Viewpoint | Twelve Review Points of Drunk Driving Type Dangerous Driving Crime Case

The blood alcohol content test and appraisal opinion is the direct basis for determining whether the suspect is drunk. The review of appraisal opinions includes the source, preservation, submission, inspection process, basis, qualification of appraiser, qualification of appraisal institution, etc. Each link of the appraisal should follow the procedures prescribed by law. Once the procedures are violated, the correctness and substantive justice of the appraisal results cannot be guaranteed.

Point 1: Identity of Inspection Materials

In judicial practice, the public security organs use law enforcement recorders to film the process of blood extraction and storage, and the whole process of blood extraction and storage can be saved through video. However, there are often omissions in the filling and sealing of blood extraction registration forms, which leads to doubts about the identity of the test materials. For example, if the blood volume recorded on the blood extraction table is inconsistent with the blood volume recorded on the identification opinion of the ethanol test, the identity of the specimen cannot be determined. Whether the packaging characteristics and number of the blood test tube are consistent with the packaging and number of the test tube, and whether the reasons for the inconsistency are reasonable, are also important indicators to verify the identity of the test material.

Key point two: inspection material pollution

In practice, blood samples are generally taken by medical staff in the nearest hospital, which basically ensures that blood samples are taken by qualified medical staff. However, medical staff are not specialized judicial personnel and do not have a thorough understanding of the regulations, so when reviewing the blood sample extraction registration form, it will be found that the disinfection reagent recorded is sometimes alcohol. Alcohol is ethanol. Alcohol drugs are smeared on the skin. In the process of piercing the skin with the needle of the blood sample, alcohol reagents will be contaminated, thus entering the extracted blood sample and causing blood sample pollution. Although the detection experiment has verified that the alcohol drug reagent has little effect on the alcohol content in the blood sample, it can not eliminate the fact that the blood sample is contaminated. In particular, some cases that have just reached the filing standard (80 mg/100 ml) have great defense significance.

During the review process, the disinfecting agent needs to be carefully identified from the video recorded by the law enforcement recorder. In practice, alcohol and iodophor are used more often, both of which are different in color and storage containers and can be effectively distinguished by appearance. In addition, pay attention to the difference between the use of disinfection is Aner iodine or iodophor, the two names are similar, and both have antibacterial disinfection effect, but the composition is different. The main component of Aner iodine contains ethanol, so Aner iodine cannot be used as a disinfection reagent when extracting the blood of criminal suspects in suspected drunk driving cases.

In addition, attention should be paid to whether anticoagulants are added when blood samples are extracted and stored in vacuum tubes. Health care workers should add anticoagulants to prevent blood clotting and to prevent the alcohol content of the blood sample from being affected.

Point three: inspection time

The time of submission for inspection is recorded in the appraisal opinion, which should be compared with the time of blood sample extraction recorded in the blood sample extraction registration form to find out whether there is any situation of submission for inspection beyond the specified time. In judicial practice, the testing center is generally not on duty 24 hours a day, and the public security organs have the practical problem that the suspect cannot be sent for inspection immediately after being seized. Therefore, the requirement of sending for inspection within 3 days is generally implemented. The focus of the review should include whether there is a delay in the examination and approval, the relevant procedures for low-temperature preservation, whether the blood sample is stored at low temperature in strict accordance with the regulations, whether there are corresponding measures to prevent the deterioration and corruption of the blood sample, and whether the influence on the detection of alcohol content can be excluded.

Key point four: identification qualification

The detection of the alcohol content in the driver's blood needs to be made by qualified institutions and personnel, and the relevant qualification shall be attached to the appraisal opinion. In practice, there are many problems in the qualification of authorized signatories. The judicial authentication document shall be issued by the authorized signatory and stamped with a special seal for judicial authentication. However, the qualification of authorized signature is generally not attached to the appraisal opinion, which is often ignored in the examination, resulting in some personnel who have the qualification of appraiser but do not have the qualification of authorized signatory to sign the appraisal opinion, thus the appraisal opinion cannot be used as evidence.

According to the interpretation of the Criminal Procedure Law of the Supreme Court, the appraisal opinions made by appraisal institutions and appraisers without legal qualifications shall not be used as the basis for the final decision. The provision makes it clear that the lack of qualification will directly lead to the identification opinions issued by it can not enter the evidence system, there is no possibility of correction. Therefore, when examining the qualification of the authorized signatory, in addition to the relevant certificates provided by the appraisal institution, it is also necessary to check whether the person who signed in the column of authorized signatory in the appraisal opinion has the authorization qualification through the list of authorized signatory of the relevant appraisal institution accredited by the national certification and accreditation supervision and administration committee.

Point five: identification method

In practice, some identification agencies use SF/ZJD0107001-2010 or GA/T1073 -2013 and other test methods to detect the alcohol content in blood. Although from the professional point of view of biochemical testing technology, which of the above methods will not have a substantial impact on the detection of alcohol content in blood samples, if the detection method is not mandatory by law, the results obtained lack of legal basis and cannot be used as evidence.

In practice, it is often encountered that the crime occurs in residential areas, internal places of the unit, and so on. Traffic police generally do not patrol and inspect the above-mentioned places, but when the vehicle is scratched or other accidents occur in the place where the card is set up, the police will find drunk driving behavior. In this case, whether drunk driving a motor vehicle can be identified as a crime of dangerous driving, the main controversial point is the identification of "road.

Point six: "road" general identification

"Road" belongs to the constitutive elements of the crime of drunken dangerous driving, and is a key criminal fact, which is often controversial in the judicial determination. The "Opinions" stipulate that the determination of "roads" in drunk driving cases shall be governed by the provisions of the Road Traffic Safety Law on "roads. This paragraph is a reference clause. Dangerous driving is an administrative offense, and in the specific constituent elements, it is generally subordinate to the definition of administrative law norms. The Road Traffic Safety Law defines "road", and the identification of related concepts in drunk driving cases should be consistent with it. Article 119 of the Road Traffic Safety Law stipulates that "roads" refer to highways, urban roads and places that are within the jurisdiction of the unit but allow social motor vehicles to pass, including squares, public parking lots and other places used for public passage.

Point seven: "road" special identification

Regarding the identification of road sections within the jurisdiction of communities, units, etc., because the "publicity" in the "Opinions" includes the openness of road sections and the non-specificity of vehicles. These characteristics determine that drunk driving of motor vehicles on this road section will cause greater risks to people's lives and property safety and public safety, and there is no essential difference from normal highways and urban roads. For example, some cells allow foreign vehicles to enter or pass through (some parking in the cell will charge a certain fee), the road sections in such cells have the characteristics of openness and non-specific vehicles.

However, for those who only allow internal vehicles of the unit and specific visiting vehicles to pass, because of the limited openness and the limited number of vehicles passing through, they cannot be equated with "roads" such as highways, and should not be identified as "roads" in the crime of dangerous driving ". The "internal vehicle" here mainly refers to the vehicle owned, managed and used by the unit or the unit personnel. "Specific visiting vehicles" mainly refer to vehicles that have specific visiting purposes and need the consent of the unit or the internal personnel of the unit in a certain way to enter the road section under the jurisdiction of the unit. For example, if a vehicle needs to be registered at the security office, allowed by the security guard or informed to the owner of the community and approved before it can be released, such road sections do not belong to the "road" in dangerous driving ". Of course, in practice, the strict management and management methods of each unit and community are different. Generally speaking, if there are certain management and restrictions on the road sections under the jurisdiction of the unit, it is necessary to be cautious to identify them as "roads. The disputed road sections can be judged and identified in combination with the testimony of informed personnel, certificates issued by management units or relevant departments, management norms, and even through on-the-spot investigation.

However, it should be of special concern that the occurrence area of "dangerous driving crime" cannot be expanded indefinitely to all roads. For example, inaccessible fields, special areas or places where no other pedestrians or vehicles pass through should not be regarded as "roads" for "dangerous driving crimes". In summary, the "road" in the "dangerous driving crime" should be understood as a public transportation road with a larger scope than the "Road Traffic Safety Law", and refers to the area for unspecified people and vehicles.

In this case, the identification of the "road", the author believes that the need for substantive review. By checking whether the road where the crime occurred is marked with limited speed, road monitoring video and relevant witness testimony, it is comprehensively determined that social vehicles can pass without registration or can pass without registration. The key to judge whether these places belong to the road lies in whether they conform to the public characteristics of the road. Regardless of whether the management method is charging or free, whether motor vehicles need to be registered for entry and exit, as long as unspecified social motor vehicles are allowed to pass freely, they belong to roads. If only the motor vehicles of visitors who have business dealings with the jurisdiction unit and its personnel, relatives and friends and other specific reasons are allowed to pass, it does not belong to the place where social motor vehicles are allowed to pass and cannot be recognized as a road.

Point 8: The determination of "automatic surrender".

In practice, most of the cases of drunk driving seized by the traffic management department of the public security organ during the routine inspection, and the other part is that the parties or passers-by called the police after the traffic accident, and the public security organ found out after the police. It is rare for drunk driving parties to take the initiative to surrender to the judiciary.

When the public security organs conduct routine inspections, the parties involved in drunk driving have passively placed themselves under the control of the public security organs, so as to conduct breath tests and take blood samples. At this time, the parties do not have the initiative to surrender. Before the public security organ asked him to conduct a breath test, the party concerned took the initiative to confess that he was drunk and driving, because he was passive in the case, he could not be regarded as surrendering.

For traffic accidents, the driver takes the initiative to call the police, which is a typical automatic surrender.

In the case of others calling the police, if the driver knows that others are still waiting for the police to arrive at the scene, and there is no situation of resisting arrest, it can be regarded as automatic surrender. There are different perceptions of "waiting on the spot. There is a view that the suspect is drunk driving on a road with many cars and many people, and waiting for the traffic police to deal with it at the scene after a traffic accident. This situation should not be regarded as surrender, because there are many witnesses around the road with many cars and many people. Second, it is difficult for the suspect to escape. If this happens on a remote country road, it should be considered a voluntary surrender. The author believes that it is biased to infer the subjective psychology of the suspect based on the external environment and personnel situation. During the review, it is necessary to combine all the evidence such as road section monitoring, witness testimony, victim statement, and criminal suspect confession to comprehensively judge what kind of behavior the criminal suspect has implemented after the incident, so as to analyze whether he wants to take the initiative to place himself under the control of the judicial organ. If he has the action, speech, etc. of leaving the scene immediately after the accident, and there are many people and cars at the scene and stay at the scene, it can be determined that he was forced to stay at the scene due to the pressure of the environment., Can not be regarded as having the initiative to surrender. If there is no intention or action to leave the scene after the accident, even if there are many people and cars on the scene, it is not appropriate to determine that he has no initiative to surrender.

Point 9: Determination of "truthful confession"

In practice, after the criminal suspect voluntarily surrendered, he did not confess the fact that he was drunk driving at the first time, but truthfully confessed at the later stage of investigation or review and prosecution. Whether this is identified as surrender is often overlooked. problem. However, according to the above-mentioned provisions, when a criminal suspect voluntarily surrendered, as long as he can voluntarily confess before the judicial organ has the main facts of the crime, it will not affect the establishment of his surrender.

The following three circumstances in judicial practice can be made a light defense, lawyers should be the main points of the review to grasp.

Point 10: Blood alcohol content less than 150 mg/100 ml

If the blood alcohol content reaches 80 mg/100 ml, but it is less than 150 mg/100 ml, and there are no 15 kinds of serious treatment situations stipulated in Article 10 of the opinions, it can be considered that the circumstances are significantly minor and the harm is not great. According to Article 4, paragraph 1, of the "Opinions", the public security organ may not file the case, and if the case has been filed, it may cancel the case.

Point 11: Driving a motor vehicle for emergency situations such as first aid to sick and injured persons

There is some controversy over how to deal with such cases. The study believes that if it is indeed an emergency refuge under Article 21 of the Criminal Law, it is not criminally responsible. In determining whether it constitutes an emergency avoidance, a review should be conducted in terms of whether there is an ongoing danger, whether it is a last resort to prejudice another legal interest, whether there is an intention to avoid risk, and whether the avoidance exceeds the necessary limits. For example, in remote areas, because relatives and friends are in urgent need of treatment for sudden serious diseases, it is difficult to find qualified drivers or it takes too long to call an ambulance, which may affect the treatment. If you have to drive a motor vehicle after drinking alcohol, it can be regarded as emergency avoidance. Another example is in cities and other areas, when family members and other serious diseases or emergency childbirth that suddenly need to be sent to a doctor during the middle of the night, and cannot call an ambulance for the time being, and cannot find a substitute driver and other people to help, they have to drive to a doctor or buy medicine. Looking for a doctor can also be regarded as an emergency refuge.

In some cases, if the danger is not urgent or the actor has other possibilities to avoid danger but does not take other methods (such as calling for a substitute driver or an ambulance), it is not an emergency avoidance according to law. However, considering that the actor cannot make a rational choice under urgent circumstances, if the drunk driving behavior does not lead to accidents and other consequences, it is considered that the circumstances are obviously minor and the harm is not great, which is more in line with natural law and human feelings, it is also better in social effect. It should be noted that in practice, there are many cases of justifications based on this reason, and defenders are required to collect and review evidence more comprehensively, so as to effectively persuade the case-handling organs with practical evidence.

Point 12: Short-distance motor vehicle driving under special circumstances

The "opinion" makes it clear that driving motor vehicles in residential areas, parking lots and other places for short distances, such as moving cars, parking spaces, and so on; taking over driving and parking motor vehicles at a short distance after driving to residential areas, parking lots and other places by others, or driving out from residential areas, parking lots and other places at a short distance in order to be driven by others, if the plot is not dealt with seriously, it can be considered that the plot is significantly minor and the harm is not. It is not possible to generalize how far short-distance driving belongs to "short distance". It is important to find out the purpose of driving according to the principle of subjective and objective consistency, whether the motive is really for moving, parking, handing over, etc. and the actual driving distance. For example, it is not for the purpose of handing over the vehicle with the driver, but for the purpose of saving the cost of driving on behalf of the driver, which starts driving by oneself at a position far away from the destination, which does not belong to the situation of significant minor circumstances. However, some residential areas and other places need to drive long-distance handover vehicles and find parking spaces because of large space or no fixed parking spaces, which can also be considered as significant minor.