By Sahar Adatia and Jimmy Singh.
There’s a good reason why you might find yourself asleep in your car: You had a bigger night out than expected and now you’re stuck, unable to drive home.
So, you consider the options…
Of course, you could just get a cab. But cabs are expensive.
Then there’s Uber, but you’re not a fan after hearing stories of people allegedly getting raped (https://www.criminaldefencelawyers.com.au/blog/uber-driver-charged-for-raping-a-17-year-old-girl-in-sydney/).
As for public transport, it’s too late and nothing’s running. You could simply walk, but hey, a five-hour trek in the middle of the night probably isn’t the best idea.
What else is left to do but lay down for a little snooze in your car, right?
It turns out that catching some Z’s in your vehicle with alcohol in the mix is actually a murkier issue than you probably thought.
So, What’s the Deal with Sleeping in Your Car After Drinking?
To answer this question, let’s ask Paul Buffoni, who back in 2015, decided to slumber behind the wheel of his parked car whilst intoxicated (https://www.gladstoneobserver.com.au/news/napping-driver-in-hot-seat/2785731/) and landed himself in a bit of trouble.
As The Observer reports, the 45-year-old man had been on a night out with friends at a Gladstone hotel and after a few drinks returned to his parked car around midnight to have a snooze.
However, in the early hours of the morning, police discovered him napping in the driver’s seat on Roseberry St with the car keys close by.
Mr Buffoni ended up facing Gladstone Magistrates Court where he pleaded guilty to being in charge of a motor vehicle when under the influence. His alcohol reading was 0.269 (https://www.northernstar.com.au/news/readers-penalty-drunk-man-napping-car-too-harsh/2787169/).
He was also in possession of the drug cannabis, which according to Prosecutor Mark Fenlon, was found in clin wrap in a small amount in his trouser pocket.
Meanwhile, Mr Buffoni’s lawyer Jun Pepito said that his client simply had drinks with work friends and decided to go to the vehicle.
“He had no intention of driving, just resting. Unfortunately, he was sitting in the driver’s seat,” he said.
With an alcohol reading of 0.269 – which is five times the legal limit – Magistrate Jeffrey Clarke however said he had been at “a very gross level of intoxication”.
Luckily for Mr Buffoni, thanks to his “impressive” and unblemished driving history, the incident was deemed to be a significant misjudgement on his behalf.
“It is in your favour that you did not put the car in motion. I accept you wanted to get into the car to sleep, not drive but in law you were in charge of the vehicle,” Magistrate Clarke said.
“I hope he learns about binge drinking and the trouble it can get you into.”
Magistrate Clarke also noted that it was very unfortunate that at Mr Buffoni’s age he was involving himself with cannabis.
Mr Buffoni was fined $1,400 and disqualified from driving for 10 months.
The Offence of Sleeping Intoxicated in a Car
As the case of Mr Buffoni highlights, most people understand that they are violating the law if they decide to drive a motor vehicle while under the influence of alcohol (https://www.criminaldefencelawyers.com.au/traffic-law/offences/drink-driving/driving-under-influence/).
But if the owner of the car, realising he/she is not capable of driving safely and lacking a designated driver, decides to have a nap in the car until he/she is sober, things become a little muddy – even if not driving the vehicle is generally viewed as responsible rather than illegal.
If you are over the legal limit in Australia (https://www.criminaldefencelawyers.com.au/blog/the-law-on-drink-driving-in-nsw/) – a blood alcohol reading of 0.05 – and you drive a motor vehicle or attempt to put it in motion, you’re in for a heavy fine, licence disqualification and whole lot of demerit points.
And if you aren’t driving it but you’re drunk and in the driver’s seat, there is still a chance that legal action can be carried out against you.
A Guide on the Law on Attempting to Use of a Vehicle Under the Influence of Alcohol in NSW
Under section 112(1)(b) Road Transport Act 2013 (NSW) (https://www.legislation.nsw.gov.au/#/view/act/2013/18/chap5/part5.1/div2/sec112), it is illegal in NSW to occupy a driver seat of a car or any vehicle if the person who occupies it “attempts to put the vehicle in motion” while under the influence of alcohol or prohibited drugs.
Anyone who does this will face a maximum penalty of up to $3,300 fine and/or 18-months imprisonment and an automatic licence disqualification of 3-years or minimum of 12-months if it is his/her first offence.
If it is his/her second or subsequent offence, the maximum penalty is up to $5,500 fine and/or 2-years jail. It is considered a second or subsequent offence if, in the last 5-years you have a previous conviction for drink driving (or any other ‘major offence’).
In the case of a second or subsequent offence for driving under the influence, a convicted offender will be subject to the interlock program requiring him/her to install an interlock device and participate in the interlock program.
The interlock program will mean that he/she will be disqualified from driving for a maximum of 9-month or minimum of 6-months.
After this disqualification period expires, he/she will then be subject, for the next 2-years, to the interlock participation period. This requires him/her to have an approved interlock device installed in the vehicle.
The device will not allow the vehicle to turn on unless it returns a zero-alcohol reading after blowing into it.
It is important to note, that anyone guilty of drink driving in NSW will not be disqualified from driving, nor will he/she incur demerit points, fine or a criminal conviction, if the court imposes a section 10 dismissal or conditional release order without conviction as a penalty on sentence.
So, what does “attempting to put the vehicle in motion” mean under the law? To be guilty of sitting in the driver seat and attempting to put your car in motion, the prosecution will need to satisfy the court beyond reasonable doubt that:
- You were occupying the driver seat of a car; and
- You intended to drive the car; and
- You did an act or acts that were more than merely preparatory to the driving of the car, which, for example may be a combination of the following factors:
- You had your seat belt fastened; and
- The key was in the ignition of the car.
In NSW, sleeping intoxicated behind the wheel of your car will not necessarily mean you are guilty of driving under the influence (or attempting to put the vehicle in motion) unless there are a combination of those factors or other facts present that can infer that you did attempt to put the vehicle in motion at the time of sitting behind the wheel (Burchell v Goodall  WASC 491).
An example of where you will unlikely be guilty of attempting to put the vehicle in motion while being caught sleeping drunk behind the wheel of your car is if:
- You were sleeping in the driver seat intoxicated; and
- The engine is running for the purpose of having the heater on to stay warm; and
- You don’t have your seat belt fastened; and
- You told the police that you were only trying to sleep with no intention to drive.
Every case is different and will likely have different factors. Due to this, each case will need to be decided on it’s own set of facts.
You Snooze, You Lose
So, if you’re feeling way too drunk to drive in your car and just want to collapse in your driver’s seat for snooze, you can still potentially find yourself in strife.
You may think you’re safe, but simply being in possession of the car keys could be enough to hold you liable.
To put it simply, if you’re thinking of just sleeping it off, you may want to think twice.
Ok, now happy snoozing! (From the couch – not your car.)
Have a question? Contact our 24/7 hotline on (02) 8606 2218.
Our experienced drink driving lawyers appear in all court with offices in Sydney city, Parramatta, Penrith and five other locations in NSW.