Is It Legal To Drink Behind The Wheel If You Stay Sober?

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Everyone knows that drink driving is against the law. However, what happens if you get caught drinking behind the wheel, take a breath test and are under the legal alcohol limit? Let’s explore the laws of a few different States to find out.

New South Wales

Rule 298-1 of the NSW Road Rules states that all drivers are prevented from drinking alcohol while driving. This is an additional New South Wales rule that was added to the Australian Road Rules.

However, unlike Queensland and Victoria (see below), it does not make any mention of passengers also being restricted from drinking even when supervising a Learner driver. The supervisor must, however, be under the legal alcohol limit of 0.05% just as if they were the driver of the vehicle.

Victoria

Section 49B of the Road Safety Act has similar laws to Queensland which means that drivers are not permitted to drink alcohol while driving. Section 49C prevents passengers from drinking alcohol while supervising Learner drivers.

Interestingly, the laws in Victoria extend not only to drivers but also people who are in charge of a vehicle. This means that although you may be allowed to drink alcohol in your car while stationary in Queensland, you would be breaking the law if you did this in Victoria as you would be deemed “in charge” of the vehicle at the time.

Queensland

Section 300A of the Transport Operations (Road Use Management – Road Rules) Regulation makes it an offence for all Queensland licence holders to drink alcohol while driving, even if your alcohol level is below the legal limit of 0.05%.

In fact, the laws go further and state that supervisors of Learner drivers are also not allowed to drink alcohol while a passenger in a vehicle. This makes sense, given the importance of the supervisor’s role.

South Australia

There is currently no law in South Australia preventing a driver from drinking alcohol while driving, provided that their alcohol reading remains below the legal limit.

A few years ago, however, a Bill was introduced which would have prevented drivers from drinking alcohol. For reasons we’re not aware of, the Bill was never passed which means that it never actually became law. Therefore it may only be a matter of time until laws are introduced in South Australia to bring it in line with other States.

ACT

Road safety laws introduced to the ACT Legislative Assembly in 2014 made it an offense to consume alcohol while behind the wheel of a vehicle. Previously, ACT drivers could drink while driving provided they stayed under the legal blood alcohol limit.

Tasmania

Section 7 of the Road Safety (Alcohol and Drugs) Act makes it very clear that Tasmania does not tolerate the consumption of alcohol in cars by anyone.

It states that:

  • Drivers are not allowed to consume alcohol;
  • Drivers are not allowed to drive if they know that a passenger is consuming alcohol; and
  • Passengers are not allowed to consume alcohol in a moving vehicle.

Therefore it does not matter in Tasmania whether you are a driver or a passenger – you are committing an offence if you consume alcohol while in a moving vehicle.

Western Australia

Although drivers in Western Australia are subject to the usual drink driving laws preventing them from driving over the legal alcohol limit, there does not appear to be any law preventing drivers from drinking alcohol while driving.

Beware of Exceptions

You should be aware that there are almost always exceptions to laws.

While it may appear that a particular state or territory allows you to drink alcohol while driving, there may be other laws which can also have an impact on this issue.

Therefore the best advice that we can give you is to play it safe. You may be charged with drinking alcohol while driving even when you thought it might be legal to do so. Drinking alcohol while driving also greatly increases the chances of you being charged with an actual drink driving offence.

If you desperately need to have an alcoholic drink, finish your journey first and then have your drink. This is the only way you can ensure you are not committing an offence.


You can read up on all the previous instalments of Is It Legal? here.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.


David Abrey is the Principal Lawyer of Harper Finch Lawyers, a traffic and criminal law firm based in Queensland


Comments

    I think you got a Tassie paragraph mixed up with WA
    Western Australia
    Although drivers in Western Australia are subject to the usual drink driving laws preventing them from driving over the legal alcohol limit, there does not appear to be any law preventing drivers from drinking alcohol while driving.

    Therefore it does not matter in Tasmania whether you are a driver or a passenger – you are committing an offence if you consume alcohol while in a moving vehicle.

    Last edited 13/03/17 4:57 pm

    In WA drinking in a car is considered drinking in a public place (unless on private property). So while there may not be specific drinking in car laws, you will be charged with street drinking for having an open beverage in the car.

    Western Australia
    Although drivers in Western Australia are subject to the usual drink driving laws preventing them from driving over the legal alcohol limit, there does not appear to be any law preventing drivers from drinking alcohol while driving.
    But you'd be a dumbass. Any cop seeing you do so would pull you over and find something to ticket you for.

      Won't even be that hard for them either.
      Section 62 of the WA road rules:
      ROAD TRAFFIC ACT 1974 - SECT 62
      62 . Careless driving
      Every person who drives a motor vehicle without due care and attention commits an offence.
      Penalty: a fine of 30 PU.

      http://www.austlii.edu.au/au/legis/wa/consol_act/rta1974111/s62.html

      All they need to do is see you look away from the road to pick up your beer and they can get you.

    I'm pretty sure in Western Australia you are not to have an open bottle of alcohol in the car when driving (e.g. even a half-finished bottle of wine being taken home from a dinner); which would itself preclude drinking it.

    When will the stupidity end, drivers of vehicles not concentrating 100% on controlling a vehicle.
    Listen, thick-heads, NO, and NO, why in the name of stupidity do you do other things apart from driving a vehicle.
    Not driving to the road rules is operating a dangerous weapon beyond what the licence allows, and if unable to comply with the road rules, get your stupid ar'ce's off my part of the road which I pay for by me complying with the road rules, potential killers is what YOU are if you ignore THE ROAD LAWS!

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