Facts
In factual terms, it must be assumed that M. drove his passenger car after consuming alcohol on April 22, 1980. A blood test revealed a blood alcohol content of 0.96-1.06 per mille by weight. M. raised the objection of post-resorption, as he had drunk whisky shortly before the journey. A supplementary expert opinion concluded that M. had an amount of alcohol in his body at the time of the journey that led to a blood alcohol concentration of more than 0.8 per mille by weight.
M. raised the objection in the nullity appeal that Article 2 paragraph 2 of the Traffic Regulations Ordinance (VRV), which also assumes intoxication if the alcohol content exceeding the limit value is present in the body but has not yet been resorbed, is not covered by Article 55 paragraph 1 of the Road Traffic Act (SVG).
Considerations
The Federal Court dismissed the nullity appeal. It stated that Article 55 paragraph 1 SVG empowers the Federal Council to set a limit value for the blood alcohol concentration, the exceeding of which is to be assumed as intoxication. The contested regulation in Article 2 paragraph 2 VRV, which also covers the case where the alcohol content exceeding the limit value is present in the body but has not yet been resorbed, does not exceed this statutory authorization.
The Federal Court justified this by stating that the motor vehicle driver who has…