A fatal accident involving the famous actor Mikhail Efremov is an occasion to consider the complexities and features of criminal cases involving fatal road accidents.
Why is this accident interesting from a legal point of view? First of all, because this situation is one of the typical ones that a lawyer in criminal cases involving road accidents has to deal with. Such accidents happen all the time and will continue to happen as long as there is a car as a source of increased danger and a driver who cannot overcome the craving for alcohol. Road accident lawyer on the complexities and features of criminal cases under Article 264 of the Criminal Code of the Russian Federation.
Criminal liability for road accidents
Article 264 of the Criminal Code of the Russian Federation provides for criminal liability for road accidents. This crime includes six parts:
- Part 1 of Article 264 – liability for causing grievous harm to health – imprisonment for up to 2 years;
- Part 2 of Article 264 – liability for causing grievous bodily harm committed by a person while intoxicated (clause “a”), accompanied by leaving the place of commission (clause “b”) – imprisonment from 3 to 7 years;
- Part 3 of Article 264 – liability for causing death – imprisonment for up to 5 years;
- Part 4 of Article 264 - liability for causing death if an accident is committed by a person in a state of intoxication (clause “a”), involving leaving the place of commission (clause “b”) - imprisonment from 5 to 12 years;
- Part 5 of Article 264 – liability for the death of two or more persons – imprisonment for up to 7 years;
- Part 6 of Article 264 – liability for the death of two or more persons, if the accident is committed by a person in a state of intoxication (clause “a”), involving leaving the place of commission (clause “b”) – imprisonment from 8 to 15 years .
Gravity of crimes
According to Article 15 of the Criminal Code of the Russian Federation, categories of crimes are established depending on the amount of punishment:
Minor gravity – intentional and careless acts punishable by up to 3 years in prison;
Moderate gravity - intentional acts with a punishment of up to 5 years of imprisonment, careless - up to 10 years of imprisonment;
Serious - intentional crimes - up to 10 years of imprisonment, reckless - up to 15 years of imprisonment;
Particularly serious - intentional crimes - over 10 years of imprisonment.
A form of guilt.
Reckless and intentional crime Article 264 is a careless crime, that is, a crime that is not at all on purpose, but as a result of a person’s gross negligence. There are intentional crimes that a person commits purposefully, that is, he realizes that he is committing a crime and wants to commit it. The form of guilt “negligence” or “intention” depends on what crime a person will be accused of committing. It is especially important for a fatal accident lawyer to determine the correct form of fault.
The difference between a fatal accident and a murder
The form of guilt “carelessness” or “intention” allows us to distinguish between crimes that are very similar in consequences, but fundamentally different in essence. This is clearly visible when comparing Part 3 of Article 264 of the Criminal Code of the Russian Federation (careless causing of death as a result of an accident) and Part 1 of Article 105 of the Criminal Code of the Russian Federation (intentional murder). The consequences of these crimes are identical - in both cases a person dies. It would seem that the guilty should be punished equally. However, this is not so - obviously a person who did not want to commit a crime and did not plan it deserves less punishment than the one who deliberately took the life of a person. This fundamental difference is visible in the punishment for the act:
Part 3 of Article 264 – imprisonment for up to 5 years
Part 1 of Article 105 – imprisonment from 6 to 15 years
Why is a fatal accident not considered murder?
Let's compare two situations.
Situation No. 1 – an inexperienced driver is driving slowly and is afraid to overtake the car in front. The passenger makes fun of the driver’s inept actions and urges him to overtake. The driver overtakes, drives into the oncoming lane, and collides head-on with another car. The driver of the oncoming car dies.
Situation No. 2 - a drunk driver drives into the oncoming lane, where he collides with another car. The driver of the oncoming car dies.
Both situations are manifestations of gross negligence by drivers. The only difference is the cause of negligence. In the first case, the driver succumbed to the ridicule of the passenger and therefore violated the traffic rules, and in the second, he succumbed to the temptation of drinking and also violated the traffic rules. In both cases, the cause of the accident remains gross negligence - both drivers did not want to take a life, but caused death.
Of course, intoxication is a factor that seriously increases the social danger of a driver, and this is taken into account in the law. If in situation No. 1 the penalty is up to 5 years of imprisonment, then in situation No. 2 - for a drunken fatal accident the liability is already from 5 to 12 years of imprisonment. But, despite this difference, in situation No. 2, the drunk driver’s actions still involve “negligence,” which means he did not commit intentional murder.
Article 264 of the Criminal Code of the Russian Federation. Violation of traffic rules and operation of vehicles
1. Road safety is the state of this process, reflecting the degree of protection of its participants from road accidents and their consequences.
2. The subject of the crime is a car, tram or other mechanical vehicle.
A power-driven vehicle is any vehicle, other than a moped, that is powered by an engine. The term also applies to any tractors and self-propelled machines.
Violations of road safety rules on a two- or three-wheeled vehicle driven by an engine with a displacement of not more than 50 cc. cm and having a maximum speed of no more than 50 km per hour are not covered by the standards of the commented article.
Bicycles with a suspended engine and other vehicles with similar characteristics are considered mopeds.
Other self-propelled machines include any road, construction, agricultural and other special machines (excavator, grader, truck crane, scraper, forklift, etc.).
3. A person driving a vehicle or other self-propelled machine may be held liable under Art. 264 in the case where a transport incident is associated with a violation of traffic safety rules or transport operation. If the specified person violated the rules for performing certain work, safety rules or other labor protection rules, although these violations were committed while the machine was moving, then the actions of the perpetrator are subject to qualification not under Art. 264, and according to Art. 143 of the Criminal Code, and in appropriate cases - under articles on crimes against the life and health of citizens, destruction or damage to property.
4. The objective side of the crime is expressed:
- 1) in violation of traffic rules or operation of vehicles;
- 2) causing serious harm to human health;
- 3) a causal connection between the act and the resulting harmful consequences.
Road traffic is a set of social relations that arise in the process of moving people and goods with or without vehicles within the boundaries of roads. It is regulated by a special regulatory act - the Traffic Rules of the Russian Federation, and the operation of vehicles - by the Basic Provisions for the admission of vehicles to operation and the responsibilities of officials to ensure road safety <1> (hereinafter referred to as the Rules of Road Traffic and Operation of Vehicles).
In addition, there are rules (instructions, manuals, guidelines) for technical operation for certain types of vehicles, taking into account their specifics, rules for transporting passengers and cargo on certain types and types of vehicles, etc.
Criminal liability under the commented article occurs regardless of the place where the violation of traffic safety rules or operation of vehicles was committed.
Violation of traffic rules can be expressed in speeding, improper overtaking, failure to comply with the rules for passing railway crossings, intersections, etc., driving while intoxicated, etc.
Operation of vehicles is prohibited if:
- the braking efficiency standards of the service brake system are not met;
- the tightness of the hydraulic brake drive is broken;
- the total play in the steering exceeds the established values;
- the towing coupling and support coupling devices of the tractor trailer link are faulty, and the safety cables (chains) provided for by their design are missing or faulty;
- there are gaps in the connections between the motorcycle frame and the side trailer frame, etc.
Ignoring these prohibitions constitutes a violation of the rules for operating the vehicle. The latter may also manifest itself in non-compliance with the rules for transporting passengers or transporting cargo, rules for technical operation and maintenance of rolling stock of road transport, etc.
6. When finding a person guilty of violating the Rules of the Road and Operation of Vehicles, the courts are obliged to indicate in their sentences exactly what rules they violated and what exactly this violation was expressed in (clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 9, No. 25 “ On judicial practice in cases of crimes related to violation of traffic rules and operation of vehicles, as well as their unlawful taking without the purpose of theft”).
7. The consequences of a crime according to the law include causing grievous harm to a person’s health; its content is disclosed in Art. 111 of the Criminal Code.
8. The subjective side of the crime is characterized by negligence.
9. The subject of the crime is a sane person who has reached the age of 16 and is driving a vehicle. The lack of a driver's license or driving skills is not important for resolving the issue of criminal liability.
During training driving, the instructor is responsible for the student’s erroneous actions that lead to the consequences specified in the law.
At the same time, it must be borne in mind that, according to the Rules of the Road and Operation of Vehicles, the student is also a driver, since he drives the vehicle, and is obliged to fulfill all the requirements of these Rules. Therefore, if a student neglects the instructions of the instructor and grossly violates the Rules, he is subject to liability under Art. 264.
10. Responsibility is differentiated in the commented article depending on the consequences that occurred (the death of one person - part 3, two or more persons - part 5) and the state of intoxication (parts 2, 4 and 6).
If, as a result of violation of the Traffic Rules and operation of vehicles, the consequences provided for in various parts of Art. 264, then all consequences are imputed, and actions are qualified according to the part that provides for the more serious of them.
According to the totality of crimes, acts with these different consequences should be qualified in cases where they were committed at different times and the resulting consequences were the result of several mutually unrelated violations of the Rules of the Road and Operation of Vehicles.
In what cases might you need a criminal lawyer for a car accident?
An objective investigation of each traffic accident situation is the key to correctly assessing the driver’s actions. A criminal lawyer must seek the investigation and court to study objective data. This need is dictated by the specifics of the cases under consideration. If a person needs a car accident lawyer and he is trying to find and hire a car accident lawyer, then he should pay attention to the fact that a good car accident lawyer should understand the cause-and-effect relationship and not confuse cause and effect. The correct qualifications and even the fate of a person depend on this!
Cause-and-effect relationship with the consequences of the accident
A car is a source of increased danger and is not subject to complete human control. A malfunction in the vehicle may lead to an accident. In such cases, the question arises - what caused the accident was the actions of the driver, the malfunction of the car, and possibly other external factors? To correctly assess the situation, it is necessary to establish a cause-and-effect relationship between the driver’s actions and the incident. The cause-and-effect relationship must be direct and inevitably lead to consequences. “Cause” and “conditions contributing to the accident” should not be confused. “Cause” and “condition” are easily confused and this can be seen from the following situation.
Ivanov ran into Petrov, which killed the latter. Who is guilty? The correct answer is Ivanov, because he ran into Petrov. The wrong answer is that Ivanov’s mother is to blame, because if she had not given birth to Ivanov, he would not have run into Petrov. Ivanov is the “cause” of the crime, and Ivanov’s mother is the “condition” that contributed to the crime. The example is rough, but the logic is clear.
In life, it happens that an accident occurs due to brake failure, a jammed steering wheel, a driver’s heart attack, or the actions of other road users - a pedestrian suddenly ran across the road and the driver, avoiding a collision, drove into the oncoming lane and caused an accident. All these circumstances must be clarified in order to decide whether the driver is guilty or not.
Types of punishment for road accidents with victims
There are 3 types of liability that a driver may bear if, as a result of an accident, damage to the property or health of other people is caused:
- Civil liability (Article 1079 of the Civil Code of the Russian Federation). It is used in cases where there was no harm to human health or minor harm (bruises, abrasions). Basically, civil liability occurs when it is necessary to compensate the victim only for material or moral damage;
- Administrative responsibility (Article 12.24 of the Code of Administrative Offenses of the Russian Federation). Occurs in cases of harm to health of mild and moderate severity (administrative offenses). The punishment may be, for example, an administrative fine in the amount of 2,500 to 25,000 rubles or deprivation of a driver’s license for up to 2 years;
- Criminal liability (Article 264 of the Criminal Code of the Russian Federation). It is used when serious harm to health is caused to other people, as well as in the event of the death of a participant in an accident. The final punishment will be determined by the court, taking into account all the circumstances of the incident, as well as mitigating and aggravating features.
Only a forensic medical examination can determine the severity of harm to health!
The peculiarity of civil liability is that often several people bear it at once, dividing among themselves the amount of monetary compensation for the damage caused (for example, the driver of a car and its owner). When the owner of a car transfers the car to another person by proxy, he still continues to be responsible for his vehicle. Simply because it in itself is an object of increased danger.
The owner will not be held liable if his car, driven by another driver, gets into an accident only if the car was stolen, the accident occurred due to force majeure, or the victim intentionally initiated it. Therefore, when giving your car to someone else to drive, you should always think twice. Are you ready to answer for the misdeeds of this person?
Help from a lawyer in case of an accident
A criminal lawyer in an accident, regardless of whether he represents the injured party or the accused, must ensure that law enforcement agencies take all necessary actions. These actions include:
— inspection of the scene of the accident is the most important investigative action, during which the situation at the scene of the traffic accident is recorded and material evidence is seized. The accident scene inspection protocol will subsequently become one of the main and very important sources of information that will be used when conducting an auto-technical examination. An accident lawyer has the right to participate in the inspection and should take part in it if possible.
— the conclusion of an auto-technical examination is one of the main sources of evidence for the prosecution. The examination determines the speed of the vehicle, its braking distance, and determines whether the driver had the technical ability to avoid a collision. Expert opinions are the basis of the prosecution. A lawyer for an accident with a victim has the right to participate in the examination and can participate in it.
- interrogation of participants in the accident and eyewitnesses - the testimony of people is extremely important in assessing the situation and can provide information that inspection of the scene and examination cannot record. For example, participants and witnesses may have seen the driver being cut off by another vehicle before the collision, causing the accident. Also, eyewitnesses can see how participants in a traffic accident destroy traces of the accident or leave the scene of the accident. If you leave the scene of an accident, a lawyer can provide the necessary legal assistance.
- forensic medical examination of the corpse - establishes the cause of death of the participant in the accident. There are cases when at the time of the collision a person was already dead or died not from injuries received not as a result of a traffic accident, but from poisoning with drugs that he had previously used. Criminal liability for a fatal accident can only occur if the death is causally related to the traffic accident. A fatal accident lawyer can evaluate the expert's opinion and object to it, if necessary.
- a forensic medical examination of the suspect will allow us to determine whether he was intoxicated. It depends on whether he will be prosecuted for a drunken accident or for an ordinary one. The services of an accident lawyer will help you correctly evaluate the expert’s opinion and use it correctly when working as an accident lawyer in court.
The most common and most important evidence is presented. In practice there are much more of them.
Public response
In addition to the immediate circumstances of the incident, the investigation of the case is influenced by public outcry, which, as a rule, arises if there are famous personalities among the participants in the accident, or the incident was particularly serious in its consequences, or very daring, or there is a combination of all factors. Public outcry is bad because it affects the investigation and the trial. Investigators and judges are also people and road users. They may succumb to public outcry and be biased in the investigation and consideration of the case. Moreover, bias can work both on the side of the victims and on the side of the accused.
Both options are bad because they can lead to misclassification, overly lenient or overly harsh punishment, and even the conviction of an innocent person. It is not always possible to avoid public outcry, but it is possible to minimize its consequences by using the right defense tactics. After an accident, a lawyer, in agreement with the client, can correctly present information to the media and thereby change public opinion. Such cases become especially significant when a lawyer in an accident has to work with the deceased - such cases cause a great public outcry. In such cases, the help of a lawyer under Article 264 is extremely important.
Introduction
Not long ago, an unpleasant situation happened to one of my clients; he got into an accident in a car while under the influence of alcohol; a passenger in his car received injuries that were classified as grievous bodily harm. My principal was found to be the culprit of this accident and he was threatened with paragraph “a” of Part 1 of Art. 264 UKR. But during the preliminary investigation, everything became more complicated; the investigator insisted that since the suspect was an individual entrepreneur, he should be additionally liable under Article 238 of the Criminal Code of the Russian Federation, its second part. So can a person be held liable under Articles 238 and 264 of the Criminal Code of the Russian Federation at the same time?!
Strategies for defending a lawyer in an accident
The defense attorney often has to represent the interests of the accused, since the interests of the victims are, in fact, represented by the investigator and the state prosecutor. Therefore, the defense will be considered from the point of view of the accused. The accused is more difficult to defend compared to the victim. If a lawyer knows how to protect the accused under Article 264 1 of the Criminal Code, then he can also protect the victim. What is the protection procedure? It all starts with consulting a car accident lawyer. The cost of a lawyer's services for an accident in Yekaterinburg, Chelyabinsk, Moscow, St. Petersburg and other cities may vary significantly. Having decided on a lawyer, you need to choose a defense option. Everything here is also individual, but three main defense strategies can be distinguished.
Guilt plea strategy
By admitting guilt, repenting of what you have done, and compensating the injured party, it is possible to achieve a minimum punishment. In cases of road accidents of minor and moderate severity (up to 3 and up to 5 years of imprisonment, respectively), it is even possible to dismiss the case due to the reconciliation of the parties. Often, people who have committed obvious crimes resort to admitting guilt.
Partially guilty plea strategy
They admit partial guilt when they disagree with some part of the accusation. For example, they think that qualifications are overestimated. In such cases, the defender must prove the correct qualifications, present his evidence and arguments to the investigation and the court.
Strategy of denial of guilt
Usually people deny guilt who believe that they did not commit a crime. Such cases occur when the victim is to blame for the incident, and the investigator mistakenly brought charges against another participant in the accident. Sometimes people deny guilt because they do not remember the circumstances of the traffic accident (lost consciousness), and there are no eyewitnesses to the accident. In any case, the accused deny guilt when, in their opinion, there is no objective evidence of their guilt.
No one strategist is better than another. A lawyer under Article 264 must act like a doctor - apply the treatment that will help. The choice of legal treatment depends on the circumstances of the case and the opinion of the accused. The task of a lawyer under Article 264 1 of the Criminal Code is to help choose the optimal method of defense and not cause harm.
Commentary on Article 264
1. This article applies to all types of motor vehicles moving on land (except for railway transport). Many of them are directly named in the disposition of the article and the notes to it. Self-propelled vehicles refer to vehicles that have an engine. These are, for example, road, construction, harvesting and other agricultural machines, etc. The list of motor vehicles is not exhaustive; the definition of such a means is usually contained in the rules of the road.
2. The objective side of the crime is a violation of traffic rules or operating rules for specified means, which entailed certain consequences. As in the previous article, the disposition is blanket; during the investigation and judicial review of the case, it is necessary to establish that such rules exist, were approved by the appropriate department, were communicated to the persons obliged to comply with them, and in this case were violated by the subject.
3. Since the article talks about the person driving the vehicle, the requirements for the operation of this vehicle relate to the process of control (movement): driving a faulty car, allowing overload, non-compliance with the rules for transporting passengers and other rules ensuring safety.
4. As can be seen from the content of the article, criminal liability occurs only when grave or moderate harm to human health (including several persons) is caused or major damage (Part 1), death of a person (Part 2) or death of two or more persons ( part 3). If the harm to a person's health does not exceed minor bodily injury, civil liability may arise. Major damage is determined by the court; it may consist of destruction of a vehicle, damage to buildings, damage to property, etc.
5. A causal connection must be established between the fact of violation of the rules and harm to person or property. When deciding the presence or absence of a causal relationship, one should pay attention to such a feature of road accidents as the presence of a more or less long period of uncontrollability of the vehicle while it was moving, when, for example, the driver had already noticed the danger, but could not have time to stop the car . This period is determined by the driver’s reaction time to the situation that has arisen plus the operating time of the mechanisms (braking distance, etc.). Therefore, if the driver even discovered a danger, but for objective reasons, despite the efforts made, could not prevent it in a limited time, there is no corpus delicti in his actions (inaction).
6. The subject of the crime can be any person actually driving the vehicle. In other words, the law does not distinguish between a driver - a transport worker, a person who drives his own car and has the appropriate license, and someone who voluntarily got behind the wheel without having either a license or driving skills. In the latter case, however, it is necessary to make sure that the subject, if he did not know the rules of the road or the operation of vehicles, then at least had the opportunity to know and comply with them, otherwise he is liable for a crime against a person or property (of course , if there is guilt).
One of the rulings of the Supreme Court of the USSR (1971) stated that “for violation of traffic safety rules during practical driving in a training car with dual controls, the instructor, not the student, is responsible, if the instructor did not take timely measures to prevent an accident.” . This explanation is still true today.
7. The subjective side of the crime involves carelessness in relation to the consequences. In the case of their intentional infliction, the act is subject to qualification under articles on crimes against the person and/or property.
8. In motor vehicle crimes, in addition to the driver’s fault, there is often the victim’s fault (crossing the street in the wrong place, unexpectedly appearing in front of a vehicle, etc.). It must be taken into account that such behavior of the victim does not exclude the responsibility of the driver if the actions or inaction of the latter contain all the signs of a crime, namely: traffic rules were violated, there was a causal connection between the violation and the consequences that occurred; he violated the rules intentionally or through negligence, could and should have foreseen the occurrence of these consequences and prevented them. As for the victim, it is possible that he will be held accountable under Art. 264 CC.
Scientific and practical commentary:
1. The direct object of the crime is the safety of road traffic and operation of vehicles. According to the Federal Law of December 10, 1995 N 196-FZ “On Road Safety” <1> road safety is the state of the process, reflecting the degree of protection of its participants from road accidents and their consequences. ——————————— <1> NW RF. 1995. N 50. Art. 4873.
The subject of the crime is a car, tram or other mechanical vehicle. The concept of “other mechanical vehicle” is partially disclosed in the footnote to the commented article, which refers to trolleybuses, tractors and other self-propelled vehicles, motorcycles and various motor vehicles. The content of the term “motor vehicle” is broader than the content of the term “self-propelled machine”; the latter is completely included in the content of the former. A power-driven vehicle is any vehicle, other than a moped, that is powered by an engine. The term also applies to any tractors and self-propelled machines. Thus, violations of road safety rules on a two- or three-wheeled vehicle driven by an engine with a displacement of not more than 50 cc. cm and having a maximum speed of no more than 50 km per hour are not covered by the commented article. Bicycles with a suspended engine and other vehicles with similar characteristics are considered mopeds. Other self-propelled machines include any road, construction, agricultural and other special machines (excavator, grader, truck crane, scraper, forklift, etc.).
2. A person driving a vehicle or other self-propelled machine may be held liable under Art. 264 of the Criminal Code in the case when a transport accident is associated with a violation of traffic safety rules or transport operation. If the specified person violated the rules for performing certain work, safety rules or other labor protection rules, although these violations were committed while the machine was moving, then the actions of the perpetrator are subject to qualification not under Art. 264, and according to Art. 143 of the Criminal Code, and in appropriate cases - under articles on crimes against the life and health of citizens, destruction or damage to property. 3. The objective side of the crime is expressed: a) in violation of the Rules of the Road or operation of vehicles; b) in the occurrence of serious harm to human health; c) in the causal connection between the act and the resulting harmful consequences. Road traffic is a set of social relations that arise in the process of moving people and goods with or without vehicles within the boundaries of roads. It is regulated by a special regulatory act - the Traffic Rules of the Russian Federation dated 10.23.93 <1>, and the operation of vehicles - by the Basic Provisions for the admission of vehicles to operation and the responsibilities of officials to ensure road safety. In addition, there are rules (instructions, manuals, guidelines) for technical operation for certain types of vehicles, taking into account their specifics, rules for transporting passengers and cargo on certain types and types of vehicles, etc. ——————————— <1> On the constitutionality of a number of provisions of the Rules, see: Determination of the Constitutional Court of the Russian Federation dated 07/08/99 N 118-O on the complaint of Ya.; Determination of the Constitutional Court of the Russian Federation dated May 14, 2002 N 94-O on the complaint of S. // Bulletin of the Constitutional Court of the Russian Federation. 2002. N 6.
4. The rules establish a certain order of traffic, in other words, they determine the scope of legal regulation. This area covers social relations related only to road traffic and does not extend to other types of traffic (for example, water). Road traffic refers to a complex socio-technical system, including pedestrians, drivers, passengers and various vehicles, the movement of which is subject to certain rules. Criminal liability under the commented article occurs regardless of the place where the violation of traffic safety rules or operation of vehicles was committed. Violation of the Traffic Rules can be expressed in excess of speed, improper overtaking, failure to comply with the rules for passing railway crossings, intersections, etc., driving while intoxicated, etc. Operation of vehicles is prohibited if: the braking efficiency standards of the service brake system are not met; the tightness of the hydraulic brake drive is broken; the total play in the steering exceeds the established values; the towing coupling and support coupling devices of the tractor trailer link are faulty, and the safety cables (chains) provided for by their design are missing or faulty; there are gaps in the connections between the motorcycle frame and the side trailer frame, etc. Ignoring these prohibitions constitutes a violation of the rules for operating the vehicle. The latter may also manifest itself in non-compliance with the rules for transporting passengers or transporting cargo, rules for the technical operation and maintenance of rolling stock of road transport, etc. When finding a person guilty of violating traffic rules or operating a vehicle, the courts are obliged to indicate in their sentences exactly what rules they violated and What exactly was this violation? The consequences of a crime according to the law include causing serious harm to human health; its content is revealed in Art. 111 of the Criminal Code. There must be a causal relationship between violation of traffic rules or operation of a vehicle and the resulting consequences. 5. The subjective side of the crime, due to the direct instructions of the law, is characterized by a careless attitude towards the consequences that have occurred. 6. The subject of the crime is a sane person who has reached the age of 16 and is driving a vehicle. The lack of a driver's license or driving skills does not matter for resolving the issue of criminal liability (clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25 “On judicial practice in cases of crimes related to violation of traffic rules and operation of vehicles funds, as well as their unlawful taking without the purpose of theft”). 7. During training driving, the instructor is responsible for the erroneous actions of the student, which entailed the consequences specified in the law. At the same time, it must be borne in mind that according to the Traffic Rules (clause 1.2), the student is also a driver, since he drives a vehicle and is obliged to comply with all the requirements of the rules of the road and the operation of vehicles. Therefore, if a cadet neglects the instructions of the instructor and grossly violates the rules, he is subject to liability under Art. 264. 8. Responsibility is differentiated depending on the consequences that occur (the death of one person - part 2 of the commented article, two or more persons - part 3) and the state of intoxication (parts 2, 4 and 6). If, as a result of violation of traffic rules or operation of a vehicle, the consequences provided for in various parts of Art. 264, then all consequences are imputed, and actions are qualified according to the part that provides for more serious consequences. According to the totality of crimes, acts with these different consequences should be qualified in cases where they were committed at different times and the resulting consequences were the result of several mutually unrelated violations of traffic rules and operation of vehicles.
Prices for the services of a lawyer for road accident Article 264 in Yekaterinburg
| Service | Price |
| Oral consultation | 3,000 rub. |
| Written consultation | from 7,000 rub. |
| Preparation of an application/complaint/petition | from 7,000 rub. |
| Participation in negotiations for 1 hour | from 7,000 rub. |
| Studying documents | from 7,000 rub. |
| Participation in court hearings | from 7,000 rub. |
| Visit to a pre-trial detention center | from 7,000 rub. |
| Participation in a survey/interrogation | from 7,000 rub. |
| Defense during investigation | from 30,000 rub. |
| Defense in the court of first instance | from 30,000 rub. |
| Defense on appeal | from 20,000 rub. |
| Defense in cassation/supervision | from 20,000 rub. |
| Participation in consideration of a petition in court: selection of a preventive measure | from 20,000 rub. |
| Participation in consideration of a petition in court: election of house arrest | from 20,000 rub. |
| Participation in consideration of a petition in court: election of bail | from 20,000 rub. |
| Participation in consideration of a petition in court: removal from office | from 20,000 rub. |
| Participation in the consideration of a petition in court: parole / replacement of punishment with a less severe one / change of regime | from 30,000 rub. |
Attention! The final cost of a lawyer’s legal services under Article 264 is determined individually, depending on the amount of work and complexity of the case. The information provided on the site is not a public offer.
OBJECTIVE SIDE OF THE CRIME
The objective side of the crime provided for by the new article of the Criminal Code of the Russian Federation includes:
1) driving a vehicle by a person in a state of intoxication;
2) driving a vehicle by a person who refused a medical examination for intoxication, subject to the obligatory condition that the guilty person was previously subject to administrative punishment for similar actions: driving a vehicle while intoxicated (Part 1 of Article 12.8 of the Code of Administrative Offenses of the Russian Federation) or for failure to comply with the law requirements of an authorized official to undergo a medical examination for intoxication (Part 1 of Article 12.26 of the Code of Administrative Offenses of the Russian Federation), or had a criminal record for committing a crime under Parts 2, 4, 6 of Art. 264, or art. 264.1 of the Criminal Code of the Russian Federation.
Driving a vehicle. While driving a vehicle in the sense of Art. 264.1 of the Criminal Code of the Russian Federation, it is necessary to understand the direct performance by a person of the functions of a driver while the vehicle is moving. For the completed crime, it does not matter how long the guilty person drove the vehicle. The crime is over already at the moment when the subject, being in a state of intoxication, set the vehicle in motion. The crime provided for in Art. 264.1 of the Criminal Code of the Russian Federation, refers to the so-called formal compositions. For a completed crime, no harmful consequences must occur. If specified in Art. 264.1 of the Criminal Code of the Russian Federation, the actions resulted in the death of the victim or caused serious harm to health, then such cases should be qualified according to the totality of Art. 264 and 264.1 of the Criminal Code of the Russian Federation. There is an ideal set of crimes.
Being in a state of intoxication. In cases of this category, the courts need to examine and analyze the evidence presented by the inquiry authorities from the point of view of their relevance and admissibility in order to establish whether the person was intoxicated while driving.
For the purposes of this article, in the note to Art. 264 of the Criminal Code of the Russian Federation, a person who is in a state of intoxication is recognized as a person driving a vehicle if it is established that this person has used substances that cause alcoholic intoxication, which is determined by the presence of absolute ethyl alcohol in a concentration exceeding the possible total measurement error, namely 0.16 mg per one liter of exhaled air, or if there are narcotic drugs or psychotropic substances in the body of this person, as well as a person driving a vehicle who has not complied with the legal requirement of an authorized official to undergo a medical examination.
Features of the examination. Decree of the Government of the Russian Federation dated June 26, 2008 No. 4753 (as amended on November 18, 2013) approved the Rules for examining a person who drives a vehicle for alcohol intoxication and recording its results, as well as the rules for sending the said person for a medical examination for intoxication and rules for determining the presence of narcotic or psychotropic substances in the human body during a medical examination (hereinafter referred to as the Rules for the examination of a person who drives a vehicle).
These rules establish that the examination for intoxication is carried out by officials who are granted the right of state supervision and control over traffic safety, in the presence of two witnesses or in accordance with Art. 28.1.1 of the Code of Administrative Offenses of the Russian Federation using video recording, if there are sufficient grounds to believe that the driver is intoxicated.
The criteria, in the presence of which there are sufficient grounds to believe that the driver is intoxicated and is subject to referral for a medical examination, are established by Order of the Ministry of Health of Russia dated July 14, 2003 No. 3084 (as amended on March 5, 2014) “On medical examination for intoxication.” Such criteria are: “the smell of alcohol on the breath, unsteady posture, speech impairment, severe trembling of the fingers, a sharp change in the color of the skin of the face, behavior inappropriate for the situation, the presence of alcohol in the exhaled air, which is determined by technical means of indication.”
The results of the examination, which is carried out using technical means of measuring the presence of alcohol in exhaled air, are reflected in the certificate of examination for the state of alcohol intoxication. A paper recording of the research results is attached to this act. A copy of the report is given to the driver. If the driver refuses the examination, such a report will not be drawn up.
The driver is subject to referral for a medical examination to a medical organization that has the appropriate license: if he refuses to undergo a medical examination for intoxication, if he disagrees with the results of such an examination, and if the result of such an examination is negative, if there are reasonable grounds to believe that the driver is intoxicated. Such a direction is also drawn up in the presence of two witnesses or in accordance with Art. 28.1.1 Code of Administrative Offenses of the Russian Federation using video recording. A copy of the protocol is given to the driver.
During the investigation of the case, the subject of inspection may be the examination procedure. The basis for bringing to administrative responsibility under Art. 12.26 of the Code of Administrative Offenses of the Russian Federation is a person’s refusal to undergo a medical examination for intoxication, recorded in the protocol on an administrative offense, stated both directly to an official of the State Road Safety Inspectorate and to a medical worker. As a refusal of an examination declared to a medical worker, one should consider not only a refusal of a medical examination in general, but also a refusal of one or another type of examination within the framework of a medical examination.
In paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 24, 2006 No. 18 5 (as amended on February 9, 2012) “On some issues that arise for courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses” it is indicated that when considering these cases it is necessary check the existence of legal grounds for sending the driver for a medical examination for intoxication, as well as compliance with the established procedure for sending for a medical examination.
The legality of such grounds is evidenced by: the driver’s refusal to undergo an examination for alcohol intoxication in the presence of one or more signs listed in clause 3 of the Rules for the examination of a person who drives a vehicle; the driver’s disagreement with the results of an alcohol intoxication test; the presence of one or more signs listed in paragraph 3 of these Rules, with a negative result of the examination for alcohol intoxication.
Compliance with the established procedure for sending for a medical examination for intoxication is evidenced, in particular, by the presence of two witnesses when drawing up a protocol on sending for such an examination. If one or both witnesses were absent when drawing up the protocol, then during the consideration of the case this protocol is subject to evaluation according to the rules of Art. 26.11 Code of Administrative Offenses of the Russian Federation, taking into account the requirements of Part 3 of Art. 26.2 Code of Administrative Offenses of the Russian Federation.
The circumstances that served as the legal basis for sending the driver for a medical examination must be indicated in the protocol on sending for a medical examination for intoxication (Part 4 of Article 27.12 of the Code of Administrative Offenses of the Russian Federation) and in the protocol on an administrative offense, as relating to the event of an administrative offense (Part 2 Article 28.2 of the Code of Administrative Offenses of the Russian Federation).
Subsequently submitting to the court by the driver, who refused to undergo a medical examination, an examination report refuting the fact of his being in a state of intoxication, does not in itself indicate the illegality of the police officer’s demand. In this case, the judge must take into account the circumstances of the refusal to undergo a medical examination, the time interval between the refusal to undergo an examination and the examination at the initiative of the driver himself, compliance with the rules for conducting such an examination, etc.
It seems that officials, when establishing the fact of repeated driving of a vehicle while the driver was intoxicated, the above documents and other materials related to this fact, together with a report on the presence of signs of a crime under Art. 264.1 of the Criminal Code of the Russian Federation, sent in accordance with Art. 145 of the Code of Criminal Procedure of the Russian Federation to the inquiry body to resolve the issue of initiating a criminal case.
Law practice in cases of road accidents
The driver is not guilty if he hits a pedestrian who violated traffic rules - Article 264 of the Criminal Code of the Russian Federation
The driver, a young man of 25 years old, let's call him Andrey, married and with a one-year-old child, consulted lawyer Vyacheslav Astafiev. According to the guy, he was driving a car in Yekaterinburg in the evening and killed a pedestrian who, unexpectedly for him, found himself on the roadway.
Mediation helped to end the case of an accident and compensate the victim for harm - Article 264 of the Criminal Code of the Russian Federation
No one is immune from criminal cases of personal injury as a result of an accident. Often, ordinary people who, by the will of fate, find themselves in the dock are brought to criminal liability. Victims also suffer; they can lose their health, work, hobbies, and active life overnight. In such cases, mediation can help.
Which line of defense should you choose to minimize liability?
A traffic violation lawyer, as a result of a legal investigation, will help you prove:
- absence of guilt in causing grievous harm to a person while driving a motor vehicle;
- in ordering additional examinations, the purpose of which will be to assess the nature of the harm caused to the victim’s health, to assess the condition of the victim at the time of the accident, where exactly on the roadway the victim was;
- characterizing material will be collected about you, which can reduce the degree of responsibility;
- During a consultation with a lawyer regarding an accident, you will be able to determine the completeness of your evidence base.
Don’t waste your time, contact a traffic violation lawyer to protect your interests right now, as you need to remember the negative consequences of a conviction. If you did not promptly seek professional legal assistance, or you were helped by an inexperienced defense lawyer and you were convicted, a lawyer for traffic violations will help at the stage of appealing the verdict, the purpose of which will be to review the case, cancel the imposed punishment and reclassify your actions.
