This can be a very important question for someone; especially if they think what they are doing is legal, when in fact it is not.
However, like a lot of Law, the answer is not certain until a Judge applies the Law to the relevant facts and makes a determination as to whether the person was "driving" or not.
Following are a couple of examples to highlight the uncertainty...
A young man has had a night out on the town, is well intoxicated and ready to call it stumps and have a sleep. He walks to his car with the intention of having a sleep in his car. He arrives at the car, hops in the driver's seat, reclines it slightly and falls asleep. Shortly thereafter he wakes, shivering from the cold. He puts the keys in the ignition and turns the motor on, starts the heater and falls asleep again. Is he "driving" the car and thus committing the offence of drink driving?
The NSW Law provides that the drink-driving laws apply to you if you “drive the motor vehicle, or occupy the driving seat of the motor vehicle and attempt to put the motor vehicle in motion.”
Given that the evidence of someone who is drunk is going to be doubtful at best, this young man is susceptible to an allegation by the Police that he was drink driving. Given you've got the car with you, you’re tired and cold, a safer approach would be to keep the keys in your pocket, hop in the back seat (if there is one) and carry a blanket in your car.
A young lady is driving along. Her mobile phone rings, she pulls to the side of the Highway, a parking lane, and with motor still running proceeds to take her mobile phone off the passenger seat and answer it. Is she still "driving" the car and thus committing the offence of using her mobile phone whilst driving?
Relevantly, the NSW Law provides that “the driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless: the phone is being used to make or receive a phone call and the body of the phone is secured in a mounting affixed to the vehicle while being so used, or is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press anything on the body of the phone or to otherwise manipulate any part of the body of the phone”.
The only real issue here is... is the vehicle parked? If it's not parked, then she's committing the offence.
We think it more probable than not, that she would be considered to be "stationary" but not "parked". However, a safer approach by the lady in this example would have been to not answer the call until she had stopped in the parking lane and removed the keys from the ignition.
An article taken from the first edition of e-Precedents