Careless driving – Is it illegal to eat or drink whilst driving?

Recently it was reported that a man in Queensland was fined for consuming water whilst operating a motor vehicle on a hot day. Whilst the law differs from state to state, it is important to point out that there is currently no law in the state of Victoria which specifically prohibits the consumption of food or non-alcoholic beverages whilst operating a motor vehicle. However, it is considered to be an offence of ‘Careless Driving’ not to drive with due skill, care and attention.[1] For example, if the consumption of food or non-alcoholic beverage whilst operating a motor vehicle causes you to crash into another vehicle, you may be charged with careless driving.

The careless driving offence

It is an offence to drive a motor vehicle on a highway carelessly. A ‘motor vehicle’ includes a vehicle that is intended to be driven on a highway or is built to be propelled by a motor (e.g. a car or motor bike). This definition does not include non-motorised wheelchairs, motorised wheelchairs not capable of a speed more than 10km/hr[2] or vehicles operated by rail (e.g. train, tram).[3]

A Court will determine whether your alleged careless driving meets an objective standard of ‘carelessness’.

Is it illegal to consume an alcoholic beverage whilst driving?

Yes, there is a specific offence in Victoria preventing the consumption of an alcoholic beverage whilst operating a motor vehicle.[4] This is despite the fact your Blood Alcohol Concentration (BAC) may remain below the legal limit of 0.05. It is also an offence to supervise a Learner Driver whilst consuming an alcoholic beverage, even if your Blood Alcohol Content (BAC) remains below the legal limit of 0.05.[5]

These separate offences carry a maximum fine of up to 10 penalty units.

Penalties for careless driving

If you are found guilty of careless driving, but this is your first offence, you may be required to pay a fine of up to 12 penalty units.[6] For second and subsequent offences, you may face a fine of up to 25 penalty units.[7] You will also accrue 3 demerit points if found guilty of a careless driving offence.

You may also have your licence cancelled and disqualified for a period of time, but this is at the Court’s discretion.

Defences Available

You may have a defence to the offence of careless driving if you can establish that you did not operate your vehicle ‘carelessly’ or that the consumption of food or drink did not affect your operation of the vehicle. You may also have a defence to your charge if there is a mistake of fact or it was not yourself who was operating the vehicle at the time the offence is alleged to have occurred. The defence of sudden and extraordinary emergency may also be available to you, depending on the circumstances of your case.

However, it is imperative that you contact an experienced legal practitioner so that the best defence can be identified for your Careless Driving charge.

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[1] Road Safety Act 1986 (Vic) s 65.
[2] Ibid.
[3] Road Safety Act 1986 (Vic) s 3.
[4] Road Safety Act 1986 (Vic) s 49B.
[5] Road Safety Act 1986 (Vic) s 49C.
[6] Road Safety Act 1986 (Vic) s 65(1); As at 1 July 2019, the value of 1 penalty unit is approximately $165.22.
[7] Road Safety Act 1986 (Vic) s 65(1).

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