Citation

Bleier H. Blutalkohol 2004; 41(1): 18-34.

Affiliation

Unab. Verwalt. Landes Oberosterreich, A-4020 Linz, Austria

Copyright

(Copyright © 2004, International Committee on Alcohol, Drugs and Traffic Safety and Bund gegen Alkohol und Drogen im Straßenverkehr, Publisher Steintor Verlag)

DOI

unavailable

PMID

unavailable

Abstract

In cases where a driver participated in road traffic under the influence of alcohol or another addictive drug Austrian law does not apply a compulsive use of physical force in order to gain proof of such an offence. As part of so called legislative requirements in basic laws there are attempts to force people in question to cooperate by threatening them with the maximum penalty within the category of the "basic offence" as well as taking the corresponding administrative measures (duration of driving ban). This opens an area of conflict with regard to individual fairness, which, in practice represents highly complex and unfulfillable requirements set by the penal institutions for the acquisition of proof, especially for the road safety officers on site. Trivial reasons often trigger such a refusal without any knowledge of the complex legal consequences of such an action. This area of conflict is greatest when a non-intoxicated driver uses his right of refusal or alternatively when a person suspected of driving a vehicle was in fact a passenger. Sometimes these situations are caused by a simple lack of communication with road safety officials and would therefore represent a very reduced degree of guilt. However, in both cases the people in question would be liable to the minimum penalty of a (fictitious) degree of alcohol intoxication of 1.6 (per mille) or more. In contrast, the minimum driving ban after driving under the influence of alcohol considered by the Administrative Court of Justice in accordance with the objectivity rule did not conform to any judgement criteria. The short term ban (2 weeks) on first time speeding offences of more than 40 km/h in urban areas and more than 50 km/h in rural areas was considered to conform to legislation with regard to its political value for other road users (preventive measures). However, this decision did not clarify the doubts expressed as part of the proposal for reviewing the law in that the standard of a value and its subsequent sanctions need to be judged on an individual basis. This could only be avoided by treating substantial differences identically when it comes to sanctions following punishment. Legal-political thoughts regarding the judgement of mankind and his individual actions, which should be given as much space as possible, should not be suppressed. The capacity of penal departments as well as departments of several authorities dealing with driving bans often compromise the material findings of truth with these administrative facts.