The legalities of roadside/free camping and alcohol consumption.

Submitted: Monday, Jun 03, 2013 at 07:28
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Hi Folks,
I'm wondering if the more learned amongst us can answer this query.
If a person/s is stopped at a roadside or free camp in a public place, what are the legalities of "being under the influence of alcohol whilst in charge of a motor vehicle" should that person decide to participate in "happy hour" and have a few beers, wines etc.
If the camp/caravan was set up for the night would this have any influence on the legalities of drinking?
It may be an unlikely event but could be that someone may be charged with an alcohol related infringement or am I completely wrong?
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Reply By: olcoolone - Monday, Jun 03, 2013 at 07:51

Monday, Jun 03, 2013 at 07:51
You can still get done for that even on private property, if there was an incident where police had to be involved.

But being at a roadside camp you are still in a public area...... think shopping centre, people get caught in them under the influence and charged.

But you have to be caught with the keys in the ignition and you behind the wheel, stupid hey!
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Follow Up By: Mapesy (QLD) - Monday, Jun 03, 2013 at 08:18

Monday, Jun 03, 2013 at 08:18
Yes olcoolone it does seem stupid. I thought however that if you had the car keys in your possession regardless of whether you were behind the wheel, so to speak, then you were in charge of the vehicle...
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Reply By: Member - J&R - Monday, Jun 03, 2013 at 09:34

Monday, Jun 03, 2013 at 09:34
Mapesy is correct.
Keys in pocket, in charge.
Keys in ignition, in charge.
Keys available, in charge.
Keys safely stored in motor home/5th wheeler with you drunk in bed, in charge.

Not even grey areas. Black and white, much to a lot of people's angst.

AnswerID: 512427

Follow Up By: pop2jocem - Monday, Jun 03, 2013 at 10:26

Monday, Jun 03, 2013 at 10:26
If that is correct I could be charged with DUI if I were sitting in my own house with the keys hanging on a nail or in a draw and I had sufficient blood alcohol reading.
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Follow Up By: Homer - Tuesday, Jun 04, 2013 at 17:40

Tuesday, Jun 04, 2013 at 17:40
With respect J&R, the only part of that post that has any merit is the third point and even then you'd need to be in the driver's seat and trying to start the vehicle.
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Follow Up By: get outmore - Wednesday, Jun 05, 2013 at 23:15

Wednesday, Jun 05, 2013 at 23:15
Not quite they still have to prove reasnable intent to drive.
If you have a set up camp then they couldnt.
You just in the drivers seat could well be even if your asleep
If your in any other seat its impossible to drive no matter where the keys are
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Reply By: Member - peter w2 (VIC) - Monday, Jun 03, 2013 at 10:05

Monday, Jun 03, 2013 at 10:05
some vehicles dont have keys, they use thumb/finger prints or remote controllers only to enter the vehicle,,, so what do you do then,,put a band aid on yr finger so it can't be used
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Reply By: Hairy (NT) - Monday, Jun 03, 2013 at 10:26

Monday, Jun 03, 2013 at 10:26
Gday,
Just use common sense and keep it discrete............
I wouldn't be discussing it at all to be honest. Like anything else these days, once Mr. Plod see's a dollar in it they will start Policing it! There goes happy hour...........
AnswerID: 512429

Follow Up By: rocco2010 - Monday, Jun 03, 2013 at 10:33

Monday, Jun 03, 2013 at 10:33
Exactly.

My late brother was a policeman and i think he was only half joking when he told me once that basically, everything is illegal. If you behave in a reasonable fashion most of the time you will be ok, if you draw attention to yourself, trouble will surely find you.

Cheers
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Follow Up By: Hairy (NT) - Monday, Jun 03, 2013 at 11:11

Monday, Jun 03, 2013 at 11:11
A mate of mine has told me the same.......it doesn't matter what your doing, there is a law against it if you do it wrong. A lot of it just comes down to common sense and attitude. Both yours and the coppers.

Cheers
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Reply By: Robin Miller - Monday, Jun 03, 2013 at 10:44

Monday, Jun 03, 2013 at 10:44
Your safe if your a drunk driver with a previous conviction and have an interlock device fitted.

Robin Miller

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AnswerID: 512433

Reply By: Tim - Monday, Jun 03, 2013 at 11:36

Monday, Jun 03, 2013 at 11:36
Too many bush lawyers with no idea.......

See below, sourced from Section 13, Road Transport (Safety and Traffic Management) Act. (NSW)

(1) A police officer may require a person to undergo a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that the person:
(a) is or was driving a motor vehicle on a road or road related area, or
(b) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or
(c) being the holder of a driver licence, is or was occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle on a road or road related area.

As long as you are not attempting to put the vehicle into motion it is not an issue.

As far as breath testing on private property, it is only if it falls into the category of "road" or "road related area". If you ride a motor bike blind drunk in your back yard you have not committed an offence other then stupidity.
Tim
AnswerID: 512438

Follow Up By: Allan B (Member, SunCoast) - Monday, Jun 03, 2013 at 12:18

Monday, Jun 03, 2013 at 12:18
Tim, thank goodness for an authoritative response. Mind you someone will attest that their brother-in-law was done for having alcohol on their breath whilst washing the car in his driveway!! LOL
If some of the earlier replies were correct then you could get done sitting in the passenger seat whilst your wife drove you home from the pub. C'mon already.
Cheers
Allan

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Follow Up By: olcoolone - Monday, Jun 03, 2013 at 16:28

Monday, Jun 03, 2013 at 16:28
This only a small part of the act, you can still be prosecuted with "in control of a motor vehicle" on public or private property....... you are not legally able to put in motion a motor vehicle if you have been drinking.

Same as you can be charged with "discharge of a fire arm" on private property....... it comes down to what and why something happened.

What is a road related area?

About 4 years ago the removed a lot of the conditions surrounding when someone could be charged with an offence.

We have seen it happen a lot in work related laws.
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Follow Up By: Tim - Monday, Jun 03, 2013 at 19:31

Monday, Jun 03, 2013 at 19:31
There is no nice way to put it, you are wrong.

The only driving offences which exist which do not require it to be on a road/road related area involve either death or grievous bodily harm. (Neg drive death/danger drive death).

If you are charged with one of these and you are high range at the time it becomes an aggravated offence (aggravated neg drive death).

All other driving offences contain the proof of road or road related area. (see definition below).

The definition of drive does include a phrase including the words "control of" however that was tested and from case law it means "in control of the steering or propulsion".

If what your saying is true, I can be done while I am sitting in my lounge room with my car keys drinking a beer.

Show me legislation that states otherwise or take my word. I am not posting a resume however I will tell you that this is my bread and butter.


Sourced from the Road Rules 2008 (NSW Only)
13 What is a road related area

(1) A road related area is any of the following:

(a) an area that divides a road,

(b) a footpath or nature strip adjacent to a road,

(c) an area that is not a road and that is open to the public and designated for use by cyclists or animals,

(d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles.
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Follow Up By: 2weis - Monday, Jun 03, 2013 at 22:39

Monday, Jun 03, 2013 at 22:39
i seem to remember that the term "or elsewhere" was added to the definition of where a drink drive offence could be commited .given the police the right to test and charge people on the water ways.
this change then gave them the ability to test and charge people on private property
brian
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Follow Up By: Tim - Tuesday, Jun 04, 2013 at 08:19

Tuesday, Jun 04, 2013 at 08:19
2weis, I am not posting my opinion or vague thoughts. This is legislation, can you see the term "or else where" anywhere in the legislation? It is very specific. Testing can only be done on private property that is defined as above "open to or used by the public etc etc" meaning that places such as car parks are valid locations to breath test.

Maritime law is completely different. Without researching legislation on that, I have no idea of the ins and outs. I believe on a vessel you may very well face the possibility of being tested if you are in charge of the boat even if it is moored or anchored. I don't pretend to know this legislation because I don't know it.

Tim
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Follow Up By: Member - PJR (NSW) - Tuesday, Jun 04, 2013 at 09:02

Tuesday, Jun 04, 2013 at 09:02
Tim

There is another post here saying: "we could never live for more than an hour without breaking some law"

While the situation is ludicrous and maybe in fact true wouldn't it then come down to the intent to do something wrong or the like. Wouldn't it be tossed out and the officer may get a "posting to Siberia"?

Courts aren't stupid. Maybe too lenient sometimes, but not stupid and not to made a mockery out of. Mate I do not really know how to say it. I hope you get my "intent" Hi!

Phil
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Follow Up By: 2weis - Tuesday, Jun 04, 2013 at 09:33

Tuesday, Jun 04, 2013 at 09:33
tim
copy and paste of qld road rule 7.5.1 (im sure other state are similar)
i havent counted the number of times the term elsewhere is mentioned but i think it is in there somewhere and this is not maritime legislation
hope this makes up for my previous sin of giving an opinion


7.5.1 Authority to breath test
Section 80(2) of the Transport Operations (Road Use Management) Act (TORUM Act) provides the authority for an officer to require a person to provide a specimen of breath for a breath test if the officer has found such person, or suspects on reasonable grounds that such person, was during the last preceding three hours:

(i) driving a motor vehicle, tram or train on a road or elsewhere;

(ii) attempting to put in motion a motor vehicle, tram or train on a road or elsewhere;

(iii) in charge of a motor vehicle, tram or train on a road or elsewhere; or

(iv) driving or in charge of or attempting to put in motion a vessel being used or apparently about to be used in navigation.

Section 80(2A) of the TORUM Act provides that an officer may require a person to provide a specimen of breath for a breath test where a motor vehicle, tram, train or vessel is involved in an incident resulting in injury to or death of any person or damage to property if the officer suspects, on reasonable grounds, that such person was:

(i) driving or attempting to drive the motor vehicle, tram or train on a road or elsewhere;

(ii) in charge of the motor vehicle, tram or train on a road or elsewhere; or

(iii) driving or in charge of or attempting to drive the vessel;

at the time of the incident.

7.5.5 Breath test result below relevant alcohol limit
PROCEDURE

When the result of a breath test indicates that the concentration of alcohol in the subject person's breath is not over the relevant alcohol limit the subject person cannot be again required to provide a specimen of breath for a breath test nor be required to provide a specimen of breath for analysis or a specimen of blood for a laboratory test based on such breath test.




Issue 18 - December 2011

Last updated 14/11/2012
i
brian

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Follow Up By: Tim - Tuesday, Jun 04, 2013 at 14:42

Tuesday, Jun 04, 2013 at 14:42
All you had to say was Queensland was different and quote your legislation. What I quoted was clearly from NSW hence the "(NSW)".

You appear to know a little about QLD legislation and you could have answered the original post by talking about the exemptions to breath testing in QLD specifically for people who are parked on the side of the road?

As far as driving on private property goes (elsewhere) it begs another question as to what power of entry police have to enter your property?

PJR you are spot on the money, it is up to each individual officer to exercise discretion, as we all know common sense is not as common as it could be. I believe there are specific exemptions written into legislation in QLD for situations such as being camped on the side of the highway but I will let someone (maybe brian????) source that....

Tim
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Follow Up By: Homer - Tuesday, Jun 04, 2013 at 17:35

Tuesday, Jun 04, 2013 at 17:35
In Victoria the offence of exceeding the prescribed concentration of alcohol can happen anywhere. Doesn't have to be a highway/road/road related area. If you are driving on the lawn in your back yard in your car, you can be asked to do a breath test.
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Follow Up By: 2weis - Tuesday, Jun 04, 2013 at 18:46

Tuesday, Jun 04, 2013 at 18:46
homer
i agree with you but at this stage i am still trying to find the act to support it.
but as the question was from qld i thought my previous answer would be enough
brian
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Follow Up By: get outmore - Wednesday, Jun 05, 2013 at 23:19

Wednesday, Jun 05, 2013 at 23:19
Dont forget coppers can do what they like and charge you with whatever they want. .........
Wheather it gets through court is entire ly another matter
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Follow Up By: Member - PJR (NSW) - Thursday, Jun 06, 2013 at 08:34

Thursday, Jun 06, 2013 at 08:34
And police are not idiots. To book Jack for camping where Jack shouldn't have tells me there is more to it. We don't hear about Jack being abusive when being given some polite advice to move further into the bush. Nah!!! Jack won't tell you that. He is a little darling.

When ever I hear of people getting booked for such trivial issues or even for having a swig of the coffee while driving I cannot help but ponder "I wonder what was behind it?.

They also don't want to get a posting to Siberia for being a "public nuisance" and wasting their station supervisor's hard earned budget. Especially when a great deal of it goes to things like searches, safety lectures, Police Boys Club and school visits etc.

No I am not a policeman and I wouldn't be one for quids considering how some people on this forum say about them. Not on your nellie.

Phil
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Reply By: toffytrailertrash - Monday, Jun 03, 2013 at 11:44

Monday, Jun 03, 2013 at 11:44
In all the above suggestions there is one major part that is being overlooked and that is...It must be shown that there was an 'intent to drive'.....end of story..


Cheers

Merv
AnswerID: 512440

Follow Up By: toffytrailertrash - Monday, Jun 03, 2013 at 11:46

Monday, Jun 03, 2013 at 11:46
This is in relation to a charge of "In Charge of a Motor Car whilst under the influence" not in relation to an .05 charge..different kettle of fish.

Cheers
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Reply By: bgreeni - Monday, Jun 03, 2013 at 12:32

Monday, Jun 03, 2013 at 12:32
A number of years ago I did an accident investigation course at the Queensland Police College.

The old Sargent running the course told us we could never live for more than an hour without breaking some law. Said that putting a wheelie bin out while drunk could be construed as being drunk in charge of a vehicle.
AnswerID: 512447

Reply By: Honky - Monday, Jun 03, 2013 at 13:49

Monday, Jun 03, 2013 at 13:49
There has been cases of a person sleeping in a car with the radio on ie keys in ignition after leaving a party.
They do not have to prove that you are going to drive, you have to prove that you did not.
You are guilty until proven innocent.

Honky
AnswerID: 512450

Follow Up By: mountainman - Wednesday, Jun 05, 2013 at 06:27

Wednesday, Jun 05, 2013 at 06:27
the simple fact of being in the vehicle, in THE DRIVERS SEAT.
and under the influence of alcohol will get you done on DUI.

keys dont have to be in the ignition.
the vehicle can be in park, or handbrake on, or in gear.
you will still get done for DUI.

a friend got done like this.
just sitting in the drivers seat was all he did.
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Reply By: craigandej - Monday, Jun 03, 2013 at 16:35

Monday, Jun 03, 2013 at 16:35
Cant believe Im even reading this rot.....How about we all just get on with living.
AnswerID: 512462

Follow Up By: Member - peter w2 (VIC) - Monday, Jun 03, 2013 at 17:01

Monday, Jun 03, 2013 at 17:01
Rot is it well hop in yr car with a skinful and see where the rot sets in
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Reply By: Mapesy (QLD) - Monday, Jun 03, 2013 at 16:44

Monday, Jun 03, 2013 at 16:44
Thank all for your responses. I didn't want to open a can of worms - it was a discussion between a group of grey nomads at the dinner table last night. As in the posts there were a number of "conflicting views".
As stated a "common sense" approach to how much you drink seems logical. I know personally of a chap who was asleep in his car with keys in the glovebox that was breath tested. Maybe an over zealous copper but who knows. Maybe Queensland Laws are somewhat different to NSW??
Anyway I guess we'll keep doing what we are doing in moderation of course...
AnswerID: 512463

Follow Up By: Allan B (Member, SunCoast) - Tuesday, Jun 04, 2013 at 09:35

Tuesday, Jun 04, 2013 at 09:35
Mapesy, to avoid "opening a can of worms" never raise the subjects of Law, Tyres, or Electricity. LOL
Cheers
Allan

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Follow Up By: Candace S. - Tuesday, Jun 04, 2013 at 10:37

Tuesday, Jun 04, 2013 at 10:37
...or ask which is the best 4WD vehicle! ;)
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Reply By: Motherhen - Monday, Jun 03, 2013 at 18:13

Monday, Jun 03, 2013 at 18:13
I would be more concerned about the aspect of drinking in a public place if in a roadside rest area. Some years ago my then university student son was seat on the seat outside a hotel holding an open beer can, waiting for one of their group to return from the toilet. He was done for Street Drinking. Our solicitor checked as some hotel licences cover this area and others don't - this one didn't.

If you are asleep in your caravan they would be most unreasonable to charge you with being in charge of a motor vehicle. Put the stabilisers or jack/jockey wheel down if remaining hitched.

Motherhen
Motherhen

Red desert dreaming

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Follow Up By: Gronk - Monday, Jun 03, 2013 at 20:11

Monday, Jun 03, 2013 at 20:11
If you're asleep in your van...keep the door locked and tell them to pi** off.....lol

Fair dinkum....if you are sitting in your van...blind drunk....it's quite obvious you are not driving....and it would have to be asked, why would a copper be even anywhere near you in the 1st place ??
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Reply By: Alloy c/t - Tuesday, Jun 04, 2013 at 09:36

Tuesday, Jun 04, 2013 at 09:36
You will find that in QLD at least the laws stipulating a public place concerning the consumption of alcohol have recently changed , was always the possibility of being charged while having a b/day party bbq with a beer at the local park for example , schools P&C's could NOT serve a beer at their schools fete without applying for a license and ropping off a designated area etc ,, the laws changed in the last month or so ,but you can still be charged with being DRUNK in a public place.
AnswerID: 512494

Reply By: The Landy - Friday, Jun 07, 2013 at 13:34

Friday, Jun 07, 2013 at 13:34
Um, drink responsibly and it should never be an issue...I guess!

Might pop the top off a stout myself tonight, good long weekend to all...!
AnswerID: 512734

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