Facts
The appellant [X.] drove his car in Zurich on November 17, 2000, with a blood alcohol concentration of 2.23 - 3.13 percent and caused a collision. He was sentenced to six months in prison and a fine of Fr. 5'000.-- for driving under the influence, gross violation of traffic rules, attempted obstruction of a blood test, and negligent behavior in an accident. The conditional execution of the sentence was not granted to him.
The appellant filed a federal appeal for nullity with the request to annul the judgment and refer the matter back to the lower court for a new decision.
Considerations
The Court of Cassation of the Federal Court annulled the judgment of the Higher Court in approval of the appeal and referred the matter back to the lower court for a new decision. The Court of Cassation held that the lower court had granted the conditional execution of the sentence with reservations and that alcohol total abstinence was not sufficient to establish a favorable prognosis.
The lower court denied the appellant conditional execution of the sentence in the judgment being challenged, as the framework conditions required by the Federal Court regarding monitoring of future total abstinence could not be created for practical reasons. The appellant claimed that the lower court had incompletely reproduced the report of the Office of Justice and that the treatment agreement of February 1, 2002, between him and the Office of Justice had not been taken into account.
The Court of Cassation held that the lower court had overstretched the requirements for monitoring alcohol abstinence and had apparently misunderstood the relevant considerations in the Court of Cassation's judgment of June 25, 2002. The Court of Cassation recognized that in the present case, a favorable prognosis would only be justified…