Driving after drinking alcohol – a crime or an administrative offense?
Driving after drinking alcohol is an extremely dangerous act that endangers the life and health of both the driver and his passengers, as well as other road users. That is why the law prohibits driving vehicles with a blood alcohol concentration above 0.5 per mille.
Depending on the alcohol content limits, it is determined whether it is an administrative offense or a crime. Thus, with a concentration of 0.5 to 1.2 per mille, the legislator has provided for an administrative penalty in the form of a fine, together with the deprivation of the driver’s right to drive a motor vehicle for a certain period of time, and when the concentration exceeds 1.2 per mille, it is already a criminal offense, punishable by imprisonment of one to three years.
The determination of blood alcohol concentration is carried out in strict compliance with a legally defined procedure, failure to comply with which leads to a violation of the right of defense of the driver being tested, and this violation always constitutes grounds for acquittal, regardless of whether a penalty order has been issued against him or he has been charged with a crime.
Driving after drinking alcohol – the case study
Dimitar* drank two beers with friends and, feeling perfectly fine, decided to drive home in his car. On the way home, he was stopped by flashing lights and sirens, even though he had not violated any traffic rules. The police officers informed him that he would be tested for alcohol consumption.
Given that he had drunk a small amount of light alcohol and did not feel intoxicated, Dimitar agreed to be tested. The breathalyzer showed 1.09 per mille. His driver’s license was revoked and his license plates were removed because he had driven after drinking alcohol. He was issued a citation for an administrative violation, which listed two technical devices with different numbers that were allegedly used to test the driver.
A few months later, a penalty order was issued against Dimitar, imposing a fine of BGN 1,000 and depriving him of his right to drive a motor vehicle for a period of 12 months.
* In order to preserve attorney-client privilege, the name has been changed.
Driving after drinking alcohol – the court’s decision
After the penalty order was issued, Dimitar refused to accept the penalty imposed on him, as he was convinced that he had not driven under the influence of alcohol above the legal limits. Therefore, with the assistance of the law firm, an appeal was filed in court on his behalf.
During the court proceedings, the court also noted that both the administrative violation report and the subsequent penalty order listed two technical devices with different serial numbers that were allegedly used to test Dimitar. From the testimony of the police officers questioned during the trial, it remains unclear which technical device was used to perform the test. However, establishing this circumstance is of essential importance, as all technical devices are subject to periodic suitability checks, which are carried out at different times for each specific breathalyzer.
Since it’s not possible to figure out exactly what tech was used to test Dimitar, neither the person who filed the complaint nor the court can check if the testing rules were followed or if the breathalyzer was working right.
Accordingly, the court considers that the registration of two different technical devices and the inability to establish the specific breathalyzer used to perform the test constitute a material procedural violation that impedes the defense of the defendant and overturns the contested penalty order issued for driving under the influence of alcohol.
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Sylvia Petkova Sole Proprietorship Law Firm provides specialized legal assistance in cases of drunk driving charges.
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