1. Introduction
According to accident statistics, a total of 1,700 accidents in 2005 were due to microsleep. According to the Federal Highway Research Institute, fatigue is the second most common cause of truck accidents. According to studies, the various sleep disorders lead to a significant reduction in performance in everyday life. People with sleep apnea are therefore statistically seven times more likely to have an accident than other motorists. Approximately 24% of truck accidents on the road can be traced back to falling asleep. German lawmakers have reacted to the alarmingly high number of fatigue-related traffic accidents. Since the cause of the accident "fatigue" can now be equated with the danger posed by alcohol or drugs in road traffic, the legislator felt obliged to act and on June 15, 2007, amended the Ordinance on the Licensing of Persons to Drive on the Road (Driver's License Ordinance) with regard to sleep disorders. Only a few countries (three US states, Canada, the UK, Sweden) had previously had regulations for professional drivers with untreated sleep apnea.
Sleep disorders are now included in the list of conditions that can impair or negate the ability to drive for long periods of time. Sleep disorders are conditions that prevent a person from sleeping restfully and thus cause severe daytime sleepiness. Sleep disorders include insomnia (difficulty falling and staying asleep, affecting daytime well-being) and hypersomnia (increased need for sleep and excessive daytime sleepiness), including sleep-related breathing (sleep apnea syndromes) and movement disorders. According to the results of the 1998 Federal Health Survey conducted by the Robert Koch Institute (18- to 79-year-olds), 8 percent of women and 3 percent of men suffer from severe insomnia. The complaint of hypersomnia (strong übermäßgliches sleep need) was indicated by 9.1 per cent of women and 5.1 per cent of men in the federal health survey in 1998. The legislator did not make any further distinctions between the individual sleep disorders, which is understandable in view of the fact that sleep medicine distinguishes between over 80 different forms of sleep disorder. Sleep apnea sufferers are therefore not mentioned expressis verbis.
The amendment has caused fear in self-help groups and other associations of sleep apnea sufferers. There is a widespread misconception that every sleep apnea sufferer must give up their driver's license or is no longer allowed to get behind the wheel. This article deals with the previous legal situation as well as the legal changes and presents them divided by vehicle class. Furthermore, it explains under which conditions there is actually a risk of a driving ban and what legal remedies are available against it.
2. The aptitude for driving motor vehicles
In principle, applicants for a driving license must meet the necessary physical and mental requirements in accordance with § 11 of the German Driver's License Regulation (In § 11 (aptitude) FeV it says: "(1) Applicants for a driving license must meet the necessary physical and mental requirements. 2 The requirements are not met, in particular, if an illness or defect as defined in Appendix 4 or 5 is present that precludes the fitness or conditional fitness to drive motor vehicles. 3 In addition, applicants must not have seriously or repeatedly violated traffic regulations or criminal laws to such an extent that their fitness to drive is excluded. 4 Applicants for a class D or D1 driving license must also guarantee that they will meet the special responsibility associated with the carriage of passengers. ") In particular, the requirements are not met if a disease or defect according to Appendix 4 of the German Driving License Regulation (Fahrerlaubnis-Verordnung) is present. This limits or precludes the ability to drive motor vehicles. The driving license authorities do not conduct their own investigations without good reason in the case of applicants for driving licenses for passenger cars and motorcycles. Only certain indications of the existence of physical or mental deficiencies can give rise to doubts as to suitability. If the driving license office becomes aware of facts that justify concerns about suitability, it can reject an application. If there are certain indications, the authority can order the submission of a medical report (§ 11 para. 2 sentence 3), in special cases a medical-psychological report (§ 11 para. 3) or an expert opinion from an officially recognized expert or examiner for motor vehicle traffic (§ 11 para. 4) In the case of an order for a medical-psychological report (MPU), the person concerned faces the particular problem that 80% of examinees do not pass this aptitude test the first time. However, the aptitude test is not only important for new applicants, but also for those who already have a valid driver's license. In the event of health defects, the driving license may be withdrawn in accordance with § 11 para. 1 sentence 1 and § 46 of the German Driving License Regulation ( Fahrerlaubnis-Verordnung, FeV). In § 46 (withdrawal, restriction, conditions) FeV it says: "(1) If the holder of a driving license proves to be unfit to drive motor vehicles, the driving license authority shall withdraw the driving license. This applies in particular if there are illnesses or defects according to appendices 4, 5 or 6 or if traffic regulations or criminal laws have been seriously or repeatedly violated and this precludes the ability to drive motor vehicles." Holders of special driving license categories (C, C1, CE, D, D1, DE and D1E), i.e. truck, bus and taxi drivers, must have their driving license renewed and provide proof of their fitness to drive. If no proof is provided, the driving license will expire. Even before the introduction of the changes to the German Driving License Regulation (FeV) to combat the danger of sleep apnea and other chronic sleep disorders on the road, driving whileA violation of the duty of care was assumed for driving in a state of excessive fatigue, and even gross negligence was assumed if there were signs of fatigue. Consequently, falling asleep at the wheel due to fatigue was recognized in case law as a defect within the meaning of the Driver's License Regulation, since, in the opinion of the Federal Court of Justice, a healthy, well-rested person without the influence of alcohol, narcotics or medication does not nod off while driving without prior signs.
3. Notification of the administrative authority of aptitude deficiencies
The administrative authority has to make careful determinations about possible aptitude concerns ex officio, according to § 2 VII StVG, and also to clarify whether physical or mental deficiencies are present. Due to the duty to protect (Art. 2 II GG) high-ranking legal interests such as the health and life of road users, the state is obliged to take sufficient measures in good time. However, this does not entitle the authority to question the applicant about previously unknown facts that may reduce or exclude their suitability (see § 22 II FeV - "1. The driving licence authority shall determine whether there are any concerns regarding the applicant's fitness to drive motor vehicles and whether he is already in possession of a driving licence. 2. To this end, it shall obtain information from the central traffic register and the central driving licence register at the applicant's expense.3 It may also, at the applicant's expense, obtain information from the relevant foreign registers – usually through the Federal Motor Transport Authority – and demand that the applicant apply for a certificate of good conduct to be submitted to the driving license authority in accordance with the provisions of the Federal Central Criminal Register Act.If facts become known that give rise to concerns about the suitability of the applicant, the driver licensing authority will proceed in accordance with sections 11 to 14.</p> The administration becomes aware of atypical behavior of drivers primarily through repeated violations of traffic regulations. The public prosecutor's offices and courts usually inform the driving license office if there are any indications of a lack of aptitude, especially in the case of pending criminal proceedings. This is the result of the order on notifications in criminal matters (MiStrA). According to No. 45 MiStrA, in criminal matters in which the withdrawal of the driving license is considered, the competent administrative authority shall be notified of the decisions pursuant to 111a of the Code of Criminal Procedure, the outcome of the proceedings and legally binding rulings in accordance with Section 69a VII of the German Criminal Code. As a rule, the revocation of a driving license in accordance with Section 69 of the German Criminal Code is threatened in the event of endangering road traffic in accordance with Section 315 c StGB, drunk driving under Section 316 StGB, unauthorized removal from the scene of an accident under Section 142 StGB and drunkenness under Section 323 c StGB. In such cases, the offender is generally considered unfit to drive vehicles. But anonymous tips can also lead to further investigations, but according to established case law, they do not in themselves justify a request for an expert opinion. However, the sleep apnea sufferer has no duty of disclosure to the driving license office. If a chronic sleep-deprived person has been involved in a traffic accident, the accused has a legal right to remain silent. Therefore, he should not provide any information to the police about the matter, and certainly not voluntarily disclose his illness. Furthermore, he has the right to consult a defense lawyer of his choice (Section 136 I p. 2 StPO). If the authority becomes aware of facts, the applicant has the opportunity to comment (§ 2 StVG).
4. Changes to Appendix 4 of the German Driving License Regulation
The legislature has included regulations in Appendix 4 of the Driving License Ordinance, which also existed before, regarding the suitability and conditional suitability of people with chronic sleep disorders to drive motor vehicles. The legislator has opted for a tabular presentation, which is difficult to read due to the division into five columns (see figure).
The main distinction made is between untreated and treated sleep disorders. The table also shows the conditions under which fitness or conditional fitness applies. If the person is conditionally fit, they are subject to restrictions/conditions. The driving license of chronically ill persons is (if necessary, retrospectively) to be provided with appropriate restrictions/conditions.
According to the legislator, untreated sleep disorders should lead to unfitness according to no. 11.2.1 if there is a measurable abnormality in daytime sleepiness. Only those with treated sleep disorders should remain conditionally fit to drive, provided that there is no longer any measurable drowsiness. This means that all those who have not yet been made aware of their illness and have therefore not yet been able to seek medical treatment will in future be considered unfit to drive any type of motor vehicle. According to the German Society for Sleep Research and Sleep Medicine, this applies to ten percent of the German population.
From the context, it follows that only "adequate" treatment of sleep disorders can lead to the preservation of fitness to drive, and finally, there must be no more conspicuous daytime sleepiness. A treatment must therefore have already had a positive effect. However, the question of what the legislature understands by "adequate treatment" is left open. The terms "measurable" and "noticeable" used by the legislator are vague legal terms that need to be interpreted. It must be required here that medical attention be sought or that therapy be completed. The most important form of treatment for sleep apnea is CPAP therapy, which is used to treat temporary respiratory arrest during sleep. The abbreviation CPAP stands for Continuous Positive Airway Pressure. According to scientific findings, fitness to drive is usually restored after just three to four weeks of CPAP therapy. Participation in a self-help group without professional medical support is likely to be insufficient on its own.
In any case, the law requires regular checks for drowsiness even after treatment for chronic sleep disorders. This means that even if the person affected no longer has any noticeable daytime sleepiness and has received adequate treatment, they will only keep their driver's license if they undergo regular checks. The assessment made in Appendix 4 applies only to the standard case. Compensation through special human predispositions, through habituation, through special attitudes or through special behavioral controls and adjustments is possible (preamble 3 of Appendix 4 of the FeV. Here it says: "The assessments made below apply to the normal case. Compensation through special human predisposition, through habituation, through special attitude or through special behavioral controls and adjustments is possible. If doubts arise in individual cases in this regard, a medical-psychological assessment may be indicated."). Conversely, the included compilation is not exhaustive. The discussed classification may be new in its legal form. Even before the introduction of the subdivision, however, it was undisputed in case law and legal literature that therapies can lead to the restoration of fitness to drive.
The tabular presentation of the aptitude deficiencies in Appendix 4 offers case workers at the administrative authority a reliable tool for correctly interpreting the wording of the law, similar to an administrative regulation.
5. Changes to Appendix 5 of the FeV
The driving license authority may become aware of deficiencies in the forms of driving licenses shown above. In addition, applicants for the granting or renewal of a driving license to drive trucks, buses and taxis will in future be regularly screened for the presence of an illness with increased daytime drowsiness in accordance with Appendix 5 of the regulation. This is justified and reasonable because increased demands must be placed on the fitness to drive of truck, bus and taxi drivers due to the greater risk potential of the vehicles they drive and because of their special responsibility when transporting passengers. According to § 11 para. 9 FeV, applicants for a driving license in categories C, C1, CE, C1E, D, D1, DE or D1E must therefore present a certificate in accordance with Appendix 5 to the driving license authority in order to determine their suitability. A new point 14, "Diseases with increased daytime sleepiness (e.g. sleep disorders)," has been added to Appendix 5 of the German Driver's License Ordinance (FeV), which regulates the aptitude test for truck, bus and taxi drivers. As part of these so-called screening examinations, the examining physician is required to ask about typical symptoms of the presence of illnesses with increased daytime sleepiness, such as non-restful sleep, excessive daytime sleepiness or falling asleep at the wheel. If such symptoms are present, i.e. in the case of a specific suspicion of the presence of such a disease, further diagnostics are required. Should the suspicion of the presence of such a disease be confirmed in the course of these further diagnostics, appropriate consequences with regard to the driving license of the person concerned may have to be drawn. If the driving license is no longer valid for license holders according to appendix 5, then these restrictions can have consequences for the practice of a profession in individual cases if a driving license required for the practice of a profession for driving certain motor vehicles cannot be issued or renewed due to a lack of driving aptitude. This shows how drastically the new regulations can impact. Particularly in the freight forwarding and logistics sector, the problem of fatigue can often be traced back to an inadequate night's rest, for example. The risk of fatigue should also be reduced by Regulation (EC) No. 561/2006 (extension of the daily rest period).
6. Legal protection in the event of incorrect decisions by the driving license authorities
If the driving license office becomes aware of the sleep disorder, the loss of the driving license or the denial of a request to that effect must be seriously expected. If the administrative authority assumes the existence of false facts in a driving license revocation order, e.g. an untreated sleep disorder or daytime sleepiness, an objection to the administrative act can be lodged within one month of the order being served. If the immediate execution of the driving license revocation is ordered for former license holders, the driver's license must be surrendered immediately, since an objection in accordance with § 80 II No. 4 VwGO has no suspensive effect. However, the person concerned can seek help in urgent legal protection before the competent administrative court and file an action in accordance with § 80 V VwGO. The court restores the suspensive effect of the appeal if the administrative act is manifestly unlawful according to the summary examination possible in the suspension proceedings. In this case, the private interest in avoiding enforcement prevails. The final clarification of the matter in dispute is left to the legal protection in the main action.
7. Consequences of the driving license withdrawal
If the driving license is provisionally withdrawn, the sleep apnea patient is no longer allowed to drive any vehicles on the road, otherwise he/she may be punished for driving without a license in accordance with § 21 StVG (§ 21 I (driving without a license) StVG reads: "A penalty of up to one year imprisonment or a fine will be imposed on anyone who 1. drives a motor vehicle although they do not have the necessary driving license or are prohibited from driving the vehicle under Section 44 of the Criminal Code or under Section25 of this Act is prohibited, or 2. as the owner of a motor vehicle, orders or allows someone to drive the vehicle who does not have the necessary driving license or who is prohibited from driving the vehicle under § 44 of the Criminal Code or under § 25 of this Act."). In order to restore fitness to drive in individual cases where it no longer exists and thus to create the conditions for the reissue or reissue of their driving license, those affected must have any existing sleep disorder treated in such a way that there is no longer any measurable drowsiness during the day.
8. Conclusion and outlook
The courts have been dealing with the revocation of driving licenses due to cocaine use or medication and alcohol abuse for years. What is new, however, is the equal treatment of such character defects with sleep disorders and sleep apnea. In view of current statistics, lawmakers felt compelled to act. Despite considerable resistance from self-help groups and other interest groups, the legislature has now amended the German Driving License Regulation (FeV) to the effect that untreated persons with sleep disorders will no longer be considered fit to drive under the new legal wording of point 11.2.1 of Appendix 4 of the FeV, persons with sleep disorders who have not received treatment will in future no longer be deemed fit to drive if they exhibit measurable, abnormal daytime sleepiness. This regulation seems fair overall and enables the sufferer to restore the necessary physical and mental requirements through suitable forms of sleep apnea treatment (e.g. CPAP therapy). It remains to be seen whether the new regulations will lead to a significant increase in the frequency of checks by the administrative authorities and what standards the courts will apply when interpreting the regulation.
Figure:
| Diseases, defects, |
suitability or conditional suitability |
Suitability or limited suitability |
Restrictions/requirements for conditional
suitability |
Restrictions/requirements for conditional
suitability |
| 11.2 Sleep disorders |
Classes A, A1, B, BE, M, S, L, T |
Classes C, C1, CE, C1E, D, D1, DE, D1E, FzF |
Classes A, A1, B, BE, M, S, L, T
|
Classes C, C1, CE, C1E, D, D1, DE, D1E, FzF |
| 11.2.1 untreated sleep disorders with daytime sleepiness |
No
if there is measurable abnormal daytime sleepiness |
no
if there is measurable conspicuous daytime sleepiness |
- |
- |
| 11.2.2 treated sleep disorders with daytime sleepiness |
yes
if there is no measurable abnormal daytime sleepiness |
yes
if there is no measurable abnormal daytime sleepiness |
Regular checks for daytime sleepiness |
Regular monitoring of daytime sleepiness |
Bibliography:
Böhning, Wilfried, The sleep apnea syndrome - an often-overlooked accident risk - sleep disorders and daytime sleepiness as an accident cause, NZV 1997, p. 142 ff.
Fromm, Ingo, Criminal and penalty risks of sleep apnea patients in traffic, Schlafapnoe Aktuell 2007, p. 31 f.
Id., Änderungen der FeV zulasten von Schlafapnoe-Kranken, Das Schlafmagazin 4/07, p. 22 ff.
Gehrmann, Ludwig, Bedenken gegen die Kraftfahrereignung und Eignungszweifel in ihren grundrechtlichen Schranken, NZV 2003, p. 10 ff.
Hentschel, Peter, Straßenverkehrsrecht, Kommentar, 38th ed., Munich 2005
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.