With the warmer seasons approaching, the peak season for motorcyclists is beginning. When the weather is nice, many motorcyclists are drawn to the roads, especially on weekends. Unfortunately, this also leads to an increase in serious accidents on the roads. In accidents caused by the motorcyclists themselves, a common cause is illegal overtaking maneuvers and inappropriate or excessive speed.
Problems in identifying the motorcyclist
Motorcyclists' faces are often largely covered by their protective helmets, making it very difficult to identify them. If the police do not stop the driver immediately after discovering the offense, which in practice is done by police vehicles following behind using the "Police Pilot System" measurement method, measures to identify the motorcyclist are completely ineffective, especially since motorcycles do not have front license plates. Only very few measurement methods are capable of detecting rear license plates.
If a license plate was read after speeding, which is rare, the fine office is under enormous pressure to identify the motorcyclist. In view of the three-month statute of limitations (§§ 24, 26 III StVG), there is a risk that the statute of limitations (§ 31 OWiG) will prevent prosecution, leading to the discontinuation of the administrative offense proceedings.
Search and seizure warrants
If all other measures taken by the fines office and the police fail, the question arises as to whether a search and seizure warrant may be issued against the owner in order to clarify the driver's identity. This constitutes a serious encroachment on the inviolability of the home (Art. 13 I GG). Even in the case of administrative offenses, a search is possible not only of the suspect (§ 102 StPO), but also of third parties (§ 103 StPO). The provisions contained in the Code of Criminal Procedure on the search of the homes of the accused or third parties are applicable mutatis mutandis to administrative fine proceedings via § 46 I OWiG.
The purpose of the search in cases of driver identification is to find evidence. Evidence must be specified in the search warrant so that there is no doubt on the part of the person concerned or the executing officers as to the items to be seized. In the case of an administrative offense involving a motorcycle, a search warrant may, for example, aim to find motorcycle clothing belonging to the person concerned. If the clothing sizes found match the stature of the owner, this speaks against him.
In the case of search warrants for a suspected traffic offense, the key question is whether the measure violates the principle of proportionality. The ordering judge must carry out a sufficient proportionality test on his own responsibility. When prosecuting administrative offenses, search warrants are not generally to be dispensed with. However, the less serious the offense with which the person concerned is charged, the higher the requirements for the strength of the suspicion. Furthermore, the probability of finding evidence must be taken into account when weighing up the options. In the case of a minor offense, the constitutional right to the inviolability of the home (Art. 13 I GG) outweighs the state's interest in prosecution. In the case of interventions in administrative fine proceedings, an appropriate balance must be maintained between the means and purpose of the intervention and its severity on the one hand and the significance of the proceedings on the other. It goes without saying that exceeding the speed limit by more than 100 km/h constitutes a "serious administrative offense." Incidentally, the term is interpreted very differently in case law. According to case law, an offense without a driving ban is not considered a serious traffic offense. Measured against this, the state has classified this offense as a minor offense, cf. LG Freiburg, decision of February 3, 2014 – 3 Qs 9/14.
If administrative fine proceedings are initiated against you, it is essential to seek the assistance of a Lawyer specializing in traffic law.
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.