Facts
The case concerns the question of whether the public prosecutor's office should have heard the accused X. before carrying out an accompanying substance analysis at the University Hospital Freiburg i.Br.
X. was convicted by the Regional Court of Emmental-Oberaargau for multiple instances of driving under the influence of alcohol and qualified intoxication, as well as obstruction of measures to determine driving incapacity. The High Court of the Canton of Bern upheld the conviction for driving a motor vehicle in a state of qualified intoxication and obstruction of measures to determine driving incapacity.
X. filed a criminal complaint and claimed a violation of his right to be heard and of Art. 184 para. 3 CCP, as he had not had the opportunity to comment on the accompanying substance analysis.
Considerations
The Federal Court states that the right to be heard in the case of expert opinions includes the right to be informed of the content of the expert opinion, to comment on it, and to ask the expert additional questions. The procedural management must give the parties the opportunity to comment on the expert person and to make their own requests.
According to Art. 184 para. 3 sentence 2 CCP, an exception to this rule exists for laboratory tests such as the determination of blood alcohol concentration or the purity of substances. The exception covers standardized expert opinions that are prepared in a largely technically predetermined manner based on generally…