Freitag, 11.09.2020
New legislation on illegal motor vehicle races
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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With effect from December 13, 2017, the legislature introduced the new criminal offense pursuant to Section 315d of the German Criminal Code (StGB) (prohibited motor vehicle races). Previously, it was only an administrative offense that could be sanctioned with a fine of €400 and a one-month driving ban. Illegal vehicle races of this kind are booming in big cities. The number of ongoing proceedings is high. The police are currently even setting up special commissions and are monitoring, for example, nocturnal gatherings of the car tuning scene in parking lots.
The nature of racing
However, it is often problematic to determine whether a drive really meets the legal requirements of a prohibited motor vehicle race. Since the criminal law provision is still relatively new, case law is only now beginning to interpret the provision more precisely. The offender's actions must be motivated by the intention of achieving the "highest possible speed". This requirement is intended in particular to meet the requirement of racing character.
"Drifting" and "donuts"
The Higher Regional Court of Zweibrücken (decision of May 19, 2020 – 1 OLG 2 Ss 34/20) had to decide whether a driving technique known from motor sports, "drifting", fulfills the requirements of the criminal provision. The focus here is more on skill than on achieving the highest possible speed. The Higher Regional Court acquitted the defendant; he had denied that his aim was to achieve the highest possible speed. No illegal racing takes place when performing daring driving maneuvers to provoke or show off. The same should also apply to donut driving maneuvers or posing (revving the engine at idle speed).
Temporary revocation of driving license and confiscation of vehicle
After the alleged illegal vehicle races, the license of the person concerned is often immediately revoked or even the car in question is confiscated (Section 315f of the German Criminal Code), see Fromm, zfs 2018, 544 et seq. However, if the only accusation is the use of a driving technique that is well known in the motorsport scene, such as "drifting" or "donuts", an appeal should be lodged against it. Discontinuation of the criminal proceedings or an acquittal is realistic here.
Criminal liability for "single racing"
Incidentally, the prerequisite for a prohibited motor vehicle race is not that another vehicle was involved. A so-called "individual race" is also punishable under Section 315d I No. 3 of the German Criminal Code (StGB).
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.