Donnerstag, 01.04.2021
Using calculators while driving can lead to fines
Decision of the Federal Court of Justice (BGH) of December 16, 2020, 4 StR 526/19
from
Dr. jur. Ingo E. FrommLawyer
Specialist in criminal law
Specialist in traffic law
Give me a call: 0261 - 404 99 25
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Since the previous cell phone ban in the German road traffic regulations was changed in 2017, not only making phone calls with a smartphone while the engine is running can be punished with a fine. Even a calculator is considered an electronic device in the sense of Section 23 (1a) of the German Road Traffic Regulations (StVO). This has been decided by the Federal Court of Justice (BGH). The question had previously been assessed differently in case law, in particular the Higher Regional Court of Oldenburg – case number: 2 Ss OWi 175/18 – refused to consider this behavior as unlawful.
Questionable interpretation by the Federal Court of Justice
The Federal Court of Justice ruled that all calculators fall under the section of the StVO, regardless of whether data is transferred to the device and whether the device has a memory function. This view can only be regarded as extremely dubious. It is certainly true that the revision of § 23 para. 1a sentence 1 StVO has brought with it technical changes, but this does not mean that pocket calculators fall under the regulation. It is noticeable that the legislature's "open-technology approach" was primarily intended to cover current (entertainment) electronic devices, which does not quite fit with a conventional pocket calculator that has been around for 50 years. The long-known device of a calculator is in any case missing from the list of prohibited items.
Push back against self-serving lies
In the matter, the decision of the Federal Court of Justice was probably also guided by the desire to put a stop to the popular protective claim of those affected in the fine proceedings in order to relieve the courts in the future. The decision of the Higher Regional Court of Oldenburg had apparently led numerous parties concerned, or their defense counsel, to claim that the photo did not show a smartphone but a calculator. The decision of the Higher Regional Court of Oldenburg may therefore have been a "thorn in the side" of many judges. Now another gap has been closed, making it more difficult for the person concerned to defend themselves against the accusation.</p>
Uncertainties of witness statements
From a lawyer's point of view, main hearing dates often leave a bad taste in the mouth when the police officer – understandably – has no memory of the incident or the person concerned several months after the observed cell phone violation. As a rule, the witness does no more than state that he "usually only reports clear, unquestionable observations of mobile phone use". Nevertheless, convictions are often handed down under the provision. This legal action is supported by the higher regional courts. It is now recognized that a person can be convicted on the basis of a witness statement even if the witness cannot remember the specific incident.
Recently, however, there have been more and more reports in the media about cases of illegal cell phone use in which drivers feel they have been wrongly convicted.
Consultation with a specialized Lawyer and Specialist Lawyer for Traffic Law is highly recommended.
[1] www.schwarzwaelder-bote.de v. 03.06.2020 ("Cell phone violation at the wheel: man sees himself wrongly convicted"); Did police duo testify falsely? Rhein Zeitung, 23.07.2020.
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.