According to the relevant provisions of drunk driving cases in Zhejiang, Shanghai and Jiangsu, Bian Xiao concluded that the following six cases are minor and are for readers' reference only:
The first is the type of mobile parking space. The purpose of such defendants driving vehicles is not to drive on the road, but to move parking spaces. The defendant was driven back to the parking lot of the community by others, and because others did not park the parking space correctly, the defendant moved the parking space to wipe other people's vehicles or collided with fire hydrants to implement the case;
The second is to treat patients. This kind of defendant is drunk driving in order to send his sick family to the hospital for emergency treatment or to accompany his family to the hospital for emergency treatment;
The third is to sleep and rest. Such defendants voluntarily gave up drunk driving after driving for a certain distance and stopped to sleep;
The fourth type is drunk driving. Such defendants parked their cars in front of the hotel after drinking and went back to the hotel every few hours or overnight to pick up their cars, but their blood alcohol content still reached the drunk driving standard;
Fifth, it has not been kicked out. Such defendants were seized when they were preparing to drive on the road and had not yet driven out;
Sixth, it is drunk driving and rear-end collision. Such defendants have low blood alcohol content. Although there was a traffic accident, the other party was drunk and took full responsibility for the accident. The following two judgments are good trial cases.
Case 1
primary facts
Defendant Tang Hao, male,1born on July 27th, 987, is an employee of our company. 2012165438+10 was released on bail pending trial on suspicion of dangerous driving.
The Nan 'an District People's Court of Chongqing found through public hearing that on the evening of 20 12 10, the defendant Tang and his friend Zhao Jun were drinking while eating at Dahekou Fish Restaurant of Welfare Society in Nan 'an District of Chongqing. At about 2 1 hour on the same day, Tang's girlfriend drove Tang, Zhao Jun and others home in a double-ring off-road vehicle with license plate number Yu A68858. When driving near Nanping East Road Modern Women's Hospital, I was scratched by a taxi with the license plate number Yu A 1rl230. Zheng drove the car to the road patrol platform for processing. Zheng Hui blocked the back garage of Sunshine Hua Ting Community when parking, and the police advised him to move the car. Because of his poor driving skills, Tang moved his car (there was another person in the car). In the process, the vehicle he was driving crashed into Kia Motors with license plate number of Chongqing AYY297 parked on the side of the road. The police immediately arrested Tang. After identification, the blood alcohol content of Tang was 206.7 mg/100 ml. After the incident, Tang compensated Kia owners for vehicle maintenance costs of more than 2,600 yuan.
The Nan 'an District People's Court of Chongqing held that the defendant Tang violated the road traffic safety regulations and drove a motor vehicle on the road after being drunk, which constituted a dangerous driving crime. Tang's blood alcohol content was 206.7 mg/100 ml, and the degree of drunkenness was particularly serious, which was a discretionary lighter punishment for causing accidents and carrying others. After the incident, Tang truthfully confessed the facts of the crime and took the initiative to compensate, which can be given a lighter punishment. Considering the specific circumstances of this case, Tang does not have the relevant conditions for probation, so it is not appropriate to apply probation. Accordingly, the Nan 'an District People's Court of Chongqing sentenced the defendant Tang to four months' criminal detention and fined him RMB 20,000 in accordance with the provisions of the first paragraph of Article 133-1, Article 52, Article 53 and Article 67 ter of the Criminal Law of People's Republic of China (PRC).
After the verdict was pronounced in the first instance, the defendant Tang appealed.
After hearing the case, the Fifth Intermediate People's Court of Chongqing held that the facts of the original judgment were unclear and the evidence was insufficient. In accordance with the third item of the first paragraph of Article 225 of the Criminal Procedure Law of People's Republic of China (PRC), it ruled that the criminal judgment of Chongqing Nan 'an District People's Court (20 12)No. 13 16 was revoked and sent back for retrial. After the Nan 'an District People's Procuratorate of Chongqing withdrew the prosecution.
Reason of the referee
During the trial of the second instance of this case, there was a great controversy about whether the defendant Tang's behavior constituted a crime. Finally, it was determined that Tang's behavior constituted a crime of dangerous driving, but the circumstances were minor and he was not prosecuted or exempted from criminal punishment. The general view is that drunk driving a motor vehicle in order to move a parking space on the road, and the driving distance is short and slow, and no serious consequences have occurred, can not be punished as a crime.
In this case, Tang didn't have the subjective intention of drunk driving a motor vehicle from the beginning, but in the special case that his girlfriend had an accident while driving, which blocked the passage of other vehicles and the police asked to move the car, his subjective malignancy was obviously less than that of other actors who actively drunk driving a motor vehicle. Judging from Tang's behavior, he didn't drive fast after starting the car, but controlled the speed to reverse slowly, ready to park his car across the road a few meters away. The danger of this behavior is obviously less than that of drunk driving motor vehicles driving at high speed and long distance. Although Tang's drunk driving behavior has actual harmful results, it is only a minor vehicle collision, and he actively compensates the owner for the repair cost and confesses his guilt and repentance. Therefore, considering the above situation comprehensively, it is in line with the law to punish Tang's behavior as a crime or not to prosecute or be convicted and exempted from punishment.
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Wu Mou, male, was born on June 5th. 1972+0 1. On July 29th, 20 1 1, he was released on bail pending trial on suspicion of dangerous driving.
The People's Procuratorate of Longgang District, Shenzhen City, Guangdong Province filed a public prosecution with the People's Court of Longgang District, Shenzhen City for the crime of dangerous driving committed by the defendant Wu Mou.
Wu Mou and his defenders have no objection to the alleged criminal facts and charges, but ask the court to exempt him from criminal punishment for the following reasons: Wu Mou's drunk driving behavior is special and excusable. After the party on the night of the incident, Wu arranged for a full-time driver to drive the students who attended the party home. Later, he received a phone call from home and learned that his daughter, who was under one year old, had a fever, so he drove home in a hurry. Wu's blood alcohol content is not high; Wu's driving time is shorter when there are few pedestrians in the early morning. No traffic accident occurred; The circumstances of the crime were minor, and Wu pleaded guilty after returning to the case.
The People's Court of Longgang District, Shenzhen found through public hearing that at about 0: 35 on July 27, 201/year, the defendant Wu Mou was caught red-handed by the traffic police while driving a car with the license plate number Guangdong BM386V passing through Longyuanmen section of Long Yuan Road, Longgang District, Shenzhen. It was identified that Wu Mou's blood alcohol content was 89.4 mg/100 ml. Another daughter, Qi, was born on June 27, 20 10+February 2065438. The medical record shows that she was treated in Longgang District Central Hospital on July 27-28, 2065438.
The Longgang District People's Court held that the defendant Wu Mou drunk driving a motor vehicle on the road, and his behavior constituted a dangerous driving crime. Wu Mou's blood alcohol content is not high, and the distance and time of drunk driving are short, which has no actual harmful consequences. After investigation, Wu Mou was anxious because she heard that her daughter under one year old was ill, so she drove home by herself, which was not subjective and vicious. After being brought to justice, Wu Mou actively cooperated with the judicial organs in handling cases, and he also had a deep understanding of his mistakes during the trial. Based on the above situation, Wu Mou's crime is minor, so he doesn't need to be sentenced to punishment, so he adopts his relevant excuses and defense opinions. Accordingly, the People's Court of Longgang District of Shenzhen City exempted the defendant Wu Mou from criminal punishment for committing dangerous driving in accordance with the provisions of the first paragraph of Article 133-1 and Article 37 of the Criminal Law of People's Republic of China (PRC).
After the verdict was pronounced in the first instance, the defendant Wu Mou did not appeal and the public prosecution agency did not protest. The judgment has taken legal effect.
In this case, the fact that the defendant Wu Mou was drunk driving a motor vehicle on the road was clear and the evidence was really sufficient, so there was no dispute about his conviction for dangerous driving. However, in terms of sentencing, Wu Mou has a number of statutory and discretionary mitigating circumstances. If the circumstances of the crime stipulated in Article 37 of the Criminal Law are minor and there is no need to be sentenced to punishment, can criminal punishment be exempted?
In drunk driving cases, from the perspective of behavior and behavior, sentencing circumstances can be divided into two categories:
In terms of behavior, there are mainly the following plots: (1) Time and space environment of drunk driving, that is, time, road section, distance, etc. Including: whether the drunk driving time is late at night when there are few vehicles or during the peak traffic hours during the day, how long the drunk driving lasts, and the time interval of drunk driving; Whether the drunk driving section is a bustling or sparsely populated area, an ordinary road or an urban expressway or expressway; The distance when drunk driving is caught, the remaining distance from the destination. (2) Conditions for drunk driving a motor vehicle. Including: whether it is a car wrapped in iron or an ordinary motorcycle wrapped in iron; Whether it is a private car or a bus in operation; Whether it is a motor vehicle that meets the safety technical requirements or a modified car or a scrapped car; Drunk driving alone or with relatives and friends. (3) Whether there are other violations of the road traffic safety law. Including: driving without a license or quasi-driving model does not match; Severe overspeed, overload and overcrowding; Violation of traffic signals; Driving after taking drugs; Forge, alter or block the number plate, etc. (4) the consequences of drunk driving, that is, whether there is a traffic accident and the severity of the consequences.
In terms of behavior, there are mainly the following situations: (1) the degree of drunkenness, that is, whether the blood alcohol content of the actor just exceeds the drunk driving standard of 80 mg/100 ml, or whether it is too high. (2) criminal attitude. Including: whether there are statutory or discretionary lenient punishment circumstances such as voluntarily stopping drunk driving, surrendering, confessing, making meritorious deeds or actively compensating; Whether there are any bad behaviors such as refusing to cooperate with the inspection, abandoning the car and escaping, even beating, driving into law enforcement officers, punching cards, etc. (3) The criminal motive or understanding of drunk driving itself. Including: whether there is a sense of breaking the law, whether you mistakenly think that you will wake up after a few hours of rest or all night and drunk driving; Whether to insist on drunk driving regardless of the harm caused by drunk driving to public safety, or to drunk driving because of helping others; Whether to take evasive measures, etc. (4) The consistent performance of the actors. Such as whether there are criminal records such as drunk driving and drunk driving.
The above situation can basically accurately reflect the social harm degree of drunk driving behavior and the personal danger of the perpetrator, which is an important reference factor for deciding whether to punish the perpetrator severely or lightly. As far as lenient punishment is concerned, the crime of dangerous driving is the only crime whose main punishment is set as criminal detention in the specific provisions of criminal law. Its misdemeanor nature determines that when lenient punishment is given to the perpetrator, it is often necessary to weigh between probation, exemption from criminal punishment and inaction, so it is necessary to accurately distinguish between minor crimes, minor crimes and obvious minor crimes. From the above cases alone, we can see that the situation of drunk driving crime is more complicated, and what kind of circumstances are lighter, lighter or significantly lighter needs to be continuously explored in judicial practice. This is also an important reason why the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security have not clearly defined the relevant identification standards in the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Drunk Driving Motor Vehicles.
In this case, the defendant Wu Mou has several statutory or discretionary sentencing circumstances: First, no actual harmful consequences have occurred, and the social harm is small. Wu Mou's blood alcohol content was 89.4 mg/ 100 ml, which just reached the drunk driving standard. The drunk driving time was 1 in the morning. The driving route is not the main road of the city, and there are few vehicles and pedestrians on the road. Compared with high drunkenness or drunk driving in busy traffic hours and road sections, the risk of traffic accidents is lower and the threat to road safety is small. Second, the subjective malignancy is small. On the night of the murder, Wu Mou was driven by the driver to the hotel to attend the reunion of classmates, which showed that he had a certain understanding of the dangers of drunk driving and took corresponding preventive measures. After the party, Wu Mou sent a driver to take his classmates home. During this period, he suddenly learned that his daughter under one year old had a high fever. In desperation, he chose not to take a taxi or other means of transportation to go home, but to drink and drive. It is human nature that his eagerness to save her can be widely understood and tolerated by the public. Therefore, her subjective malignancy is less than other lucky drunk drivers. Third, the actor's personal danger is small. Wu Mou has a proper occupation, good past performance, and no criminal record. He is a first-time offender. After arriving at the case, he truthfully confessed his crime, and he pleaded guilty and repented during the trial. Fourth, there are no circumstances of heavier punishment and sentencing in this case. In view of the fact that Wu Mou did not take the initiative to stop drunk driving, but stopped drunk driving after being arrested. When he was arrested, he had traveled about 1.8 km. On the whole, it can be concluded that Wu Mou's drunk driving behavior belongs to "minor crime" rather than "obviously minor". Therefore, in accordance with the provisions of Article 37 of the Criminal Law, Wu Mou was declared guilty according to law, but he was exempted from criminal punishment, which not only thoroughly implemented the spirit of leniency according to law in the criminal policy of combining leniency with severity, but also embodied the principle of adapting crime to punishment.
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