Withdrawal of driving license – decision of the Higher Regional Court of Koblenz

from
Markus Schmuck
Lawyer
Specialist in criminal law

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Public prosecutors and courts regularly try to justify a driving ban under §69 I StGB (German Criminal Code) in the absence of §69 II StGB.

You can find formulations like:

"[...] initiated an overtaking maneuver although it was already not possible to do so safely at that point in time due to oncoming traffic."

Another approach can be:

"...made a wrong decision during the overtaking maneuver in that he/she did not decide to abort the overtaking maneuver after recognizing the approaching oncoming traffic."

Often, a lack of character is used to justify the ultimately realized risk of road traffic, the accident with its usually dire consequences. The Higher Regional Court of Koblenz provided clarity in its judgment of November 13, 2013 – 1 Ss 151/13. It states:

"Such (reckless, note from the author) behavior exists when the perpetrator, for selfish reasons, disregards his duties to other road users or, out of indifference, does not allow concerns about his behavior to arise from the outset, On the other hand, recklessness is not present in the event of a momentary failure or a false assessment of the situation (...). However, a one-time and situational misconduct does not in itself justify a lack of character suitability, even if the consequences are the most severe (...)."

The defense must ensure that the public prosecutor and the court of first instance do not base their arguments on the risk of road traffic occurring or on the possibility of serious injuries or other consequences of the accident. The starting point for the character analysis can only be the ex-ante consideration of the action or omission carried out, as well as the individual dangerousness prognosis developed and justified from this.

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.