was the headline of the Rheinzeitung this year (issue of 3/3/2018) on the occasion of the annual presentation of the traffic accident report of the Koblenz police headquarters. Although the total number has decreased, the figure of 9066 recorded cases remains "alarming", especially since the clearance rate has fallen from 42.7 to 41.8 percent.
But when exactly are we dealing with a hit and run, a hit and run or, as the legislature calls it in less dramatic terms: unauthorized removal from the scene of an accident. The following article is intended to provide a brief insight, but cannot replace individual legal advice.
It should be emphasized that in many cases, no one is really fleeing, but rather there is often a lack of knowledge about exactly what is required of a party involved in an accident. The legal situation formulates the obligations as follows: After a road accident, a party involved in the accident must, for the benefit of the other parties involved in the accident and the injured parties, enable the identification of his person, his vehicle and the nature of his involvement by his presence and by stating that he is involved in the accident, or wait a reasonable time according to the circumstances until someone is willing to make these determinations. If he is unable to fulfill these obligations because he has left the scene of the accident for justified or excused reasons after the end of the reasonable waiting period or for other reasons, he must enable the findings to be made immediately afterwards.
Significance of the penal provision
Section 142 of the German Criminal Code (StGB), which standardizes the above, is in the section of crimes against public order. However, according to the prevailing and correct view, it is not so much in the public interest to want to know who was involved in the accident as it is to ensure that the claims arising from the accident under civil law, which are usually settled through insurance, are actually fulfilled.
Road traffic accident
Every removal is preceded, so to speak, by a triggering event, the so-called accident on public roads. This refers to a sudden event in which a typical traffic risk materializes and which immediately leads to personal injury or property damage that is not entirely negligible. Typically, such an accident always requires the collision of a controlled motor vehicle with another motor vehicle, an object or even a person. An accident is only deemed not to have occurred if it was intended by all parties involved, for example in the case of staged and manipulated accidents. Even driving into a crash barrier or against a curb can constitute such an accident in the event of damage and trigger the corresponding obligations. Since the direct connection between action and damage is broadly understood, an uncharacteristic action in road traffic that subsequently triggers an accident by others can also give rise to obligations under §142 StGB arise, such as driving through a red light with a subsequent accident in cross-traffic or sudden braking or forcing someone to brake, which leads to an accident behind you.
No accident is, however, if only the person causing the accident suffers any damage, which is logical and consistent, because then no civil claims are conceivable either (this can only be problematic for leased or financed vehicles).
Likewise excluded is criminal liability if an accident did not even take place on a public road. Public areas are all traffic areas that are generally accessible to vehicles, including footpaths and cycle paths, private parking lots, and private special-purpose and access roads. It is irrelevant whether the person is authorized to use the traffic area. However, this has its limits in the case of areas that are not intended for public use, i.e. demarcable private property or generally fenced-in grounds that are only to be accessed by a certain group of people. The typical case of a shopping cart that usually rolls away by itself on a supermarket parking lot, for example, is to be considered an accident that triggers the corresponding obligations. Conversely, however, if you have a fender bender in a private parking lot or in a private underground garage, it is worth taking a closer look to see if there is no public connection.
After all, it must not be a mere trivial damage, whereby this limit is often exceeded very quickly, especially in the case of damage to third-party vehicles. In such cases, people are often surprised at how expensive a mirror that has been torn off, a bumper that has to be repainted or similar damage can be. The courts set this limit at a level where claims for damages are not usually expected, and put it at around just 25 euros (!).
Parties involved in the accident
Not only the driver himself, but anyone who may have contributed to the accident in some way and whose involvement is quite possible and not too far-fetched and who was present at the scene of the accident at the relevant time can be liable to prosecution. Since the ultimate aim is to secure civil claims, this is entirely understandable and reasonable, since it may be disputed whether the driver who actually reports was actually driving or whether the co-driver or another passenger was driving. In practice, such cases are not uncommon, especially if the actual cause of the accident wants to conceal his involvement in collaboration with others, for example because he had one beer more than the others or had consumed narcotics shortly before. In addition, it is precisely for the purpose of protection that all witnesses, including cyclists and pedestrians, are recorded by name, at least initially, even if their involvement seems rather unlikely at first glance. This can also have consequences for the subsequent evidence situation if the dispute concerns compensation under civil law.
Necessary findings
If there are persons at the scene of the accident who are willing to make a statement, Section 142 of the German Criminal Code (StGB) waives the obligation to provide the necessary information. This includes, in particular, the personal details of the person involved in the accident, their vehicle, especially the license plate number, and the nature of their involvement. To fulfill these obligations, the party involved in the accident must remain at the scene of the accident until the findings have been made, which may mean until the police arrive. This essentially results in an active duty to present oneself, and possibly also an appropriate duty to wait.
The latter follows directly if no "willing" persons are present. How long you have to wait in each case can then depend on the individual case, for example on the severity of the accident or the presumed amount of damage, the time of day or even the weather, the location of the accident itself or the question of when persons willing to make a report can be expected to arrive. On the other hand, however, it must not be driven away without waiting at all.
In the interest of all parties, the findings themselves can even be dispensed with. In practice, however, this should only be done in exceptional cases, since such a waiver will be difficult to document and, in addition, must be endorsed by all conceivable parties involved in the accident. If it is found out afterwards that a waiver was coerced or obtained by other fraudulent means, it would be considered invalid, with the consequence that the necessary findings were omitted and the offense may be fulfilled again.
Necessary findings must also no longer be made if the damage is immediately and completely replaced or the damaged party effectively waives compensation. If the party involved in the accident admits their guilt without reservation and the alleged injured party waives further action, this may also result in the offense not being punishable.
Intent and willpower
Finally, the objective elements of the offense, which have just been briefly outlined, must be supported by the so-called intent of the party involved in the accident. This must therefore relate to the fact that an accident has occurred at all, for which he may be partly responsible, that the damage was not completely insignificant and that he himself is to be regarded as a party to the accident, and ultimately also that he left the scene and that the findings were thus made more difficult.
In practice, it is regularly disputed that a possible accident did not even occur. The argument is usually that if you had noticed it, you could have easily remained where you were, after all you are insured. The range of arguments presented by clients certainly extends from the completely absurd to the thoroughly plausible. The circumstances of the individual case are decisive, which in the case of initiated criminal proceedings on suspicion of unauthorized removal from the scene of an accident must first be determined by means of file inspection.
The assertion, especially by older road users, that they did not perceive or could not perceive a damaging event for physical or health reasons can also be considered quite dangerous. Although this may lead to an exclusion of intent from a criminal law perspective and thus to a successful defense against the accusation of unauthorized removal from the scene of the accident, it may also lead to the driver's license authority questioning the basic suitability of the person to drive a motor vehicle by reporting the incident.
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.