Dienstag, 13.09.2005
Responsibility for the revocation of driving licenses
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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As is well known, the driving license authority is responsible for issuing driving licenses. The German Driving License Regulation stipulates that anyone who drives a motor vehicle on public roads requires the permission of this authority. The jurisdiction of this authority also extends to the revocation of the driver's license, i.e. if doubts arise at a later date regarding the ability of the driver's license holder to drive a vehicle without endangering themselves or others. Therefore, the driving license regulation contains the provision that the driving license authority may withdraw the driving license if the license holder is physically or mentally unfit to drive. For example, in the most common case of a drunk driving or narcotics addiction, the driving license authority can also order the submission of a medical report or a medical-psychological report ("idiot test") as a milder measure. Since drunk driving is also a criminal offense (from 1.1 per mille without and from 0.3 per mille with alcohol-related deficits), the offender must also expect criminal proceedings before the district court. Here, too, he must expect the criminal court to revoke his driving license. Revocation of a driving license is a so-called "measure of correction and protection" that may be imposed in addition to a fine or prison sentence. It is therefore important to know that two proceedings are initiated: the criminal proceedings and the administrative proceedings for the revocation of the driving license. The "coexistence" of the proceedings is regulated in the Road Traffic Act. The legislature wanted to prevent different state bodies from repeatedly deciding on a person's suitability and even assessing this suitability differently. It would make no sense for the criminal court judge to allow the offender to keep his driving license, only for the driving license authority to then decide otherwise and take away his license.
The driving license authority is therefore subject to a ban on dealing with the matter for the duration of the criminal proceedings in which the withdrawal of the driving license under the criminal code comes into consideration. It may not issue any orders itself on the basis of the facts of the case under investigation in the criminal proceedings, even if it is obvious from the specific facts of the case that the person concerned is not (or is no longer) fit or competent to drive motor vehicles. In this context, one also speaks of a block on the competence of the driving license authority. Only the criminal court or the investigating authorities are competent. The criminal proceedings will decide as a matter of priority whether any measures to withdraw the driving license are necessary. The driving license authority may only take measures after the criminal proceedings have been concluded, and these must not contradict the findings in the criminal judgment.
Practical experience shows that, due to the protection of road traffic that it is intended to provide, administrative authorities react hastily and prematurely to the criminally relevant behavior of a driver's license holder and pronounce the revocation of the driver's license, although only the criminal court and its investigating authorities are competent to do so. Some driving license authorities often appear to be unaware of the precedence of criminal proceedings, and in any case the provision of § 3 III of the Road Traffic Act is very often disregarded. If the administrative authority orders the driver to surrender his driving license or to present a medical-psychological report while criminal proceedings are pending,driving license or the presentation of a medical-psychological report, which could result in the withdrawal of the driving license, this fundamentally conflicts with the priority of criminal proceedings intended by the legislature. Citizens can defend themselves against this in the administrative courts. The Higher Administrative Court in Koblenz therefore confirmed on May 10, 2006 (Ref.: 10 B 10371/06) that the driving license authority which is the subject of criminal proceedings in which the revocation of the driving license is considered, before the final conclusion of these criminal proceedings. Otherwise, the decision would always violate the rights of the driver.
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.