No additional safety deductions for breath alcohol measurements in case of driving incapacity

Facts

Parties: Appellant: Public Prosecutor's Office of the Canton of Zurich; Respondent: [X.] , represented by attorney Beat Hauri.

Facts: On October 6, 2011, at 2:10 AM, [X.] was police-controlled as the driver of a passenger car in Grüt-Gossau/ZH. The breath alcohol test resulted in a blood alcohol concentration of 0.56o/oo. The District Court of Hinwil found [X.] guilty of driving in an incapacitated state by means of a penalty order and fined him CHF 800. [X.] filed an appeal. The Single Court in Criminal Matters of the District of Hinwil acquitted [X.] . The Higher Court of the Canton of Zurich confirmed the first-instance judgment. The Public Prosecutor's Office of the Canton of Zurich filed an appeal in criminal matters.

Considerations

The previous instance and the single court had considered the breath alcohol measurement, despite its recognition by the respondent, as not admissible as evidence. They deducted 20% from the measured value of 0.56o/oo and arrived at a value of less than 0.50o/oo, which led to an acquittal. The previous instance denied an arbitrary finding of facts and a violation of law by the district court.

The Federal Supreme Court found that the previous instance and the single court had denied the evidentiary value of the breath alcohol measurement despite its recognition by the respondent. This contradicts the current legal situation, which provides for a simplified determination of driving incapacity in the case of unqualified blood alcohol concentration. The recognition of the measurement result by the person concerned is decisive and excludes a further deduction of 20%.

The previous instance and the single court had considered the breath alcohol measurement, despite its recognition by the respondent, as not admissible as evidence. They deducted 20% from the measured value of 0.56o/oo and arrived at a value of less than 0.50o/oo, which led to an acquittal. The previous instance denied an arbitrary finding of facts and a violation of law by the district court.

The Federal Supreme Court found that the previous instance and the single court had denied the evidentiary value of the breath alcohol measurement despite its recognition by the respondent. This contradicts the current legal situation, which provides for a simplified determination of driving incapacity in the case of unqualified blood alcohol concentration. The recognition of the measurement result by the person concerned is decisive and excludes a further deduction of 20%.

The previous instance…