Unfortunately, drinking and driving often not only causes accidents, but can also have significant consequences for the affected drivers, who are not considered in advance, but can then – if they have been noticed – lead to massive consequential problems. Primarily, there is a risk of criminal or administrative sanctions, fines, not so often imprisonment or fines. In addition, there may be consequences for the use of the driving license (driving ban) or even for the driving license itself, i.e. theThe consequences of a driving ban can range from a fine or the loss of a license to a complete ban on driving.
Often, clients want to know from the very first telephone or personal contact with their lawyer what exactly is at risk, after their own investigations on the Internet have given them a terrible idea. Once the initial shock of the traffic control or accident has been processed, the second stage usually follows with the initiation of criminal or fine proceedings, which is usually the most problematic stage for the person concerned.
There are three main accusations that can be made: the simplest is the administrative offense according to § 24a of the Road Traffic Act (StVG), followed immediately by the criminal offense of drunk driving under § 316 of the German Criminal Code (StGB) and, most seriously in this context, the criminal offense of endangering road traffic in accordance with § 315c StGB.If it is determined that you are driving on public roads as the responsible driver, the first two of the above-mentioned offenses may be applied, with the distinction between hard and soft criteria being made in practice (these are referred to as abstract endangerment offenses). If you cause an accident or even just a near-accident while driving under the influence of alcohol, you face prosecution for dangerous driving. The classification as a so-called near-accident can sometimes be very difficult and depends not least on the assessments of the police, the public prosecutor and the court.
This article, however, will concentrate on the question of how the alcohol level detected in the driver can lead to a classification: in other words, the blood alcohol concentration allows an initial classification as to which specific facts and which legal consequences can generally be considered. In this respect, the following blood alcohol concentration thresholds can be distinguished:
So-called 0.0 per mille
First of all, and somewhat outside the grid, the so-called zero-per mille limit for beginners in their two-year probationary period and for people up to the age of 21, which has been in force since August 1, 2007, must be observed. The value of 0.0 per mille is not explicitly mentioned in the law. The legislature wanted to regulate a comprehensive alcohol ban for novice drivers during the probationary period (except for both medicines and the famous brandy bean).[iii] However, in practice, the requirement for a specifically determined value is used to prove detectability in a specific individual case. In this respect, you can read about the required values ranging from 0.15 to 0.3 per mille.
The consequences of a drink-drive are a fine of €250 and the loss of points on your license in Flensburg. Although there is no driving ban, the affected novice driver will have to complete retraining and the probationary period is extended to four years.
0.3 per mille
Surprisingly, you can be prosecuted for a blood alcohol level of 0.3. This is partly because developments in criminal and administrative fine law are independent of each other in both case law and legislation, and partly because tribute has to be paid to the detectability and effects of alcohol. Because alcohol affects everyone differently. In the range from 0.3 to 1.09 per mille, one therefore speaks of so-called relative inability to drive, for which the per mille value, however, only represents a piece of evidence or a simple indication. The person concerned can refute the assumption of inability to drive through his or her individual behavior. It should be emphasized that the blood alcohol level can only be verified and used in court in criminal proceedings if the so-called blood alcohol concentration is determined, which is why a blood sample must always be taken when a criminal offense is suspected (unlike in the case of a fine, as will be explained shortly).
In addition to the determined blood alcohol level, so-called deficits in the ability to drive must be determined in the case of relative inability to drive, which are suitable as further evidence to convey the conviction of the person's inability to drive. The following factual circumstances are of importance in this regard, albeit to varying degrees: first, circumstances relating to the person themselves, such as illness or fatigue (internal circumstances), then external driving conditions such as road and weather conditionsroad and weather conditions ("external circumstances") and, finally, the specific external behavior of the person concerned (so-called failure phenomena), which must be at least partly caused by the consumption of alcoholic beverages or other intoxicating substances. When providing evidence for relative inability to drive, these actual circumstances are accorded different degrees of importance.The higher the blood alcohol concentration and the less favorable the objective and subjective conditions of the person's driving, the lower the requirements for a specific deficiency symptom.
Classic examples of deficits are driving in a serpentine line, disinhibited and particularly risky driving maneuvers, or the slurring or staggering gait of the person concerned, which can be determined afterwards by police officers or doctors. In the latter case, however, it must be ruled out that these cannot also be the result of an accident that may have occurred and are not exclusively attributable to the alcohol level. However, mere negligence or violations of the general duty of care, such as overlooking other road users, running a red light, simply leaving the road on a wet road surface, do not necessarily allow the conclusion to be drawn that the driver was unfit to drive. It always depends on the assessment of whether the respective driver would have behaved differently without the influence of alcohol.
The question of whether an accident that has occurred can itself be interpreted as a symptom of incapacity is handled differently throughout Germany. This is a matter of some legal dispute, but if it is applied, it would lead to unlawful double jeopardy. It is therefore correct that at least one further impairment must be added to the damage or hazard in order to be able to safely assume that a person is unfit to drive.
Ultimately, this leads to the curious situation that, while the presence of deficits may indicate criminally relevant behavior, it does not indicate behavior that is punishable by a fine.
0.5 per mille
From a value of 0.5 per mille, there may be an overlap between the relative inability to drive as described above and the realization of the fine offence of Section 24a of the German Road Traffic Act (StVG). This is in any case the case if symptoms of deficiency are present. Then, according to § 21 of the German Administrative Offenses Act (OWiG), the punishment as a criminal offense takes precedence. If the symptoms are denied, the range of 0.5 to 1.09 per mille remains in the application of § 24a StVG.
In contrast to criminal proceedings, the fine proceedings provide, to a certain extent, for a relaxation of the rules of proof, which is not least due to the phenomenon of mass indebtedness. This is because it would be disproportionate to always demand proof of a blood alcohol concentration after amedical blood sample, a breath alcohol test (0.25 mg/l alcohol in the breath) is sufficient in these cases to prove alcoholization. In this case, no further safety deductions are to be made. However, a standardized procedure (e.g. Dräger Alcotest 7110evidential or 9510DE measuring device) and compliance with the following basic conditions are always required: A minimum of 20 minutes since the end of drinking, a control period of ten minutes for the AAK measurement, double measurement at intervals of a maximum of five minutes and compliance with the permissible range of variation between the individual values.
The catalog of fines provides for fines of up to €3,000 and driving bans of up to three months for the facts numbers 424600 – 424650. The legal consequences are staggered depending on previous charges.
1.1 per mille
In contrast to the relative inability to drive described above, from a value of 1.1 per mille, so-called absolute inability to drive is to be assumed. From this it follows that it is irrefutably presumed that the person concerned was not able to drive the vehicle safely (exception: bicycle). A defense is excluded.
1.6 per mille
According to established case law, absolute unfitness to drive is only assumed from a value of 1.6 per mille when driving a bicycle. Currently, the important 2015 German Traffic Court Day is calling for a limit similar to that in § 24a StVG, with a limit of 1.1 per mille, due to the lack of a comparable fine.
The value of 1.6 per mille has a further significance: after the withdrawal of a driving license in connection with a drink-driving offense, the driving license authorities regularly require a medical-psychological examination if a value above 1.6 per mille was determined at the time of the offense and the driving license was subsequently withdrawn. This is stated in § 13 Nr. 2c) of the German Driver's License Regulation (FeV)
2.0 or 3.0 per mille
The limit values of 2.0 or 3.0 per mille are of rather less significance for the basic criminal offense, but rather only for the assessment of a penalty, have the limit values of 2.0 or 3.0 per mille. If these are reached, the assumption is that the person concerned is less culpable (2.0 per mille) or not culpable at all (3.0 per mille). The person concerned then benefits from a mitigating circumstance at the first level or an exclusion of guilt at the second level. The offense is then not fully or not at all personally attributable to the person concerned. However, the legal consequences change only slightly in this respect. Instead of a drunk driving or a road traffic endangerment, the person concerned then, under certain circumstances, commits the so-called drunken stupor according to § 323a StGB or instead of § 24a StVG the § 122 OWiG, whose legal consequences, however, in turn refer to the original facts, but limit them upwards.
Intent/negligence
All offenses can be committed either intentionally or negligently. The question of how to conclude that an act was committed intentionally, i.e. as a conscious and deliberate decision to carry out an act, when the person concerned is, so to speak, in an alcoholized state, is not without legal controversy. Case law makes use of non-exhaustive and, above all, non-systematized case-by-case examinations.
With regard to the finesIn the case of fines, it should be noted that the standard fines are generally based on a negligent manner of committing the offense, which is why the fines are at least doubled in the case of intent, which is to be assumed in particular in the case of repeated offenses.
Withdrawal of driving license/driving ban
If the person concerned is punishable under § 316 StGB or § 315c StGB, the law provides for the legal consequence under § 44 StGB to impose a driving ban of one to (recently) six months, whereby a driving ban is to be ordered as a rule, if a driving ban is not imposed. However, this is regularly the intended legal consequence if one of the mentioned offenses is realized. This is evident from § 69 Abs. 1 and Abs. 2 Nr. 1 bzw. 2 StGB. The driving ban acts as a catch-all for the failure to revoke a driving license.
The revocation of a driving license presupposes an unfitness to drive a motor vehicle, which usually finds expression in the underlying criminal liability. Both can (in exceptional cases) be ordered concurrently. This makes sense, for example, if the defendant is also to be banned from driving a moped or another motor vehicle that does not require a license, or if certain types of motor vehicles are to be excluded from the ban, but the offender is to be banned from driving any motor vehicle for a shorter period of time. If the criminal court has not made any explicit decision regarding fitness to drive, a pronounced driving ban does not prevent the administrative authority from withdrawing the driving license in the further course (§3 StVG), so that even in subsequent administrative proceedings, only the withdrawal of the driving license can be threatened.
Unlike the revocation of a driving license (§ 69 StGB), a driving ban (§ 44 StGB) does not result in the loss of a driving license. In the case of a driving ban, a person is not allowed to use their driving license for a certain period of time. While the revocation of the driving license as a measure of correction serves exclusively to ensure road safety by protecting the public from unsuitable drivers, a driving ban does not necessarily require a connection to road traffic. Rather, the driving ban serves as a secondary penalty with a warning and deterrent function.
The only consequence of a misdemeanor is the imposition of a driving ban, which is limited to three months (§ 25 para. 1 StVG). A further deviation from the driving ban under criminal and administrative fine law can be seen in the enforcement. A criminal driving ban begins at the moment when the driving license comes into official custody after it has become legally binding, but no later than one month after it has become legally binding (§ 44 para. 2 StGB), but a fine, on the other hand, when the decision becomes legally binding (§ 25 para. 1 sentence 1 StVG). However, the person concerned can 2a StVG, however, the person concerned may also be given the option of allowing the driving ban to take effect at a later date, namely when the driver's license comes into official custody, but no later than four months after the decision becomes final.
Legal expenses insurance
Whether legal expenses insurance covers the costs depends first of all on the individual insurance contract. In the case of a fine, the costs of the proceedings and the costs of the legal work are generally covered, whereas in criminal proceedings, costs are usually only covered if there is ultimately no legally binding conviction for willful misconduct.
Footnote:
[i] Other facts are basically conceivable, for example in the event that another person is injured or even killed in an alcohol-related traffic accident, a negligent bodily injury or even homicide.
[ii] According to the opinion of the courts, for the assumption of a concrete danger, an obvious danger must be present, which must be assessed in each individual case according to general life experience, and which indicates an imminent accident if no sudden turn occurs (BGH, judgment v. 15.02.1963 – 4 StR 404/62, in: NJW 1963, 1069). An almost-accident is an event in which an uninvolved observer comes to the conclusion that "it was a good thing that it went well" (BGH, judgment of March 30, 1995 - 4 StR 725/94, in: NJW 1995, 3131; BGH, Urt. v. 04.12.2002 - 4 StR 103/02, in: NJW 2003, 836).
In the legislative materials, BT-Drs. 16/5047, p. 9, it says: "In the case of novice drivers, there is a conscious move away from the concept of basing the ban, which is subject to a fine, on a specific danger threshold. The following considerations are decisive for this: the standardization of a limit value for danger, however determined, is associated with the risk that the addressees of the standard will "drink" their way to this alcohol limit and possibly exceed it. This applies in particular because the introduction of an absolute zero-per-thousand limit is problematic, mainly for metrological and medical reasons, and a limit determination including the necessary safety margin for alcohol measurement would have to be in the range of 0.1 to 0.3 per thousand. Therefore, if the most comprehensive ban possible is to be standardized for driving a motor vehicle under the influence of alcohol, the regulation must be based on the consumption of alcohol immediately before and during the journey. The regulation is based on the consumption of alcoholic beverages and excludes the ingestion of alcohol-containing medications or foods from the ban. The use of medicines (cough syrups, tinctures and similar products) and the consumption of alcoholic sweets (e.g. brandy beans) therefore do not constitute the offence. A person is deemed to be "under the influence" of such beverages if the alcohol consumed can lead to a change in physical or mental functions and is present in the body in a concentration (in the trace range) that is not only completely insignificant.
iv] Federal Court of Justice, judgment of April 22, 1982 – 4 StR 43/82, in: Neue Juristische Wochenschrift 1982, 2612.
Cf. on this BGH, decision dated April 3, 2001 – 4 StR 507/00, in: NJW 2001, 1952
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.