InterpretationOpinions on the handling of criminal cases of drunk and dangerous driving
On December 18, 2023, the Supreme People's Court and the Supreme People's Court issued the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated" [Gao Jian Fa Ban Zi 2023 No. 187]. Compared with the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Driving Motor Vehicles While Intoxicated (Fa Fa [2013] No. 15) issued in 2013, the Opinions have undergone significant changes, and in the future, the handling of dangerous driving cases will mainly focus on the following aspects:
1. Clarify the criteria for determining whether the road section within the jurisdiction of the unit is a "road".
Article 5 of the "Opinions" stipulates: "Whether the road sections within the jurisdiction of government agencies, enterprises and institutions, factories and mines, campuses, residential communities and other units are recognized as "roads" shall be judged on the basis of whether they are "public" and whether "social motor vehicles are allowed to pass". Where only motor vehicles within the unit and specific visiting motor vehicles are allowed to pass, they may not be identified as "roads". ”
2. Clarify the requirements for the submission and identification of blood samples.
1. The process of extracting and encapsulating blood samples shall be recorded and videotaped. The collection and sealing of blood samples shall be marked and numbered, and the person extracting or encapsulating the sample, and the criminal suspect are to sign the blood sample collection record. Where the criminal suspect refuses to sign, it shall be noted. [Requirements for extracting and encapsulating blood samples].
2. The blood samples taken shall be sent to the appraisal institution for blood alcohol content appraisal in a timely manner. If it cannot be submitted for inspection in time due to special reasons, the inspection materials shall be kept in accordance with the relevant specifications and technical standards and submitted for inspection within five working days. [Clarify the time limit for submitting for inspection].
3. The appraisal institution shall make audio and video recordings of the preparation of blood samples and the process of instrument testing. [Newly added provisions need special attention].
4. The case-handling unit shall notify the criminal suspect, defendant, victim, or their legally-designated ** person in writing within 5 working days of receiving the blood alcohol content appraisal opinion. [Clarify the time limit for notification of appraisal opinions].
III. Criteria for Determining the Exclusion of Evidence.
Article 9 of the Opinions stipulates: "In any of the following circumstances, the blood alcohol content appraisal opinion may be used as the basis for a verdict after supplementation or correctionwhere it cannot be supplemented or corrected or a reasonable explanation can be made, it shall be excluded:
1) The extraction, sealing, and storage of blood samples are not standardized;
2) Failure to submit for inspection and issue appraisal opinions in accordance with the prescribed time and procedures;
3) The appraisal process is not synchronized with audio or video recording in accordance with regulations;
4) There are other flaws or non-standard evidence collection behaviors. "IV. Increase in the number of circumstances for heavier punishments
5. Circumstances in which a case is not filed.
Article 12 of the "Opinions" stipulates: Where drunk driving has any of the following circumstances, and does not have the circumstances provided for in Article 10 of these Opinions [i.e., circumstances of heavier punishment], it may be found that the circumstances are obviously minor and the harm is not great, and it shall be handled in accordance with the provisions of Article 13 of the Criminal Law and Article 16 of the Criminal Procedure Law:
1) 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 and sick, and it does not constitute emergency evacuation;
3) Driving a motor vehicle for a short distance in residential areas, parking lots, etc., due to moving a car, parking in a place, etc.;
4) Driven by others to residential areas, parking lots, and other places for a short distance to take over the driving of a parked motor vehicle, or in order to be driven by others, from residential areas, parking lots, and other places for a short distance;
5) Other circumstances 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.
6. Circumstances of leniency.
Article 11 of the "Opinions" stipulates that drunk driving shall be given leniency in any of the following circumstances:
1) Surrender, confession, meritorious service;
2) Voluntarily admitting guilt and accepting punishment;
3) Causing a traffic accident, compensating for losses or obtaining understanding;
4) Other situations that require leniency.
7. Circumstances in which a suspended sentence is not applicable.
Article 14 of the "Opinions" stipulates that a suspended sentence shall be announced in accordance with law for drunk driving defendants who meet the requirements of Article 72 of the Criminal Law. In any of the following circumstances, suspended sentences are generally not applied:
1) Causing a traffic accident that causes minor or minor injuries to others, and bears full or primary responsibility for the accident;
2) Causing a traffic accident and bearing full or main responsibility for the accident, and failing to compensate for the loss;
3) Fleeing after causing a traffic accident;
4) Driving a car without obtaining a motor vehicle driver's license;
5) Blood alcohol content of more than 180 mg of 100 ml;
6) Driving after taking psychotropic drugs or products controlled by the state;
7) Employing violent means to resist lawful inspections by public security organs, or carrying out acts that obstruct justice;
8) Those who have been seized or have received administrative punishment for driving a motor vehicle after drinking alcohol within five years;
9) Those who have been convicted of dangerous driving or are relatively not prosecuted;
10) Other circumstances where the circumstances are heinous.
VIII. ** Management Mechanism [Investigation, prosecution, and trial work shall be completed within 30 days of filing and investigating].
Article 22 of the "Opinions" stipulates that drunk driving cases that meet the following conditions shall generally be subject to the first-class reasoning mechanism:
1) The on-site seizure did not cause a traffic accident;
2) The facts are clear, the evidence is credible and sufficient, and there is no dispute about the application of law;
3) The criminal suspect or defendant voluntarily admits guilt and accepts punishment;
4) There are no circumstances provided for in article 223 of the Criminal Procedure Law.
9. Miscellaneous.
1. The amount of fine: The starting point of the penalty shall generally not be lower than the amount of the fine for driving a motor vehicle after drinking alcohol as stipulated in the Road Traffic Safety Law;For each additional month of criminal detention, a fine of 1,000 to 5,000 yuan will be added. [Article 15] 2. Determination of voluntary surrender: After a criminal suspect is caught driving drunk and is found at the scene, he or she is allowed to leave, and then is notified by the public security organs to appear in the case or voluntarily appear, it is not to be found to have voluntarily surrendered;Protecting the scene, rescuing the injured after causing a traffic accident, reporting to the public security organs, and cooperating with the investigation, shall be found to have voluntarily surrendered. [Article 17].
3. Factors influencing punishment: voluntarily receiving safe driving education, engaging in traffic volunteer services, community public service, etc., shall be considered as factors in making relevant treatments. [Article 18].
4. Evidence collection: Article 7 of the "Opinions" clearly stipulates that the evidence that needs to be collected in dangerous driving cases requires special attention to collecting
The decision on administrative punishment for traffic violations [Before transferring the case for prosecution (including not filing the case and spreading the case), it is necessary to give an administrative penalty for drunkenness. 】
Breath alcohol content tester calibration certificate [mainly confirms that the breath alcohol content results have probative power].
Save video and audio data of on-site law enforcement.
In the event of a traffic accident, there shall be a "Traffic Accident Identification Certificate".
If a person is injured in a traffic accident, there shall be an appraisal opinion such as the degree of physical injury [distinguishing this crime from another crime.] If the suspect is driving while intoxicated and is primarily responsible for the accident and seriously injures the victim, it will constitute a traffic accident.