On December 18, 2023, 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, which sparked extensive discussions.
Some netizens believe that this legal document is opening up to the "drunk driving behavior", and even conniving at "drunk driving". Some friends interpret it as good for liquor stocks.
Netizens are particularly concerned about the fact that Article 12 of the above-mentioned legal document stipulates five types of "drunk driving behaviors" that are not recognized as crimes. This article, which stipulates five types of drunk driving, does not constitute a crime under substantive law (Article 13 of the Criminal Code). In terms of litigation procedures, criminal responsibility is not pursued, and where it has already been pursued, the case shall be withdrawn, or no prosecution shall be instituted, or the trial shall be terminated, or an acquittal shall be declared not guilty (article 16 of the Criminal Procedure Law). Article 12 reads as follows:
In any of the following circumstances, and there are no circumstances provided for in article 10 of these Opinions, it may be found that the circumstances are obviously minor and the harm is not great, and it is to be handled in accordance with article 13 of the Criminal Law and article 16 of the Criminal Procedure Law:However, this interpretation is one-sided and lacks a comprehensive understanding of current judicial practice.a) The blood alcohol content is less than 150 mg 100 ml;
2) Driving a motor vehicle for emergency purposes such as first aid for the injured or sick, and it does not constitute emergency evasion;
3) Driving a motor vehicle for a short distance in residential areas, parking lots, and other places due to moving a car, parking in a place, etc.;
4) Where a motor vehicle is driven by another person to a residential area, parking lot, or other place for a short distance to take over the driver, or in order to be driven by another person, a short distance from a residential area, parking lot, or other place;
5) Other situations where the circumstances are obviously minor.
Where, after being drunk, for emergency reasons such as first aid for injured or sick persons, they have no choice but to drive a motor vehicle, and it constitutes an emergency evasion, it is to be handled in accordance with the provisions of Criminal Law article 21.
First, for the alcohol content at 150For those below 100ml, in practice, some provinces have no longer pursued criminal liability, and the degree of leniency exceeds the standard of the "Opinions on Handling Criminal Cases of Dangerous Driving while Intoxicated".
Documents issued by the High People's Court, the Provincial Procuratorate, and the Public Security Department in some regions, as well as judicial practice, have implemented non-prosecution or exemption from criminal punishment for drunk driving behaviors exceeding 80mg and 100ml. In some places, the standard is even as highmg／100ml、170mg／100ml，Above the standards of this legal document.
1. The Zhejiang Provincial High People's Court, the Zhejiang Provincial People's Procuratorate, and the Zhejiang Provincial Public Security Department's "Minutes of the Meeting on Several Issues Concerning the Handling of "Drunk Driving" Cases stipulates:
Driving a car while intoxicated, without the 8 aggravating circumstances described above, and admitting guilt and repentance, and meeting the requirements for applying a suspended sentence, a suspended sentence may be applied in accordance with law. The alcohol content is less than 170mg 100ml, admit guilt and repent, and there are no of the above 8 aggravating circumstances, and the circumstances of the crime are minorNo prosecution or exemption from criminal punishment may be imposed。Where the alcohol content is 100mg or less and there are no of the 8 aggravating circumstances mentioned above, and the harm is not great, it may be considered that the circumstances are obviously minor, and it is not to be transferred for review for prosecution.2. The Hunan Provincial High People's Court, the Hunan Provincial People's Procuratorate, and the Hunan Provincial Public Security Department's "Minutes of the Meeting on Several Issues Concerning the Handling of Criminal Cases of Driving Motor Vehicles While Intoxicated" stipulates:
Where a person drives a motor vehicle while intoxicated, and does not have the circumstances in article 7 above, and admits guilt and repentance, and meets the requirements for applying a suspended sentence, a suspended sentence may be applied in accordance with lawThose with an alcohol content of 160mg or less may not be prosecuted or exempted from criminal punishment3. Sichuan Provincial High People's Court's "Guiding Opinions on Sentencing for Common Crimes" Detailed implementation rules (2) provide: In any of the following circumstances, the circumstances of the crime are minor and do not require a criminal punishmentExemption from criminal penalties:
The degree of drunkenness is 150mg 100mlThe following are first-time offenders, and there are circumstances such as emergency patients, short-distance moving of parking spaces, voluntary abandonment of drunk driving for reasons other than road inspection, and driving after sobering up overnight, which have not caused other losses or consequences.Of course, strictly speaking, the "Opinions on Handling Criminal Cases of Dangerous Driving while Intoxicated" is forDrunk driving with mg of 100ml or less is found not guilty. The legal opinion of the above three provinces is that drunk driving below 150 160 170mg 100ml will not be prosecuted or exempted from punishment. Immunity from punishment is essentially a presumption of guilt. However, the legal consequences of not prosecuting, at least in some provinces such as Guangdong and Fujian, are acquittal (although some areas still consider the existence of criminal records, such as Zhejiang). Therefore, this comparison is not completely unreasonable.
Second, for more than 180Probation is generally not applicable to mg 100ml, and some regions have previously adopted a more lenient standard
Article 14 of the Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated provides for a variety of circumstances in which a suspended sentence is not applicable, such as "a blood alcohol content of more than 180mg 100ml". In practice, however, some provinces have adopted higher standards for the amount of alcohol that is not subject to probation.
For example,Jilin Provincial High People's Court, Jilin Provincial People's Procuratorate, Jilin Provincial Public Security Department, and Jilin Provincial Department of Justice, "Opinions on Several Issues Concerning the Handling of Drunk Driving Dangerous Driving Cases".Article 21 provides:
In any of the following circumstances:Probation may apply:(1) Where the blood alcohol content is between 200 mg and 100 ml, no traffic accident was caused, the defendant admits guilt or repents, and there are no other aggravating circumstances, it may generally be found that the circumstances of drunk driving are relatively minor;(b).Blood alcohol content below 200 mg 100 mlWhere a traffic accident is caused, but minor injuries are caused or property damage is small, and the defendant actively compensates and obtains forgiveness, and there are no other aggravating circumstances, it may also be found to be a relatively minor circumstance for drunk driving;(3) Other circumstances where a suspended sentence may be applied.
The above-mentioned documents issued by the third and fourth departments are based on the investigation and investigation of the judicial practice experience of various provinces and cities, and have a strong practical foundation. Moreover, objectively speaking, at least compared with the current standards of some provinces, the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated" does not adopt more lenient standards for whether it is recognized as a crime, whether criminal responsibility is pursued based on criminal procedures, and whether a suspended sentence is applied, but is actually stricter.