Clarity Law - drivinglaw.com.au

South East Queensland's most experienced traffic law firm

Friday, 16 February 2018 13:35

Can you commit a drink driving offence in your driveway?

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There seems to be some amount of confusion as to whether or not you can commit a drink driving charge in Queensland within a private area such as your driveway, or in a, say a private place such as a car park.

We are often contacted by people who believe they should not have been charged with a drink driving charge as they were not on a road at the time of the offence or worse have refused a breath test as they were in their driveway. 

 

The law

In Queensland the legislation is fairly clear when it comes to drink driving. The police have to essentially prove three things to obtain a conviction for a drink driving offence

  • the first is the fact that the person had alcohol in their system
  • the second is that they were the driver or in charge of the vehicle at the time of the offence
  • the last thing that must be proven is where the offence occurred.

The legislation provides that a drink driving offence can be committed on or upon a road or elsewhere.  The word elsewhere is the key. Section 4 of the Transport Operations (Road Use Management) Act defines elsewhere to mean any place other than a road.

The Queensland courts have also been asked to confirm that a person can be breath tested in their driveway. In Jovanovic v Lucas [2009] QDC 138 a Mr Jovanovic had been driving home, he had stopped near a police car. The police thought this was strange and did a uturn and drove after the car. The police saw Mr Jovanovic drive into his driveway. The police approached him and asked him to provide a sample of his breath. Mr Jovanovic refused saying:

                “I’m in my driveway, you can’t get me”

Mr Jovanovic ultimately refused to submit to a breath test and was charged with failure to provide a specimen of his breath for analysis which under Queensland law is treated the same as a high range drink driving charge.

Judge Samios found the police could ask Mr Jovanovic to provide a specimen of his breath and his refusal was illegal and he was found guilty of the offence. Judge Samios stated that:

That the vehicle was parked at the time on private property involves a common misconception that the law relating to drink driving does not reach into private property… he could be guilty of these offences even though the police asked him on private property to undergo a breath test.

So in essence the definition where a drink driving offence can occur is on a road, or in any place other than a road. So you can see that there is no place where you can be driving and not be potentially charged with a drink driving charge.  

Interesting, a motor vehicle may still be considered a motor vehicle even if it is impossible to drive, although there are occasions where a person is caught in charge of a motor vehicle that is not actually driving a motor vehicle, but occupying the front seat of the vehicle, or being in charge by way of the fact that they have access to the vehicle and was shown intention to drive.

 

Conclusion

The situation may be different in states like New South Wales where you cannot be breath tested in your driveway but in Queensland can you be charged with drink drivng in your driveway or other private property? the answer is yes.

 

How do I get more help or engage you to act for me? 

We have been operating since 2010 and undertaken 1000’s of drink driving charges throughout South East Queensland.

If you want to engage us or just need further information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you
  2. Call us on 1300 952 255 seven days a week, 7am to 7pm
  3. email This email address is being protected from spambots. You need JavaScript enabled to view it.
  4. Visit our main website or drink driving or work licence page

We cover all courts in South East Queensland from the Gold Coast to Brisbane and the Sunshine Coast and out to Toowoomba.  We have 6 offices in South East Queensland to assist people. We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about drink driving. You won’t be chased or hounded to engage us.  Remember its critical you get advice before going to court, a drink driving charge no matter the reading will have an impact on you, your family and your employment or business.  

  

Need more information?

We have a range of articles on drink driving on our blog.  Some of the most recent have included:

This article general information only and not legal advice and is rewritten subject to our disclaimer that can be read by clicking here

Read 2669 times Last modified on Thursday, 20 August 2020 11:37