Drunkenness in traffic, § 316 StGB
In practice there are many cases in which both drivers and cyclists drive under the influence of alcohol on public roads. In addition to the risk to road traffic, there is always a criminal liability for drunkenness in traffic according to § 316 StGB.
In § 316 StGB it says:
(1) Anyone who drives a vehicle in traffic (Sections 315 to 315e) even though he is not able 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 threatened with a penalty in Section 315a or Section 315c.
(2) According to paragraph 1, anyone who commits the act negligently is also punished.
In addition, there is a threat of the driver’s license being revoked. It should be noted that your driver’s license and driving license may only be withdrawn because of a drunk drive if you were no longer able to drive the vehicle safely, i.e. you were unfit to drive.
When is it unfit to drive?
The ability to drive describes a condition in which the perpetrator is not able to drive the vehicle safely over a longer distance, even in difficult traffic situations. It is not necessary that the vehicle can no longer be driven at all. Rather, it is sufficient that driving uncertainties exist and the vehicle driver can no longer drive the vehicle safely. The required traffic-specific overall performance is made up of biological-psychological (vision and hearing), intellectual-cognitive (ability to concentrate) and emotional (frustration tolerance) factors.
In the case of inability to drive due to alcohol, a distinction is made between absolute and relative inability to drive. If only a value between 0.3 – 1.1.% Per mille is reached, that is relative inability to drive given if it is also proven that the driver of the motor vehicle has committed an alcohol-related driving error. A driving error is only significant if the driver of the motor vehicle would not have made the mistake in a sober state. Typical failure phenomena are reaction delays, excessive speeding, driving in serpentine lines and slurred speech.
Anyone found with a blood alcohol concentration of at least 0.5% will be prosecuted for an administrative offense, even if no alcohol-related driving errors have occurred. In the course of such an administrative offense procedure, a driving ban is often issued. For the accused, the avoidance of a driving ban or at least an order to a tolerable level is of particular interest.
For determining the absolute unfit to drive A blood alcohol limit of 1.1% applies to motor vehicles, and a blood alcohol limit of 1.6% applies to bicycles. In these cases, the case law assumes that the driver of the motor vehicle was irrefutably unfit to drive. The withdrawal of the driving license can then no longer be avoided. A criminal defense attorney then focuses on preventing at least one conviction for a deliberate crime, as the penalty is lower for a negligent crime.
What is the alcohol limit for e-scooters?
In the decision of November 29, 2019 (26 Qs 51/19), the Munich Regional Court had to deal with the alcohol limit to be used when driving e-scooters.
In the present case, the defendant was driving an e-scooter at 9:15 p.m., although he was unable to drive as a result of previous alcohol consumption. A blood sample taken at 9:50 p.m. showed a blood alcohol concentration of 1.23%. With a critical self-examination, the accused could and should have recognized the inability to drive. The Munich District Court therefore issued a penalty order against the accused for negligent drunkenness in traffic and set a fine of 40 daily rates of € 40.00 each, a driving ban of 3 months for vehicles of all types as well as the withdrawal of the driver’s license and a blocking period of 6 months .
The defendant’s defense counsel appealed against this and asserted that a driving ban without withdrawal of the driver’s license for the range between 1.1 and 1.6% for a drunk drive with an e-scooter was sufficient. The Munich District Court therefore overturned the previous decision, against which the Munich Public Prosecutor again filed a complaint.
According to the Munich Regional Court, which is now to be decided, e-scooters are basically classified as motor vehicles within the meaning of Section 1 (2) StVG by the regulation on the participation of small electric vehicles in road traffic. Because of their easy handling and risk potential, e-scooters should not be treated like an e-bike or as a toy-like vehicle. E-scooters have a weight of approx. 20 to 25 kg and a possible maximum speed of 20 km / h, which results in a considerable potential for injury to third parties, which is in this respect comparable to the risk potential of mopeds.
Conclusion: The limit value of 1.1% applicable to the absolute inability to drive a vehicle must therefore also be applied when driving with e-scooters.
Help from a specialist lawyer for criminal law
This post was made by Attorney Dietrich created. Attorney Dietrich has been a defense lawyer throughout Germany for many years.
For a defense attorney, there are numerous possibilities to have a positive influence on the outcome of the proceedings when defending against the charge of drunkenness in traffic. The demarcation between absolute and relative unfit to drive or the findings on intentional or negligent inspection set the course for further proceedings. The written submission made after inspection of the files is of elementary importance. One careless word can mean that you have to surrender your driving license.
This risk, which may threaten the existence of the company, can be significantly reduced by being represented by a lawyer.
If you are accused of having made yourself a criminal offense for drunkenness in traffic, you can make an appointment for a meeting with lawyer Dietrich using the contact details provided. Alternatively, you can write an email to Attorney Dietrich.
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