Inability to drive
Inability to drive is a legal term that describes the inability of a vehicle driver to drive a vehicle safely at all times. The term is known from road traffic law , but is also used in water, rail and air traffic.
Inability to drive describes a current, situation-dependent condition - for example caused by the consumption of medication, intoxicants, fatigue, etc. - namely the limitation of the ability to drive a vehicle safely.
This is differentiated from the fitness to drive , which is based on the general physical, mental and character suitability.
Infringements due to inability to drive or apt to drive endanger life and limb and are therefore punished in all legal systems by traffic law. However, the regulations are still very inconsistent in Europe.
Road traffic
Unless other offenses ( e.g. Section 315c (1) StGB - endangering road traffic ) have been committed, in Germany the driver of a vehicle on public transport is liable to prosecution, at least for being drunk in traffic .
Criminal liability and interpretation
In Section 316 StGB it says:
- (1) Anyone who drives a vehicle in traffic (Sections 315 to 315d) even though he is unable to drive the vehicle safely due to the consumption of alcoholic beverages or other intoxicating substances is subject to imprisonment for up to one year or a fine punished if the act is not punishable in Section 315a or Section 315c .
- (2) According to paragraph 1, anyone who commits the act negligently is also punished.
Inability to drive is not defined in the law. It is therefore determined by case law, which uses the knowledge of experts for this purpose . This in turn is based on higher court rulings on this. The case law of the Federal Court of Justice distinguishes between relative and absolute inability to drive.
Absolute driving uncertainty (previously incapable of driving)
Proof of a certain (minimum) blood alcohol concentration of the driver is sufficient to determine the absolute inability to drive , without any further signs of unsafe driving. Since the prejudicial decision of the Federal Court of Justice (BGH) on June 28, 1990, the case law has assumed a blood alcohol concentration of 1.1 per mille (for all drivers of motor vehicles). The earlier BGH case law was still from 1.3 per mille, until the 1960s even from at least 1.5 per mille. For cyclists, absolute driving incapacity is assumed from 1.6 ‰; the same should also apply to electric wheelchairs. This applies to skippers from 1.7 ‰.
Relative driving uncertainty (previously inability to drive)
Below this value, there may also be incapacity to drive. The jurisprudence assumes this from 0.3 ‰ if further signs appear. The inability to drive is assessed on a case-by-case basis, i.e. individually. Examples of deficits are: disorientation (serpentine lines), considerable impairment of the ability to react, abnormal movements (staggering), no pupillary reaction when the brightness of the surroundings changes, slurred pronunciation and perceptual errors.
Consequences
Absolute and relative inability to drive both meet the offenses mentioned above. If there is no incapacity to drive, for example because the vehicle driver has a blood alcohol concentration of 0.6 ‰ but no symptoms of failure, there is no criminal liability, but an administrative offense (from 0.5 ‰ according to § 24a StVG ) may exist or there may be others There is a threat of reactions from the authorities (see Driving under the influence of alcohol, drugs and medication ).
Dangerous goods
Special provisions apply to vehicles transporting dangerous goods . There is a ban on alcohol.
Passenger transportation
According to BOKraft, there is a ban on alcohol for drivers of taxis and buses on German soil. This means that there must be no alcohol in the blood when passengers are being transported.
Rail transport
In rail transport alcohol ban applies, see. EBO and BOStrab (subways, trams).
aviation
In aviation , the 0.0 - ‰ limit applies internationally to pilots, co-pilots and flight engineers.
shipping
Anyone who has more than 0.25 mg / l alcohol in their breath or more than 0.5 per thousand alcohol in their blood, or who has consumed an amount of alcohol that leads to such concentrations, is not allowed to drive a ship or any other function of the bridge - , deck or machine duty.
This is true, according to § 3 (4) of the German Traffic Regulations for all on German shipping lanes and beyond, according to § 3 (4) of the Regulation on the International Regulations of 1972 for Preventing Collisions at Sea all vessels flying the German Federal flag lead unless there are different regulations in the territorial waters of other countries.
The same applies to German inland waterways according to §1.02 of the inland waterway regulations .
In addition, anyone who (among other things) is impaired by the consumption of alcohol or other intoxicating substances in the safe navigation of a ship or the safe performance of any other activity of the bridge, deck or machine service may not do so (§ 3 ( 3) of the above orders).
On ships that carry passengers or transport certain dangerous goods according to § 30 (1) of the SeeSchStrO, according to § 3 (5) there is even a 0.0 per mil limit for skippers or other members of the ship's crew who perform bridge duty, in each case during their period of service.
Individual evidence
- ^ BGH, decision of June 28, 1990 ( memento of July 29, 2012 in the web archive archive.today ), Az. 4 StR 297/90, full text; BGHSt 37, 89; NJW 1990, 2393.
- ^ Joecks: Study Commentary on the StGB. 2010, § 316 Rn. 12.
