Precautionary withdrawal of driving licence due to serious doubts about fitness to drive after drink-driving; proportionality and presumption of innocence; allocation of costs

Facts

The appellant ([A.] ), represented by a lawyer, challenges a precautionary withdrawal of his driving licence. The subject of the proceedings is the decision of the Administrative Court of the Canton of St. Gallen, Division III, of 1 October 2019 (B 2019/149). The respondent and the authorities involved are the Road Traffic and Shipping Office of the Canton of St. Gallen and the Administrative Appeals Commission of the Canton of St. Gallen.

Background: In 2003 the appellant's driving licence was withdrawn for an indefinite period following a traffic medicine and traffic psychology examination, and it was reissued in 2004 subject to conditions. In the following years administrative measures were taken: driving licence withdrawals for one month in 2005 and 2015 and a warning in 2013. On 27 July 2005 a condition was imposed requiring him to drive vehicles only in a absolutely alcohol-free state.

Incident of 2 April 2018: The appellant drove a passenger car while intoxicated and caused a traffic accident. The police took his driving licence. The blood alcohol concentration, calculated for the time of the incident, was between 1.59 and 2.18 per mille by weight (mean value 1.89). On 23 April 2018 the Office opened administrative proceedings, suspended them on 17 May 2018 until the conclusion of the criminal proceedings and returned the licence.

Incident of 18 February 2019: The appellant again drove while intoxicated, with a breath alcohol concentration of at least 0.62 mg/l (corresponding to approx. 0.52 per mille by weight). On 8 March 2019 the Road Traffic Office envisaged a traffic medicine and traffic psychology examination, granted the right to be heard and provisionally prohibited him from driving motor vehicles.

Cantonal proceedings: The appeal against the precautionary withdrawal was dismissed on 1 July 2019; the complaint was likewise dismissed by the Administrative Court on 1 October 2019. The court imposed the court costs on the appellant and awarded no party compensation.

Proceedings before the Federal Supreme Court: The appellant requests that the decision be set aside and remitted, alternatively that the precautionary withdrawal be set aside and the licence reissued, and subsidiarily that it be reissued subject to a condition of abstinence from drink-driving. The Administrative Court requests dismissal; the office and the Appeals Commission waived their observations.

Considerations

Admissibility: The interlocutory decision of the last cantonal instance concerns a matter of public law (Art. 82 lit. a and Art. 86 para. 1 lit. d FSCA). It causes a disadvantage that cannot be remedied later (Art. 93 para. 1 lit. a FSCA). The appellant is entitled to appeal as a directly affected party (Art. 89 para. 1 FSCA). The appeal is therefore in principle admissible.

Nature of the measure and scope of review: The precautionary withdrawal of the driving licence under Art. 30 RTAO is a provisional measure within the meaning of Art. 98 FSCA. Only violations of constitutional rights may be raised (Art. 106 para. 2 FSCA). Given the urgency, a summary examination of the factual and legal situation is sufficient; a comprehensive consideration of all aspects takes place only in the main proceedings.

Right to be heard and establishment of facts: The lower court addressed the essential submissions; a breach of the duty to give reasons (Art. 29 para. 2 Cst.) is denied. Nor does the rejection of further evidentiary requests within the framework of anticipatory assessment of evidence breach the right to be heard or the prohibition of arbitrariness (Art. 9 Cst.); the establishment of the facts is not manifestly incorrect (Art. 105, Art. 97 para. 1 FSCA). There is no arbitrary violation of Art. 12 para. 1 ORP/SG.

Serious doubts about fitness to drive: Under Art. 16d para. 1 RTA a safety withdrawal must be ordered where fitness to drive is lacking, and doubts justify a fitness-to-drive examination (Art. 15d RTA, Art. 28a RTAO). Driving with a blood alcohol concentration of 1.6 per mille or more gives rise to such doubts (Art. 15d para. 1 lit. a RTA). For a precautionary withdrawal under Art. 30 RTAO, indications that reveal a particular risk and raise serious doubts about fitness to drive are sufficient; strict proof is not required. Where a traffic medicine assessment is ordered, the licence is as a rule to be withdrawn provisionally. After the incident of 18 February 2019 the authority had to examine anew whether serious doubts existed, and in doing so take into account the earlier measures and the serious incident of 2 April 2018. That the appellant again drove a motor vehicle while intoxicated within one year makes the assumption of serious doubts comprehensible and not arbitrary. It is immaterial whether the condition of 2005 still applied. The…