The Law on Driving Under the Influence of Alcohol (DUI) in NSW

By Sahar Adatia and Jimmy Singh.

It’s official – silly season is around the corner!

And you know what that means. Amongst the shopping, baking, entertaining, cleaning and other crazy array of demands, there’s also a hell of a lot of parties to attend. And for many of us, that means a hell of a lot of drinking too.

Given there’s a pretty good chance that from now until the end of the year you might just find yourself having a bigger night than expected, we thought we’d brush up on some of the drink-driving laws across the state so you can better equip yourself to enjoy the festivities – and not police custody.

Let’s start with a question that many of us have likely thought of and even acted upon: Is it illegal to sleep intoxicated in your car after a night out of drinking?

While it may seem to be the responsible thing to do rather than actually driving your vehicle, according to the law, having a little snooze in your car with alcohol in the mix is actually a muddier issue than you probably realised.

What’s the Big Issue with Sleeping in Your Car After Drinking?

Most of us understand that if you decide to drive a motor vehicle while under the influence of alcohol, you are clearly violating the law.

However, it turns out that even if you simply catch some Z’s in your car whilst intoxicated, you may actually be breaking the law too.

To bring this issue to light, let’s turn to the case of Queensland man, Lloyd Simpson Hillard, who found himself in a dire situation after being discovered by police sleeping in his car while drunk following a night of beers.

As the Queensland Times reports, following a number of beers and an argument with his partner on the night of 17 September 2017, Mr Hillard decided he would simply sleep in his car until the morning.

While the 59-year-old was aware he was over the alcohol limit for operating a car, he decided to turn on the engine of his vehicle to keep warm.

Around 3:12am, police were called to a disturbance on Frangipani Dr in Kingaroy, and it was at this point that they discovered him sleeping in the vehicle.

“The engine was on … and the keys were in the ignition,” Sergeant Bushell said.

“While his reading was 0.096, he had no intention to drive the vehicle but we still caught out by the legislation with keys in the ignition.”

What Mr Hillard Pleaded After Being Caught Sleeping in his Car Whilst Drunk

On 23 October 2017, Mr Hillard faced the Kingaroy Magistrates Court via phone link from Western Australia where he pleaded guilty of being in charge of a motor vehicle while over the alcohol limit.

His defence lawyer, Chris Campbell, said Mr Hillard didn’t realise his actions constituted an offence.

“He doesn’t usually drink alcohol, but accepts he drank too much,” Mr Campbell said.

“The vehicle was parked in the driveway and he didn’t realise it was an offence.”

Meanwhile, police prosecutor Sergeant Bushell said Mr Hillard was unlucky, while Magistrate Andrew Hackett shared a similar sentiment, saying the situation was unfortunate.

“You weren’t intending to drive,” Magistrate Hackett said.

Mr Hillard was fined $500 and disqualified from driving for one month.

The Law on Driving Under the Influence of Alcohol (DUI) in NSW

In NSW, it is a crime to either drive or ‘attempt to put a vehicle in motion’ while occupying the driver seat if under the influence of alcohol or prohibit drug.

As a first-time offender, section 112(1)(b) of the Road Transport Act 2013 (NSW) prescribes a penalty of up to 18-months imprisonment and/or a maximum fine of $3,300 in addition to a compulsory driver licence disqualification period of between 6 to 9 months. At the expiry of that period, you will then be required to participate in a 2-year interlock program.

The interlock program requires an offender to install and use the interlock device for the interlock period. The interlock device will not allow the vehicle to start unless it returns a ‘0’ alcohol reading after it is blown into by the offender who intends to drive the vehicle.

As a second or subsequent offender, the penalty prescribed is up to 24-months imprisonment and/or a fine of up to $5,500, in addition to a compulsory driver licence disqualification period of between 9 months to 1-year, with an interlock participation period of 4-years thereafter.

If the interlock period doesn’t apply due to an exemption, as a first-time offender the automatic disqualification period of 3-years with minimum 1-year. As a second-time offender the automatic disqualification period of 5-years with minimum 2-years.

If pleading guilty to a DUI offence in court, an offender will end up avoiding the above penalties and walk away without a criminal conviction against his/her name if the Judge or Magistrate imposes a section 10 non-conviction sentence for any drink driving charge.

To be guilty of a DUI charge, the prosecution is required to prove each of the following beyond reasonable doubt in court:

1. You either drove or occupied the driver seat of a vehicle; and
2. Intended to drive the vehicle; and
3. While occupying the driver seat of a vehicle, you did an act or acts considered more than merely preparatory to driving it (‘attempting to put the vehicle in motion’).

Technically, sleeping in a vehicle is not illegal in NSW. It only becomes illegal the moment you are under the influence of alcohol while seated behind the wheel and you either drive or attempt to put the vehicle in motion.

Have a question? Call our friendly team 24/7 to arrange a free consultation with one of our drink driving lawyers in Sydney today.

With 8 offices across NSW, we appear across all courts and specialise in drink driving charges.

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