Facts
On May 3, 1983, police constable S. and municipal president H. were called to the home of the X. spouses due to a dispute. Mr. X. had previously consumed alcohol and driven his private vehicle, which he denied. The police constable ordered X. to undergo a breath test or submit to a blood sample. X. refused to comply with this request.
While the court of first instance sentenced X. to 20 days in prison for obstructing a blood test, the High Court on March 13, 1984 found him guilty of obstructing an official act within the meaning of Art. 286 of the Swiss Criminal Code and set the sentence at 8 days' imprisonment.
Against this judgment of the High Court, X. filed a nullity appeal with the request to set aside the judgment and remand the case to the lower court for acquittal.
Considerations
The Federal Court set aside the judgment of the High Court and remanded the case to the lower court for the acquittal of the appellant. It justified this as follows:
a) Art. 91 para. 3 of the Swiss Road Traffic Act regulates as a special norm the obstruction of official acts to determine the blood alcohol content in road traffic. Since in the present case no official order for a blood test had been issued, X. could not be punished under this provision.
b) The mere verbal refusal to undergo a breath test does not constitute an obstruction of an…