Obstruction of measures to determine incapacity to drive and narcotics consumption; conviction confirmed, appeal of the appellant dismissed

Facts

The appellant [A.] was stopped on 26 October 2017 at 23.55 on Gotthardstrasse in Altdorf by the Uri Cantonal Police, after a strong smell of cannabis had been noticed from inside the vehicle. The "DrugWipe" test was positive for cannabis. The blood and urine sample, ordered orally in consultation with the Public Prosecutor's Office of the Canton of Uri and subsequently approved in writing, was not carried out.

The Regional Court Vice-President's Office of Uri convicted the appellant on 6 April 2019 of obstructing measures to determine incapacity to drive (Art. 91a para. 1 RTA) and consumption of narcotics (Art. 19a no. 1 NarcA) to a suspended fine of 80 daily rates of CHF 130.-- with a probation period of three years, plus a fine of CHF 2'700.-- (substitute custodial sentence 21 days).

On the appellant's appeal, the Higher Court of the Canton of Uri, by judgment of 3 July 2020, upheld the convictions and reduced the penalty to a suspended fine of 40 daily rates of CHF 120.-- with a probation period of three years, plus a fine of CHF 1'300.-- (substitute custodial sentence 11 days).

By way of a criminal law appeal, the appellant seeks full acquittal. He essentially complains of lack of knowledge of the punishability and insufficient explanation by the police (violation of Art. 13 para. 2 RTCO, mistake of law), violation of the investigative principle and of the right to be heard regarding narcotics consumption, and arbitrariness in the assessment of evidence. He argues that a urine sample with a low cannabis value, provided at his family doctor's on the morning of 27 October 2017, proves the absence of consumption. The Federal Supreme Court waived responses.

Considerations

The criminal law appeal is admissible against the final decision of a last cantonal instance rendered on appeal (Art. 80 and 90 FSCA, Art. 81 para. 1 let. a FSCA, Art. 100 para. 1 FSCA, Art. 78 ff. FSCA). The appeal was lodged within the time limit.

With regard to obstruction of measures to determine incapacity to drive (Art. 91a para. 1 RTA), the Federal Supreme Court holds that the offence requires intent, with conditional intent being sufficient. Purely verbal resistance may also satisfy the offence if it reaches a certain intensity. The objective elements of the offence were not disputed by the appellant. The question of intent concerns internal facts, which are reviewed only for arbitrariness; the arbitrariness complaint must be substantiated (Art. 106 para. 2 FSCA, Art. 42 para. 2 FSCA).

The complaint that the lack of explanation under Art. 13 para. 2 RTCO precludes a conviction is unfounded. According to case law, Art. 13 para. 2 RTCO does not contain a condition of punishability but regulates the procedure. A deficient warning would therefore not necessarily result in an acquittal.

Moreover, the appeal does not meet the requirements of reasoning, as it largely fails to substantively refute the considerations of the lower court. The lower court found that the appellant knew of the ordering of the measure and was to some extent informed of the consequences of a refusal. A mistake of law under Art. 21 SCC was excluded having regard to the prior conviction for driving in a state of incapacity (Art. 91 para. 2 let. b RTA), earlier urine samples…