How Can I Be Charged If I Wasn’t Driving? Understanding ‘Attempted Use’ Offences in NSW
You leave the pub late at night, realise you’ve had too much to drink, and decide to sleep it off in your parked car. You never start the engine, but hours later, you’re woken by police tapping on the window. You’re breath-tested, over the limit, and then charged with a drink driving offence.
“How is that legal? I wasn’t even driving!”
In NSW, under the Road Transport Act 2013 (NSW), you don’t actually need to be driving to be charged. You can still be found ‘use or attempted use of a vehicle’ and that’s enough to lead to criminal liability.
At National Criminal Lawyers®, we regularly defend people in situations just like this. Understanding the law and its nuances can make the difference between a conviction and a dismissal.
What Does ‘Use or attempted use’ Actually Mean?
Under section 112 of the Road Transport Act 2013 (NSW), a person can commit an offence even without driving, if they are:
- Occupying the driver’s seat of a vehicle and attempting to put it in motion while intoxicated; or
- Supervising a learner driver while under the influence (provided they hold a full licence);
- Driving the vehicle while over the legal alcohol or drug limit.
So, even if your vehicle is stationary, you may be committing an offence if you’re in the driver’s seat and appear to be preparing to drive or attempting to move the vehicle while intoxicated.
This means you can still be charged even if the engine is off or the car is parked.
- Legally parked
- Stationary and off
- On private or public land
Key Legislation: Section 112 of the Road Transport Act
It covers:
- Low-range PCA (0.05–0.079)
- Mid-range PCA (0.08–0.149)
- High-range PCA (0.150 or more)
Penalties can include:
- Licence disqualification
- Fines up to $3,300 (first offence)
- Imprisonment for high-range or repeat offenders
- Alcohol interlock orders
Maximum penalty:
(a) in the case of a first offence – 30 penalty units or imprisonment for 18 months, or both, or
(b) in the case of a second or subsequent offence – 50 penalty units or imprisonment for 2 years, or both.
Hypothetical Case Example: In Charge While Sleeping It Off
The accused was found asleep in his car with the keys in the ignition. He was over the legal limit. Although the car wasn’t moving, the court found he was in a position to drive and still in charge.
Key factors:
- He was in the driver’s seat
- The keys were in the ignition
- There was no firm plan for alternative transport
The conviction was upheld. This case shows that even responsible decisions, like sleeping in the car, can still result in a charge.
How Do Police Prove You Were ‘Using or Attempting to Use’?
Police rely on circumstances like:
- Were you in the driver’s seat?
- Were the keys in the ignition, centre console, or your pocket?
- Was the engine on or warm?
- Were you alone?
- Did you intend to drive or have no alternative transport?
If the answer to one or more is ‘yes’, police may form a reasonable belief that you were in charge while intoxicated.
What Are the Legal Defences?
At National Criminal Lawyers®, we regularly argue that our clients were not in charge by proving they:
1. Had No Intention or Ability to Drive
- Slept in the back seat
- Keys were locked in the boot
- Car battery was flat or vehicle unroadworthy
2. Took Reasonable Steps to Avoid Driving
- Booked a taxi or ride-share
- Contacted a friend to collect them
- Had made arrangements to sleep and not drive
3. The Police Test Was Unlawful
- Breath test occurred outside the 2-hour limit
- Test wasn’t properly explained
4. Honest and Reasonable Mistake
If you genuinely believed you were not committing an offence and that belief was reasonable (e.g. being told by police you could sleep in the car), it may be a defence in limited situations.
Strategy: Don’t Just Plead Guilty
“In charge” offences are not straightforward. Even if you’re over the limit, you may have a solid defence.
In many cases, we help clients secure:
- Dismissals under Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Conditional Release Orders (CROs) without conviction
- Reduction from high-range to mid-range PCA based on blood test variances
And in some cases, we beat the charge entirely.
FAQs
Is it illegal to sleep in your car after drinking?
Not necessarily, but it becomes a criminal offence if you’re still considered “using or attempting to use” your car.
Can I be charged if the car was off?
Yes, if the keys were accessible and you were in a position to drive.
What if I didn’t plan to drive?
Your intention is relevant… but not conclusive. Courts look at what a reasonable person would think you were likely to do.
Does being on private property make a difference?
No. “In charge” offences apply on private and public land.
Final Thoughts: Know the Law Before You Sleep It Off
While it may feel unfair, the law in NSW allows police to charge you with a drink driving offence even if you weren’t driving, just being “in charge” is enough.
That’s why it’s essential to speak to a lawyer before accepting guilt. There may be defences, procedural flaws, or alternative sentencing options that can protect your licence, job, and record.
At National Criminal Lawyers®, we:
- Defend in charge drink driving offences across Sydney, Parramatta, Penrith, Blacktown, Wollongong and Mt Druitt
- Fight for Section 10 non-conviction outcomes
- Challenge PCA test procedures and police assumptions
📞 Call 1800 CRIM LAW today to speak with a drink driving while parked lawyer Sydney.
We fight harder — because you shouldn’t lose your licence for doing the right thing.
