Dismissal of the appeal against conviction for driving in a qualified state of incapacity

Facts

Parties: Appellant [A.] against the Public Prosecutor's Office of the Canton of Zurich.

Facts: On 25 July 2020 at 02:12 AM, [A.] was subjected to a breath alcohol test on [U.] strasse in [V.] , which resulted in a breath alcohol content of 0.45 ArmA/l. At 02:42 AM, a measurement was conducted at the traffic station [W.] using a breath alcohol measuring device, which resulted in a breath alcohol content of 0.40 ArmA/l. [A.] waived the taking of a blood sample.

Previous instance: The District Court of Hinwil convicted [A.] of driving under the influence of alcohol and imposed a fine of CHF 800.--. The Higher Court of the Canton of Zurich convicted [A.] of driving in a qualified state of incapacity and sentenced him to a conditional fine of 20 daily fines of CHF 150.-- and a fine of CHF 600.--.

Appeal: [A.] requests the annulment of the judgment of the Higher Court and his acquittal of the charge of driving in a qualified state of incapacity. Alternatively, he requests a conviction for driving in a state of incapacity and subalternatively the remand of the case to the previous instance.

Considerations

Procedural law objections: The appellant alleges a violation of Art. 76 para. 2 and Art. 141 para. 2 CrimPC, as the signature of the operator is missing on the measurement strip of the breath alcohol measuring device. The previous instance, however, does not consider this to be a validity requirement and sees the identity of the operator as determinable. The Federal Supreme Court confirms that the missing signature does not render the measurement result inadmissible.

Substantive law objections: The appellant objects that the measurement with the measuring device was ordered too early, which violates Art. 11 para. 2 RTCO. The Federal Supreme Court, however, notes that the police have the possibility to directly conduct a breath alcohol test with a measuring device without first conducting a complete measurement with a test device. An incomplete measurement series with a breath alcohol test device does not render a…