Facts

On 3 December 2015 the claimant, driving a motor vehicle, was checked by the border guard when entering Switzerland at Dörflingen (SH). The rapid drug test was positive for amphetamines and cannabis. Blood analysis showed 420 µg/L amphetamine (290 to 550 µg/L).

By decision of 7 January 2016, the Public Prosecutor's Office of the Canton of Schaffhausen, Traffic Division, provisionally withdrew the driving licence for an indefinite period and prohibited driving motor vehicles of all categories. Reinstatement was made conditional on a traffic medicine examination. This decision was not challenged.

In its report of 25 September 2017, the Institute of Legal Medicine of the Canton of Zurich (IRMZ) concluded that, from a traffic medicine perspective, fitness to drive could not be endorsed. The Public Prosecutor's Office then ordered on 24 October 2017 a precautionary withdrawal of the driving licence and a driving ban for an indefinite period. Conditions for lifting the measures are proof of at least six months of drug abstinence, a reinstatement application at the appropriate time, and a positive traffic medicine report from the IRMZ.

The appeal to the Government Council of the Canton of Schaffhausen was dismissed on 16 January 2018. The administrative court appeal to the Cantonal Court of Schaffhausen was dismissed on 18 December 2018.

By appeal in public law matters of 5 January 2019, the claimant requested the annulment of the lower court's decision and reinstatement of the driving licence, or alternatively remittal. The Federal Roads Office (ASTRA) and the Government Council requested dismissal of the appeal.

Points in dispute:

  • Fitness to drive of the claimant due to risk of addiction (amphetamine, medication Elvanse)
  • Lawfulness of the traffic medicine report (qualification of the physician)
  • Arbitrary assessment of evidence (reports of treating physicians, third-party information)
  • Separation of drug use and road traffic
  • Proportionality and infringement of personal integrity

Considerations

The appeal in public law matters under Art. 82 et seq. FSCA was admitted. The request to annul the decision of the Government Council and the decision of the Public Prosecutor's Office was not admitted, since these were replaced by the decision of the Cantonal Court (devolutive effect, Art. 89 FSCA). The Federal Supreme Court bases its review on the facts established by the lower court (Art. 105 para. 1 FSCA); complaints about the establishment of facts are only admissible in cases of manifest inaccuracy or violation of law within the meaning of Art. 95 FSCA, and the assessment of evidence only from the standpoint of arbitrariness.

Driving licences are withdrawn if the statutory requirements no longer exist (Art. 16 para. 1 RTA). This applies to addiction that excludes fitness to drive (Art. 16d para. 1 lit. b RTA). Regular drug use is equated with drug dependency if, by frequency and quantity, it may impair fitness to drive. Lack of fitness to drive is presumed if the person cannot separate drug use and road traffic or there is an imminent danger of driving in an acute state of intoxication. Art. 31 para. 2 RTA, Art. 2 para. 2 lit. d TRegO and Art. 34 lit. d RTCO-FEDRO provide that driving incapacity is in principle established at an amphetamine value of 15 µg/L in the blood.

The measured value of 420 µg/L is far above this limit. The complaint of incorrect application of law by the lower court is therefore unfounded. Regarding the qualification of the report, the Federal Supreme Court held that Art. 28a and 5a bis RTAO require an examination under the responsibility of a physician holding the title 'Traffic Physician SGRM'. Since the report was co-signed by a senior physician holding this title, it complies with the legal requirements.

An arbitrary assessment of evidence due to disregard of the reports of the general practitioner and psychiatrist, or due to the absence of third-party information, does not exist. Although obtaining third-party reports may be required in the context of a precautionary withdrawal (BGE 129 II…