I. Introduction
A significant number of administrative offense proceedings are accounted for by road traffic accidents involving personal injury and/or property damage. The high relevance of these cases under penalty law is evident from the total number of 2,376,346 road traffic accidents recorded by the police in 2012.[1] While the accidents must be settled under civil law by the motor vehicle liability insurance companies and often end up in the civil courts, the behavior of the road user identified by the police or the traffic fine office as being responsible may also be subject to a fine. Accordingly, the question of who was at fault for the accident must also be heard separately by the competent district court with regard to administrative fine law. The chapter examines the interfaces that may exist between the civil proceedings (accident settlement) and the administrative offense proceedings and shows that certain special features must be taken into account when defending against fine proceedings after traffic accidents. The main focus is on presenting the most important lines of defense and showing ways to get the proceedings dismissed or to mitigate the fine. In addition, the particularly practice-relevant problems in defending against allegedly at-fault accidents are discussed and the most important starting points for successful action in the 2nd instance are presented. Finally, it is examined how and to what extent the legal work can be billed in terms of fees.
II. Examples of driver misconduct
Driving errors that are relevant under the law on fines are scattered throughout the entire catalog of fines. According to § 49 StVO in conjunction with § 24 StVG, anyone who causes a traffic accident as a result of not adjusting their speed (§ 49 para. 1 no. 3 StVO) is in breach of the law. According to Section 3 I StVO, the driver may only drive so fast that he can control his vehicle at all times. He must adapt his speed in particular to the road, traffic, visibility and weather conditions, as well as to his personal abilities and the characteristics of the vehicle and its load. According to No. 8.1 of the catalog of fines, this is punishable by a fine of EUR 100 (1 point). Other classic transgressions by drivers that can lead to a traffic accident include violations of the right-hand traffic rule. According to § 2 Abs. 2 StVO, it is possible to drive as far as possible on the right, not only in the case of oncoming traffic, when being overtaken, on hilltops, in curves or in the case of obscurity. According to 4.1 BKat, violations are subject to a fine of 80 EUR (1 point). If an accident occurs because the person involved has turned without allowing an oncoming vehicle to pass, a fine of €70.00 is imposed in accordance with no. 40 BKat. According to § 9 para. 3 StVO, the driver must allow oncoming vehicles to pass if he wants to turn. If a road user overtakes when the traffic situation is unclear, they risk a one-month driving ban (No. 19.1.2 BKat; 300 EUR fine, 2 points) in the event of an accident. According to § 5 para. 3 StVO, overtaking is not permitted when the traffic situation is unclear. Errors when changing lanes are also subject to a fine. According to § 7 para. 5 StVO, a lane may only be changed in all cases if there is no danger to other road users. No. 31.1 BKat provides for a fine of 35 EUR. According to No. 34 BKat, a fine of 100 EUR (1 point) is imposed for violations of the right of way if there is a risk. According to § 8 StVO, at intersections and T-junctions, right of way is given to those coming from the right. According to § 49 StVO, anyone who has committed a traffic accident as a result of not keeping the required distance is considered to be acting unlawfully. A fine of €35 is levied for property damage. According to § 4 Abs. 1 StVO, the distance from a vehicle in front must generally be sufficient to allow stopping behind it even if it suddenly brakes.
III. Course of the proceedings
1. Investigation of the administrative offense
The fines office and the police are required to investigate and clarify the facts of the case that give rise to the suspicion of an offense, § 53 OWiG. In practice, however, the investigations are limited to a minimum. The police, who were called to the accident, file a traffic accident report and often take photos of the damaged vehicles and sketches of the scene of the accident. Furthermore, they estimate the material damage incurred. Furthermore, questionnaires are sent to any witnesses. These often do not come back, making it even more difficult to reconstruct the accident. The police always assign reference numbers (RN) in the accident report. The road user classified by the police as the person at fault is designated by the prima facie evidence as "ON 01", and the other road user as "ON 02". However, the assessments of the police officers recording the accident with regard to the question of guilt or causation are meaningless in terms of fines and civil law. As a rule, the fine authorities do not commission an accident analysis expert report at this stage of the proceedings. This makes it clear that the causes of the traffic accident often cannot be determined with absolute certainty. Nevertheless, the fines office must decide within the limitation period of (only) three months (§§ 24, 26 StVG) whether a fine is to be imposed. If the person concerned wants to keep the case open under both administrative and civil law and has concerns about the administrative assessment of the facts to his detriment, he will have to appeal against the administrative order.
2. procedural obstacle in the case of a warning, § 56 OWiG
It is not uncommon for police officers to issue a warning to a party involved in an accident immediately after the accident on the scene. The warning procedure is a special procedure that precedes the fine procedure. For minor offenses, a warning fine of five to fifty-five euros can be levied in accordance with § 56 I OWiG. According to § 56 II 1 OWiG, a warning is only effective if the person concerned, after being informed of his right to refuse, agrees to it and either pays the warning fine immediately or within a period of time determined by the administrative authority. The fines office may not at a later date consider the offense more serious and impose a new fine. The offense may no longer be prosecuted under the factual and legal aspects, § 56 IV OWiG. The quite common cash payment of the warning fine is acknowledged to the person concerned at the scene of the accident; alternatively, the police officer is to be named as a witness to this process.
3. criminal proceedings for negligent bodily harm
If the traffic accident has resulted in even the slightest injury to any of the parties involved, criminal proceedings for negligent bodily injury (Section 229 of the German Criminal Code (StGB)) will initially be initiated against the person concerned. The public prosecutor's office regularly discontinues these proceedings in the event of triviality, either because there is no public interest in prosecuting the offense (Section 374, 376 StPO) or because the fault is only minor (Section 153 StPO). According to § 43 OWiG, the public prosecutor's office refers the matter to the administrative authority (fines office) if there are indications that the offense can be prosecuted as a misdemeanor. In this case, a decision on the fine proceedings must also be made via the detour of the criminal proceedings.
IV. Defense strategies
1. The necessity of accident analysis reports
Although the opponent is usually summoned as a witness at the hearing before the judge, most judges correctly assume that witnesses are often unable to describe the events objectively and correctly. Often, they are only so-called "bang witnesses" who have only become aware of the event through the sound of the collision. Experience shows that witnesses mix up perceptions with conclusions and thus have stored a wrong scenario in their minds. In addition, witnesses involved in the accident are often partial despite their duty to tell the truth and have a (financial) interest in the outcome of the lawsuit, especially since the accident has often not yet been settled by the motor liability insurance. The opposing witness in the accident generally tends to deny any fault of his or her own.
a.) Expert opinion obtained in court
If the person concerned denies their (joint) responsibility for the traffic accident, the defense requests that the local court obtain an accident analysis expert opinion. Often, the expert brings surprising facts to light in the oral or written report and determines that it was not the person concerned, but the other party involved in the accident, who caused the collision through misconduct, or at least that the other party involved in the accident can be assumed to be predominantly at fault. Simply filing a request for an accident analysis report can also contribute to the dismissal of the fine proceedings, since many judges do not consider this to be appropriate in relation to the charge.
b.) Private expert opinion
If the court refuses to obtain an expert opinion, the person concerned can/should commission a private expert opinion on the course of the accident. In the case of summary proceedings and criminal proceedings, it is not for the person concerned to prove his or her innocence, but rather for the prosecuting authorities to prove fault on the part of the person concerned. However, without a private expert opinion, the signs point to a conviction if incriminating witness statements have been submitted and, for example, an expert opinion has already been obtained by the court.
If you have legal expenses insurance, a private expert opinion is covered by the insurance policy. If it is necessary for the defense in the misdemeanor proceedings, the person concerned has no financial risk and the legal expenses insurer also bears the costs of a private expert opinion as part of the defense against the accusation of a traffic offense – in contrast to civil proceedings (accident settlement). But even otherwise, if the proceedings are pursued, the eligibility for reimbursement of a private expert is to be affirmed if he has been heard in court. [3] Upon request, the court shall order in accordance with § 220 III StPO that the statutory compensation from the treasury be granted to the private expert.
In view of the processing time of several weeks by the expert, it is necessary to commission the private expert in good time so that it can still be taken into account in any fine proceedings. If the vehicle of the person concerned is still available, it is usually necessary to also examine the traces of the accident on the car of the other party involved in the accident in order to reconstruct the traffic accident. The private expert must therefore first request photographs from the insurance companies if the quality of the police photographs in the fine file is insufficient. However, the private expert opinion must be completed at the latest by the time of the hearing on the fine. If the private expert opinion comes to favorable results, it should be submitted in good time before the court date. It is possible that the judge may be willing to drop the fine proceedings on the grounds of expediency in accordance with § 47 II OWiG. If the court does not dismiss the administrative offense and it comes to a date, then the defense should insist on a summons of the private expert, otherwise it is often ignored.
If the court refuses to summon the private expert, for example arguing that an expert has already been appointed by the court, the defense has no choice but to proceed according to the provisions of the self-summoning procedure pursuant to § 220, 38 StPO and § 46 I OWiG. 4] This means that the summons and examination of the private expert appointed by the party concerned can ultimately be enforced.
2. Inspection of the scene of the accident
The district court's decision can also be positively influenced by a judicial inspection. The defense can submit photos of the scene of the crime/damaged vehicle or request a site inspection. This often confirms the defense's claim that the traffic situation at the scene of the accident was confusing for someone not familiar with the area.
3. contributory negligence of the other party involved in the accident
The basis for the assessment of the fine is primarily the significance of the administrative offense and the reproach that attaches to the offender (Section 17 III 1 OWiG). The catalog of fines issued as a statutory instrument in accordance with § 26 a of the German Road Traffic Act (StVG) defines standard rates for traffic offenses in road traffic (see B. above).[5] These rules of the BKatV are also binding on the courts and must be observed by them.[6] However, these assessment guidelines do not release the courts from the obligation to examine the justification of the catalog sentence in each individual case. Mitigating circumstances can therefore lead to a reduction of the standard rate. The court must therefore make it clear that it has considered and taken into account any special circumstances of the individual case. A contributory negligence of the other party involved can be cited as a central argument for the person concerned. While there are traffic accidents in which the factual and legal situation is so clear that one of the parties involved caused the accident alone, there are collisions in which there is a liability quota. For example, a collision can occur as a result of the fault of both parties involved in the accident, e.g. because both road users have not adapted their speed to the traffic conditions (Section 3 of the German Road Traffic Regulations (StVO)) or both have violated the rule of keeping to the right and have thus collided in oncoming traffic. It is not uncommon for the fine file to already document the mutual fault by stating that two fine notices are issued due to the proportional fault of both drivers.
If a civil court has already ruled on the traffic accident and found in a judgment that the other party involved in the accident was at fault in causing the damage (Section 254 of the German Civil Code), it makes sense to bring the relevant positive findings to the attention of the court imposing the fine. Although there is no binding effect of civil law proceedings for the law of traffic offenses and vice versa, [7] a favorable liability ratio established by a civil traffic court, from which it appears that the person involved in the traffic accident was only slightly at fault, can be cited to reduce the fine. The judge hearing the case will generally endeavor to avoid contradictory outcomes in civil proceedings. If it turns out that although the client did violate the right of way at the intersection, at the same time the other party involved in the accident was also subject to the right of way of traffic coming from the right, then, as prescribed by § 8 II S.1 StVO, he must approach the intersection at a moderate speed and be prepared to that he can stop in time if necessary (so-called violation of the "half" right of way).[8] Just as the person entitled to the right of way (the other party in the accident) is jointly liable under civil law, the argument can be made under the law of administrative fines that the person concerned is only partially at fault. The pre-trial settlement behavior of the motor vehicle liability insurance can also be used as an indication of contributory negligence on the part of the other party involved in the accident, which may result in the termination of the fine proceedings. If the opposing party's motor vehicle liability insurance settles 80% of the damages under civil law, it seems an obvious contradiction in terms if the person concerned is now to be fined and have points on their driving license in the regulatory offense proceedings as the only person allegedly responsible.
4. Application of the legal concept of § 60 p. 1 StGB
In the event of significant economic loss (damage to the car, no comprehensive insurance), or physical injury to the person concerned, the fine office or the court may reduce the fine or discontinue the administrative offense proceedings in accordance with § 47 OWiG.[9] This interpretation of the regulation is supported by the legal concept of § 60 p. 1 StGB. [10] According to this, the court can refrain from punishing if the consequences of the offense that have affected the offender are so severe that the imposition of a penalty would obviously be inappropriate. An additional fine would mean that the person concerned would be punished twice. In this case, the imposition of a further fine due to the financial loss already suffered as a result of the misconduct does not appear appropriate. In the form of a legal statement, a statement should therefore be made on the question of whether and to what extent the person concerned has suffered financial damage of his own. Even if the person concerned is correctly classified as the cause of the traffic accident, experience shows that favorable proceedings can be achieved.
5. settlement of the accident opponent's claim
Even the fact that the traffic accident has since been settled regularly causes fine judges to discontinue proceedings or reduce the fine to 55.00 EUR, which is not subject to registration. This is the legal concept of § 46a StGB, according to which, in the case of an effort to make amends for the damage, the penalty can be waived or mitigated. Therefore, when preparing a legal defense, the client should be asked whether they have been informed by their motor vehicle liability insurance about the status of the settlement procedure. The subsequent upgrade by the motor vehicle liability insurance speaks in favor of the settlement of the other party's claim.
V. Review of the district court decision by the Higher Regional Court
If the party convicted in the court of first instance challenges the decision of the lower court due to previous legal errors, it should be noted that there is no second instance in the law on fines. The court hearing the appeal only reviews the judgment for legal errors.
1. appeal against the admission of the appeal, Section 80 OWiG
If the person concerned contests the decision of the district court judge, an appeal against a conviction to a fine of less than 250.00 euros (para. 1) – without a driving ban – is subject to admission, § 80 OWiG. It is permitted if the review serves to further educate the law or to ensure consistent jurisprudence. The reason for admission is given if differences in jurisprudence that would otherwise be difficult to bear were to arise or persist, whereby it depends on the significance of the contested decision for jurisprudence as a whole.[11] This applies, for example, if either procedural principles of fundamental importance have been violated or the judgment is marred by errors and there is either a risk of repetition or the continued existence of the judgment would lead to blatant and obvious, no longer acceptable differences in case law.[12] A reason for admission is said to exist if a judge has violated decades of established case law. [13]
The right of appeal against the admission is further restricted under § 80 II No. 1 OWiG if a fine of not more than one hundred euros has been imposed on the person concerned. Here, procedural objections are not allowed.
Taking this into account, the following must be observed: If the judge rejects the request for an expert opinion, for example because the statement of the opposing witness was sufficient for him, the defense must raise a procedural objection (here: violation of the duty to investigate), the reasoning of which is subject to strict requirements (§ 344 II 2 StPO in conjunction with § 79 III 1 OWiG). This is because the possibility of assessing whether a procedural error has occurred or not must arise for the court of appeal from this submission alone, without the files being consulted.
The court may only reject a motion to take evidence if it considers the facts to be established according to the previous result of the taking of evidence, and if, at its dutiful discretion, the taking of evidence is not necessary to ascertain the truth (Section 77 II No. 1 OWiG). Three conditions must be met for this: A hearing of evidence must have already taken place regarding a fact relevant to the decision, on the basis of the hearing of evidence the judge must have come to the conviction that the facts of the case have been clarified and the truth found, and the requested taking of evidence must not be necessary, according to the dutiful discretion of the court, for further investigation of the truth.[14] Strict standards are to be applied here; there must be no reasonable doubt for the court that the further taking of evidence has no prospect of success. The weight of the previous evidence on the one hand and the evidence whose additional use is requested on the other must be weighed according to the result of the entire evidence. Further evidence may only be dispensed with if the possibility that the conviction of the court may be undermined by it appears to be reasonably excluded. If this is only unlikely, the evidence must be taken.
The procedural objection with the high requirements for substantiation must also be addressed if the court has erred in law when inviting a private expert.
2. appeal on points of law, §§ 79 ff. OWiG
If the value limit is exceeded or a driving ban is imposed in addition to the fine, the judgment of the court of first instance can be challenged without the grounds for admission. In addition to the procedural objection, a substantive objection may also be raised if no relevance for the imposition of a fine arises from the facts of the case as determined by the court or if the judgment contains errors of presentation.
VI. Impact of the administrative fine proceedings on the accident settlement
The outcome of the administrative fine proceedings may have an impact on the accident settlement. It naturally speaks in favor of the person concerned if he has been acquitted of the accusation of causing a traffic accident under administrative fine law upon his appeal or if the proceedings have been discontinued. In this context, the insurance company can refuse to settle claims asserted by the opposing party. Conversely, the settlement of a fine by the person concerned can be taken by the motor vehicle liability insurance as an opportunity to compensate the damage of the other party involved in the accident. This regularly results in the person concerned being downgraded. The motor liability insurance company, which must assess the prospects for defending against the claims as reliably as possible in terms of reason and amount and, as a rule, consults the fine file for this purpose, handles the claims settlement at its own dutiful discretionIn doing so, it will also take into account the fact, to the detriment of the party concerned, that the latter admitted his guilt in the accident to the police officers after the collision. The motor vehicle liability insurance has a settlement authorization, i.e. it may also settle damages against the policyholder's will, even if the affected party has appealed the fine notice (because he believes that he is not at fault in the accident) and the insurance company nevertheless assumes that the driver caused the collision. In doing so, it does not have to wait for the outcome of the fine proceedings.
VII. Remuneration aspects
The lawyer's fee for defending a party in accident cases subject to a fine is based on Part 5 of the VV-RVG, which are framework fees that the lawyer has to determine at his own discretion in the individual case, taking into account all circumstances, in particular the scope and difficulty of the legal work, the importance of the matter and the financial circumstances of the client (Section 14 I 1 RVG). The defense in such fine proceedings is often associated with legal difficulties and/or extensive fact-finding and therefore cannot be judged a priori as a matter of only average difficulty in the sense of the law on attorneys' fees.[17] The special significance for the person concerned, such as preventing points from being entered in the central traffic register, may speak in favor of a settlement above the median fee. Furthermore, the fact that an expert opinion has been obtained and written objections have been submitted by the defense can have the effect of increasing the fee.[18] For representation in a fine proceedings, which has as its subject a traffic accident for which the party concerned was allegedly at fault, a fee in the following amount is incurred when billing at 20% above the medium fee (fine between €40.00 and €5,000).
Basic fee according to no. 5100 VV-RVG
EUR 120.00
Procedural fee before the administrative authority according to no. 5103 VV-RVG
192.00 EUR
Procedural fee before the district court according to no. 5109 VV-RVG
192.00 EUR
Fee for appointment according to No. 5110 VV-RVG
306.00 EUR
Net attorney fee
810.00 EUR
VIII. Conclusion
If liability for an accident is in dispute, the collision must be reconstructed not only for the civil proceedings but also for the administrative fine proceedings, if applicable.
As a rule, the road user designated as "ON 01" by the police receives a fine notice, and it is not uncommon for both drivers to be accused of partial fault.
If a caution fee is imposed and paid directly at the scene of the accident against one or both road users, a higher fine may not be imposed later.
To clarify the cause of the accident with certainty, an accident analysis expert opinion must be obtained. Even before court proceedings, the person concerned can commission a private expert opinion, which will be covered by legal expenses insurance if available.
A contributory negligence of the other party involved in the traffic accident cannot be ruled out and will lead to a reduction or waiver of the fine. In this case, the person concerned benefits, for example, from a favorable liability rate in the civil proceedings or from a (pro-rata) settlement of the accident by the opponent's liability insurance, even though there is no binding of the fine judge to civil judgments and vice versa. A site inspection can lead to the court realizing that the traffic situation/signage at the scene of the offense was indeed confusing and that therefore only a minor fault of the person concerned is present. A high level of economic damage or physical injury suffered as a result of the accident can also be cited under the aspect of § 60 StGB to reduce the fine.
The outcome of the fine proceedings may well have consequences for the accident settlement practice. The motor vehicle liability insurance usually includes the fine file and gets an idea of the liability situation. It has the power to settle, which means that it may also settle damages against the policyholder's will. She does not have to wait for the outcome of the fine proceedings.
Legal work in accident proceedings under the law of torts is also lucrative in terms of fees. It is regularly possible to charge above the median fee, especially since the process is legally difficult and/or extensive when it comes to civil law and an accident analysis report.
[1] www.destatis.de, February 28, 2012.
[2] Schäpe, in Buschbell, Traffic Law, § 3 Rn 64, estimates that in traffic law, legal expenses insurance and cost coverage exist in about 70% of cases.
[3] Cologne District Court, zfs 1999 258.
[4] Fromm, SVR 2011, 132 ff.
[5] Gürtler, in Göhler, OWiG, § 17, Rn 28 ff.
[6] OLG Karlsruhe, NJW 2007, 166.
[7] Büscher, in Wieczorek/Schütze, ZPO, § 322 Rn 93.
[8] OLG Hamm, NZV 2003 377.
[9] Bohnert, Karlsruher Kommentar zum OWiG, 3rd ed. 2006, OWiG § 47, para. 113.
[10] On this point: OLG Hamm, MDR 1971, 859.
[11] OLG Düsseldorf NZV 2001 47.
[12] Bohnert, OWiG, 3rd ed. 2010, § 80 Rn 15.
[13] OLG Hamm, decision dated July 7, 2009 - 2 Ss OWi 646/09, BeckRS 2010, 11683.
[14] OLG Hamm NZV 2007, 155; OLG Schleswig SchlHA 2004, 264f.; KK-Senge, OWiG, 3rd ed., § 77 margin no. 15 with further Nachw.; Göhler/Seitz, OWiG, § 77 Rdnr. 11.
[15] OLG Celle, decision of February 10, 1986, 2 Ss (OWi) 297/85.
[16] Rümenapp, in Terbille, Münchener Anwaltshandbuch Versicherungsrecht, 2nd ed. 2008, § 13 Motor Vehicle Liability Insurance, para. 31.
[17] Cologne District Court, zfs 2004 529.
[18] Hamburg Regional Court, VRR 2008, 237.
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.