INNER EUROPEAN PROBLEMS OF EVIDENCE EVALUATION IN CASES OF "DWI"

Transcription

1 INNER EUROPEAN PROBLEMS OF EVIDENCE EVALUATION IN CASES OF "DWI" Manfred Erkens Institute of Forensic Medicine, Klinikum RWTH, W-5100 Aachen, Germany It is generally accepted, that the intake of alcohol does impair the ability of driving, and that the risk of accident correlates with the stage of intoxication. The relevance of this problem on traffic policy is acknowledged in all countries, irrespective of their legal systems. However, particular countries apply different legal systems to enforce specific means against drunken driving. As Havard (1990) already pointed out at the T89-conference in Chicago, it is possible to draw a distinction between common law countries and civil law countries. Common law systems are established in countries which have adopted Anglosaxon law, and on the other hand civil law systems are found in countries whose laws are based on the "Code Napoleon" or "Roman law", i.e. central- and southern European countries. Havard defined the basic principles of civil law systems to be "essentially logical", whereas those of common law tend to be pragmatic. Relevant legal sanctions such as confinement, fines, license suspensions or revocation of driving licenses, are correlated with corresponding evidential procedures in particular legislations. Currently we are witness of the efforts to build a common Europe. This assumes the matching in various platforms, i.e. economical, monetary, and also in traffic policies. The purpose of this paper is to focus on some difficulties arising from differences in sanctions against DWI in different European countries. In one group of countries, e.g. Belgium, Denmark, Finland, Germany, Italy, Luxemburg, Norway, Spain and Switzerland, the blood alcohol concentration serves as an evidence of intoxication. In other countries, e.g. Austria, France, 430 Alcohol, Drugs and Traffic Safety - T92 Ed. by Utzelmann / Bergbaus / Kroj Verlag TÜV Rheinland GmbH, Köln -1993

2 Great Britain, Poland, Portugal and Sweden, blood alcohol concentration and breath alcohol concentration are regarded as of the same evidential value, and two threshold limits exist in these countries. In the Netherlands the breath alcohol analysis serves solely as the base for any penal procedure. Threshold limits of BRAC/BAC Austria France Sweden UK Belgium Denmark Finland Germany Italy Luxemburg Norway Spain Switzerland The N etherlands BAC q/l(fca) B R A C mg/l. X W W W W N 0,4 saw! X H W n ,4 1 0,8 0,6 0,4 0,2 0 0,1 0,2 0,3 0,4 0,5 There is no doubt that each government tries to find the optimum solution to handle the problem of drunken driving. The future coordination of this problem in common Europe is not known up to now. Also the regulations in Germany after unification are quite different in eastern and western Germany. Even two years after unification no agreement was achieved in regard to the blood alcohol limits. In the territories belonging to the former GDR, like in almost all other eastern countries the 0-promille limit is still valid. In the territories of western Germany the 0,8 and 1,1 promille limits are in use without change. 431

3 The difficulties in desired unification of the European jurisdiction may be well observed in the border city of Aachen. Frequently we are confronted with the question of the usefulness of breath alcohol analyses, which were performed abroad. This concerns mainly the situations, when German citizens were involved in DWI cases in the Netherlands and were accused according the Dutch traffic law. In Dutch conditions a presumptive breath screening test is taken prior to an evidential breath analysis, which is performed only if the screening test gave a positive result. The concentration above 220 /xg/1 breath (obtained as mean value from two measurements) is regarded as a lower limit of alcoholic intoxication (J.A.G.Mulder et al., 1991). In contrary to German practice, the refuse of breath testing is punishable. After sobering the subjects are allowed to drive back to Germany and German authorities are asked for legal steps against those DWI offenders. In a consequence, German law enforcement institutions expect the recalculation of the results of breath alcohol analyses to corresponding blood values. In principle it is possible to recalculate the BAC from a BRAC in a specific concentration range using a general recalculation factor of In this way the limit of 220 /ug/1 expired air was calculated in the Netherlands from the earlier blood alcohol limit of 0,5 g/1 using the factor The limits in Great- Britain (0,35 mg/l expired air and 80 mg/100ml blood) base on the same factor. Recalculations in France and Sweden use the factor of These recalculations cannot fulfil the requirements of accuracy formulated in the German jurisdiction. This is particularly true for cases with BAC values near the legal limits. It is well known, that inter- and intraindividual factors may influence the value of the recalculation factor. Also in the countries where the same legal limit of 0,8 promille BAC is used i.e. Denmark, France, Belgium, some difficulties with the formal matching of the results may be observed. In these countries the analytical criteria for blood alcohol determination do not fulfil the requirements of the German legislation, e.g. in Denmark BAC is determined through duplicate GC-analysis (Felby and 432

4 Nielsen, 1981). In consequence, in Germany such result might not be accepted, because German jurisdiction demands four single measurements with strictly defined precision using two uncorrelated analytical methods. New difficulties arise from the decreasing of the absolute insobriety limit in Germany from 1,3 to 1,1 promille together with the introduction of regular external quality control program. In some other countries, e.g. Belgium and France, the external quality control is not a condition and to our knowledge also not practised. As the effect of this discrepancy one may expect that legal steps would not be undertaken in cases, when German methodical demands are not fulfilled. The presented examples show the variety of the problems which occur during the defining of common legal regulations. The role of the experts in this matter seems to be very important. References J.D.J. Havard Countermeasures to drinking driving under different legal systems Alcohol, Drugs & Traffic Safety, Proceedings of the T89(1990) A.G.Mulder, W. Neuteboom and R.M. Wessel Breath Alcohol Legislation in The Netherlands Blutalkohol (1991),28, S.Felby, E. Nielsen Automatized Blood Alcohol Determination with on-line Computerized Gas Chromatography Blutalkohol (1981), 18,

5 Hans Klette, Professor, LLD, PhD, Faculty of Law, Lund University, Sweden Legality and Equality in relation to the_swedish Drunk Driving Law. The new Swedish Drunk Driving Law of 1990 reads like this: 4 A person driving a motor vehicle or a street-car after drinking alcohol in such an amount that the concentration, during or after the driving, is at least 0,2 per mille (0.02%) in his blood or 0.1 milligrams per liter in his breath is sentenced for drunk driving to fines or imprisonment for not more than six months. The punishment is the same according to the first section for anyone driving a motor vehicle or a street-car when influenced by alcohol to such an extent that he can be presumed unsafe to drive. H a If the crime according to 4 is considered serious the driver shall be sentenced for gross drunk driving to imprisonment for not more than one year. In judging if the crime is serious, especially the following aspects shall be concidered: 1. the driver has had an alcohol concentration of at least 1.5 per mille (0.15%) in his blood or 0.75 milligram per liter in his breath, 2. the driver has been considerably influenced by alcohol or any other drug, or 3. the driving of the vehicle has meant an obvious traffic safety hazard. In a democratic society based on justice the two principles of legality and of equality are of greatest importance. The following facts must be noticed: 1. The lower legal limit of 0.02% in the blood or 0.1 milligrams per liter breath relates to "the alcohol concentration during or after the driving". 434 Alcohol, Drugs and Traffic Safety - T92 Ed. by Utzelmann / Berghaus / Kroj Verlag TÜV Rheinland GmbH, Köln -1993

6 In legal practice the concentration at the time of the test is used as the relevant figure because extrapolating back to the time of the driving is considered unreliable. 2. About 95% of the tests are taken during a decreasing alcohol curve. 3. It is a coincidence where on the curve the driver is detected. 4. The time between driving/detection and testing varies widely depending on time and space-from half an hour to 1-2 hours. 5. Individuals also eliminate alcohol from the blood at different rates-ranging from 0.008% to 0.035% per hour and of an average of 0.015%. 6. In about 80% of DWI-cases breath tests are used as evidence and in about 20% blood tests. The reduction factor to compensate for measurement and certainty is 0.014% BAC in cases of breath tests and 0.006% BAC at BAC's below 0.05% BAC in cases of blood tests. 7. The blood/breath conversion factor (2000:1) is very much in favour of the suspect. 2300:1 is more in accordance with research findings but the inter and intra individual variations are substantial especially at lower BAC's; around 0.02% BAC the conversion factor can be much higher. All this shows, that the alcohol concentration usually is about % BAC higher at the time of the driving/- detection than at the time of the testing and can be even higher earlier while driving. This means that 0.02% BAC in the law corresponds more to 0.05% BAC in reality. Thus legality and equality are at great risk in the new Swedish Drunk Driving Law, when both blood and breath are available as evidence in DWI-cases. 435

7 When introducing the new Drunk Driving Law in 1990 the Parliamentary Justice Committee argued as follows: The starting point is that alcohol and traffic don't belong together and that the law also should supply this message. There are reasons to decrease the current legal limit of 0.05 but this should be done by taking account of the basic principles of the criminal law. This law should be used only in relation to acts which are clearly harmful and dangerous to individuals and to society and increasing the criminal area demands very strong reasons. To put the legal limit below 0.02 is not motivated by traffic safety reasons and would be uneconomical in the use of criminal justice resources. Now we know that 0.02% BAC de jure corresponds to approximativly 0.05% BAC de facto and therefore I propose to introduce a new law that satisfies the basic criminal law principles, of legality and equality in a better way than the present one. The law should read: 4 "A person driving a motor vehicle after drinking alcohol in such an amount that alcohol is present in his blood or breath after the driving is sentenced for drunk driving to fines or imprisonment." 4 a should read as present with the exeption that 0.15% BAC should be lowered to 0.10% BAC - and corresponding breath figures. With this new law, drivers with less than 0.02% BAC while driving will usually not be sentenced, as about 95% of all drivers are detected during a decreasing alcohol curve. If the alcohol curve is increasing, the BAC can be above 0.02% at the time of the testing but below 0.02% at the time of the driving/detection in a few cases. As the influence of alcohol is stronger during an increasing than a decreasing phase the behavior is punishable. 436

8 I will not go into a deeper discussion about the problem of equality in relation to sanctions but only mention the following. The upper legal limit of 0.15% BAC is abolished in the new law and the 0.15% and above is only one of the factors now taken into account when judging a case. The result is that imprisonment has not been used as frequently as before and that the principle of Equality is even more at stake now than before. In relation to gross drunk driving the sanctions used in 1991 were: imprisonment about 50%, probation with supervision about 25% and probation without supervision about 25 %. But the variations between lowers courts were very great. The range was as follows: imprisonment 67%-16%, probation with supervision 58%-5% and probation without supervision 52 % - 15 %. This situation is not acceptable and a new Swedish Governmental Committee is working to reform the law introducing imprisonment more often but also compulsory treatment while the drunk drivers are imprisoned. The equality in relation to sanctions will not improve until basic knowledge in relation to alcohol increases among judges, e.g. that BACs above 0.10% indicates alcohol dependence and recidivism and that any sanction against gross drunk driving must include longterm treatment of alcohol dependence. 437