What is the fine for a second violation under the Code of Administrative Offenses?
According to the provisions of the Code of Administrative Offences, it is considered that a citizen is in the status of having committed an administrative offense during the period of validity of the relevant resolution, as well as for another year after the end. Accordingly, if a person is caught for a similar act during this period, then this is considered a repeat violation . This is defined in Article 4.6 of the Code of Administrative Offenses of the Russian Federation.
If arrested, the person will be suspended from driving the car and given a fine. Further punishment is determined in accordance with the provisions of the Criminal Code of the Russian Federation.
Consideration of the case in court
When a judge begins to study materials on imposing an administrative penalty on a person for an act committed, it is necessary, first of all, to delineate responsibility.
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This is paramount, since the main task will be a scrupulous verification for the legal assessment of the offense committed. Accordingly, this fact affects the final result - making a fair decision on deprivation of rights.
When a citizen’s action is sanctioned by a criminal article (264.1 of the Criminal Code of the Russian Federation), then the materials are sent to the magistrate’s court and, theoretically, administrative proceedings can be initiated on it - requalification.
If it turns out that a person was previously punished under Art. 12.8.1, art. 12 28 Code of Administrative Offenses of the Russian Federation and parts 2,4,6 art. 264 of the Criminal Code of the Russian Federation, then the situation will unfold differently. Then here are all the conditions for initiating criminal proceedings.
In accordance with the provisions of Art. 29.5 of the Code of Administrative Offenses of the Russian Federation, the trial of the case takes place in the magistrate’s court of the locality where the offense was committed. However, the driver, when drawing up a protocol and directly in court, has the right to write a petition for consideration of the case at his place of residence.
The consideration of the case can take place even without the participation of the person brought to administrative responsibility.
It is better to be present in court and state your position and show remorse, although this is ineffective if you are arrested again for alcohol intoxication. The judge must review the received documents within 2 months and make a decision.
The process itself goes as follows:
- Materials are being read.
- The rights of the parties are announced.
- All submitted protocols are read.
- They give the floor to the offender to announce his position.
- Testimony from witnesses is heard if they have been called.
- A reasoned decision is made.
The defendant may appeal it within ten days. To do this, you need to prepare an appeal to the district court. In it you need to state your position and disagreement on certain issues. In this case, the state duty is not paid.
In this category of cases, the preliminary investigation is carried out in accordance with Part 3 of Art. 150 of the Code of Criminal Procedure in the form of an inquiry, by the responsible officer of the Department of Internal Affairs.
Cases under Art. 264.1 of the Criminal Code of the Russian Federation are subject to the jurisdiction of the magistrate’s court. The process itself follows almost the same principle as administrative proceedings. However, there are also differences.
If guilty and the consent of the accused, the case may be considered in a special manner (Chapter 40 of the Criminal Code of the Russian Federation). This will significantly reduce the processing time and will be regarded as a mitigating circumstance.
If you disagree with the accusation, you must insist on investigating the case in accordance with the general procedure of legal proceedings. This will make it possible to quickly present evidence of the extent of your guilt and demand additional examinations and procedures.
All copies of the previously imposed administrative punishment, with all its details reflecting the dynamics of its execution by the perpetrator, must be attached to the materials. It is indicated whether its validity period was interrupted by virtue of Art. 31.9 Code of Administrative Offences.
Upon review (in most cases), this offense will result in severe sanctions. The court decision can be appealed within 10 days.
Sometimes in the process of considering the materials of a criminal case initiated under Art. 264.1 of the Criminal Code of the Russian Federation reveals the fact that the accused person was previously brought to administrative responsibility under Part 1 or 3 of Art. 12.8 or Art. 12.26 Code of Administrative Offenses of the Russian Federation.
Then the situation unfolds this way - the case materials must be sent to the Prosecutor's Office, on the basis of Art. 237 Code of Criminal Procedure of the Russian Federation.
Since the previously entered into force punishment of a citizen to hold him accountable for carrying out similar acts (driving a car while drunk) will be an obstacle to the judge issuing a reasoned verdict.
Criminal liability for driving drunk twice
The measures provided for by the Criminal Code of the Russian Federation are applied to drivers who drove drunk twice in one year. This threatens him with the use of measures defined in Article 264.1 of the Criminal Code of the Russian Federation.
- Fine from 200 thousand to 300 thousand rubles. or equal to the salary received by a citizen for 1-2 years.
- Mandatory work lasting up to 480 hours.
- Forced work with a maximum period of 2 years.
- Serving a sentence of up to two years.
In addition, for up to 36 months , a citizen will be prohibited from working in certain positions or conducting certain activities.
The final penalty for repeat drunk driving may be limited to one or more penalties. Each case is individual and the court takes into account specific circumstances when considering the case.
More information about criminal penalties for drunk driving.
What is the penalty for repeat drunk driving?
Driving a vehicle while intoxicated constitutes an administrative offense, providing for both primary (fine 30,000 rubles) and additional (deprivation of special (driving) rights for 1.5 to 2 years) punishment simultaneously, on the basis of Art.
3.3 and 12.8 of the Administrative Code. You can find out more on this topic here.
If you have ever been disqualified for driving while intoxicated, but you are caught again, then two scenarios are possible.
You may become subject to both criminal and administrative liability. In many ways, it all depends on the time that has passed since the return of your rights to drive the vehicle.
With the moment (date) of execution of the decision on punishment, the status of the offender does not change. Within a year after this, he is considered to be subject to administrative punishment. The fine was paid, the driver's license was returned, and the status of the offender was maintained. Only after a year will the negative status be lifted, and the citizen will not be recognized as subject to administrative punishment.
Driving a vehicle while the negative status is in effect will entail criminal liability. With the loss of status, administrative punishment will be applied for driving a vehicle while intoxicated, as if it was committed for the first time. It consists of imposing an administrative fine in the amount of 30 thousand rubles, as well as deprivation of the right to drive a vehicle for up to two years.
Also, if the driver was caught for drunk driving and it turned out during inspection that he does not have a license (for example, he was previously deprived of them (not for alcohol)), if such actions do not contain a criminal offense, then according to Part 3 of Art. 12.8 of the Code of Administrative Offenses, an administrative arrest will be imposed for 10-15 days or a fine in the amount of thirty thousand rubles if the arrest is impossible.
For a motorist caught in
2 times a year
Drunk driving is punishable by criminal law. The violation is qualified as an action committed by a driver who has already been punished, applies in this case
Art. 264.1 Criminal Code
.
In accordance with Article 264.1 of the Criminal Code, punishment:
- shall be punishable by a fine in the amount of 200 thousand to 300 thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to two years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to 3 years;
- or compulsory work for a period of up to 480 hours with deprivation of the right to hold certain positions or engage in certain activities for a period of up to 3 years;
- or forced labor for up to 2 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years;
- or imprisonment for up to 2 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years.
When making a decision, the district court is guided by individual information and makes a decision based on certain circumstances of the case.
When considering the circumstances of driving a vehicle under alcohol or drugs for the third time, the presence or absence of a criminal record for a previously committed crime, provided for in Article 264.1 of the Criminal Code of the Russian Federation, is of significant importance.
When a person is convicted of a crime, he is recognized as having been convicted from the moment the court decision (sentence) enters into legal force until the date the criminal record is expunged (removed) (Article 86 of the Criminal Code of the Russian Federation):
- If an unlawful act is committed during an outstanding or unexpunged conviction, then the guilty person is held accountable under Article 264.1 of the Criminal Code of the Russian Federation, as for an independent unlawful act.
- If the criminal record has been expunged (removed), then any legal consequences associated with it are canceled. In this case, the act should be considered as committed for the first time, using both the mechanism of bringing to administrative and subsequently criminal liability.
As for the deprivation of the right to drive a vehicle, being a special right granted to an individual, it is applied as an additional punishment to the main punishment. The basis for its establishment is a violation of the procedure for using such a right, expressed in gross form or committed systematically.
The term of the new deprivation will begin on the day following the day of expiration of the previously applied punishment.
The legislation also provides a procedure that helps to appeal a court decision. It is resorted to mainly by drivers who believe that the punishment they were given was unfair.
When litigation arises, the case is reviewed by lawyers with considerable experience and high qualifications.
In this case, a characteristic must be attached, which records the person’s exemplary behavior. Proper filing of an appeal can help return the license to the driver at fault before the deadline set by the court expires.
Next, all aspects of the violation are considered, as a result of which the appeals are rejected or granted. Finally, a new sentence may be imposed.
It is worth noting that such actions are possible only in cases where the offender did not commit a serious crime, and in case of damage to other persons, the offender fully compensated for it or compensated for the losses in another way.
The most important innovation is the criminal punishment of a driver for repeatedly driving a vehicle while intoxicated. If previously drunk motorists fell only under Article 264, now they will face a new Article 2641, under which repeat offenders who have committed an administrative violation again will be punished.
So, the new article covers persons who drove a car or other vehicle while drunk, and they have already been subject to administrative punishment for the same violation.
This also includes persons who refused to undergo a medical examination for alcohol intoxication after the request of traffic police or police officers, as well as persons who already have a criminal record for crimes under Article 264 of the Criminal Code (parts 2, 4 and 6).
In this case, the punishment will be as follows:
- a fine of 200-300 thousand rubles or in the amount of the salary (other income) of the offender (in our case, a convicted person) for a period of one to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to 3 years;
- or compulsory work for a period of up to 480 hours with deprivation of the right to hold certain positions or engage in certain activities for a period of up to 3 years;
- or forced labor for up to 2 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years;
- or imprisonment for up to 2 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years.
In recent years, all branches of government in our country have been seriously faced with the problem of how to eradicate drunkenness among drivers. Because of this, the number of road accidents and fatalities has increased.
Preventive measures carried out among the population had only a minor effect. Therefore, legislators decided to take the path of increasing liability for repeated driving while drunk and causing an accident.
On December 31, 2014, the State Duma of the Russian Federation adopted Federal Law No. 528 concerning the issue of increasing liability for violations in the field of road safety, which came into force on July 1. 2015
The main thing he did was introduce significantly harsher penalties for violators for second-time driving while intoxicated.
It is not so important for the law, how much vodka or wine is consumed - 50 grams or more - the reaction of a motorist behind the wheel is significantly reduced, the more drunk - the process becomes irreversible.
The worst thing is when the driver falls asleep at the wheel, then catastrophic consequences occur. As a rule, innocent people die, and the driver himself may lose his life.
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In this regard, the legislator for each specific case, when a person is repeatedly detained drunk, has provided appropriate sanctions.
They have been designed taking into account:
- existing realities on the country's roads;
- low social responsibility of part of our society.
It’s no secret that when a person sat somewhere at a party, drank alcohol and got behind the wheel of his car, thereby ignoring the traffic rules. He calmly drove home, didn’t meet a traffic police patrol on the way, and didn’t cause an accident—this gives him confidence that this can be done again.
This is a serious misconception, since with each subsequent attempt control over the vehicle weakens, which ultimately leads to tragic consequences.
What is the penalty for repeated drunk driving? In accordance with paragraph 1 of Art. 12.8 of the Code of Administrative Offenses of the Russian Federation, driving while intoxicated, if the consequences for which a criminal article is provided, has not occurred, is fraught with consequences for the driver.
Punishment applied:
- A fine of thirty thousand rubles.
- Ban on driving for 18 to 24 months.
When a drunk driver got behind the wheel of a car, without having the right to do so, as a result of the imposed administrative punishment of clause 1 of Art. 12.8 of the Administrative Code, measures may be applied to him in accordance with paragraph 3 of Art. 12.8 Code of Administrative Offences.
Selivanov Vecheslav Andreevich
Lawyer, specialization civil law.
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Repeated deprivation of rights for drunkenness or drunk driving is possible in the case where a report was previously drawn up against the driver, but no decision was made. In this case, the terms are summed up.
The condition must be met that the consequences caused by his act do not fall under the jurisdiction of criminal law.
The second time he will be punished:
- From ten to fifteen days of arrest.
- Fine up to thirty thousand rubles.
The arrest does not apply to violators if they are: a pregnant woman or a disabled person of group 1 (first) or group 2 (second). This category of persons is repeatedly fined for driving while intoxicated.
What happens if you are caught driving drunk a third time?
There is no separate article in the legislative acts that would indicate the measures applied to drivers for driving while drunk three times. Then you should use the norms of Article 32.7 of the Code of Administrative Offenses (clause 3), which states that in this case the period of withdrawal of rights is extended .
For example, when for the first time a license deprivation for alcohol was imposed for 2 years and at that time the driver was caught again for the same violation, then after 2 years and 1 day the second period of deprivation of the license will begin. If everything is repeated a third time, then the countdown of the next period of deprivation begins. The result may be a lifelong ban on driving, although there is no such measure in the legislative acts of the Russian Federation.
In addition to the confiscation of rights, for a “triple” violator the court usually imposes all or most of the prescribed measures.
Is it possible to challenge the repeated deprivation of rights for drunkenness?
Such a court decision can be challenged. To do this, you must file a claim in court, attaching documentary evidence of your innocence. One of the papers that will be required for such a process is a character reference for the guilty citizen. It is possible that the initial decision will be revised and the court will issue a different verdict: mitigation of sanctions or complete acquittal.
You can count on a reduction in the penalty for driving a car a second time while intoxicated only in the absence of serious consequences of the violation or in case of compensation for material damage.
How are the terms of imprisonment calculated if you are caught driving drunk again?
The method of calculating the period of deprivation of rights depends on what kind of punishment was determined in relation to the culprit.
If this is an administrative measure, then the first day will be the date on which the decision came into force. The period of revocation of rights for a second violation begins after the end of the first period.
For example, the rights were taken away on April 5, 2021 for 2 years. Then the last day of this period is April 4, 2021. Consequently, the countdown of the next period begins from 04/05/2019. The period of the driving ban is determined in the same way when committing the following similar violations. In other words, the deadlines add up.
The period of withdrawal of rights is determined differently if the perpetrator is sentenced to imprisonment. Based on Article 36 of the Penal Code of the Russian Federation, if a person is deprived of the right to engage in certain types of activities (in our case, driving a car), then this will be an additional measure. Therefore, its term is determined from the moment the period of the main punishment ends, i.e. imprisonment. Consequently, after release, the countdown of the period of withdrawal of rights will begin. In part 1 of Art. 36 of the Penal Code states that the period of punishment does not include the time when the convicted person was prohibited from engaging in any activity.
For repeated cases of non-compliance with traffic rules, the deadlines are as stated above.
Exactly the same method of determining the first day of deprivation of rights is used in the case of assignment of forced or compulsory work.
Introduction of minimum punishment for road accidents with victims
If, due to the fault of a driver while intoxicated, an accident occurs in which a person dies, then the motorist will face deprivation of his driver’s license for up to three years and imprisonment from two to seven years. Also, the driver will not be able to engage in certain activities or hold certain positions for up to 3 years. Let us note that previously the prison term in this case was not regulated; it was appointed by the judge.
In the event of the death of two or more people (again due to the fault of a drunk), the punishment will be as follows:
- forced labor for up to 5 years, with simultaneous deprivation of rights for up to three years;
- or imprisonment for up to 9 years.
In both cases, the driver is deprived of his license for up to 3 years.
Another option: a prison term of 4 to 9 years, deprivation of driver's license (for three years) plus a ban on holding certain positions or a ban on engaging in certain activities for up to three years.
If several people died in a “drunk” accident, then from July 1, 2015, the driver faces imprisonment for a term of 4 to 9 years. Previously, in this case, an alternative punishment could have been applied: forced labor for a period of up to 5 years. In addition, the minimum prison term was not regulated, but was set by the court. This will be canceled from July 1st.
4. An act provided for in the first part of this article, committed by a person in a state of intoxication, resulting in the death of a person through negligence, -
shall be punishable by imprisonment for a term of up to seven years with deprivation of the right to drive a vehicle for a term of up to three years.
4. An act provided for in the first part of this article, committed by a person in a state of intoxication, resulting in the death of a person through negligence, -
shall be punishable by imprisonment for a term of two to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
The first important change relates to road accidents in which the perpetrator is intoxicated and in which one person died. Starting from July 1, 2015, such traffic violations are punishable by 2 to 7 years in prison. Previously, the minimum term for this violation was not regulated and remained at the discretion of the judge.
Note. As of June 28, 2021, Part 4 of Article 264 of the Criminal Code of the Russian Federation has been updated. You can find out more about this in the article “Increasing criminal penalties for road accidents with victims.”
6. An act provided for in the first part of this article, committed by a person in a state of intoxication, resulting in the death of two or more persons through negligence, -
shall be punishable by forced labor for a term of up to five years with deprivation of the right to drive a vehicle for a term of up to three years, or imprisonment for a term of up to nine years with deprivation of the right to drive a vehicle for a term of up to three years.
6. An act provided for in the first part of this article, committed by a person in a state of intoxication, resulting in the death of two or more persons through negligence, -
shall be punishable by imprisonment for a term of four to nine years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
The next change affected road accidents in which the perpetrator was intoxicated and in which several people died. From July 1, 2015, the punishment ranges from 4 to 9 years in prison. Previously, the minimum term of imprisonment was not established.
In addition, previously an alternative punishment in the form of forced labor for up to 5 years could be used. It has been canceled since July 1.
Note. As of June 28, 2021, Part 6 of Article 264 of the Criminal Code of the Russian Federation has been updated. You can find out more about this in the article “Increasing criminal penalties for road accidents with victims.”
Prosecution for repeated drunk driving
This process consists of several stages.
- It begins with the identification of a violation by a traffic police inspector. This fact is recorded in the documents. Based on these papers, the driver is suspended from driving and sent for a medical examination. If necessary, they may prescribe tests and check-ups at a medical facility.
- Then the materials are transferred to the traffic police. There they are checked for mistakes made by employees of this organization. When the documents contain gross violations, the proceedings are terminated.
- If the traffic police determines that a repeated violation has been committed, an employee of this organization draws up a report on the termination of administrative prosecution. This situation requires a criminal investigation.
- Within three days from the date of drawing up the report, a decision is made to initiate criminal proceedings against the perpetrator. The fact of a violation is recorded in a special accounting book.
- In controversial situations Art. 223.2 of the Code of Criminal Procedure of the Russian Federation allows for an inquiry. This stage usually lasts one month, but in particularly difficult situations it can be extended to two months.
- At the end of the above steps, the driver is informed of the suspicion. The features of his new status and his legal status are explained to him. At this stage, the offender can come clean.
- The next step is filing an indictment. It is necessary to familiarize the accused with this document. Then the act is sent to the prosecutor's office.
- The prosecutor approves the act. Two days are given for this, after which the case is sent to court.
As you can see, the procedure consists of a fairly large number of stages. But in practice, such cases pass quickly, since most drivers admit their violation. Then the inquiry is carried out in an abbreviated form.
If a driver is caught driving drunk not for the first time, then, just as during the first arrest, he will be deprived of his license. But then this will not be the main, but an additional measure. The punishment itself will be much more severe. A driver who continues to “take it on his chest” before getting behind the wheel is fined larger sums. The court can also deprive a citizen of his freedom or assign him work (of a forced or compulsory nature). Then the period of withdrawal of rights will begin only after release or completion of the period of work. And a “repeated” violator will be prohibited from conducting certain activities or holding certain positions.
What to do if the inspector is wrong
- protocol on the suspension of the offender from driving;
- an act confirming that the driver was drunk while driving, research materials;
- paper about administrative violation.
If you find yourself in such a situation, first of all you need to soberly assess the situation and your capabilities. There are two options here:
- Admission of guilt - if the committed offense is obvious and properly documented, then the only correct option is to cooperate with the investigation. It is important to understand that the severity of further punishment for alcohol intoxication directly depends on this.
- Defending your innocence - this position should be adhered to in the event that not everything is clear in the case. For example, documents were drawn up with violations, there are facts indicating that the medical examination was falsified, etc.
It is strongly recommended not to hide from justice, insult police officers, resist arrest, or loudly prove your innocence in court. All these actions can ultimately only worsen the situation.
If there were witnesses, it is advisable to indicate their information in the application. The main reasons for police misconduct are failure to comply with due process and accusing a citizen without compelling circumstances.
Record on the spot whether you are being asked to pay a bribe for an offense committed; this will be a significant factor that calls into question the integrity and competence of the police officer.
Here are the main violations committed by traffic police inspectors when preparing administrative material:
- The witnesses were absent or they are relatives of the inspector.
- The procedural form of one or all documents being drawn up has been violated.
- The signatures on the documents were affixed “retroactively.”
- The medical institution that conducted the examination does not have a license.
- The legal time limits for medical examination were not met.
All this will be a good reason to later question the data indicated in the administrative material. As a result, evidence of unlawful actions of the traffic police.
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 17 years of experience.
Ask a question
Note! If violations of rights or improper actions of a police officer are observed, it is better not to refuse the signature. And write in the protocol: “I do not agree, I did not violate any traffic rules.”
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