Citation

Detter K. Blutalkohol 1999; 36(1): 3-21.

Affiliation

76337 Waldbronn 1, Germany.

Copyright

(Copyright © 1999, International Committee on Alcohol, Drugs and Traffic Safety and Bund gegen Alkohol und Drogen im Straßenverkehr, Publisher Steintor Verlag)

DOI

unavailable

PMID

unavailable

Abstract

Assessing the culpability of a defendant remains a difficult task both for law courts as well as experts. As far as the influence of alcohol is concerned law courts will be virtually unable to make decisions without the prior consultation of experts. Merely the judgement of the witness' credibility remains within the domain of the judge. However, significant limitations can be found here due to the jurisdiction. The power to make the final decision over culpability does still belong to the judge and not to the experts. In the field of assessment of culpability, the decision is sometimes revoked by the court of appeal. This is due to the fact that law courts do not take into consideration that diagnoses which are correct within the psychiatric expert field do not have to coincide with the facts of 20, 21 StGB. Determining the culpability within the field of alcohol related offences is not just a mathematical equation. In fact, the result of a calculation of the blood alcohol value does not replace the determination of necessary facts (psycho-diagnostic criteria), nor does it replace conclusions drawn in court over possible influences on culpability. The principles of the legal figure of the 'actio liberio in causa' are no longer applicable during offences of endangering road traffic or when driving without a licence. At present there are no additional limitations of applicability. The addiction to an anaesthetic drug does not in itself justify to considerable reduction of culpability under section 21 StGB. According to the legislator's intentions these are only to be applies in exceptional cases. Influence of drugs in itself does not suffice to assume driving inability within 316 StGB. To date, the legislator of the BGH does not recognise 'generally abstract ability' after drug use and therefore also rejects an 'absolute driving inability' following drug use detected by means of blood sampling. Therefore regular findings of additional proof are necessary.