Clarity Law

Specialist Traffic Law Firm Queensland
Thursday, 31 August 2023 15:51

Can you be charged with drink driving when you did not actually drive?

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People are obviously familiar with how a someone could be found guilty of drink driving when they are pulled over by the police over the limit.  However it is also possible to be found guilty of drink driving even though at the time the police arrived you were not actually driving.  This is the offence of drink driving in charge of a motor vehicle.


The law

Let’s look at the law when it comes to drink driving.  The states that a person can be charged with drink driving if they are over the limit and:

  • drives a motor vehicle; or
  • attempts to put in motion a motor vehicle; or
  • is in charge of a motor vehicle;


So what does in charge actually mean?

The law does not define exactly what being in charge means.   Common sense then applies, could the person in the circumstances be thought of as being in charge of the vehicle?  Some of the more common definitions from dictionaries include:

  • being the person who has control of or is responsible for someone or something
  • In a position of leadership or supervision
  • having control of or responsibility for (something)

If you are say making a call outside of a car you own and that you drove to a location are you in charge? Well if an ambulance came up behind the car and the car needed to be moved, who moves the car, likely the person who owns the car or drove it there.  They therefore are likely to be in charge of the vehicle.


Is there a defence?

Section 79(6) states that a person who:

  1. is not in the driver’s seat of the vehicle; or
  2. is not in the vehicle; and
  3. had manifested an intention of refraining from driving that motor vehicle; and
  4. was not so intoxicated as to be incapable of understanding or forming the intention of refraining from driving that motor vehicle; and
  5. the motor vehicle was parked in such a way as not to constitute a source of danger to other persons or other traffic; and
  6. the person had not in the last 12 months been convicted of a drink driving offence.

is not guilty of the offence of drink driving whilst in charge.


What are some examples?

In Eggmolesse v Bruce the Court of Appeal found that a mechanic, who was intoxicated, that had walked to assist his sister who had broken down had not manifested an intention to drive when he reached through the window to the car and turned the engine on after repairing it and then turned it off almost immediately.

The facts were that Mr Eggmolesse’s sister phoned him and asked him to bring some petrol to the vacant lot as the car in which she was a passenger had stopped. He did not intend to drive any vehicle that day. He walked to the Commodore carrying the petrol, rather than driving there from his home, because he did not have a licence and he was drunk.

When he arrived, she was at the car and its bonnet was open. He was a mechanic. He put some petrol into the car and went to the driver's side. He leant in the window intending to see if the car would start but there was no key in the ignition. He could not turn over the engine, let alone start the car, because the key was missing. He returned to the front of the vehicle to close the bonnet when the police arrived. He was not so drunk that he did not know what he was doing. Before the police arrived, he had also worked on the Commodore's disconnected battery.

He explained that he had replaced it with another battery which was on the ground in front of the Commodore. He had no intention of driving the Commodore and once he realised there was no key in the ignition, he left the driver's side and shut the bonnet.

You can read the case here - Eggmolesse v Bruce 


In Queensland Police Service v Murray the case revolves around the interpretation and application of section 79(6).

The defendant, Mr. Murray, was found by police asleep in his car with the engine running and under the influence of alcohol. The central issue was whether Mr. Murray could rely on the defence provided by section 79(6) to avoid conviction.

Key Facts of the Case:

  • Mr. Murray was found by police in his car, asleep, under the influence of liquor.
  • The car was parked outside a location in Hay Point.
  • Prior to entering the car, Mr. Murray had formed the intention not to drive while under the influence of liquor or drugs.
  • He reclined the back of the driver's seat, lay down on it, and fell asleep.
  • At the time the defendant was so found by the police officers, the rear of the driver's seat had been lowered backwards to its full extent so that the defendant was lying with his legs and buttocks on the front seat of the vehicle and the remainder of his body extending into what is normally the rear compartment of the vehicle.
  • At some point, he woke up and accessed the car keys to activate the ignition in order to lower the driver's window.
  • After lowering the window, he went back to sleep on the reclined seat.
  • Police woke him up and charged him with an offense related to being in control of a motor vehicle under the influence of alcohol.

Key Points from the Case:

  • The court interpreted the provisions of section 79(6) and considered whether the defendant's actions met the requirements for the defence.
  • The defence required that the defendant intended to refrain from driving while under the influence and manifested that intention by occupying a compartment other than the driver's compartment.
  • The court emphasized that the intention not to drive must exist at all relevant times, but brief periods of change in position (e.g., activating ignition) would not necessarily disqualify reliance on the defence.
  • The court analysed the term "occupy" in the context of the defence and concluded that brief movements within the driver's compartment did not necessarily negate the defence if the overall intention was not to drive.
  • The court found that Mr. Murray had manifested the intention not to drive by his actions, and that his brief movements to activate the ignition did not negate his overall intention.
  • The court also considered whether Mr. Murray's actions constituted a source of danger to others, concluding that they did not.
  • The court ruled that Mr. Murray had successfully established the defence under section 79(6) and was therefore not guilty of the offense.

In summary, the court ruled in favour of Mr. Murray, finding that his actions and intentions met the requirements of the defence provided by section 79(6), and he was not guilty of the offense he was charged with.

You can read the case here - Queensland Police Service v Murray [2021] QMC 5


Let’s look at a case where the defence did not work, the case of Foster v Dahl.

  • The case involves Shirley Foster, who was convicted of being in charge of a motor vehicle while under the influence of liquor and/or a drug.
  • A passer-by, Mr. Gorring, found Ms. Foster in her car on the side of the road. She appeared unconscious or barely conscious, but she became coherent and conversed with him after he roused her.
  • The police and ambulance attended the scene. An empty bottle of vodka was found in the car, and she exhibited signs of intoxication.
  • Ms. Foster admitted to drinking and had been drinking vodka. A breath analysis was taken later that afternoon.
  • During the trial, Ms. Foster claimed that she had parked her car with the intention of overdosing on alcohol and pills to kill herself.
  • She was found guilty of the offence by the Magistrate.
  • Ms. Foster appealed her conviction under section 222 of the Justices Act. The appeal was by way of rehearing, where the appellate court had to make its own determination based on the trial record.
  • The appellant's position was that she ceased to be in charge of the car when the keys were taken from her, around 3:20 p.m. The breath analysis was done at 5:30 p.m.
  • The appellant's condition suggested intoxication, and her actions after the keys were removed indicated her continued control over the vehicle.
  • The court examined whether the appellant had occupied a compartment of the vehicle other than the driver's seat with an intention to refrain from driving.
  • The court rejected the defence's argument and found that the appellant had occupied the driver's seat and had not manifested an intention to refrain from driving.
  • The court discussed issues related to the timing of the breath analysis test, the validity of the breath analysis certificate, and the evidence of intoxication.
  • The court concluded that the conviction was supported by the evidence, and the appellant's appeal against conviction was dismissed.


In summary, Shirley Foster's appeal against her conviction for being in charge of a vehicle while under the influence of alcohol or drugs was dismissed, and her sentence was upheld. The court found that the evidence supported the conviction and that the sentence was appropriate considering the circumstances.

You can read the full case here - Foster v Dahl [2009] QDC 45


Lets look at one final case.  The case of Brooks v Spasovski is a significant one in Queensland law. In this case, the defendant, who had consumed alcohol and was substantially intoxicated, requested his family to rescue him and while waiting for them, he decided to wait in his car.  He sat in the drivers seat and threw his keys towards the floor of the car but by error they ended up on his lap, he then fell asleep.

The Magistrate initially found him not guilty because they thought he had formed the intention not to drive.

However, this decision was overturned at the District Court. The court ruled that what mattered was that he was in a position to drive the vehicle if he chose to do so without first taking charge of it from some other person.

This case highlights the broad interpretation of being “in charge” of a vehicle under the influence, which can include simply being in the vehicle with the keys, even with no intention to drive.

You can read the decision here - Brooks v Spasovski [2004] QDC 471



  • The term in charge is not defined by the law so its general meaning will be used. Generally in charge is defined in dictionaries as being the person who has control of or is responsible for something.


  • You can be in charge of a motor vehicle but not actually physically in the vehicle.


  • A defence is available but you must, in addition to other requirements, show an intention of refraining from driving the motor vehicle.


  • This area of the law is complicated and each case will turn on its own facts.
Steven Brough

Steven Brough is the Founder of Clarity Law.  He is one of the most experienced traffic lawyers in Queensland having appeared in court many thousands of time throughout Queensland since 2010.  He has authored over 100 articles about every aspect of traffic law in Queensland.

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