Criminal Liability of the Intoxicated Accompanying Driver During a Driving Lesson

Facts

The Federal Tribunal has dismissed the appeal for nullity by X. against a judgment of the Cantonal Tribunal of Lucerne which convicted him for accompanying a student driver while intoxicated (Art. 91 para. 1 RTA) and for failing to adapt his speed to the road conditions (Art. 90 para. 1 in conjunction with Art. 100 no. 3 RTA). On 9 December 1999, X. accompanied the holder of a learner's permit A. during a driving lesson in the Lucerne region. A. lost control of the vehicle and caused a collision. The analyses revealed that X. had a blood alcohol level of at least 1.42 per mille.

Considerations

The Federal Tribunal considers that the accompanying driver of a student driver is not a mere passenger, but participates in the driving of the vehicle. He must therefore be considered a driver within the meaning of the law and can be held criminally liable if he accompanies the student while intoxicated. This extensive interpretation of the notion of "driving" is justified by the fact that the accompanying driver has the legal obligation to constantly monitor the student's driving and to intervene if necessary by operating the handbrake or steering the wheel. Road safety requires that the accompanying driver be as sober as the driver himself.

Art. 100 no. 3 RTA, which provides for…