‘Drinking (Water) and Driving’ – The Relevant Road Rules in NSW

There has been controversy over the fact that a Queensland driver was issued with a $173 fine and 1 demerit point by police for drinking water at the wheel on a 39-degree day. This was on the basis that the driver had breached a Queensland road rule prohibiting drivers from driving ‘without due care and attention’ (see section 83 of the Transport Operations (Road Use Management) Act 1995(Qld)). Queensland Police Superintendent, David Johnson, stated that it will depend on the circumstances if someone who is drinking behind the wheel is driving without due care in a way where they are not in control of the vehicle, and acknowledged that people who do consume drinks while driving will often do it in a safe manner. This article will explore whether you can get in trouble for consuming a drink behind the wheel in NSW.

The NSW Road Rules

There is no strict prohibition of consuming a drink or eating food behind the wheel of a car in NSW. However, you cannot consume alcohol while driving (see rule 298-1 of the Road Rules 2014 (NSW)). The relevant road rules that the NSW police could issue you an infringement notice are section 117(1)(c) of the Road Transport Act 2013, which prohibits driving ‘a motor vehicle on a road negligently’, and rule 297(1) of the Road Rules 2014 (NSW) which prohibits driving a vehicle ‘unless the driver had proper control of the vehicle’.

Both of these offences carry a $457 on-the-spot fine and 3 demerit points. The maximum fine for the ‘negligent driving’ offence is $1,100 and the maximum fine for the ‘proper control’ offence is $2,200 if the matter is taken to Court.

A driver will drive negligently if they did not drive in a manner that a reasonable and prudent driver would have driven in all the circumstances. Drivers will often receive an infringement notice for this offence when they have been in a collision for which they are at fault. However, the list of circumstances in which the police can give you an infringement notice is long and extremely varied.

In regards to the ‘drive without proper control’ offence, this is another offence where the number of driving behaviours that could lead to liability are wide and varied. A classic example of this offence would be someone using their knees to steer the wheel while holding items in their hands, such as a mobile phone. A police officer will usually issue you with a fine for this offence if they have made a subjective assessment that your driving behaviour meant that you did not have proper control.

Well, Can I Eat And Drink Behind The Wheel?

The short answer is ‘it depends’. If you wish to eat food or drink a drink behind the wheel, you should use your common sense and ask yourself the questions, ‘would a reasonable and prudent driver drive while trying to eat this food or drink this drink?’, and ‘do I have proper control of the vehicle whilst I eat this food or drink this drink?’. If the answer to either of those questions is ‘no’, then you should wait until you finish your drive. Of course, there are methods you can use to ensure you are driving safely while you drink or eat, for example, using a straw to ensure you don’t block your sight while drinking. However, it is also wise to err on the side of caution, and if you are unsure, you should always refrain from eating and drinking while driving.


Whether the police pull you over for eating or drinking behind the wheel will often depend on the particular views of the police officer. It may be possible to challenge the infringement notice in court on a not guilty plea, especially in the circumstances where the Queensland driver was fined for drinking from a water bottle. If you have been issued an infringement notice for ‘negligent driving’ or ‘driving without proper control of a vehicle’, it is highly recommended you seek out a solicitor experienced in traffic law to advise you on your options.

The solicitors at KPT Defence Lawyers have many years of experience in traffic law matters. If you or someone you know has run into some trouble on the road, please do not hesitate to contact us.

*Disclaimer:This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*

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