationary car and drinking alcohol, or being under the influence of alcohol, may also be against the law.
According to Section 63 of the Road Traffic Act 1974 (WA):
- A person who drives or attempts to drive a motor vehicle-
- While under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
- While under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
- While under the influence of alcohol or drugs to such an extent as to be incapable of
having proper control of the vehicle,
commits an offence, and the offender may be arrested without a warrant.
In order to determine whether or not a person is under the influence of drugs or alcohol, Section 66 of the Road Traffic Act relevantly states that:
- A police officer may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test in accordance with the directions of the police officer, and for the purposes of this subsection may require that person to wait at the place at which the first-mentioned requirement was made.
A person may therefore be charged with drink-driving if they are over the legal blood alcohol limit and they are:
- Driving a motor vehicle; or
- Attempting to put a motor vehicle into motion; or
- ‘In charge’ of a motor vehicle.
A person will be determined to be ‘in charge’ of a motor vehicle if they have the ability to exercise physical control over it. This is a broad definition which encompasses a range of situations, such as: sitting in an idling vehicle; sitting in a stationary vehicle while in possession of the keys; or even sleeping behind the wheel of a stationary vehicle.
Whether or not a person is determined to be ‘in charge’ of a vehicle will depend upon a combination of the following factors:
Location of the Person
The location of the person is a key factor in determining whether or not a person is ‘in charge’ of a motor vehicle. Put simply, the closer the person is to the ignition of the vehicle, the more likely they are to be determined to be ‘in charge’ of it. For example, a person is sitting in the driver’s seat is, by nature, far more likely to be able to exercise physical control over the vehicle than a person who is sitting in the backseat.
Location of the Car
Another important factor in determining whether or not a person is ‘in charge’ of a motor vehicle is the location of the car. The location of the car will not only give police an indication of whether the person was driving before the offence occurred, but the extent to which putting the car into motion may have presented a danger to the public. For example, a person parked in their own driveway may present less of a concern to police than someone who is parked on the side of the freeway or on a major street in a busy area.
Location of the Keys
The location of the keys will also play an important role in determining whether or not a person is ‘in charge’ of a motor vehicle. Given that keys are required to start the engine of most motor vehicles, not having possession of them would indicate to police that a person is unlikely to be able to exercise physical control over the vehicle. The keys being located in a person’s bag, on the backseat of the vehicle or in the boot would also be more favourable than being found in the ignition, for example.
Status of the Engine
Like the location of the keys, the status of the engine will play a critical role in whether or not a person is determined to be ‘in charge’ of a motor vehicle. For example, if the vehicle’s engine is running, a person is far more likely to be able to exercise physical control over the vehicle than if it had been turned off. However, the status of the engine may also be mitigated by other factors, such as the location of the driver and how alert they appear to be. For example, a person sleeping on the backseat of their car may be able to justify the engine running for the purposes of air conditioning while they sleep.
Level of Alertness
The final factor in determining whether or not a person is ‘in charge’ of a motor vehicle is how alert the person appears to be; or in other words, whether they are awake or asleep when found by police. A person who is found to be asleep would, from a logical perspective, be far less likely to be able to exercise physical control over the vehicle than someone who is awake. However, a person who is asleep is not automatically excluded from committing an offence and would still need to prove that they were not ‘in charge’ of the vehicle when they were found by police.
Even if a person satisfies each of these factors and is determined to be ‘in charge’ of a motor vehicle, they may still be able to contest this charge if they can sufficiently demonstrate that they did not intend to drive and/or were not in control of the motor vehicle. This may apply in situations where a passenger was drinking alcohol but did not have sufficient control over the vehicle, for example.
Drink driving offences of this nature are a complicated and niche area of law. Due to the complexity of the situation, the specific factual circumstances play a prominent role in any defence.
If the content of this article appears relevant to your circumstances, or if you require assistance with another matter related to Traffic Law, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.