Drink Driving in NSW: What "Driving" Actually Means — And Why It Matters to Your Defence
Why the Definition of "DRIVING" Matters
Every drink driving charge in NSW — whatever the reading — rests on one deceptively simple word: driving. Most people assume that if police find you in the driver's seat with alcohol in your system, the case is over. It isn't. Whether you were "driving" in the legal sense is a genuine question of law and evidence, and it is the element on which contested drink driving cases most often turn.
This article explains what "driving" actually means under NSW law, why a person asleep in a stationary car may not be driving at all, and why the alternative charge of "attempting to put the vehicle in motion" is sometimes preferred.
The starting point: the statutory definition
Under section 4 of the Road Transport Act 2013 (NSW), "drive" includes being in control of the steering, movement or propulsion of a vehicle. The drink driving offences in Part 5.1 of the Act are then framed in two limbs. A person must not, with the prescribed concentration of alcohol present in their breath or blood:
- drive a vehicle; or
- occupy the driver's seat of a vehicle and attempt to put the vehicle in motion.
Each limb has its own requirements, and each has been shaped by case law.
What the courts say "driving" means
The classic statement comes from the English case of R v McDonagh [1974] QB 448, which has been adopted across common law jurisdictions including NSW. Lord Widgery explained that driving refers to a person using the driver's controls for the purpose of directing the movement of the vehicle. It does not matter whether the vehicle is moving under its own power, rolling by gravity, or being pushed — the essence of driving is the use of the controls to direct movement, however that movement is produced.
Two things follow. First, driving is broader than "the engine propelling the car" — steering a car being towed or rolling downhill can be driving. Second, and critically, driving requires the use of the controls to direct movement. A person who is not directing any movement is not driving, no matter where they are sitting.
Driving must be conscious and voluntary
Australian law adds a further, decisive requirement: driving must be a conscious and voluntary act. In Jiminez v The Queen (1992) 173 CLR 572, the High Court confirmed that a person who is asleep cannot be driving. An act committed while unconscious is necessarily involuntary, and involuntary conduct cannot found criminal responsibility for driving. The Court drew on the long-standing principle in R v Coventry (1938) 59 CLR 633 that the driving which forms part of a driving offence must itself be a conscious and voluntary act.
The stationary vehicle scenario
Now apply those principles to a scenario our courts see regularly. Police are called to a car stopped on a road. The occupant is asleep or unconscious in the driver's seat. The ignition may be on. The person is clearly intoxicated, and a later breath analysis returns a reading well over the limit.
Has a drink driving offence been proved? Not necessarily — and often, not at all.
Consider what the evidence in that scenario actually establishes:
- Nobody saw the vehicle in motion. The only observations are of a stationary car and an unconscious occupant.
- A person who is asleep is not driving (Jiminez).
- There is no evidence of when the vehicle was last driven — it may have been stationary for minutes or for hours.
- There is no evidence the person was over the limit at the time of any earlier driving.
- There may be nothing to exclude the reasonable possibility that the alcohol was consumed after the vehicle came to a stop. It is not an offence to drink alcohol while sitting in a stationary car.
The prosecution must prove its case beyond reasonable doubt. Where a reasonable hypothesis consistent with innocence — driving sober, stopping, then drinking — cannot be excluded on the evidence, the charge should fail.
The second limb: "attempting to put the vehicle in motion"
Faced with these difficulties, prosecutors sometimes rely on the alternative limb: occupying the driver's seat and attempting to put the vehicle in motion. It is often assumed to be a catch-all that covers anyone found behind the wheel. The law says otherwise.
The statutory language matters — and the language actually used in legislation is the surest guide to what Parliament intended (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27). The Act requires an attempt "to put the vehicle in motion", which is narrower than the broad concept of "driving".
Under general attempt principles, preparatory acts are not enough. The prosecution must prove an act immediately connected with, or sufficiently proximate to, actually setting the vehicle in motion, done with the intention of doing so (Britten v Alpogut [1987] VR 929; R v Mai (1992) 26 NSWLR 371; Onuorah v R [2009] NSWCCA 238). Acts that might qualify — assessed case by case — include putting the vehicle in gear, releasing the handbrake, applying pressure to the accelerator, or turning the wheel.
The frequently cited NSW authority of McNeall v Croker (No 2) (1939) 56 WN (NSW) 149 illustrates the distinction. The defendant there started the engine and was observed operating the accelerator — a sequence of actions directed at moving the vehicle. That is very different from a person found stationary in a parked car with the engine on and no observed act of any kind.
There is also a structural point in the legislation itself. The second limb presupposes that the person is occupying the driver's seat — that is its precondition. It follows that sitting in the driver's seat cannot, on its own, also constitute the attempt. Even sitting in the driver's seat with the engine running is, at best, preparatory. And where the seatbelt is unfastened and the car has plainly been stationary for some time, there are obvious innocent explanations — sheltering, resting, sleeping it off — that the prosecution must exclude.
Why this matters in practice
The definition of driving is not an academic curiosity. It decides real cases, and it shapes strategy from the very first court date:
Before entering a plea. The facts sheet should be scrutinised for what was actually observed. If no witness saw the vehicle in motion and no act directed at moving it was seen, the driving element may be genuinely in doubt — whatever the reading says.
Early representations. Where the evidence on driving is weak, well-drafted written representations to police seeking withdrawal of the charge can resolve a matter before hearing costs are incurred. If the charge proceeds and the defence succeeds at hearing, those representations can also support an application for costs against the prosecution.
At hearing. The prosecution bears the onus on every element. A defended hearing in a stationary vehicle case will often come down to timing, observation evidence, and whether the innocent hypothesis can be excluded.
Key takeaways
"Driving" is a legal term with a precise meaning: the conscious, voluntary use of a vehicle's controls to direct its movement. A person asleep in a stationary car is not driving, and merely sitting in the driver's seat — even with the engine on — is not an attempt to put the vehicle in motion. Where police find a stationary vehicle and an unconscious occupant, the reading alone does not prove the offence.
If you have been charged with drink driving after being found in a stationary vehicle, do not assume the case against you is unanswerable. Get advice from an experienced criminal defence lawyer before your first court date — the driving element may be the strongest card you hold. For an overview of the different drink driving charges and the limits that apply to each licence type, see our companion article, Drink Driving in NSW: Every Charge Explained.
This article is general information only and is not legal advice. Every matter depends on its own facts. For advice about your specific situation, contact our office to arrange a consultation.
