Can I Drink Alcohol While in a Car?

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We all know that drink driving is against the law in NSW – but what about drinking while behind the wheel if you stay below the blood alcohol limit?

Drinking alcohol while driving is against the law in NSW – which may not be surprising to most. But this wasn’t always the case: it was just over a decade ago that this gap in the law was closed. Before this, cruising around town while casually sipping a beer was perfectly legal, as long as your blood alcohol concentration (BAC) stayed below the legal limit.

The law against drinking while driving was previously contained in the Road Rules 2008, but this legislation has been repealed. An equivalent provision is now found in regulation 298-1 of the NSW Road Rules 2014, which states that a driver must not consume alcohol while driving .

A ticket currently carries a penalty of $311 and three demerit points. But if you choose to challenge it in court and are unsuccessful, the maximum fine is $2,200.

What about other parts Australia?

Other Australian states have similar laws. For example, Queensland has the offence of ‘drinking liquor while driving’ which carries a maximum penalty of $2,277.

But no such law exists in the ACT – so it is currently legal to drink while driving in our nation’s capital, provided that you stay below the legal blood alcohol limit and are not driving in a negligent manner. ACT Justice Minister Shane Rattenbury is currently seeking to rectify this anomaly by presenting a bill in the ACT parliament which brings the territory in line with the rest of Australia.

What if I am a passenger?

NSW legislation only refers to drivers, so there is currently no restriction on passengers drinking alcohol while in a car.

However, passengers are not allowed to consume alcohol on public transport such as a bus, train, taxi or ferry. This includes being in possession of an open container of alcohol.

The maximum penalty for consuming alcohol on trains and other public transport is $1,100, while the standard the penalty notice amount is $400. Eating or drinking in a taxi is an offence carrying a maximum fine of $550 – but passengers are allowed to drink water, or consume food for medical reasons.

What about eating while driving?

It may seem logical that drinking while driving is against the law – but what about consuming food or non-alcoholic drinks?

Food can certainly be a distraction when driving. Last year, ex-Premier League footballer Marlon King was found guilty of dangerous driving after his enjoyment of an ice-cream inadvertently caused a three-car pile-up.


A study by Griffith University in Queensland found that eating messy foods like burgers can affect a driver’s concentration to the same extent as texting. Interestingly, most participants did not perceive eating as equally distracting as texting, although their performance was just as bad.

The test also looked at drinking non-alcoholic beverages, such as water from a bottle – but found that drinking did not affect driving in the same way as eating messy foods or texting because the task was simpler and required less concentration. Similarly, eating a few sweets did not noticeably affect concentration levels.

The law

There is no specific law in NSW banning you from eating while driving; but if it distracts you to the point of driving unsafely, you may be charged with negligent or even dangerous driving, especially if you have a crash . So perhaps it’s better safe than sorry.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.


  1. Ian Bird

    Hello Ugur Nedim,

    Great article. I have a question.
    Do you know if any of these alcohol and/or food laws apply to passengers in Uber vehicles in NSW?

    Thanks in advance,
    Ian Bird

  2. Donald

    We know, that is all wrong, all deeds when driving are arestable, eating, drinking, smoking. Opened bottles, and cans find a disorder neccessary infringement. Technicals charge any in driver seat, inhiberated, drinking, or such, by physical materiality, wheel, peddle, gear.

  3. Johnny Ali

    Australian Law makes are muther fucken dumb.
    Is ACT outside Australia?
    Mariguana is legal there
    Drinking while driving is legal there..
    Just because cock suckers live there they can do anything?
    Cunt of a country when it comes to laws

  4. Chris

    I’m trying to find an answer to my question… if I go to a friend’s, have a beer and leave with the beer, get into my car and drive home, but not once consuming the beer in the car, and get pulled over, is this illegal.?

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