FeV does not allow a ban on moped riding

A woman had lost her driver’s license because a whole cocktail of narcotics (540 ng/mL amphetamine, methylphenidate and ritalinic acid) had been found in her blood during a traffic check. Two of the substances could be explained by the prescribed drug Ritalin, but not the amphetamine. She then rode her moped to work without a license. During another traffic check, the woman showed severe symptoms (such as severe eyelid fluttering, trembling fingertips, “pin-sized” pupils). According to the blood sample, she was again under the influence of narcotics (400 ng/mL amphetamine, methylphenidate, ritalinic acid, and the psychotropic drugs amisulpride and olanzapine).

The district then banned her from riding a moped, based on Section 3 of the FeV (restriction and withdrawal of licensing). The person concerned appealed against this unsuccessfully: her objection that she was currently being treated with the maximum dose of Ritalin – an amphetamine-like substance – did not convince the driving license authority. Nor did the fact that, as a restaurant manager, she was dependent on her moped after work (at night, there are no more buses running, taxi rides are unaffordable) because she lives in the country. Her lawsuit at the Koblenz Higher Administrative Court was successful – after losing the lower court.

The Higher Administrative Court overturned the district administration’s decision. It considers Section 3 FeV to be too vague to determine what “suitability” means with regard to vehicles that do not require a driving license. The injunction ordered was therefore unlawful (judgment of March 20, 2024 – 10 A 10971/23.OVG).

According to the Koblenz judges, the concept of unsuitability to drive vehicles that do not require a driving license – as well as that of conditional suitability – is neither defined nor further specified in Section 3 of the FeV itself nor elsewhere in the FeV. The wording, system or meaning and purpose of the regulation also do not result in any specific requirements and standards that would make it predictable for the person concerned in which cases he or she must expect a ban. Accordingly, Section 3 of the FeV cannot serve as the legal basis for official bans.

However, this is not answered uniformly in the case law of the higher courts. There is also no supreme court decision on this. The Higher Administrative Court has therefore allowed the appeal because of its fundamental importance (judgment of March 20, 2024 – 10 A 10971/23.OVG).

Further links

From the beck-online database