In Germany, there are numerous traffic rules designed to increase road safety. These rules range from speed limits to banning drink-driving and using cell phones while driving. The latter has become a particularly important issue in recent years, as more and more people use their smartphones while driving. The use of apps that warn of traffic enforcement measures is particularly problematic because they help to circumvent traffic laws.
One such app that warns of traffic monitoring measures is the popular application "Blitzer.de". This app informs drivers about the location of mobile and stationary speed cameras, thus helping them to avoid fines. However, the use of such apps is illegal in Germany and can lead to heavy fines.
But who is actually responsible if a passenger opens such an app on their cell phone while driving? Is the driver of the vehicle solely responsible for the offense, or can the other passengers also be prosecuted?
In principle, the driver of a vehicle is responsible for observing traffic rules while driving. This means that the driver is responsible for ensuring that all passengers in the vehicle comply with the applicable traffic rules. So if a passenger opens an app that warns of traffic enforcement measures while the driver of the vehicle is aware of this and does nothing about it, they are committing an offense. He has violated § 23 paragraph 1a of the German Road Traffic Regulations (StVO), which regulates the use of cell phones while driving.
However, there are some gray areas in practice. For example, if a passenger secretly opens an app that warns of traffic surveillance measures and the driver of the vehicle is unaware of it, no blame can be attributed to him. In such a case, it may be difficult to hold the driver responsible.
Even if the driver of the vehicle did not use the app themselves, they can still be held liable if they encouraged the passenger to use the app. In such a case, the driver can be considered an accomplice.
This has not yet been decided by the Federal Constitutional Court, but this is how the Higher Regional Court of Karlsruhe sees the legal situation in its decision of February 7, 2023 - 35 Ss 9/23.
On January 31, 2022, a man from the Rhine-Neckar district was driving his car through Heidelberg at significantly too high a speed. He was aware that his passenger had an app on her smartphone that warned of traffic surveillance measures. The Heidelberg District Court fined the driver 100 euros for using the app's warning function. The man then lodged an appeal with the Karlsruhe Higher Regional Court, as he was of the opinion that he could not be held responsible for the actions of another passenger.
On February 7, 2023, the 2nd Senate for Traffic Offenses of the Karlsruhe Higher Regional Court ruled that a driver also commits an administrative offense if another passenger, with the driver's consent, has opened an app on their cell phone that warns of trafficThe court did not uphold the 64-year-old man's appeal.
The Heidelberg District Court had found that the driver had deliberately pushed his cell phone aside when he was pulled over by police for driving erratically. The court concluded from this that the man was aware of the warning function of the app. The Karlsruhe Higher Regional Court confirmed this finding and stated that the district court's assessment of the evidence did not show any legal errors.
The court also emphasized that the use of a "speed camera app" is prohibited by § 23 (1c) sentence 3 of the German Road Traffic Regulations (StVO). Not only the activation of such an app by the driver himself, but also the use by the driver of a "speed camera app" that has already been installed and activated on the cell phone of another vehicle occupant is prohibited and subject to a fine.
Consequently, the fine of 100 euros for the driver remains. The judgment of the Heidelberg District Court was upheld by the decision of the Karlsruhe Higher Regional Court. The court's decision makes it clear that drivers can also be held responsible for the actions of their passengers if they approve of their actions and this results in a violation of the traffic regulations. It is therefore important to be aware of which apps are active on the cell phones of passengers and to disable them if necessary to avoid fines.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.