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Criminal Law News VIC

Is Intoxicated Sleeping in a Car an Offence?

Most people understand that they are violating the law if they drive a vehicle while under the influence of alcohol.

But what if the owner of a car, realizing he is incapable of driving safely and lacking a designated driver, decides to sleep in his car until he is sober? That behavior is generally viewed as responsible rather than illegal, but what if, on a cold night, the driver puts his key in the ignition and starts the car so that the heater will keep him warm while he sleeps? Has the vehicle owner committed an offence? 

The starting point in answering that question is section 49 of the Victorian Road Safety Act 1986, which provides in relevant part:
 
 A person is guilty of an offence if he or she
(a) drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle … 
The definition of “drive” found in the Road Safety Act is not particularly helpful. The Act tells us only that “drive includes to be in control of a vehicle.” Guidance can nevertheless be found in Tink v Francis, a decision of the Supreme Court of Victoria published in 1983 that consolidated three cases involving individuals who were steering stalled, pushed, and towed vehicles
.
The three opinions in that case generally agree that driving requires the exercise of control over the vehicle’s movement and direction as well as its propulsion (which might include braking to slow a coasting car that has stalled). The logic of that case suggests that starting a car’s engine without putting it in gear or taking other action to move the car is not driving. 
 
More to the point for our sleeping driver is Doyle v Harvey, a 1923 case holding that an intoxicated person who entered and started the engine but was arrested by a constable before the car moved was not “driving” the car. The court held that staring an engine and shifting a car into gear are acts that are preparatory to driving but do not constitute driving. 
 
The reasoning of Doyle v. Harvey probably means that our sleeping car owner was not driving, but was he “in charge of a motor vehicle”? The Road Safety Act tells us that a person is “in charge” of a motor vehicle if that person “is attempting to start or drive a motor vehicle” or if there are reasonable grounds to believe that the person intends to start or drive the vehicle.
 
Our friend in the car is not driving and does not intend to drive. He intends to sleep until he can drive safely. But he did start the engine — not to drive, but to stay warm. Did he commit the offence of driving under the influence? A strict reading of the law would suggest he did.
 
Support for that result might be found in Davies v. Waldron, in which an intoxicated man started his car and drove it six inches before realizing that he might be arrested. Although he set the car in motion, the court stated that merely starting the engine of his own car was enough to show that he was “in charge” of the car.

To reach that result, the court distinguished the unreported decision in Gillard v. Wenborn, involving an intoxicated man who, like our friend, started his car to activate the heater and then went to sleep in the back seat. The evidence in that case was insufficient to prove an offence because, although there was no dispute that the defendant started the car, there was no proof that he was intoxicated when he started it. While it might seem likely that he was, the police could only prove that he was intoxicated when they awakened him. 
 
Similar reasoning recently convinced the court in Halley v. Kershaw that an intoxicated man sleeping in his running car was not “in charge” of the car while he was sleeping. He may have been “in charge” when he started the car, but the result of a breath test to prove intoxication is valid only when taken within three hours of the time the defendant was driving (or within three hours of the time he was “in charge” of the vehicle). Since there was no proof that the motorist had slept for less than three hours, and thus no proof that he had been “in charge” of the vehicle within three hours prior to submitting his breath sample, he could not be convicted of an offence. 
 
Perhaps the lesson to be drawn is that, if you must start your car before using it as a bed after you have had too much to drink, you should make certain that nobody sees you turning the key. A better lesson is that prudent police officers and reasonable prosecutors should not arrest or charge intoxicated individuals who responsibly decide not to drive, even if they take steps to avoid freezing to death while they sleep off their intoxication.

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