Supreme People's Court, Supreme People's Procuratorate
Ministry of Public Security, Ministry of Justice
Gao Jian Fa Ban Zi 2023 No. 187.
About the issuance
Supreme People's Court, Supreme People's Procuratorate
The Ministry of Public Security and the Ministry of Justice on handling
Dangerous driving while intoxicatedOpinions on Criminal Cases
notification
The High People's Courts, People's Procuratorates, Public Security Departments (Bureaus), and Judicial Departments (Bureaus) of all provinces, autonomous regions, and municipalities directly under the Central Government, the People's Liberation Army Military Courts, Military Procuratorates, the Security Bureau of the Political and Legal Committee of the Central Military Commission, the Production and Construction Corps Branch of the High People's Court of the Xinjiang Uygur Autonomous Region, and the People's Procuratorates, Public Security Bureaus, and Justice Bureaus of the Xinjiang Production and Construction Corps
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, and achieving remarkable results in the management of drunk driving. The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice have formulated the "Opinions on Handling Criminal Cases of Dangerous Driving While Intoxicated" so as to adapt to the new situation and new changes, further unify law enforcement and judicial standards, and strictly regulate and handle drunk driving cases in accordance with the law. Problems encountered in enforcement should be promptly reported to the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice.
Supreme People's Court, Supreme People's Procuratorate
Ministry of Public Security, Ministry of Justice
December 13, 2023.
Supreme People's Court, Supreme People's Procuratorate
Ministry of Public Security, Ministry of Justice
About handling
Opinions on criminal cases of dangerous driving while intoxicated
These Opinions are drafted on the basis of the Criminal Law, Criminal Procedure Law, and other relevant provisions, combined with law enforcement and judicial practice, so as to preserve the safety of the people's lives and property and road traffic safety, and to lawfully punish the illegal and criminal driving while intoxicated and dangerous driving (hereinafter "drunk driving").
1. General requirements
Article 1People's courts, people's procuratorates, and public security organs handling drunk driving cases shall persist in the division of labor and responsibility, cooperate with each other, restrain each other, persist in correctly applying the law, adhere to the principle of evidence-based judgments, strictly enforce the law, administer justice fairly, increase the efficiency of case handling, and bring about the organic unity of political, legal, and social effects. The people's procuratorates carry out legal supervision over the handling of drunk driving cases in accordance with law.
Article 2People's courts, people's procuratorates, and public security organs handling drunk driving cases shall fully and accurately implement the criminal policy of blending leniency and severity, and carry out differentiated treatment based on the specific circumstances of the case, so that leniency is given where it should be, severity is given to punishment, and punishment is appropriate to the crime.
Article 3The people's courts, people's procuratorates, public security organs, and judicial-administrative organs shall persist in combining punishment with prevention, employing a variety of methods to strengthen comprehensive governance and the management of the source of litigation, to prevent and reduce the occurrence of drunk driving at the source.
II. Case Filing and Investigation
Article 4Where a motor vehicle is driven on the road and a breath alcohol content test shows that the blood alcohol content reaches 80 mg to 100 ml or more, the public security organs shall decide whether to file a case in accordance with the provisions of the Criminal Procedure Law and these Opinions. Where the circumstances are obviously minor and the harm is not great, and it is not considered a crime, the case is not to be filed.
The public security organs shall promptly collect blood samples from criminal suspects and send them for testing. The determination of whether a criminal suspect is intoxicated is primarily based on the blood alcohol content evaluation opinion.
Where a criminal suspect has a breath alcohol content test showing a blood alcohol content of 80 mg or more and 100 ml or more, and escapes or finds someone to replace him before the blood sample is taken, the breath alcohol content test results may be used as the basis for determining that he is intoxicated.
Where a criminal suspect intentionally consumes alcohol before a breath alcohol content test or a blood sample is taken during a lawful inspection by a public security organ or after a road traffic accident occurs, in order to avoid legal prosecution, the blood alcohol content evaluation opinion after the seizure may be used as the basis for determining that he is intoxicated.
Article 5The determination of "road" and "motor vehicle" in drunk driving cases shall be governed by the provisions of the Road Traffic Safety Law on "road" and "motor vehicle".
Whether a road section within the jurisdiction of a government organ, an enterprise or public institution, a factory or mine, a campus, a residential area or other unit is identified as a "road" shall be judged on the basis of whether it is "public" and whether it "allows social motor vehicles to pass". Where only motor vehicles within the unit and specific visiting motor vehicles are allowed to pass, they may not be designated as "roads".
Article 6Suspects or defendants of drunk driving may be detained or released on guarantee pending further investigation in accordance with law based on the specific circumstances of the case. In any of the following circumstances, release on guarantee pending further investigation is generally given:
1) Those who need medical treatment due to their own injuries;
2) Suffering from a serious illness that makes them unfit for detention;
3) Women who are pregnant or breastfeeding their own infants;
4) is the sole supporter of a person who is unable to take care of himself;
5) Other situations where release on guarantee pending further investigation is required.
Where the requirements for release on guarantee pending further investigation are met, but the criminal suspect or defendant is unable to provide a guarantor or pay a guarantee deposit, residential surveillance may be met. Criminal suspects or defendants who violate the provisions on release on guarantee pending further investigation or residential surveillance, where the circumstances are serious, may be arrested.
Article 7The following evidence shall be collected in handling drunk driving cases:
1) Evidentiary materials proving the circumstances of the criminal suspect, primarily including identification such as records of population information inquiries or household registration certificates; Driver's license and driver's information inquiry records; Criminal record records, records of having been seized or administrative punishment for driving a motor vehicle after drinking, and administrative punishment decision for this traffic violation, etc.;
2) Evidentiary materials proving the circumstances of the intoxication testing and appraisal mainly include breath alcohol content test results, breath alcohol content tester calibration certificates, blood sample extraction records, evaluation power of attorney or evaluation establishment's receipt of sample registration materials, blood alcohol content evaluation opinions, evaluation opinion notices, and so forth;
3) Evidentiary materials proving the condition of the motor vehicle, mainly including motor vehicle driving licenses, motor vehicle information inquiry records, motor vehicle **, etc.;
4) Proving the on-site law enforcement situation, mainly including on-site inspections of motor vehicles, breath alcohol content testing, and the collection and packaging of blood samples, and shall preserve audio and video recordings of relevant links;
5) The criminal suspect's confession and justification.
Based on the specific circumstances of the case, the following evidence shall also be collected:
1) Where there is a dispute over whether the criminal suspect consumed alcohol or drove a motor vehicle, the testimony of witnesses such as those in the same vehicle, witnesses at the scene, or persons who drank alcohol together, and monitoring records of drinking establishments and driving sections shall be collected;
2) If the road properties are disputed, the testimony of the relevant management personnel, owners and other informed personnel, the management unit or the relevant departments shall be collected;
3) Where a traffic accident occurs, the traffic accident identification document, the monitoring record of the accident section, the degree of physical injury and other appraisal opinions, and the victim's statement shall be collected;
4) Where voluntary surrender might be constituted, materials such as the criminal suspect's arrival in the case shall be collected;
5) Other evidentiary materials that are truly necessary to be collected.
Article 8Procedures for the extraction, sealing, storage, testing, and evaluation of criminal suspects' blood samples are to be carried out in accordance with the Ministry of Public Security and the Ministry of Justice's relevant procedures for handling road traffic safety violations, evaluation rules, and other such provisions.
Public security organs shall make audio and video recordings of the entire process of collecting and encapsulating blood samples. The collection and sealing of blood samples shall be well 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. Blood samples taken shall be promptly sent to an evaluation institution for blood alcohol content evaluation. 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.
The evaluation body shall make audio and video recordings of the process of preparing blood samples and testing instruments. Within 3 working days of receiving the blood samples submitted for testing, the evaluation body shall conduct an evaluation in accordance with the relevant norms and technical standards, issue a blood alcohol content evaluation opinion, and notify or send it to the entrusting unit.
Where the blood alcohol content evaluation opinion is used as evidence, 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 evaluation opinion.
Article 9In any of the following circumstances, where a supplemental correction or reasonable explanation is made, the blood alcohol content evaluation opinion may be the basis for a verdict; where it cannot be supplemented or corrected or a reasonable explanation can be made, it shall be excluded:
1) The collection, sealing, or storage of blood samples is not standardized;
2) Failure to submit for inspection or issue an appraisal opinion in accordance with the prescribed time and procedures;
3) The evaluation process is not synchronized with audio or video recordings in accordance with provisions;
4) There are other flaws or irregularities in evidence gathering.
3. Criminal prosecution
Article 10In any of the following circumstances, where drunk driving does not constitute another crime, it is to be dealt with heavily:
1) Causing a traffic accident and bearing full or primary responsibility for the accident;
2) Fleeing after causing a traffic accident;
3) Driving a motor vehicle without obtaining a motor vehicle driver's license;
4) Seriously overcrowding, overloading, or speeding;
5) Driving after taking psychotropic drugs or products controlled by the state;
6) Driving a motor vehicle to engage in passenger transport activities and carrying passengers;
7) Driving a motor vehicle to engage in school bus business and carrying teachers and students;
8) Driving on a highway;
9) Driving a heavy truck;
10) Transporting hazardous chemicals and dangerous goods;
11) Evading or obstructing lawful inspections by public security organs;
12) Carrying out acts that obstruct justice, such as threatening, retaliating, enticing, or bribing witnesses, evaluators, or other persons, or destroying or fabricating evidence;
13) Having been seized or received an administrative punishment for driving a motor vehicle after drinking alcohol within two years;
14) Those who have been convicted of dangerous driving within five years or have been relatively not prosecuted;
15) Other situations that require a heavier disposition.
Article 11In any of the following circumstances, drunk drivers are to be given a lenient punishment:
1) Voluntary surrender, confession, or meritorious service;
2) Voluntarily admitting guilt and accepting punishment;
3) Causing a traffic accident, compensating for losses, or obtaining understanding;
4) Other situations requiring leniency.
Article 12In any of the following circumstances, and there are no circumstances provided for in article 10 of these Opinions, drunk driving may be found to be 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:
1) The blood alcohol content is less than 150 mg or 100 ml;
2) Driving a motor vehicle for emergency purposes such as first aid for injured or sick persons, and it does not constitute emergency evacuation;
3) Driving a motor vehicle for a short distance in residential areas, parking lots, or other places due to moving a car, parking in a place, or so forth;
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 such place;
5) Other situations where the circumstances are obviously minor.
Where, after being drunk, driving a motor vehicle as a last resort for emergency purposes such as first aid for the injured or sick constitutes emergency evasion, it is to be handled in accordance with the provisions of Criminal Law article 21.
Article 13In drunk driving cases transferred by the public security organs for review and prosecution, where the people's procuratorate comprehensively considers factors such as the criminal suspect's motive and purpose for driving, the degree of intoxication, the type of motor vehicle, road conditions, travel time, speed, distance, and admission of guilt and remorse, and finds that the circumstances of the crime are minor, it is to be handled in accordance with the provisions of article 37 of the Criminal Law and paragraph 2 of article 177 of the Criminal Procedure Law.
Article 14Defendants who meet the requirements of article 72 of the Criminal Law are to be given a suspended sentence in accordance with 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 primary responsibility for the accident, and failing to compensate for losses;
3) Fleeing after causing a traffic accident;
4) Driving a motor vehicle without obtaining a motor vehicle driver's license;
e) Blood alcohol content of more than 180 mg 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 received an administrative punishment for driving a motor vehicle after drinking alcohol within five years;
9) Those who have been convicted of dangerous driving or made a relative non-prosecution;
10) Other situations where the circumstances are heinous.
Article 15The amount of the fine appropriate to the principal punishment shall be determined on the basis of the circumstances of the crime such as drunk driving conduct and the actual harmful consequences, and comprehensive consideration of the defendant's ability to pay the fine. The starting point shall generally not be less than the amount of the fine for driving a motor vehicle after drinking alcohol as provided for 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 16Where drunk driving simultaneously constitutes the crime of causing a traffic accident, the crime of negligently endangering public safety by dangerous means, the crime of endangering public safety by dangerous means, or other crimes, it is to be convicted in accordance with the provisions of the heavier punishment, and criminal responsibility is to be strictly pursued in accordance with law.
Where driving a motor vehicle while intoxicated, using violence or threats to obstruct a lawful inspection by a public security organ, and it also constitutes the crime of obstructing public affairs, the crime of assaulting the police, or other crimes, is to be punished in accordance with the provisions on combined punishment for multiple crimes.
Article 17After a criminal suspect is caught drunk driving at the scene, he is allowed to leave, and then he is notified by the public security organ to appear in the case or voluntarily appear in the case, 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 18In cases handled on the basis of article 12, paragraph 1, article 13, or article 14 of these Opinions, circumstances such as the criminal suspect or defendant's voluntary acceptance of safe driving education, engaging in traffic volunteer services, or community public interest service may be factors to be considered in making the relevant disposition.
Article 19Where a criminal suspect or defendant decides not to prosecute or waive criminal punishment, they may be reprimanded or ordered to make a statement of repentance, make a formal apology, or compensate for losses based on the different circumstances of the case, and where it is necessary to give an administrative punishment or sanction, transfer it to the relevant competent organs for handling.
Article 20Drunk driving is a serious act of driving a motor vehicle after drinking. Where the blood alcohol content reaches 80 milligrams and 100 milliliters or more, the public security organs shall give the perpetrator an administrative punishment of revoking the motor vehicle driver's license before deciding not to file the case, withdraw the case, or transfer it for review for prosecution. In cases handled on the basis of paragraph 1 of article 12 of these Opinions, the public security organs shall also give the perpetrator an administrative punishment of a fine or administrative detention in accordance with the circumstances of driving a motor vehicle after drinking alcohol as provided for in the Road Traffic Safety Law.
In cases handled by people's courts and people's procuratorates on the basis of the first paragraph of article 12 or article 13 of these Opinions, where it is necessary to give administrative punishment to the person not being prosecuted or defendant, they shall submit a procuratorial opinion or judicial recommendation and transfer it to the public security organs for handling in accordance with the provisions of the preceding paragraph. The public security organs shall report the disposition to the people's courts and people's procuratorates.
Fourth, ** reason
Article 21The people's courts, people's procuratorates, public security organs, and judicial-administrative organs shall strengthen coordination and cooperation, and on the premise of following legally-prescribed procedures and protecting the rights of the parties, establish and complete mechanisms for handling drunk driving cases in light of local conditions, simplifying the case-handling process, shortening the time limit for handling cases, and bringing about high-quality and efficient handling of drunk driving cases.
Article 22In drunk driving cases that meet the following conditions, the first-class rational mechanism shall generally be applied:
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 over 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.
Article 23In drunk driving cases handled by applying the best management mechanism, the people's courts, people's procuratorates, and public security organs shall generally complete the investigation, prosecution, and trial work within 30 days of filing and investigating.
Article 24Where measures for release on guarantee pending further investigation are employed during the investigation or review for prosecution phase, and when the case is transferred to the review for prosecution or trial phase, and the period for release on guarantee pending further investigation has not yet expired and the requirements for release on guarantee pending further investigation are met, the organ accepting the case may not make a new decision on release on guarantee pending further investigation, and the public security organs are to continue to enforce the original measures for release on guarantee pending further investigation.
Article 25Where a drunk driving defendant intends to submit a suspended sentence sentencing recommendation or announce a suspended sentence, an investigation and assessment may generally not be conducted. and where it is truly necessary, community corrections establishments or relevant social organizations shall be promptly retained to conduct an investigation and assessment. The entrusted party shall promptly provide the results of the investigation and assessment to the entrusting organ.
Article 26In drunk driving cases applying the simplified procedures or expedited procedures, the people's courts, people's procuratorates, public security organs, and judicial-administrative organs may employ methods such as merging, elemental, or ** methods to simplify documents.
In regions where conditions permit, cases may be handled online through the integrated online case-handling platform for circulation, delivery of electronic files, legal documents, and so forth.
Fifth, comprehensive management
Article 27People's courts, people's procuratorates, public security organs, and judicial-administrative organs shall actively implement the responsibility system for popularizing the law, strengthen publicity and education on the rule of law on road traffic safety, and extensively carry out efforts to popularize the law in organs, villages, communities, schools, enterprises, units, and networks, and guide the public to cultivate a sense of rules and develop a law-abiding Xi.
Article 28The people's courts, people's procuratorates, public security organs, and judicial-administrative organs shall make full use of mechanisms such as judicial recommendations, procuratorial suggestions, and reminder letters, urging relevant departments, enterprises, and public institutions to strengthen the education and management of their own personnel, increase safe driving education in driving training, standardize the development of the substitute driving industry, strengthen the management of restaurants, entertainment, and other alcohol-related establishments, and increase the force of warnings and reminders.
Article 29Based on the specific circumstances of persons serving sentences for drunk driving and community corrections, public security organs and judicial-administrative organs shall draft targeted plans for education, reform, and corrections, bringing about categorical management and individualized education, strengthening their sense of repentance and their concept of the rule of law, and helping them become law-abiding citizens.
6. Supplementary Provisions
Article 30These Opinions take effect on December 28, 2023. The "Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases of Driving Motor Vehicles While Intoxicated" (Fa Fa 2013 No. 15) shall be repealed at the same time.