In the old days good girls were told to stay out of the back seat of cars. But perhaps times have changed.

Not so long ago I acted for a young female doctor who was charged with drink driving. Or, to be quite correct, she was charged with being in charge of a motor vehicle while over the prescribed alcohol limit. She and her boyfriend had driven her car to a friend’s party one night and, after a couple of champagnes, they responsibly decided to leave the car there, and take a taxi ride home.

drink driving charge

Photo: Jason Jarrach


It was a cold night and, as they waited on the footpath for the cab to arrive, they decided to sit in her car to stay warm. They both sat in the front seat and turned on the heater. Big mistake. When a passing patrol car stopped to inquire what the couple were doing, she told them the truth. When they asked her to blow in the bag, she protested she hadn’t been driving and had no intention of doing so. Sadly, the police didn’t care. She was sitting in the driver’s compartment and she had the car keys; that was all they needed to know.

When the good doctor came to see me, I had to break the bad news. There was no doubt the engine was off, and that she had called for a taxi to get home. But had she relinquished control of the car? Not really. Maybe she should have got into the back seat.

The Transport Operations (Road Use Management) Act 1995 is pretty precise as to what is required to beat such a charge, and it’s anything but easy. As an absolute minimum you have to be able to prove beyond reasonable doubt the vehicle was safely parked at the time. Check. No worries there – my client’s car was correctly parked at the curb. You also have to demonstrate, beyond reasonable doubt, an intention to refrain from driving the vehicle. Again, my client was covered – she had called for a taxi, and was certainly not intending to drive home. But unfortunately the act requires more. The driver has to have manifested their intention not to drive by either being out of the vehicle, which unfortunately my client was not, or by at least not occupying the driver’s compartment, which unfortunately she was.

The moral of the story? If you’ve had a few, don’t go anywhere near your car. And if you do, better bunk down in the back seat, not in the front.

Jonathan Nyst
Gold Coast Lawyer

Jonathan Nyst

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