Is it possible to avoid deprivation of rights for alcohol: methods, procedure

When is it impossible to avoid imprisonment for intoxication?

There is only one subtlety when you will no longer be able to avoid deprivation of your license for alcohol - this is missing the deadline for appealing the judge’s decision. If you have already had a trial, and the decision of the first court has already entered into legal force, then it will be almost impossible to appeal it.

The effective date is 10 days from the date of the deprivation decision.

Is it possible to restore the terms and avoid deprivation? Yes, but only if there are serious reasons for missing out (being in an unconscious state, a natural disaster that made it impossible to deliver correspondence and your transportation to court, etc.).

In what cases can you lose your license for drinking?

Driving while intoxicated is a violation for which punishment is provided only by means of restraint. This means that no inspector can, by law, draw up administrative material if your breath simply smells of alcohol, your gait is unsteady, or you behave inappropriately. This will require an examination, which can be carried out in 2 stages, but more on that below.

Moreover, drinking alcohol before getting behind the wheel is not prohibited at all. You cannot drive a vehicle while intoxicated - with alcohol in your body. And permissible thresholds are nothing more than the permissible error of the values of measuring instruments.

And these two meanings depend on what exactly is being sampled:

exhaled vapors : they must contain up to 0.16 (not inclusive) milligrams per liter of air,
blood : up to 0.3 grams per liter of blood.

Measuring alcohol in the blood during examination began quite recently - on August 3, 2021.

If you are caught driving and at least one of the values exceeds the permissible limit, then your driver's license may be taken away.

In order to understand how to avoid penalties for alcohol if you are caught drunk driving, you need to thoroughly understand the procedure for conducting an examination. The presence of procedural errors during its conduct is a serious and significant chance to avoid unlawful deprivation (after all, the examination was carried out illegally).

The procedure for re-obtaining a driver's license after the end of the punishment for drunkenness

If the driver was nevertheless deprived of his driving license, then after the expiration of the period of deprivation he has the opportunity to restore it. To do this, you need to contact the traffic police department, and specifically the same one where he previously received his certificate. The driver will be sent to a special medical commission, where his sanity will be checked, as well as his current knowledge of the Rules of the Road.

There is no other way to restore your driver's license. When a driver is detained with an excess level of alcohol in his body, the inspector will necessarily draw up a Protocol on the driver’s removal from driving a vehicle. It, like the examination report, will describe all evidence of the violation, including the results of a breathalyzer measurement or a medical report.

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Next, the protocol will be submitted to the court, and depending on the situation, the driver will be deprived of his driving license for a certain period, but at least for a year and a half (and then for the first such violation). Therefore, you should not drink alcohol at all, and if you do drink, you should not drive. Deprivation of a license and a fine for drunkenness are only minor punishments compared to the possible disaster that a drunk person driving a car can cause.

The driver is required to get out of the car and provide documents for the car if required by the traffic police. The driver may not sign the protocols or acts if false information is indicated there or if he doubts the reliability of the examination results.

Refusal to undergo examination is regarded as an automatic admission of guilt. Therefore, there is no need to aggravate the tense situation. A refusal would be appropriate if, having asked for documents for a breathalyzer, the inspector did not provide them or a used disposable tube was inserted.

Important: before signing the act, you must insist on a second measurement of alcohol concentration. Sometimes traffic police officers enter the same data or ignore the second measurement.

The driver can hope to have the case closed if:

serious errors were made in the protocol or inspection report;
the testimony of witnesses and the inspector does not coincide;
the testimony of the protocol and the inspection report differ from each other;
the documents do not contain contact information or signatures of witnesses;
the inspector and the witnesses turned out to be acquaintances;
the laboratory where the examination was carried out does not have a license.

Thus, the person who handed over control to a drunk receives exactly the same punishment as the driver himself while intoxicated.

1. For transferring control to a person in a state of intoxication, not only the owner of the car, but also another driver who directly transferred control to the drunk can be punished.

For example, the car belongs to Alexander. Alexander transferred control of the car to his son Boris by proxy. Boris handed over control to his friend Vadim, who was intoxicated.

In this case, it is not Alexander, who owns the car, who should be punished for transferring control, but Boris, who directly transferred control to the drunken Vadim.

2. The fact that control was transferred to a drunk driver must be proven by an official.

For example, if a drunk driver independently took the car keys from the shelf, and the owner of the car did not even suspect it, then no punishment should be imposed.

Important note!

This article provides basic information, but each case is different.
In 92% of all situations there are important nuances that can affect the outcome of the entire case.
An experienced lawyer will study all the materials of the case and indicate in which direction to move.

Therefore, our website employs on-duty legal consultants who delve into each case and are aimed at solving it.

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How should a test for intoxication be conducted?

Its procedure is quite complicated for the inspector, and in more than half of all cases, traffic police officers make mistakes that can and should be caught on in order to avoid deprivation of rights for driving while intoxicated.

This procedure is regulated by Order No. 664 and its Administrative Regulations, as well as Order of the Ministry of Health No. 933N.

If a driver is suspected of being intoxicated after stopping while driving, the inspector is obliged to find out the presence of at least one of the signs of this: the smell of alcohol on the breath,
instability of posture,
speech disorder,
a sharp change in the color of the skin of the face,
behavior that is inappropriate to the situation.

If at least one sign is present (and the last of them is universal, which can formally be linked to any behavior), the traffic police officer is obliged to begin the procedure for testing for alcohol.

To do this, first of all, a protocol is drawn up for removing the driver from driving for the purpose of examination (clause 228 of the regulations), and already at this stage at least 2 witnesses are involved (the inspector’s partner cannot be a witness by law) or a video recording of the procedure is made.

Next, the inspector takes out a device for “purging” - he must have a verification certificate with an end date in the future, and he must print the result only on paper. The examination must be carried out at the place of suspension on the road - where the officer stopped the driver (paragraph 229). But if there is no device, then you can go to the post.

Then the inspector is obliged to familiarize the driver with the inspection procedure, show the verification certificate, as well as the integrity of the brand.

And finally, the driver is tested for alcohol in accordance with the instructions for the device - the instructions for almost all devices require 2 exhalation samples with a certain time difference.

Based on the result of the procedure, the inspector must draw up an inspection report, to which the result must be attached on a paper “check”, and the report itself must be signed by you, the witnesses (with their participation) and the inspector. A copy of the report must be given to the driver.

Next, a medical examination is possible, and it depends on the results of the procedure on the road, because there are only 3 reasons for referral to a medical institution:

the driver disagrees with the breathalyzer results,

disagreement with those of the inspector himself,

the driver’s refusal to blow on the road (there is no deprivation of rights for this, since it is provided for refusal of a medical examination).

Now the employee is required to draw up another protocol, called the “protocol of referral for a medical examination.” Here, video recording must also be made or witnesses must participate. This protocol is accompanied by a paper “check” with the results of the alcohol test and a report, if the driver has not refused it.

Then the inspector himself must take you for a medical examination (clause 240 of the regulations).

At a medical facility, your air is taken and additional urine samples may be taken (chemical-toxicological examination - for the analysis of narcotic drugs). If it is impossible to take urine at a given time, then blood is taken.

The donated urine must fit equally into 2 different containers, and they must then be sealed.

If air samples do not show the presence of alcohol intoxication, then the inspector is obliged to take the driver to his car (clause 233 of the regulations), even if urine samples were taken from the driver. Since intoxication has not been established at this time, the suspension is canceled in any case.

And it is the violation of this particular order by the inspector that can help avoid deprivation of your license for driving while intoxicated, since it is the errors that do not allow you to reliably determine and establish whether the driver is intoxicated that directly affect your salvation, because any doubts about the guilt of the person are interpreted in favor of this person (presumption of innocence in the Code of Administrative Offenses).

Repeated driving while intoxicated

Deprivation of rights for alcohol intoxication for the first time. If a driver is detained while intoxicated and intoxicated, he will definitely be deprived of his driver's license. The period of deprivation depends on the specific situation on the road. From the first part of Article 12.8 of the Code of Administrative Offenses of the Russian Federation, it follows that for driving a vehicle while intoxicated, the driver will be deprived of his license for 1.5-2 years. He will also be fined as much as thirty thousand rubles.

On the spot, a traffic police officer will not be able to revoke a driver’s license for drunkenness. For a full legal deprivation of rights for drunkenness, a trial will be initiated (which is always possible to appeal), and only as a result of this can this be done. The driver may be punished not necessarily for alcohol intoxication.

Drug intoxication, which is sometimes mistakenly called drug intoxication, is also subject to examination and punishment - the same as for alcohol, and it is determined by the same article 12.8 of the Administrative Code. But unlike alcohol in the breath, which can be detected with a regular breathalyzer and right at the scene of the offense, the level of drugs in the driver’s blood can only be checked through a medical examination, to which he will definitely be sent.

In case of a repeated violation (after the driver’s license has been returned) for driving without a license after being disqualified while intoxicated, the punishment will, of course, be harsher. The period of deprivation of rights will depend on the specific violation, but it is usually twice the original period (three years). The fine for being caught under the influence of alcohol also varies depending on the violation, the situation as a whole and the presence of mitigating circumstances (usually 50,000 rubles).

But in addition, the driver will be subject to arrest for up to fifteen days. If a driver, who has already been deprived of a driver’s license for drunkenness and alcohol, gets behind the wheel again, and drunk at that, then the punishment will be more serious and the Criminal Code of the Russian Federation will decide his fate (Article 264.1). The size of the fine increases almost tenfold - up to 200-300 thousand rubles. The period of deprivation of rights will be extended by three years.

Article 264.1 of the Criminal Code of the Russian Federation. Violation of traffic rules by a person subject to administrative punishment

Driving a car, tram or other power-driven vehicle by a person who is intoxicated, has been subjected to “administrative punishment” for driving while intoxicated or for failure to comply with the legal requirement of an authorized official to undergo a medical examination for intoxication, or has a criminal record for committing a crime, provided for by parts two, four or six of Article 264 of this Code or this article, is punishable by a fine.

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The amount of the fine is from two hundred thousand to three hundred thousand rubles or a fine in the amount of 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 three years, or compulsory work for a period of up to four hundred eighty hours with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or forced labor for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or imprisonment for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

And besides, a unfortunate drunkard for driving while deprived of his license while intoxicated will face 2 years of forced labor, or 480 hours of mandatory labor, or even imprisonment for up to two years. Even if the steering wheel was handed over to a drunk person, he will also be punished for driving. The punishment will be under the second part of Article 12.8 of the Administrative Code - a 30,000 ruble fine and 1.5-2 years of deprivation of a driver's license.

What can you do before the court to protect yourself from deprivation?

If you have been caught driving while drunk and are now awaiting trial (only judges can issue deprivation orders, and the inspector can only draw up a report on the road, which is submitted to the court), then you should pull yourself together and prepare written petitions . They are written in free style in the name of the judge who is presiding over the case and are essentially similar to a statement of request (the judge can reject requests, but only for motivated reasons).

So, if the main task in order to avoid deprivation of rights for alcohol is to look for serious errors during the examination, then your task now is to ensure that the court requests the maximum possible amount of information about your case for this procedure and invites the maximum number its participants.

What should the court ask for if a medical examination took place?

request documents confirming the existence of an order from the chief physician for admission to the employee’s blood sampling procedure, if blood was drawn (blood can only be taken by a person authorized by the chief physician),
documents on storage of seals on urine or blood samples,
a list of workers who took samples for storage, and another petition to invite these workers to court as witnesses,
certificates and approvals of the doctor who has already specifically carried out the examination,
a copy of the medical institution's license.

What should I apply for if I was only tested for alcohol on the road?

to summon the traffic police officer(s) who carried out the examination to court,
about calling witnesses, if they participated, or attaching a video recording (yours, if you filmed the examination, and this must be done),
on the inclusion of your witnesses in the case materials, who will indicate what you did before and whose testimony will prove that you did not drink alcohol before driving,
on the inclusion of documents for the breathalyzer device into the case materials: verification certificate, instructions.

How to avoid deprivation of your license for drunkenness?

This can be done for various violation reasons. Let's give them the maximum number, and your task in court is to find out their presence and, most importantly, to convince the judge that these errors and violations cast doubt on the correctness of the examination and, as a result, cannot reliably establish the fact of intoxication, and any doubts your guilt is interpreted in your favor (Article 1.5 of the Administrative Code).

So, below we list all the violations that, according to judicial practice in 2021, should entail avoiding punishment in the form of deprivation of rights for drunkenness if you are caught driving drunk. We will also provide references to rulings and decisions of courts, in particular, the Supreme Court, the results of which are required to be guided by lower authorities (but, of course, not unquestioningly make identical decisions).

If the roadside inspection procedure itself is violated

The required interval of 15-20 minutes between samples of exhaled air was not observed (compared to the time in paper “receipts” of the device) - Resolution of the Supreme Court of the Russian Federation No. 11-AD15-34 and No. 46-AD16-24.
If attesting witnesses have different signatures in protocols or other documents - RF Armed Forces No. 5-AD16-213.
If the disk with a video recording of the situation on the road turned out to be unreadable in court or the traffic police inspector lost it.
If the protocol does not contain the time of examination, or the protocol of suspension and the protocol of referral or report indicate different times.
If the act indicates the alcohol concentration not in mg/l, but in other values - for example, in ppm (it is not always possible to avoid deprivation on this basis) - RF Armed Forces No. 82-AD17-1.
The examination procedure is incorrect. If a protocol of referral for a medical examination is drawn up first, and then an examination report is drawn up, then the order is violated.

Breathalyzer violations on the road

Humidity, temperature and other weather conditions were not acceptable for operating the device.
There are no printed results from the device at all or they are lost.
There is no driver data, date and time, date of calibration and verification, if according to the technical characteristics of the device they should be printed, or if they were entered by the traffic police officer himself.
If the device data is not included in the inspection report.
“Falsification” of a certificate is expressed in the form of slipping in a certificate other than the required one - about the conformity of the type of measuring device.
If the breathalyzer certificate does not comply with GOST No. 50444-92 (this GOST is not specified in the certificate).
If the device is not registered as a medical device.
If the breathalyzer is not sealed (very often on this basis it is possible to avoid deprivation of rights for alcohol) - it does not have the corresponding verifier’s mark.
If the verification was carried out by an organization not accredited for this purpose.
If the verification is simply overdue (a very good reason to cancel the deprivation) - RF Armed Forces No. 18-AD11-8.
There is no signature on the verification certificate.

Violations during medical examination

If the inspector sent for a medical examination without carrying out the procedure on the road.
The laboratory does not have a license or if such a license has expired.
If the medical examination was carried out in a mobile laboratory, but the requirements of Order No. 933N were not met.
The doctor does not have a certificate of completion of training.
If the medical institution did not sample the driver’s exhalation, but immediately took urine or blood to test for alcohol and drugs.
The examination report was not signed by the doctor.
In the conclusion of the examination, the act does not contain the direct words “The state of intoxication has been established.”
If, after taking air, urine or blood was not taken - judicial practice of the RF Armed Forces No. 82-AD17-1.

It is important to understand that all of the above violations will not lead to a 100% cancellation of the deprivation of rights as such if you are caught drunk. This depends on the individual judge and the totality of such violations - the more there are, the higher the chance of avoiding deprivation. However, it should be understood that judges make decisions based on personal conviction based on all the facts being examined. Plus, they are not always without sin. Therefore, sometimes you will have to appeal the decision of the magistrate in the district higher court.

Challenging the decision

https://www.youtube.com/watch?v=ytpolicyandsafetyru

A justified challenge to a decision takes place in several stages:

Submitting an application to the traffic police. It indicates violations on the part of the inspector when filling out documents or conducting an inspection.
Filing an application to the court (if the traffic police rejected the petition) - district, then regional.
Choice of defense tactics: demanding an independent examination (no later than a couple of hours after the state examination), referring to the illegality of the actions of the traffic police officers, or proving that the car was on the side of the road.

The violator has 10 days from the date of receipt of the corresponding letter to file an appeal to a higher court. Valid reasons for missing this deadline may be the reason for its extension.

The document contains a request to cancel the decision of the court of first instance on the following grounds:

the person against whom the proceedings were conducted was not properly informed of the time, date and place of the court hearing;
the person was informed about the meeting, but missed it for a valid reason;
the presence of serious evidence of procedural violations committed during the proceedings;
the emergence of new arguments in one's defense.

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The complaint is addressed to a superior judge, but is filed in the court of first instance. In case of refusal to cancel the decision, there is also a court of cassation. If the decision of the first court is overturned, you can go to the traffic police with a supporting document and return the certificate.

Judicial practice in cases challenging the deprivation of the right to drive transport suggests that good reasons and a competent approach do not always solve the problem. It is worth giving examples.

Example #1

Citizen F., a native of Perm, using the services of a lawyer, repeatedly filed petitions to postpone the trial. As a result, the three-month limitation period for making a decision on administrative proceedings has expired. The result is that by the decision of the magistrate in case No. 5-105-13 in Perm, the proceedings for the offense were terminated due to the expiration of the permissible period for bringing to justice.

Example No. 2

Citizen Z. was stopped by a traffic police officer of the Perm Territory; his face showed signs of intoxication - smell, unusual complexion. He did not refuse to undergo the initial examination. The breathalyzer showed the presence of more than 0.9 mg of alcohol in 1 liter of exhaled air. Citizen Z. did not agree with the results of the initial examination, but was not sent for a medical examination. Despite this fact, the magistrate court made a decision to deprive citizen Z. of the right to drive a vehicle. The higher court overturned the decision of the magistrate court for failure to prove the guilt of citizen Z. (Case No. 12-30/2014).

Driving while intoxicated is not just a serious offence. Reduced reaction speed and inappropriate behavior of the driver often lead to the death of an innocent person. Despite the fact that practice shows the reality of returning an ID when contacting an experienced lawyer, you should not expose yourself and others to such a risk.

If you have any questions, you can ask them free of charge to the company’s lawyers in the form provided below. An answer from a competent specialist will help you make the right decision.

Will a lawyer help me?

Definitely yes. Just not necessarily a lawyer, it can be a person with the usual status of a defense attorney at your request for his involvement, who will help you regain your rights.

It is important to understand that a lawyer with experience in such cases is much more likely to “pull out” your case and help you avoid deprivation of your license for alcohol intoxication than you yourself. But it is equally important to choose the right car lawyer - with a large “piggy bank” of won cases. You can find out about his experience on the website of the legal proceedings database by simply entering the lawyer’s name in the search field, as in the screenshot below.

We also have a separate article on avoiding criminal prosecution for intoxication.

Protocol on administrative violation

This document is drawn up after the examination. You should pay attention to the place where it was compiled. Is it really the address where your vehicle was stopped by the traffic police officer? Have all the witnesses been included in the document? If this is not the case, you can file a motion to summon all witnesses to the court.

Another way to avoid deprivation of rights for alcohol intoxication is to prove that the driver was subjected to psychological pressure or used methods of deception. However, it is quite difficult to prove that the driver wrote the explanation under pressure.