The recent arrest of an Adelaide man who was sleeping in his parked vehicle illustrates a question that occasionally arises in South Australia. You can be charged with drink driving, but is drink sleeping an offence?
According to a news report in The Advertiser, the police arrested a man who was sleeping behind the wheel of his vehicle. The vehicle’s engine was running but it was parked in the man’s driveway.
Police were looking for the vehicle after receiving reports that a vehicle matching that description had been seen “swerving all over Ramrod Ave at Hallot Cove.” The police roused the man and gave him a breath test. The result was 0.214. The legal limit in South Australia is 0.05.
Police impounded the man’s car for 28 days and issued an immediate suspension of his driver licence.
The man could be charged with driving with a prescribed concentration of alcohol (PCA). In simple terms, the charge requires proof that he was driving “over the limit” of 0.05.
Another possible charge is driving under the influence (DUI). That charge requires proof that the driver was incapable of exercising effective control of the vehicle due to alcohol consumption.
Either offence requires proof that the accused either drove the vehicle or attempted to put the vehicle in motion while under the influence or over the limit. As defined by the Road Traffic Act in South Australia, “drive” includes being “in control of the steering, movement or propulsion” of the vehicle.
If this is the man’s first offence, he would be facing a fine of $700 to $1200, a minimum 12 month driver licence disqualification, and 6 demerit points if convicted of a PCA offence. Those penalties apply to drivers who test above 0.15. More severe penalties apply if this is a second or subsequent offence.
If convicted of DUI as a first offence, the man would be facing the same penalties plus imprisonment of not more than 3 months. Penalties are more severe for a second offence.
Not all penalties await conviction. An on-the-spot suspension applies to all drivers who have a test result of 0.08 or higher. Clamping or impoundment of a vehicle is also authorized for certain drink driving offences prior to conviction. If the man is convicted, the court can impose a longer licence disqualification or vehicle impoundment than the police ordered.
The facts of the case raise the question whether the man was “in control of the steering, movement, or propulsion” of the vehicle while he was sleeping in a vehicle that was not in motion. Different courts in Australia have answered that question in different ways.
The prosecution may attempt to prove that he was awake and driving on the road while driving with a PCA. That may be a fair inference, but unless witnesses can positively identify the driver (or at least the vehicle) as the one they saw “weaving” on the road, the man might have an argument that he fell asleep without ever leaving his driveway.
Whether the man will be convicted remains to be seen. If you find yourself in a similar position, you should discuss possible defences with a lawyer in your community.