Just sleeping it off? You may want to think twice
TOUGH State Government laws could see ill-informed drivers with the best of intentions being charged with drink driving-related offences.
Maroochydore criminal lawyer Chelsea Emery sees a steady flow of drivers caught out under laws which encompass not only with driving under the influence, but also anyone in charge of a vehicle.
Sleeping off the effects of a big night in your car, or even waiting in it for someone to pick you up and take you home can land you in more trouble than most suspect.
The subsection of the applicable Act, s79 spells it out: "Any person, who, while under the influence of liquor or a drug, is in charge of a motor vehicle is guilty of an offence".
"In charge" are the operative words.
Ms Emery said intent to drive was not relevant. If you have the keys you are in charge.
If you have been drinking and have the keys stay away from the vehicle, or hand control - by handing over the keys - to someone else.
"My advice to clients/friends, is that if they are going to sit/sleep in a vehicle they must hand the keys over to someone and that throwing the keys in the backseat is not divesting themselves of the charge of the vehicle," Ms Emery said.
WHAT'S NEWS TODAY
- MH17 bodies 'bundled into body bags and loaded onto train'
- Wayne Bennett to return in Brisbane Broncos shake-up
- George Gerbic's loved ones struggle with loss
- Allison Baden-Clay blasted husband for 'boy's fantasy'
"There is a very limited defence contained within the legislation."
The issue was settled in a matter involving a defendant who was sitting in his car waiting for family members to collect him.
He had a blood alcohol reading was 0.271%.
When police arrived he was found in the drivers' seat with his keys in his lap. The magistrate found him not guilty.
The police appealed the decision successfully given the defendant had been in charge of the vehicle and had not handed it over to any other person.
The court found he was physically present at the vehicle with the keys and occupying the driver's seat so that he was apparently exercising physical control over the vehicle.
The court went on to say that the fact that he had no intention of driving was irrelevant.
What matters is that he was in a position to drive the vehicle if he chose to do so.
"The judge in the case above did go on to say that sleeping it off in the car involves a good deal less criminality than actually driving a vehicle in an intoxicated state, yet the penalty regime which has been imposed does not take account of this distinction which he stated was regrettable," Ms Emery said.
"I agree because depending on your reading you may receive a minimum disqualification of licence of between one and six months."