1. Under what circumstances is drunk driving not sentenced?
1. Movable parking space type: The purpose of this type of vehicle driven by the defendant is not to drive on the road, but to move the parking space. 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;
2. Patient treatment type: this kind of defendant is drunk driving in order to send his sick family to the hospital for first aid or go to the hospital to accompany his family for first aid;
3. Sleep rest type: this type of defendant voluntarily gives up drunk driving after driving for a certain distance and sleeps by the side;
4. Every drunk driving type: This type of defendant stops at the entrance of the hotel after drinking, and returns to the hotel to pick up the car every few hours or overnight, but the blood alcohol content still meets the drunk driving standard;
5. Not yet driven out: this type of defendant was caught while preparing to drive on the road and has not yet driven out;
6. drunk driving rear-end collision type: this kind of defendant has low blood alcohol content. Although there was a traffic accident, the other party was drunk and took full responsibility for the accident.
Two, drunk driving cases may lead to "innocence" of the five evidence issues.
1, the problem of alcohol (alcohol) disinfectant.
In the process of taking blood samples, it is inevitable to disinfect the skin. However, if medical personnel use disinfectants containing alcohol (alcohol) during disinfection, such as compound cleaning solution, iodine and other disinfectants, it will affect the authenticity of the blood alcohol content identification results, which may lead to the inability to determine whether the perpetrator is drunk driving. According to the mandatory national standard "Threshold and Detection of Blood and Exhaled Alcohol Content of Vehicle Drivers" GB19522-2010,5. 3。 1: If it is necessary to test the alcohol content in blood, blood samples should be taken in time. Blood samples should be collected by professionals as required, and alcohol drugs should not be used to disinfect the skin. According to Article 84 of the Supreme People's Court's Interpretation on the Application of the Criminal Procedure Law of People's Republic of China (PRC), the expert opinion should focus on the following contents: whether the source, acquisition, storage and inspection of materials comply with laws and relevant regulations. Article 85 An appraisal opinion shall not be used as the basis for deciding a case in any of the following circumstances: it does not meet the appraisal conditions due to pollution. The use of alcohol (alcohol) disinfectant not only violates the national standards, but also it is difficult to verify whether and to what extent it pollutes the samples afterwards. Therefore, during the examination and prosecution, once the medical personnel use alcohol (alcohol) disinfectant from the Blood Sample Extraction Registration Form or in the synchronous audio and video recording of the blood drawing process, the procuratorial organ makes a decision not to prosecute in case of doubt. For example, on June 7, 2065438, the People's Procuratorate of Dachuan District, Dazhou City, Sichuan Province made a decision not to prosecute Ning Moumou's dangerous driving case. Regarding the judgment of the people's court, the Intermediate People's Court of Taiyuan City, Shanxi Province also sent Sun's dangerous driving case back for retrial on the grounds of (20 15) Criminal Chu Zi No.492 "unclear facts and insufficient evidence".
2. Witness problems in the process of blood sample extraction.
Is it necessary to have a qualified witness present during the blood sample extraction? Should the Opinion of Blood Alcohol Content Inspection and Appraisal made after blood collection without qualified witnesses and synchronous audio and video recording be inadmissible as evidence?
In the process of handling the case, the author found that during the period from 20 1 1 3 to 20 13, the blood sample extraction registration forms made by public security organs mostly adopted the design format of the signature of the examinee or witness, that is, the parties signed themselves, and it was not necessary to ask the witness to sign again. The main basis is as follows: Article 648 of the Procedures for Public Security Organs to Handle Administrative Cases (revised on 20 13) issued by the Ministry of Public Security in 2006: inspection records shall be made. The inspection record shall be signed by the inspector, the inspected person or the witness.
20 13 After the revision of the Criminal Procedure Law, Article 67 of the Supreme People's Court's Interpretation on the Application of the Criminal Procedure Law of People's Republic of China (PRC) clearly requires: "If a qualified person cannot be a witness due to objective reasons, the situation shall be indicated in the transcript materials and relevant activities shall be recorded." Therefore, after 20 13, the procuratorial organs often require the public security organs to have qualified witnesses present in the process of taking blood samples. If there is no qualified witness, they must conduct synchronous audio and video recording. Correspondingly, the Provisions on the Procedures of Public Security Organs Handling Criminal Cases also clearly stipulates that "the transcripts of inquests shall be signed by witnesses". But it does exist in the practice of handling cases. There are neither qualified witnesses (including the case that the other victim of the accident is a witness) present, nor synchronized audio and video recording. There are two views on whether this kind of evidence is admissible:
(1) considered admissible. Reasons include: 1 Article 52 of the Criminal Procedure Law stipulates that evidence materials such as physical evidence, documentary evidence, audio-visual materials and electronic data collected by administrative organs in the process of administrative law enforcement and case investigation can be used as evidence in criminal proceedings. In practice, the public security organ is in the stage of administrative law enforcement before filing a criminal case, so it should apply the requirements of the Procedure for Handling Administrative Cases by Public Security Organs, and the inspected person can sign it himself. Blood samples obtained in the process of handling administrative law enforcement cases can be used as evidence in criminal proceedings. The blood sample was taken by a neutral third-party medical staff, which played a supervisory role as a witness.
(2) Without a reasonable explanation, this kind of evidence cannot be accepted. The reasons include: 1 Article 1 of the procedure for handling administrative cases by public security organs clearly stipulates that it is formulated in accordance with the Law of People's Republic of China (PRC) on Public Security Administration Punishment and other relevant laws and administrative regulations. Article 88 of the Law of People's Republic of China (PRC) on Administrative Punishment of State Security stipulates that a written record shall be made for inspection, which shall be signed or sealed by the inspector, the inspected and the witness. Therefore, in the case that the superior law clearly stipulates that there should be witnesses, the superior law should be applied first. According to Article 51 of the Procedures for Handling Administrative Cases by Public Security Organs, if a case discovered or accepted cannot be determined as a criminal case or an administrative case for the time being, it can be handled in accordance with the procedures for administrative cases. In the process of handling, if it is considered that it is suspected to constitute a crime, it shall be handled in accordance with the procedures of the public security organs for handling criminal cases. At the same time, in practice, blood samples are usually taken after the on-site breath alcohol test, and the public security organs can easily judge whether the suspect is suspected of committing a crime through the previous breath alcohol test results. Therefore, when the public security organ finds that the person suspected of drunk driving still decides to take blood samples for inspection after passing the breath alcohol test, it has actually entered the criminal procedure, so it should apply the relevant provisions of the Criminal Procedure Law and the Procedures for Public Security Organs to handle criminal cases and invite qualified witnesses to be present. 3 "The witness's position in the on-site inspection procedure of criminal proceedings is an independent third party. He is not subordinate to any party, but is faithful to the objective situation of obtaining evidence on the spot, so as to achieve the purpose of supervising investigators to obtain evidence according to law, and its role can not be ignored. Without the witness, the inspection procedure is illegal, and such evidence should not be adopted. " I] Therefore, the independence of inspectors (medical personnel) cannot replace the independence of witnesses.
The author believes that at present, the equipment of law enforcement recorders (or mobile phone videos) for grassroots police has become more common, and the places where blood is drawn are mostly places where it is not difficult to find witnesses, such as medical institutions. Therefore, from the point of view of improving the quality of handling cases and protecting the rights and interests of criminal suspects, it is necessary to ask public security organs to invite qualified witnesses to be present or make synchronous audio and video recordings during blood drawing. However, the legitimacy and authenticity of blood sampling will be affected once the suspect raises objections (such as using alcohol for disinfection, not using anticoagulant tubes after blood sampling, etc.) without qualified witnesses and synchronous video recording. ) Because the investigation process is too closed.
3. The problem of using anticoagulant tubes and blood vessels to preserve blood samples.
After blood sample extraction, it must involve storage and custody. In the practice of handling cases, we can find out the storage containers brought by the case handlers after blood withdrawal by consulting the Registration Form of Blood Withdrawal Specimens. At present, the most common containers for preserving blood in medicine are anticoagulation tubes and blood clots. Generally, in cases of dangerous driving after drinking, the police will uniformly equip two anticoagulation tubes, which will be handed over to medical staff for safekeeping after blood collection. However, if it is found in the case, will it affect the determination of the case?
I think the answer is yes. First of all, according to the provisions of "Threshold and Detection of Alcohol Content in Blood and Exhaled Gas of Vehicle Drivers" GB 19522-20 10, "anticoagulants should be added to blood samples to prevent blood coagulation", and the use of coagulation tubes undoubtedly violates the above national regulations. Secondly, medical experiments show that the alcohol detection value of blood samples stored in coagulation vessels is generally greater than that stored in anticoagulation tubes. Finally, according to the judicial interpretation of the Supreme Law, "the appraisal opinion that the sample does not meet the appraisal conditions due to pollution cannot be accepted as evidence", the use of coagulation promoting tubes to preserve blood is the same as the use of alcohol disinfection, and there is a problem of polluting the sample. As Professor Chen Ruihua said, "If the source of material evidence is unknown, the extraction process is not recorded, and it is not well kept, it is meaningless to conduct judicial appraisal of material evidence". Therefore, the use of coagulation promoting tubes to preserve blood will lead to the loss of authenticity and objectivity of subsequent ethanol content identification results, and ultimately it is difficult to determine whether the suspect is in a drunken state. For example, in the dangerous driving case of Ni Moumou, the People's Procuratorate of Yongchuan District, Chongqing decided not to prosecute (20 16) No.41that "the blood samples submitted for inspection were stored in blood clots and anticoagulation tubes successively, and the appraisal opinions were not accepted as evidence because they were contaminated in blood clots", and finally decided not to prosecute Ni Moumou.
4. Identification of applicable standards.
"The inspection standards used in judicial expertise will directly affect and determine the conclusion of the appraisal inspection. Different inspection standards have different characteristics, such as accuracy and precision. It is difficult to expect to get the same result from the same sample by different methods. Therefore, the appraisal standards must be observed and adopted in the order of relevant regulations, and shall not be arbitrary. " However, in the process of handling drunk driving cases, it often happens that different appraisal standards are adopted for ethanol appraisal opinions. The most common standards are as follows:1ga/t105-19952ga/t842-20093sf/zjd010700/. According to the Threshold and Test of Alcohol Content in Blood and Breath of Vehicle Drivers (GB 19522-20 10), GA/T 105 or GA/T842 should be used for blood sample identification. The Ministry of Public Security issued a statement on May 6, 20 13, saying "Technology. Therefore, the only available identification standard is GA/T842-2009. Where the standards of Article 1 or Article 3 are applied to the appraisal opinions, the people's court shall not adopt them because the appraisal procedures violate the provisions. For example, the People's Court of Xiuyu District, Putian City, Fujian Province clearly pointed out in the judgment of (20 15) Xiuxingchuzi No.22 that "the appraisal opinions provided by the procuratorial organs adopt the appraisal standard of SF/ZJD 0 10700 10, which violates state regulations and will not be adopted".
5. Catch the suspect at the non-driving scene and accept the opinion of alcohol content appraisal.
In most cases, the suspects in drunk driving cases are seized by the police at the driving scene, such as calling the police after a traffic accident and the traffic police conducting spot checks. However, in a few cases, after the suspects left the driving scene, they were either reported by others or notified by the police. In this case, it is very cautious to accept the opinion of alcohol identification after blood collection. Because once the suspect puts forward the excuse of "drinking again from leaving the scene to being brought to justice", the expert opinion of taking blood samples for alcohol identification after being brought to justice will not achieve the purpose of proof. Unless there is other evidence to prove that the suspect did not drink again at all or took a breath alcohol test before fleeing the scene, it is difficult to determine whether the suspect constitutes a dangerous driving crime. Of course, some people think that the suspect's blood alcohol content can be determined by objective calculation or investigation experiments, but the author thinks that the above methods lack legal and scientific basis and are difficult to be recognized by the court. Therefore, when the suspect is found at the non-driving scene, the police handling the case should ask the suspect whether to drink again after leaving the scene at the first time. When the suspect argues that he drinks again, he will further find out the location, personnel and type of drinking, and form a chain of evidence. For example, Zhang Moumou, the defendant in the dangerous driving case No.20 134 of the Intermediate People's Court of Xinzhou City, Shanxi Province. Zhang Moumou was not caught by the police at the scene of driving. When he arrived at the scene, he made an excuse to drink again after leaving the scene. The people's court finally acquitted him on the grounds that "the existing evidence could not prove whether he was drunk driving".
The above is the case that you are not convicted of drunk driving, and five evidence problems that may lead to "innocence" in drunk driving cases. Drunk driving is an act that endangers citizens' personal and property safety, so our country's laws stipulate corresponding civil and even criminal responsibilities, so the majority of drivers and friends must pay attention.