Drinking and driving and its consequences under German criminal law Many drivers are familiar with this situation: you sit together with friends or colleagues, drink some alcohol and then drive a car. At the latest at the moment when you are waved out by the police, you ask yourself whether you might not have drunk a little too much alcohol.
Drinking and driving or the use of drugs can lead to significant problems.
In this case, the driver is threatened not only with a misdemeanor, but also with a criminal investigation for drunk driving above a certain blood alcohol level. Attorney Dietrich explains the requirements. The penalties of a drunk driving.
In particular, attorney Dietrich will answer your questions:
What does drunk driving mean according to § 316 StGB? What are vehicles in the sense of § 316 StGB? When does one drive the vehicle in traffic? When is one unfit to drive in the sense of § 316 StGB? Driving under the influence of alcohol – at what level of alcohol am I absolutely unfit to drive?? What is the relative inability to drive when driving under the influence of alcohol? What is the difference between intentional. Negligent drunk driving? How is drunk driving punished according to § 316 StGB – what are the penalties?? Am I threatened with the loss of my driver's license after a drunk driving incident?? How long will I lose my driver's license – What is a suspension period?? I was riding a bike – can I still get a suspension? Is there a driving license withdrawal already in the preliminary proceedings? Can I get a driving ban after a drunk driving offence? Do I need the help of a lawyer?
What is drunk driving according to § 316 StGB?
For drunk driving according to. § 316 para.1 u. 2 StGB makes himself punishable, who intentionally or negligently drives a vehicle in traffic, although he is not able to drive the vehicle safely due to the consumption of alcoholic beverages or other intoxicating substances.
What are vehicles in the sense of § 316 StGB (German Criminal Code)?
Vehicles in the sense of § 316 StGB are all means of transport that serve the purpose of movement in public traffic. This can be motorized vehicles such as cars, motorcycles, trains, motorboats or airplanes, as well as vehicles that are not powered by engine power. Therefore, bicycles, sailboats, gliders and even wheelchairs also fall under the concept of a vehicle in the sense of § 316 StGB (German penal code).
When does one drive the vehicle in traffic?
The vehicle must be driven in traffic. A vehicle is driven in the sense of § 316 StGB if it is set in motion or if it is steered by handling its technical devices during the driving motion. Simply put, a vehicle is being driven when its wheels are turning and the vehicle is moving.
Therefore, for example, a car is not yet driven, if only the engine was started, but it did not yet come to any movement of the car. Likewise, a car is not driven if it is stuck in the mud, even if the driver steps on the gas. In this case, the driving wheels turn, but there is no locomotion. On the other hand, however, a car is being driven if it is allowed to roll down a slope while idling. In the case of motorized vehicles, it is therefore by no means important that the engine is running.
However, simply driving a vehicle is not enough. This must occur in traffic. This is the case if the traffic area on which the vehicle is being driven is open for use by the public. This includes public roads and parking lots, but also privately operated parking garages, if the access is generally released. If there is a lack of general accessibility, for example in the case of parking lots outside opening hours or in the case of parking lots that are closed to the general public by special protective devices such as bollards, driving a vehicle in traffic within the meaning of Section 316 StGB is not possible there.
When is one unfit to drive in the sense of § 316 StGB?
The facts of § 316 StGB also require that the driver is unable to drive the vehicle safely as a result of drinking alcoholic beverages or other intoxicating substances. However, it is not a question of the driver not being able to drive the vehicle at all, but whether the driver can safely drive the vehicle in public traffic. This is not the case if the driver can no longer cope with the average demands of traffic. This also includes the ability to react appropriately to difficult traffic situations.
The inability to drive must be based on the consumption of alcoholic beverages or other intoxicating substances. Other intoxicating substances are classic drugs such as cocaine or cannabis, but also medications.
Driving under the influence of alcohol – from which alcohol level am I absolutely unfit to drive??
In the practical application of § 316 StGB, a distinction is made between so-called "absolute driving incapacity" and "relative driving incapacity".
The absolute inability to drive only plays a role in the context of the consumption of alcoholic beverages. Accordingly, a driver is considered irrefutably unfit to drive if he or she had a blood alcohol concentration of 1.1 per mille at the time of driving. For cyclists, this absolute limit is a blood alcohol concentration of 1.6 per mille, for boat drivers 2.0 per mille.
From the respective per mille limit it is irrefutably assumed that the driver was unfit to drive. Thus, one cannot defend oneself with the objection that one is accustomed to driving a vehicle with considerable per mille values.
What is the relative driving incapacity with a drunkenness driving?
Relative inability to drive, and thus criminal liability for drunk driving, is possible if the driver's blood alcohol concentration at the time of driving is below the limit of absolute inability to drive, but is at least 0.3 per mille, or if the driver has taken other intoxicating substances. The relative driving incapacity alone is not sufficient for a punishability because of drunkenness in the traffic after § 316 StGB. This is only given, if the driver shows additionally intoxication-conditioned failure symptoms. Typical alcohol-related failure symptoms in road traffic are driving in a serpentine manner or cutting corners. But driving in the dark without lights is also considered a drunk driving offense. What is the difference between intentional. Negligent drunk driving? If the driver is aware at the start of the journey that he is unfit to drive, and he drives anyway, he acts intentionally and makes himself liable under § 316 para.1 StGB punishable. If, however, the driver mistakenly believes himself to be fit to drive when in fact he is no longer, he is acting negligently and is also subject to a ban on driving under section 316 para.2 StGB because of negligent drunkenness in road traffic punishable.
How is drunk driving punished according to § 316 StGB – what is the penalty??
For drunk driving under § 316 para.1 and 2 StGB threatens a prison sentence of up to one year or a fine. The specific amount of the penalty depends in particular on whether traffic violations have already been committed in the past, how high the blood-alcohol level was, and whether the drunk driving was committed intentionally or negligently. The intentional drunk driving is regularly punished more severely.
Am I threatened with losing my driver's license after driving drunk??
In addition, if a driver is convicted under Section 316 of the Criminal Code, he or she must usually expect that the driver's license will also be suspended under Section 69 para.2 no.2 StGB is withdrawn if it is clear from the circumstances of the offence that the convicted person is not fit to drive a motor vehicle. This is usually assumed in a conviction under Section 316 of the Criminal Code.
In order to refute this assumption, special circumstances must be present for this. Such circumstances exist, for example, when the convicted person had no experience with the effects of alcoholic beverages before committing the crime, so that it was impossible for him to assess their effects. If the intoxicating substances were administered to the driver without his or her knowledge, the drunk driving cannot be used to conclude that the driver is unfit to drive a motor vehicle.
A further example would be that one started the journey in intoxicated condition only, because an emergency, like a heavy accident of a relative, was present.
How long do I lose my driver's license – what is a suspension period?
If the driving license is revoked according to § 69 Abs.2 No.2 StGB is withdrawn, the court shall, pursuant to § 69a para.1 StGB (German Criminal Code), he is also subject to a period of ineligibility of six months to five years, during which the driver's license cannot be reissued. If a period of ineligibility has already been set against the convicted person in the last three years before the period of ineligibility is set, the minimum period of ineligibility under § 69a para.3 StGB one year. In particularly serious cases, the court can also set this suspension for an indefinite period of time.
However, according to § 69a para.7 StGB lift the ban even before the expiry of the ban period, if reasons arise from which the driver is no longer to be regarded as unsuitable to drive a motor vehicle. Such a reason can be, for example, the successful participation in a traffic seminar for offenders who are conspicuous for alcoholism.
I've been riding a bike – can I still get a lockout?
If someone was convicted under Section 316 of the Criminal Code, but does not have a driver's license for a motor vehicle, for example, an absolutely unfit cyclist without a driver's license, the court shall order under Section 69a para.1 S.3 StGB only a blocking period on, within which no driving license may be given to the convicted one. One speaks then of an isolated lock.
Is there a driver's license revocation already in the preliminary proceedings?
Finally, according to § 111a of the Code of Criminal Procedure, a judge may order even in the preliminary proceedings that the driver's license is temporarily revoked, if there are reasons to believe that in the verdict will be ordered to revoke the driver's license under § 69 of the Criminal Code. This is the case if there is a strong suspicion that the defendant has committed an offence under Section 316 of the Criminal Code and there is a high probability that an order under Section 69 of the Criminal Code will be issued. If the driving license is then actually revoked in the verdict in accordance with § 69 StGB, the duration of the provisional revocation of the driving license is counted towards the duration of the ban period in accordance with § 69a StGB.
Can I get a driving ban after a drunk driving conviction?
If, due to special circumstances, the court refrains from revoking the driving license pursuant to Section 69a of the Criminal Code, it shall pronounce a temporary ban pursuant to Section 44 Para.1 StGB usually results in at least a driving ban of one to three months. During this period, the convicted person is prohibited from driving vehicles on the road.
Do I need the help of a lawyer?
From a defense point of view, you can only be strongly advised to be represented by a lawyer. For a lawyer, there are numerous possibilities to positively influence the outcome of the proceedings as part of the defense against the accusation of drunk driving. The distinction between absolute and relative unfitness to drive or the findings on intentional or negligent conduct already set the course for the further proceedings. The written admission given after file inspection is of elementary importance here. A careless word can be to blame for you having to surrender your driving license.