Mask at the wheel can cost you a fine

At the end of January you will give a lecture on the subject of “The Coronavirus in Traffic Law” at the Traffic Court Day in Goslar. Do you and your colleagues have less or more to do at the moment?

Amazingly more at the beginning of the first lockdown in spring. Many colleagues used the time without going to court to work off backlogs. Law firms have initiated a number of lawsuits that would otherwise have been a bit of a stretch. On the other hand, traffic has decreased by around 15 to 20 percent during this period. With a little delay, this could also be seen in the number of our mandates.

How many drivers have been caught wearing mouth and nose protection behind the wheel since the beginning of the pandemic?

I don’t have any numbers for that. But from a legal point of view, I can say something on the subject: According to Paragraph 23, Paragraph 4 of the StVO, it is forbidden to cover the face while driving in such a way that the driver can no longer be identified. Incidentally, this regulation was introduced in 2017. There are already court rulings on this, but with a different context.

And which one is it?

Women complained against the ban and declared that they had to cover their faces for religious reasons. In 2018, however, the constitutional court of Karlsruhe did not see the ban on covering the wheel as an encroachment on religious freedom and dismissed a corresponding lawsuit.

How does the legislature justify the ban?

On the one hand, there is traffic safety – the driver’s unobstructed view must not be obstructed. On the other hand, the ban on masking serves to ensure that people must be identifiable in the event of traffic violations. According to Paragraph 46 of the StVO, however, it is possible that exemptions can be granted upon request or by the licensing authorities. Taxi or bus drivers may be allowed to wear masks to protect themselves from infection with coronaviruses.

As a private driver, could I also submit such an application?

Basically yes. I don’t see the need to wear a mask for someone who drives alone. When people are transported, things look different. Then it could be that you have to or want to protect yourself with masks.

Are there any court rulings?

Yes. In the autumn of 2020, the Stuttgart District Court declared in the context of administrative offense proceedings that a joint car trip was “not a meeting in public space”. So the same restrictions do not apply to private cars. Of course, what is legal in the individual case still depends on national regulations. If the rule applies that you can meet a maximum of one person from another household, this also applies in a private car. The only question is, is it even a good idea to drive a car with strangers? You can’t get much closer than there. I don’t think it’s time for larger car pools right now. There is always a risk of infection if you are together in a very confined space for a long time.

What sanctions are there if you sit behind the wheel with a mask in spite of the ban?

A fine, and if the driver cannot be identified in the event of a relevant traffic violation, the requirement to keep a logbook in the future.

What other “corona problems” did you encounter in 2020?

There were a lot of problems with repairs in the initial lockdown. Everything was delayed – spare parts could not be ordered, sometimes there was no staff. This has resulted in higher costs for insurers because, for example, replacement vehicles had to be rented for longer. Furthermore, cars involved in an accident, which are normally sold on residual value exchanges, could not be transferred due to closed borders. Sales fell sharply as a result. A positive side effect, however, was the sharp decline in vehicle thefts. What we currently have are disputes between injured parties and car dealerships on the one hand and insurance companies on the other.

What is it about?

Many car dealerships charge the cost of disinfecting vehicles before, during and after the repair. It is disputed whether the costs were incurred as a result of the accident and therefore have to be paid by the injuring party or whether these expenses serve to protect employees and are therefore included in the overhead costs of the dealership.

What do the courts say?

There are judgments in both directions. I see a tendency to “pay for it”. The question is how much. In some cases, amounts of around 80 euros net are required, which I personally consider to be clearly excessive. On the other hand, courts have declared that these expenses have nothing to do with the accident and therefore should not be imposed on the injuring party or the insurance company.

What problems will you and your clients face in 2021?

Many court dates were canceled during the lockdown phases. That happens again now. For those who sue their claims, this will drag out the proceedings by weeks or even months. According to the Code of Civil Procedure, it is possible to conduct proceedings via video conference, but the vast majority of courts are not yet technically able to offer such a thing. These limited digital possibilities of the judiciary are regrettable. It would be the duty of the state to speed things up.

The StVO was reformed in spring 2020. As a result, it was debated whether certain tempo violations would be punished too harshly and whether the changes might have to be defused again. What is the current standing?

After the changes were ineffective due to a formal error, a new attempt should be made. But it is currently on hold due to major corona problems.