Recent changes in Criminal law have led to a significant increase in penal sanctions against persons who have driven a vehicle under the influence of substances disturbing the ability to drive these vehicles, that is under the influence of alcohol or any other psychoactive substances.
In accordance with article 178a of the Criminal Code, criminal liability is subject to the person that being in a state of intoxication or under the influence of drugs is driving a motor vehicle in land, water or air traffic. Such person is subject to a fine, the penalty of limitation of liberty or deprivation of liberty for a term up to 2 years.
The applied penalty depends on an individual decision of the Court. Nevertheless, it is sure that on the basis of the currently valid legislation (that is since July 2015), in the case of such offence, it is obligatory for the Court to impose on the offender the ban on driving motor vehicles for at least 3 years. The role of the legal counsellor in such proceedings is either to individualize the act before the adjudicating Court so that it adopts this punitive measure properly or to conduct defense resulting in acquittal if there are appropriate reasons for it (defectiveness or the error of measurement and other circumstances excluding liability under article 178a of the Criminal Code)
When there is no doubt that the driver has driven the vehicle under the influence of alcohol and its limit value has been exceeded, the circumstances in which the offence has been committed must be taken into consideration. The situation of a person with blood alcohol content slightly exceeding 0.5 per mille (or 0.25 mg per litre of exhaled air) will be different than the situation of a person with blood alcohol content of 1 per mille or more. Moreover, the situation of a person who has moved a vehicle for a few meters in a car park under the influence of alcohol will be different than the situation of a person who has driven on the main street of the city frequented by other cars and pedestrians. Finally, the situation of a person who has committed the offence in question due to nonchalance will be different than the situation of another person who responds, for example, to the call from relatives to save their lives or health.
Significantly, it is also possible to adopt conditional discontinuance of criminal proceedings against the person who has committed the offence referred to in article 178a paragraph 1 of the Criminal Code. One of the consequences of adopting such measure by the Court is the possibility of shortening the period for which the driving ban will be imposed up to one year. In the case in which the ban on driving motor vehicles does not exceed one year, the person against whom such prohibition has been ordered does not have to pass the driving licence exam, which, unfortunately, happens when the ban is imposed for a longer period.
It is also important that in case of serving at least half of the ban period, one can ask the Court to issue a statement allowing completing the remaining period of the ban in such a way that the person against whom the ban has been imposed will be able to drive vehicles equipped with a device that prevents starting the vehicle when the driver is under the influence of alcohol. Namely, it is a device mounted in a vehicle that the driver is to blow in before starting the engine. It is crucial as it significantly reduces the arduousness of the ban.
In conclusion, in case you were suspected of driving a motor vehicle under the influence of alcohol, it would be worth going to a lawyer prior to making any statements before law enforcement authorities. Everyone has the right of defense and voluntary submission to punishment after consultation with the Prosecutor will not always be a good idea in this case.
Gniezno, December 29th, 2015 – Advocate Jarosław Woźniak
(the author of this article reserves that the explanations provided above do not constitute individual legal advice. In order to receive sound legal assistance, it is necessary to meet with the Advocate at the Office).