Facts
On Ash Wednesday, February 12, 1986, around 02:20 a.m., the appellant L. was noticed by a police patrol in Cham due to his unsteady driving. The police officers pursued L., but could no longer catch up with him. L. stopped in front of his house on Dersbachstrasse. The police officers twice requested L. to undergo a breath test, which he refused. Thereupon, the officers consulted their superior authority, who instructed them not to take any further measures, but merely to record the personal details, confiscate the driver's license, and bring L. to the police station. The officers followed this instruction, threw the license into the mailbox, and left without taking any further steps.
The Cantonal Police Judge of Zug acquitted L. of the charge of violating traffic regulations, but fined him 800 Swiss francs for obstruction of a blood test pursuant to Art. 91 para. 3 of the Swiss Road Traffic Act (SVG). The Criminal Court of the Canton of Zug confirmed this judgment on appeal.
With a federal nullity appeal, L. requested to be acquitted of guilt, punishment, and costs.
Considerations
According to Art. 91 para. 3 SVG, it is a criminal offense to intentionally resist or evade an officially ordered blood test or to frustrate the purpose of the measure. The objective prerequisite for the application of this provision is that a blood test was officially ordered or would have been ordered with a high probability based on the specific circumstances of the case.
In the present case, however, the official order for a blood test was waived, as the superior authority expressly instructed the police officers not to take any further measures. Due to this waiver, the proceedings never…