Driving ban (Germany)
A driving ban is a prohibition by a court or an administrative authority to drive motor vehicles of any type or a certain type on public roads, paths and places .
Driving bans under criminal law
The driving ban according to § 44 StGB is a secondary penalty that can be imposed in addition to a fine or imprisonment . The driving ban can be imposed for a period of one month to six months. It becomes effective when the judgment becomes final. From this point onwards, driving a motor vehicle as driving without a license is punishable under Section 21 of the Road Traffic Act , although the actual driving license has not been withdrawn. The offense can be committed as soon as the decision becomes final (two weeks after delivery of the notification, provided that no objection has been made), even if the driver's license has not yet been officially held and is therefore still in the possession of the holder. The end of the driving ban is calculated depending on the day on which the driver's license is given into official custody. If the submission is delayed, the duration of the ban is extended. A driving ban is imposed on a monthly basis, e.g. B. from February 3rd to March 2nd of each year.
frequency
In 2017, 455,558 driving bans were imposed on 55.9 million driving licenses. This corresponds to a rate of 0.81% or a mean time until the driving ban of 123 years. At 82%, men were mainly affected by the driving bans, although they only account for 58% of the driving license holders (this does not take into account the respective mileage of women and men). In 2007, 503,300 driving bans were issued; this number fell to 376,500 by 2015 and then increased again.
Demarcation
The driving ban as a secondary penalty differs from the withdrawal of the driving license (colloquial: driving license withdrawal ). The driving ban is dogmatically linked to the guilt of the offense of the driver, whereas the withdrawal of the driving license as a judicial measure of the so-called measure of reform and security is already attached to the illegality of the act. The latter is pronounced when someone appears unsuitable for driving a motor vehicle. In Germany, a distinction is made between the following forms:
- The administrative authority can issue a withdrawal of the driving license in accordance with § 3 and § 4 StVG.
- There is also the withdrawal of the driver's license in the context of criminal proceedings as a measure of reform and security according to § 69 StGB.
Fine proceedings
A driving ban with a duration of 1 to 3 months can also be imposed by the administrative authority in the fine procedure or by the local court in the fine decision as a secondary consequence in addition to a fine in accordance with § 25 StVG due to a traffic offense. Here, too, the driving ban can become effective once the decision on fines has become final and, in the event of an infringement, leads to criminal liability for driving without a license. In certain cases (see Section 25 (2a) of the StVG), however, it can be ordered that the driving ban will only take effect when the driver's license is officially custody, but no later than 4 months after it has become legally binding. In this case, the person concerned can determine the point in time at which the driving ban will take effect by submitting the driver's license.
If several driving bans are imposed on a driver, these are carried out consecutively; a parallel execution has not been possible since August 24, 2017. When a driving ban coincides with a withdrawal of the driving license: in this case the driving ban will be enforced in the same period despite the withdrawal of the driving license. A follow-up enforcement ordered by some fine authorities in this case also violates the prohibition of analogy .
The Ordinance on the Catalog of Fines ( Section 4 ) provides for regular driving bans, e.g. B. when exceeding the maximum speed in urban areas by more than 20 km / h and out of town by more than 25 km / h, when falling below a safety distance of 3/10 of half the speedometer value at speeds of over 100 km / h, when overtaking is prohibited unclear traffic situation and hazard, red light violations with danger or red light for more than 1 second, when driving a vehicle with 0.5 ‰ or more blood alcohol content, or 0.25 mg / l breath alcohol content, when driving a vehicle under the influence of intoxicating substances (e.g. B. Drugs) (as of May 2020).
Enforcement of the driving ban
A driving ban resulting from a fine notice is only enforceable once the fine notice has become legally binding. Once the notice of the fine has become final, the authority that issued the notice of the fine with the simultaneous driving ban is responsible. This means that the driver's license must then be sent to the authority that, as the administrative authority, issued the final notice of the fine. If a court decision is made about the fine, the driving ban is enforced by the respective public prosecutor's office. In the case of adolescents or adolescents, the enforcement authority is the youth judge.
The enforcement of the driving ban begins after the judgment has become final with the submission of the driver's license to official custody, but no later than one month after the entry into force of law ( Section 44 (2) StGB). If the driver's license is not voluntarily given into official custody and the person concerned does not respond to the authorities' request to send the driver's license, an enforcement attempt is regularly made as part of a seizure. If you have lost your driving license, you must submit an affidavit to the enforcement authority stating that you are no longer in possession of the driving license ( § 5 sentence 1 StVG). Several driving bans imposed at the same time are to be enforced one after the other (Section 44 (4) StGB). If a driving license has been temporarily withdrawn, this time will be counted towards the remaining time of the driving ban ( Section 51 (5) StGB).
Refrain from the regular driving ban
A driving ban imposed in fine proceedings can be waived in individual cases. Both the actual situation itself and the person of the driver can justify deviations from the normal case. If, by way of exception, the order of a driving ban is waived, the fine provided as a standard rate for the relevant offense should be increased appropriately ( Section 4 (4) BKatV).
If the driving ban threatens, for example, the loss of a job or the loss of livelihood for the self-employed, the German fine courts usually refrain from imposing a driving ban in exchange for doubling the fine ("conversion"). A second conversion within a year is only carried out in exceptional cases and against a tripling of the fine. However, the case law on the conversion of driving bans is not uniform.
In the case of repeat offenders, according to Section 25 (2a) of the StVG, several driving bans that have been imposed can become effective at the same time or overlap depending on whether they become legally binding. This also applies to combinations of driving bans in accordance with Section 25 Paragraph 1 StVG and Section 44 StGB.
Driving ban extended to all criminal offenses
Until August 2017, a driving ban could only be imposed because of a criminal offense if the offender had committed the act while driving a motor vehicle or in violation of the obligations of a motor vehicle driver on public roads, paths and places.
From 1992 to 2017, an extension of the scope of the driving ban to all criminal offenses was discussed. The main point of criticism is the abolition of the offense-relatedness and the associated anticipated worse position of those without a driving license. While a driving ban can also be imposed on holders of a driving license, there would be the risk that those without such a sanction instrument would be offset by a higher main penalty. Proponents negate this effect, because it is at the driving ban simply an addition penalty IN QUESTION. The main penalties are still determined by the individual penal norms. In order to increase their perceptibility in everyday life, it is necessary that, in addition to financial cuts (fines) or suspended prison sentences, there are also actual consequences in life.
Since August 24, 2017, the driving ban can be applied to every conviction for committing a criminal offense. In addition, the maximum possible duration has been increased from three to six months (amendment to Section 44 (1) StGB). In juvenile criminal law, the maximum duration of three months remains (amendment of § 8 JGG).
General driving bans
Furthermore, there have been general driving bans since the 1970s, the aim of which is to save energy , protect residents or the environment. This includes the Sunday driving ban for trucks over 7.5 tons in Germany (with exceptions).
A general night driving ban for motor vehicles on German highways based on the Road Traffic Act (StVO) and the Federal Highways Act (FStrG) can only be ordered under very limited exceptional cases.
Further general driving bans can be issued if health limits are exceeded ( ozone , fine dust , smog ) as well as for safety reasons, for example in winter because of ice and snow and all year round because of storms and gale gusts . Such driving bans can also be ordered by the federal states.
Limited driving bans
In order to enforce clean air regulations ( air pollution control plans ), according to two rulings by the Federal Administrative Court of February 27, 2018, restricted traffic bans may be imposed even without a uniform federal regulation, for example in environmental zones for certain diesel vehicles with high nitrogen dioxide emissions (see exhaust gas standards and diesel driving bans ). According to the judgment, this affects diesel vehicles in emissions class Euro 5 and worse for Stuttgart and gasoline vehicles below emissions class Euro 3. Proportionality must be maintained in the case of driving bans , for example for groups of residents. In its press release, the court finally referred to the StVO, which enables both zonal and route-related traffic bans for diesel vehicles to be posted. The municipalities are responsible for enforcement, but this is currently not permitted under federal law. However, Union law has priority over national law if the latter is contrary to the effectiveness of European Union law (see Directive 2008/50 / EC on air quality and cleaner air for Europe ).
See also
- Sunday driving ban for trucks
- Weekend driving ban
- Carless
- Character aptitude
- driving licence
- Withdrawal and renewal of the driving license
Web links
Individual evidence
- ↑ a b Number of driving bans issued in Germany from 2005 to 2017 (in 1,000). Statistica.com, accessed May 20, 2019 .
- ↑ Car driving license - owned in Germany until 2018 | Statistics. Retrieved May 21, 2019 .
- ^ Federal Motor Transport Authority - driving licenses. Retrieved May 20, 2019 .
- ↑ Number of driving bans issued in Germany in 2017 by age group and gender. Statistica.com, accessed May 20, 2019 .
- ↑ Number of general driving licenses in the ZFER on January 1, 2019 according to gender, age and driving license class. kba.de, accessed on May 20, 2019 .
- ^ Draft of a law amending the Criminal Code, the Juvenile Court Act, the Criminal Procedure Code and other laws, BT-Drs. 792/16, p. 12 [1]
- ↑ OLG Karlsruhe, December 13, 2004, AZ 1 Ss 201/04
- ↑ https://www.bussgeldkatalog.org/ueberhaben/
- ↑ "On the case law practice of the north German district courts in the event of impending driving bans for traffic offenses in the years 2015 to 2019", Journal for Damage Law, August 2020, pp. 424 to 433
- ↑ Federal Administrative Court allows driving bans. In: Zeit Online . February 27, 2018, accessed February 27, 2018 .
- ↑ Clean air plans in Düsseldorf and Stuttgart: Diesel traffic bans possible in exceptional cases. Federal Administrative Court (Germany) , February 27, 2018, accessed on February 27, 2018 (press release No. 9/2018).
