On August 23, 2022, the Zhangye Police in Gansu Province posted a traffic safety sign in the catering industry that reads "Don't drink and drive, don't drink while driving". Figure ic photo
On December 18, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated" (hereinafter referred to as the "23rd Edition Opinions"). The Opinions will come into force on December 28, 2023.
Similar to the 2013 version of the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Driving Motor Vehicles While Intoxicated (hereinafter referred to as the "13th Opinions"), the "predecessor" of the 23 Opinions, the response was very similar.
The term "criminal punishment for drunk driving" originated from the Criminal Law Amendment (VIII) passed by the Standing Committee of the National People's Congress in February 2011. Whoever drives a motor vehicle while intoxicated on the road shall be sentenced to short-term detention and a fine. "The wording of the law is always for general rules, and in the case of special cases, of course, there is also the possibility of not being criminalized. This possibility existed in 2011, 2013, and 2023.
"Criminalization of drunk driving" is stipulated in the specific provisions of the Criminal Law, and the General Provisions of the Criminal Law also have a general principle provision, "where the circumstances are obviously minor and the harm is not great", it is not considered a crime. Since this article is placed in the "General Provisions", it shows that it can theoretically be applied to all individual crimes, including the "dangerous driving crime" that criminalizes drunk driving.
Since the "criminalization of drunk driving" in 2011, all localities have adhered to strict law enforcement, fair justice, and punished drunk driving and drunk driving violations and crimes in accordance with the law, effectively safeguarding the safety of people's lives and property and road traffic safety. This is an achievement for all to see, and it is a typical example of the combination of special and general prevention in legislation.
Neither the "13th Edition Opinions" nor the "23rd Edition Opinions" deny the legislative value of "criminalizing drunk driving", nor do they contradict the legislative direction of "criminalizing drunk driving". Therefore, there is no such thing as "drunk driving will no longer be criminalized" or "drunk driving will be criminalized".
Whether from the perspective of legislation or justice, "will no more" is a wrong interpretation, and legislation is like this. Judicial interpretations are only interpretations made by the Supreme People's Court and the Supreme People's Court on the specific application of law in adjudication or procuratorial work. Although judicial interpretations also have universal judicial effect, they cannot openly "revise" the law itself that it is intended to interpret. Otherwise, it would be "legislative" rather than "interpreted".
The greatest significance of judicial interpretation lies in unifying standards, strict rules, strengthening the accurate application of law, and avoiding judicial injustice caused by different judgments in the same case. It has been 10 years since the implementation of the "13th edition of the Opinions". The judicial practice in the past ten years has also exposed the lack of uniformity in the judicial standards for law enforcement of drunk driving cases in various places.
1. There is an urgent need for judicial interpretations to respond to and strengthen the handling of issues such as unbalanced handling.
For example, the short 11 words of "driving a motor vehicle while intoxicated on the road" in the Criminal Law involve how to determine the connotation and extension of the four concepts of "road", "drunk", "driving" and "motor vehicle". Concepts that are not problematic in the eyes of ordinary people can become a key factor in determining guilt and innocence once they are deeply involved in specific cases.
For example, in recent years, there is a type of drunk driving case that has repeatedly become a hot topic in society. After a driver drank alcohol, he called a substitute driver, and after driving normally to the community, the driver picked up the substitute driver and parked the vehicle in his own parking space. Does this short distance constitute "drunk driving"? From the perspective of defense, whether the public space in the community can be called a "road" has become the focus of controversy between crime and innocence.
The 23-year version of the Opinions clearly states that "those who drive a motor vehicle for a short distance in residential areas, parking lots, and other places due to moving a car, parking in a parking position, etc.", "where a motor vehicle is driven by another person to a residential area, parking lot, or other places for a short distance to be driven by others, or a short distance from a residential area, parking lot, or other place in order to be driven by others", and there are no 15 types of specific circumstances, "it may be found that the circumstances are obviously minor and the harm is not great". This is the harmonization of law enforcement standards on specific issues.
The 23rd version of the Opinions also refines the rules for evidence collection, review and acceptance in drunk driving cases, and proposes rules for supplementing and improving procedural defects in blood sample extraction, packaging, and other links, as well as whether to admit them, so as to ensure that they are not in vain; It is clarified that drunk driving is a serious act of driving a motor vehicle after drinking, and the drunk driver who does not pursue criminal responsibility shall be given an administrative punishment in accordance with law. More attention should be paid to factors such as the motive and purpose of drunk driving, the degree of intoxication, the type of motor vehicle, road conditions, driving time, speed, distance, consequences, and the expression of admitting guilt and remorse, so that the punishment is commensurate with the crime.
From the analysis of the overall content, the "23 version of the Opinions" does not represent the "loosening" of the punishment for drunk driving, but in line with the principle of blending leniency and severity and applying crime and punishment, and strives to achieve leniency in terms of unified law enforcement standards and application of law. On the basis of the 8 aggravating circumstances stipulated in the 2013 Opinions, the new version of the "Opinions" has adjusted and added 7 aggravating circumstances, such as drunk driving on school buses, "drug driving" and "drug driving". Of course, there is no need to conclude that the "drunk driving sentence" is more severe.
Therefore, there are two common senses that need to be reiterated, one is that drunk driving is not necessarily criminalized, and the other is that the harm of drunk driving is not mitigated by a judicial interpretation. And the social consensus of "don't drink and drive, don't drink while driving" should still be adhered to.
Written by Wang Gu (Legal Scholar).
Edited by Xu Qiuying.
Proofread by Yanjun Zhang.