Facts
The case concerns the issue of jurisdiction for ordering a blood test to determine driving incapacity. X. was stopped by the police on July 26, 2015, as a drug screening test showed a positive result for cannabis consumption. Subsequently, a blood and urine sample was taken, whereby no active cannabis ingredient could be detected in the blood, but only an inactive metabolite.
The Altstätten Forensic Institute then discontinued the proceedings for driving in an incapacitated state, but issued a summary penalty order for the prior drug consumption. X. and A. GmbH filed a complaint against the discontinuation order, which was dismissed by the Indictment Chamber of the Canton of St. Gallen. Thereupon, X., A. GmbH and their legal representative filed a criminal appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the blood test to determine driving incapacity is a coercive measure that must be ordered by the public prosecutor's office, even if the person concerned consents. According to Art. 55 para. 3 lit. a RTA (in the version valid until September 30, 2016), a blood sample must be ordered if there are indications of driving incapacity. As this is a taking of evidence within the meaning of the Code of Criminal Procedure (CCP), it also regulates the jurisdiction for the execution and ordering of such measures.
Pursuant to Art. 198 para. 1 lit. a CCP, the public prosecutor's office is responsible for ordering the blood…