Is it illegal for passengers to drink in a car?
The answer is both yes and no, depending on what state or territory you're in. When we look at the legality of alcohol in cars we all too often concentrate our attention on the driver. However, in some states of Australia it is illegal for passengers to consume alcohol in a car – even when the car is parked by the side of the road and switched off!
If you visit Tasmania, the Australian Capital Territory (ACT), Western Australia or Queensland, you need to be aware that it is firstly illegal for anyone to drink alcohol in the car, driver or not. And secondly, it is important to note these states can also convict you of drink driving while you are sleeping in the back of the car after a big night out.
If you’re in Western Australia the government changed the laws around street drinking back in 1988 with the Liquor Control Act to make it illegal to drink alcohol in a street or road, even when parked. This is not the same as being charged with drink driving, however it is still illegal.
Queensland has particularly hard laws around drink driving, where there have been convictions of drink driving made against a person sleeping in their car after a heavy night. The issue is that Queensland finds you “in charge” of your vehicle if you have your car keys on you, or in easy reach (say, sitting on the dashboard, or in the glove box).
As drink driving is a strict liability charge the matter of whether you intended to drive is not important – if you are over the limit, you are therefore guilty. Lawyers in Queensland have suggested handing car keys off to sober people, or not sitting in (or sleeping in) your car while waiting for someone to pick you up, as ways of negating this issue.
For residents of NSW, South Australia, and Victoria there are no pieces of legislation or explicit mentions in law of it being illegal to have an open vessel of alcohol in your car, which means passengers should be able to drink booze while someone else drives (within reason). Of course, the inference remains that the person driving is in full control of the vehicle and remains under the blood alcohol limit for their licence.
If you are a driver supervising a Learner you should be aware you cannot drink alcohol while you are the supervising driver. If you are sitting in the front seat beside the learner, that means you are the supervisor, and therefore your blood alcohol limit must be zero for South Aussies, or 0.05 in NSW, Victoria, Queensland and WA.
This article is not intended as legal advice. You should check with your local road authority to verify the information written here is suitable to your situation before driving in this manner.