Facts
The appellant (born 1997) was issued a probationary driving licence on 20 April 2015. On 23 November 2017, during the probationary period, at around 7:45 a.m., he drove a passenger car on the A1 motorway in the direction of Zurich (municipality of Birmenstorf) and the vehicle grazed the central crash barrier in the 2nd overtaking lane. He stopped on the hard shoulder, inspected the vehicle and reported the incident about half an hour later to the police from his place of work.
The Baden Public Prosecutor's Office issued a penal order for obstructing measures to determine incapacity to drive, negligent violation of traffic rules and improper conduct in the event of an accident. On 22 November 2018 the Baden District Court acquitted him of obstruction and of improper conduct in the event of an accident, but convicted him of a simple negligent violation of traffic rules by failing to control the vehicle as a result of lack of attention, and imposed a fine of CHF 200.00. The traffic rule violation was classified as minor; the judgment is final.
The Solothurn Motor Vehicle Inspection Office (MFK) had issued the appellant with an unlimited driving licence subject to a reservation in April 2018. On 28 February 2019 the Department of Construction and Justice of the Canton of Solothurn, acting through the MFK, ordered a one-month driving licence withdrawal and an extension of the probationary period by one year. The incident was classified as a moderately serious violation of traffic rules. The Administrative Court of the Canton of Solothurn dismissed the appeal on 28 May 2019.
By administrative court appeal of 3 July 2019 the appellant requested that the lower court's judgment be set aside, or alternatively that a warning be issued. The Administrative Court and the Federal Roads Office (ASTRA) requested dismissal of the appeal. The presiding member granted suspensive effect to the appeal on 21 August 2019.
Issue in dispute: Whether the incident is to be qualified as a moderately serious offence (residual offence, Art. 16b para. 1 let. a RTA), in particular whether there was more than a minor danger to other road users, and whether the appellant's right to be heard was violated because the lower court relied on his police statement made on the day of the accident.
Considerations
The public law appeal (Art. 82 ff. FSCA) against the final cantonal decision on a driving licence withdrawal is admissible; the incorrect designation as an administrative court appeal is not harmful. The appeal, which was lodged in time, is therefore admitted.
The driver must control the vehicle at all times so that he can comply with his duties of care, and must direct his attention to the road and traffic (Art. 31 para. 1 RTA, Art. 3 para. 1 TRegO). The violation of this rule is undisputed. The law distinguishes between a minor offence (Art. 16a RTA: minor danger and minor culpability), a moderately serious offence (Art. 16b RTA: danger to the safety of others) and a serious offence (Art. 16c RTA: gross violation and serious danger). A moderately serious offence is a residual offence, which exists where not all privileging elements of a minor offence or all qualifying elements of a serious offence are met. A danger within the meaning of Art. 16a-c RTA exists in the case of concrete or increased abstract endangerment, which is to be assessed according to the circumstances of the individual case.
The lower court rejected the existence of merely minor danger. The incident occurred on a Thursday morning at 7:45 a.m. on a dry carriageway of a heavily travelled motorway at 100 km/h. The vehicle showed scratch marks along the entire left side. The Federal Supreme Court confirms that the lower court established the facts without arbitrariness and rightly assumed an increased abstract danger to other road users. A vehicle that is no longer under control always presents a serious danger on motorways, in particular the risk of rear-end collisions with considerable consequences. That no concrete endangerment occurred is immaterial; it is sufficient that a concrete endangerment or injury to third parties would have been conceivable. The argument that a spin of the vehicle was physically impossible did not require further examination by the lower court, since no spin was necessary for a more than minor danger.
The appellant complains of a manifestly incorrect establishment of the facts (Art. 97 para. 1 FSCA) and of a violation of the right to be heard (Art. 29 para. 2 Cst., Art. 6 no. 1 ECHR), because the lower court relied on his police statement that he had had a 'small blackout'…