Low-altitude Economy | A Study on the Criminal Liability for Operating a Drone While Intoxicated under the Context of the Low-altitude Economy

First, the act of operating a UAV while intoxicated contains significant specific public safety risks. According to Article 2 of the "Interim Regulations on the Flight Management of Unmanned Aerial Vehicles" (hereinafter referred to as the "Interim Regulations"), a UAV refers to an aircraft with its own power system and without an onboard pilot. Its low-altitude operation height relies on the operator's visual observation or equipment feedback data to judge the flight status and avoid obstacles. In low-contrast environments or areas with poor visibility, the operator is very prone to misjudgment. Modern cities have dense populations, and infrastructure (such as high-voltage lines, signal towers, and super-high-rise buildings) and mobile vehicles are densely distributed; once the operator causes the UAV to collide with people, key facilities, or vehicles due to intention or negligence, it is very easy to cause major casualties and property losses. In addition, it is difficult to detect UAVs flying at ultra-low altitudes by radar, and the safe flight altitude depends on the operator's condition. Therefore, the operator's professional skills, operating ability, and whether they are intoxicated are all key variables that affect public safety.

Second, the act of operating a UAV while intoxicated conforms to the characteristics of a continuing offense , infringing on collective interests. A continuing offense refers to a single act that may not directly infringe on interests, but the accumulation of similar acts will lead to damage to specific collective interests protected by criminal law. Even if a single act of operating a UAV while intoxicated does not cause any actual harm, it will erode the public's trust in the effectiveness of the aviation safety system; its cumulative effect will seriously threaten or even undermine this safety system. Collective interests ( supra-individual interests ) have core characteristics such as indivisibility, cumulative danger, and non-exclusive use. In the context of modern criminal law, the core of protecting collective interests lies in maintaining the specific social order itself and the public trust it carries, emphasizing the priority of values such as "order security," and therefore requires special protection under criminal law. Specifically, operating a UAV while intoxicated mainly infringes on two collective interests: the public's trust in the aviation safety system and the social peace interest (i.e., the public safety and peaceful environment necessary for the public to maintain normal life).

The positive criminal law perspective emphasizes the prevention of infringement of interests through proactive intervention to achieve effective social risk control goals. Its proposition at the level of criminal legislation is to expand the boundaries of criminal punishment (adding crimes and expanding the scope of punishment) and strengthen criminal deterrence (increasing the statutory penalty), transforming criminal law into a preventive tool for maintaining citizen safety and social order stability. Driven by this concept, the preventive criminalization legislative model has emerged, pushing the focus of criminal law from traditional "response to actual harm" to modern "risk control." Abstract endangerment as a typical practice of this model, its punishability is based on the typological risk inherent in the act itself; even if it does not cause specific danger or actual harm, it constitutes the object of criminal intervention.

Industry data shows that China's UAV industry is showing a continuous expansion trend. As of August 2024, the total number of registered UAVs has increased by 720,000 compared to the end of 2023; the number of pilot licenses issued in the same period has increased by 13.9%, reaching a total of 220,000. Such a large number of UAVs and operators entering the low-altitude field puts significant pressure on the existing regulatory system. Although there are currently no publicly reported cases of accidents caused by operating UAVs while intoxicated in China, with the expansion of the industry scale and the increasing density of low-altitude airspace activities, the probability of such incidents will increase exponentially. Based on this, citing the positive criminal law perspective and the preventive criminalization legislation theory, incorporating the act of operating a UAV while intoxicated into the category of abstract endangerment for criminal law regulation has a sufficient basis for legitimacy.

The ordinary interpretation, as a core interpretation method of criminal law, requires that the act to be interpreted and the statutory criminal act have homogeneity and that the degree of harm is comparable or higher. Article 133-1(2) of the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law") clearly stipulates that drunk driving is a crime of dangerous driving, punishable by detention and a fine. Although UAVs and motor vehicles belong to different airspace, they both have the core attribute of transportation tools: they require operator control, rely on energy (electricity/fuel, etc.) to drive, use sensors and GPS positioning, and are widely used in transportation, rescue, and monitoring scenarios. However, the risk of UAV loss of control is special: its high-speed fall from the air not only leads to its own destruction, but may also collide with people, key facilities (such as high-voltage lines, signal towers, buildings) or moving vehicles, causing compound damage far exceeding that of ground traffic accidents. Under the same loss-of-control situation, the intensity of harm to public safety interests caused by operating a UAV while intoxicated is usually significantly higher than that of drunk driving. Therefore, according to the principle of ordinary interpretation, it is legally feasible to impose criminal law regulation on the act of operating a UAV while intoxicated.

Looking at the legislative dynamics of foreign countries, some countries and regions have already carried out criminal legislation on operating UAVs while intoxicated: For example, Articles 132 and 157 of Japan's newly revised Aviation Law (implemented on June 1, 2025) explicitly prohibit operating UAVs while under the influence of alcohol or drugs, and violators can be sentenced to imprisonment of up to one year or a fine of up to 300,000 yen. New Jersey has also passed a bill in recent years, stipulating that those who operate UAVs with a blood alcohol concentration of 0.08% or under the influence of drugs can be sentenced to a maximum of 6 months imprisonment or a fine of $1,000 (approximately RMB 7,171).

Firstly, the act of operating a drone while intoxicated is difficult to incorporate into the regulatory scope of dangerous driving. According to Article 133 of the Criminal Law, the object of this crime is clearly defined as a "motor vehicle"; while Article 119 of the "Road Traffic Safety Law of the People's Republic of China" defines a "motor vehicle" as: a wheeled vehicle driven or towed by a power device, traveling on roads, used for carrying people, transporting goods, or special operations. Obviously, drones are not within the scope of the statutory "motor vehicle" in terms of concept extension. If drones are forcibly interpreted as motor vehicles, it not only exceeds the maximum range of possible literal interpretation, but also significantly exceeds the predictability of the public, essentially violating the basic principle of "prohibition of analogical interpretation" in criminal law.

Secondly, the act of operating a drone while intoxicated does not meet the requirements of the crime of major flight accident. Article 131 of the Criminal Law limits the subject of this crime to "aviation personnel". According to Article 39 of the "Civil Aviation Law of the People's Republic of China" (2021 revision), "aviation personnel" specifically refers to two categories of personnel engaged in civil aviation activities: flight crew (including pilots, flight mechanics, and flight attendants) and ground personnel (including maintenance personnel, air traffic controllers, flight dispatchers, and aviation radio communicators). Although drone operators are responsible for flight control, their physical location is always on the ground, which does not meet the core characteristics of a pilot in "flight crew" (requires random flight), and is also clearly different from the definition of ground personnel directly related to the maintenance, support, and dispatch of aircraft. Therefore, the subject of this behavior is not qualified for the crime of major flight accidents.

According to the "Interim Regulations", drones are divided into five categories: micro, light, small, medium, and large, according to performance indicators. On the one hand, the size, weight, and flight speed of different types of drones are different, and the degree of harm to legal interests in the event of an accident is also different, and the punishment measures when constituting a crime should also be different. On the other hand, the "Interim Regulations" stipulate that personnel operating small, medium, and large civil drones must have full civil capacity and obtain a civil unmanned aerial vehicle operator's license; while personnel operating micro and light civil drones can be persons with limited civil capacity or even persons with no civil capacity, and do not need to obtain the corresponding license. Based on this, the criminal law regulation of drunk driving behavior of the above two types of drone pilots should be different. In addition, with the increasingly wide range of applications of drones, the criminal law should also, based on factors such as whether valuable goods (especially dangerous goods) are carried, whether permission is obtained to fly over crowds or dense buildings, etc., make separate provisions for the punishment of drunk driving drone behavior in different situations. Therefore, given the complex types and wide range of applications of current drones, drunk driving drone behavior should be regulated separately according to different types and scenarios, avoiding a "one-size-fits-all" approach.

The interaction between technological iteration and criminal law regulation presents a dynamic dialectical relationship of continuous adjustment, involving the conflict and reconciliation of multiple values such as safety and development, technological innovation and social governance, individual freedom and public order, economic efficiency and ethical boundaries. Emerging technologies such as 5G communication, generative artificial intelligence, big data, and the Internet of Things, while significantly improving social productivity and enriching the material and spiritual lives of the people, have also given rise to a series of new types of illegal and criminal activities. If we unilaterally emphasize the free development of technology while neglecting legal supervision, it will weaken the effectiveness of criminal law in protecting legal interests, endanger social stability, and even exacerbate conflicts; conversely, if we excessively pursue the preemptive intervention of criminal law, it is easy to fall into an overprotection cycle of abstract collective interests (or supra-individual interests), causing criminal law to degenerate into a mere tool for pursuing risk minimization. This not only violates the fundamental principle of the restraint of criminal law, but may also inhibit the vitality of technological innovation and put China at a disadvantage in global technological competition. Therefore, against the backdrop of the low-altitude economy, cautiously clarifying the boundary between the booming development of the drone industry and the criminal law regulation of its derivative criminal activities has become a key issue that needs to be urgently addressed.

As a new economic form based on low-altitude airspace resources, the low-altitude economy's core carrier, drone technology, is developing rapidly and is widely used in logistics delivery, agricultural plant protection, geographic surveying and mapping, emergency rescue, film and television aerial photography, and other fields, demonstrating enormous economic and social value. However, the popularization of drone technology has also brought unique criminal risks, such as: illegal intrusion into sensitive airspace (airports, military facilities, important state organs), using drones for peeping and privacy infringement, dropping contraband, interfering with civil aviation flight safety, and even carrying out terrorist attacks. The potential hazards, concealment, and technical thresholds of these behaviors have put forward precise and adaptable requirements for existing airspace management rules and the application of criminal law. Therefore, in the context of the booming development of the low-altitude economy, how to cautiously clarify and scientifically define the boundary between the healthy development of the drone industry and the criminal law regulation of related derivative criminal activities, ensuring that the criminal law can effectively deter and punish behaviors that truly have serious social harm, while avoiding undue obstacles to technological innovation and industrial application, has become a key legal issue with both theoretical depth and practical urgency. This requires legislators, judicial personnel, and researchers to seek a dynamic balance, appropriate proportion, and a regulatory path that balances forward-looking and restrained approaches, based on a deep understanding of technological characteristics, industrial development laws, and the basic principles of criminal law.

To effectively maintain the order of low-altitude airspace flight, the Criminal Law urgently needs to establish a targeted regulatory mechanism for drunk operation of drones. The existing legal framework has obvious limitations: due to the mismatch of the subject and object elements, drunk operation of drones is difficult to apply to Article 133-1 of the Criminal Law on dangerous driving, and does not meet the constituent elements of Article 131 on major flight accidents. Given the ubiquitous application characteristics of drones as a new type of airspace carrier, effective regulation should be achieved through legislative technical adjustments.

It is recommended to adopt a dual-track parallel revision plan. First, add a special clause to Article 133-1 of the Criminal Law, which can be placed between the current second and third paragraphs, clearly stipulating that "those who operate unmanned aerial vehicles while intoxicated shall be punished according to the provisions of the preceding paragraph", so that this behavior is included in the regulatory scope of dangerous driving. At the same time, revise Article 39 of the Civil Aviation Law on the definition of "aviation personnel", incorporating drone operators into the concept extension of "ground personnel", thereby opening up the application channel for the crime of major flight accidents.

This revision path has three institutional advantages. First, it maintains the stability of the criminal law system, achieving regulatory goals through moderate extension of the existing crime framework; second, it constructs a hierarchical accountability mechanism, applying dangerous driving (abstract dangerous crime) and major flight accidents (real harm crime) respectively, based on whether the behavior causes serious accident consequences; third, it strengthens the preventive effect, and for those who cause serious accidents, a prohibition order can be announced according to Article 37-1 of the Criminal Law, depriving them of operating qualifications for a specific period, forming a preventive closed loop of criminal sanctions and industry entry restrictions.

Given the complexity of drone types and application scenarios, it is advisable to classify and regulate the act of operating a drone while intoxicated based on its specific type and usage context. The core legal basis for such criminal law classification and regulation lies in adherence to the principle of proportionality, i.e., classification and regulatory measures should reflect the implementation of this principle. At the operational level, reference can be made to "Opinions on Handling Criminal Cases of Drunk Driving", combined with relevant regulations such as the "Interim Regulations on the Administration of Unmanned Aircraft Flight" (hereinafter referred to as the "Interim Regulations"), to refine and supplement the incrimination standards and sentencing rules for operating drones while intoxicated under different circumstances through the formulation of judicial interpretations. Circumstances requiring heavier punishment include, but are not limited to: operating small, medium, or large drones without qualifications; using drones to transport dangerous goods or hazardous materials; causing traffic accidents and bearing full or primary responsibility; operating without real-name registration; operating in controlled airspace without permission; and other circumstances that warrant heavier punishment.

In implementing the requirements of "scientific legislation and just justice", while actively leveraging the function of criminal law in protecting legal interests and preventing risks, it is also necessary to carefully consider its intervention boundaries and avoid eroding citizens' freedom of space due to excessive criminalization. Specifically, regarding the criminal law regulation of operating drones under the influence of alcohol, the principle of restraint in criminal law should be adhered to, coordinating safety values with development needs. The essence of restraint lies in its supplementary nature: based on the principle of the unity of legal order, for behaviors that have been evaluated as legal or effectively regulated by other departmental laws, criminal law should exercise restraint to ensure the coordination and unity of the overall legal order in evaluation.

Therefore, when dealing with such behaviors, multiple factors should be considered comprehensively, including the actor's purpose and motive, the degree of intoxication, the type of drone, the flight airspace conditions (including meteorology and density), flight altitude/speed/duration/distance, and the expression of remorse. If administrative penalties are sufficient to regulate the behavior, there is no need to resort to criminal law; if the criminal circumstances are insignificant, criminal punishment may be exempted in accordance with the law.