Do I Have to Be Driving My Car to Be Charged With Drink Driving?

The Transport Operations (Road Use Management) Act 1985 (Qld) imposes sanctions where a person who is over the relevant blood alcohol concentration:

(a) drives a motor vehicle, tram, train or vessel; or

(b) attempts to put in motion a motor vehicle, tram, train or vessel; or

(c) is in charge of a motor vehicle, tram, train or vessel.

The offence of being in charge of a motor vehicle is one of a cognate, or like nature offence, of “driving” a motor vehicle whilst under the influence of liquor. There are a number of cases which have dealt with this issue where the accused has reclined the drivers seat and turned the radio on while sleeping off a big night. The court has determined that such conduct makes out the offence of being in charge.

A more significant example of being in charge is the unreported case of Elloy v Noble (15/1987 Townsville, 9 June 1987) where the owner of a motor vehicle allowed another to drive his car. It was involved in an accident and the driver absconded leaving the keys in the ignition. While being questioned by police the Applicant leant against the car. His Honour, Judge Wylie DCJ upheld the conviction and found that the Applicant, by his conduct was “in charge” of a motor vehicle.

In other decisions the Court has held that even where the person is outside the vehicle at the relevant time, where they have recently driven it, or are in a position to drive or attempt to drive the vehicle, they are “in charge” and the offence is made out.


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