It is a little-known fact that, on the basis of § 69 para. 1 of the German Criminal Code (StGB), a driver who from abroad into Germany or otherwise commits crimes with the help of a vehicle (e.g. getaway vehicle in a bank robbery), regardless of the fundamental and well-known criminal liability of such an act, the driver's license can be withdrawn. In court practice, this is done on the grounds that the driver is unreliable and therefore unsuitable to drive motor vehicles. When such a revocation becomes final, the old driver's license expires and the administrative authority may not issue a new driver's license before the end of the imposed ban – six months to five years.
Many drivers have had to deal with this unexpected but common consequence, since the Federal Court of Justice has so far also held the view that when conducting drug-related business while using a motor vehicle, the character referred to above"in all cases" must be denied and only "under very special circumstances, as an exception, could something else apply." A standard example is the import of small to larger quantities of even "light drugs" (hashish or marijuana) from the Netherlands into the territory of the Federal Republic of Germany. In such cases, the above-mentioned federal court case law regularly led to the withdrawal of the driving license before the recognizing regional or district court.
However, the decision of the Federal Court of Justice of November 5, 2002 - 4 StR 406/02 - abandons this case law and no longer allows the assumption that, in the case of a transport of narcotics having been carried out, "as a rule" there is a character unreliability todriving vehicles, is no longer compatible with the sweeping statement that "the offender used his driving license to commit several crimes by picking up the narcotics with his vehicle." This means that the approach taken so far in the practice of local and regional courts, of routinely and sweepingly determining unsuitability of character, will not be tenable.
In the above-mentioned decision, the Federal Court of Justice demands that the courts make an overall assessment. In particular, it should be examined whether "specific traffic interests" are also affected by the alleged offense. For the assumption of a connection between the criminal offense and driving the vehicle, it is also necessary that the behavior of the perpetrator/driver poses an "increased danger to other road users." The court responsible for the assessment and, if necessary, convictionIn order to be able to pronounce the revocation of the driving license, the court responsible for the assessment and, if necessary, the conviction must in any case have established concrete indications that the offender, as a driver, will place his criminal goals above the care and consideration required in traffic.
The decision is to be welcomed, since there is no scientifically provable rule of experience that a driver transporting narcotics is therefore determined to drive in an above-average risky manner in order to escape by endangering other people, even at the cost of endangering other people. The reasons given in the Federal Court of Justice's decision no longer allow for a blanket approach. Rather, the court must weigh up the individual case appropriately to determine whether the driver is suitable or unsuitable to drive motor vehicles.
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.