Prosecution for Driving Vehicles while Intoxicated in Ukraine: Legal Regulation, Administrative, Criminal and Civil Aspects

Received: 31-Jan-2024, Manuscript No. JDAR-24-129416; Editor assigned: 02-Feb-2024, Pre QC No. JDAR-24-129416 (PQ); Reviewed: 16-Feb-2024, QC No. JDAR-24-129416 ; Revised: 21-Feb-2024, Manuscript No. JDAR-24-129416 (R); Published: 28-Feb-2024, DOI: 10.4303/JDAR/236285

Introduction

Alcohol is a substance that reduces brain function while impairing such functions as thinking, reasoning and muscle coordination [1]. All these abilities are necessary for safe car operation. As the level of alcohol in the human system increases, the negative impact on the central nervous system grows. Alcohol is absorbed directly through the walls of the stomach and small intestine. Then it enters the blood, where it accumulates until it is metabolized in the liver. The level of alcohol in human body is measured by the weight of alcohol in a certain volume of blood. This is the level of blood alcohol content or blood alcohol concentration (hereinafter referred to as BAC). Human blood alcohol concentration is measured using a breath alcohol meter (breathalyzer), a device that measures the amount of alcohol in a driver’s breath, or through a blood test. For convenience, it is still customary to determine blood alcohol concentration in parts per mile (ppm). In most cases, the following stages (degrees) of alcohol intoxication are distinguished: Mild intoxication, moderate intoxication and severe intoxication. Severe intoxication (actual poisoning) can lead to coma or death. For adults, the lethal dose of alcohol is 4 g-8 g per 1 kg of body weight, for children it is 3 g per 1 kg of body weight. In practice, the stage or degree of alcohol intoxication is quickly determined by the alcohol content in blood: Less than 0.2%-no influence of alcohol; from 0.2% to 0.5%-slight influence of alcohol; from 0.5% to 1.5%-mild intoxication; from 1.5% to 2.5%-moderate intoxication; from 2.5% to 3.0% alcohol-strong intoxication; from 3.0% to 5.0%-severe alcohol poisoning, death may occur; from 5.0% to 6.0%-fatal poisoning.

Many people are interested in how the degree of intoxication and the dose of alcohol can affect driving a vehicle? Below is an approximate gradation of such an effect, depending on the number of ppm alcohol in the human body:

• From 0.2% to 0.5%-at this degree of intoxication, moving light sources are not perceived exactly. There is a desire to drive fast, problems with assessing the situation occur. It is practically impossible to accurately determine the distance to oncoming vehicles, driving is risky, when overtaking, the distance necessary for the safety of the maneuver is not observed;

• From 0.5% to 0.8%-the distance is determined incorrectly. When the lighting changes, the eyes are less able to adapt to such changes. Perception of red color is greatly weakened. The ability to react and pay attention decreases. The balance is disturbed. A person driving a vehicle has the hardest perception of the red traffic light signal, brake and stop signals (of other vehicles), fences on dangerous sections of the road. There is also the problem of adaptation to different lighting conditions. For example: When you switch the high beam to the low beam, the distance is determined incorrectly;

• From 0.8% to 1.2%-in this state a person relaxes, often overestimates his/her capabilities. The point of view decreases, the perception of the object changes, the distance is estimated incorrectly. Drivers have a risky driving style, vision deteriorates after switching from low to high beam, pedestrians, cyclists, vehicles on both sides of the street or road are noticed late;

• From 1.2% to 2.4%-it is impossible to drive. The eyes are losing their ability more and more. Person’s attention noticeably deteriorates. There is a very strong self-confidence and relaxation. The reaction (response) is disturbed; there is a strong slowing of movements. Loss of balance is felt. The style of driving becomes risky. Orientation in space brings big problems. When driving, mistakes are committed: Instead of the brake pedal, a person can press the gas pedal, etc. [2].

According to psychologists Factors that significantly affect road safety on the part of persons driving a vehicle (drivers), include:

1. Psycho-emotional state (emotions necessarily cause certain changes in the physiological state of the human body, and this also finds its external expression during driving; this can determine the so-called driving style (soft one, nervous one, etc.);

2. Age (the most frequent violations of traffic rules are committed by persons aged 18-36. A maturity crisis occurs during this period of life, which is connected with the procedure of searching for oneself and one’s place in life as well as realization of one’s abilities);

3. upbringing and family traditions (these factors largely determine driver’s attitude to social norms, respect and attitude to other road users, responsibility, discipline, education, maturity, self-demand, restraint);

4. experience and vigilance (the main psychological feature of an experienced driver consists in the ability to navigate the road environment, assess the degree of its danger, predict possible complications and maneuvers of other drivers and (on this basis) take preventive measures that reduce the possibility of increasing the risk and unexpected events. Drivers behind the wheel have no right to lose attention and must always be ready for a quick response to a potential threat);

5. Response time (it depends on the intensity of the driver’s attention, namely on the level of tension of attention when perceiving the road situation. Thus, sudden danger can significantly increase response time: Strangely enough, but when driving a car on empty streets at night, when intensity of attention is sharply reduced, emergence of an emergency situation for drivers is always unexpected, and as a result of this the corresponding response time increases sharply).

6. Attention (safe, error-free driving is all about paying arbitrary attention. Involuntary attention can help arbitrary attention, which requires significant willpower and nervous tension, tiring the driver. Scope of attention is the number of objects that can be perceived simultaneously and clearly enough. A person can simultaneously cover from 4 objects to 6 objects, and no more than 2 or 3 signs on the road. This is explained by the fact that person’s attention (in addition to the perception of objects on the road) is spent for performance of driving actions (controlling the operation of the engine, minding instrument readings));

7. Availability of alcohol or narcotic substances in driver’s blood (people fairly objectively assess the threat from their intoxication, but many drivers underestimate the impact of intoxication on the body’s functional capabilities while driving vehicles) [3].

The last factor can negatively affect the quality characteristics of all the previously mentioned factors, such as: Reducing attention and vigilance of the driver, increasing the response time to changes in the road environment, changing the psycho-emotional state of the driver and leveling the sense of internal responsibility, etc.

Alcohol affects driver’s judgment, vision, coordination and reflexes, increasing the risk of a crash. Its presence in human body prevents people from concentrating on driving; slows down response time; it reduces the ability to do more than one thing at a time; affects the functions of vision and hearing of the steersman; makes the driver feel more confident, which can lead to unnecessary risk; it relaxes the driver, increasing the chances of falling asleep at the wheel; it makes it difficult to perform simple tasks. When alcohol enters a person’s internal system, even at a concentration about 0.05%, it affects the brain’s ability to make rational decisions and can provoke risky actions [4].

For example, physiologists N. Brewer and B. Sandow experimentally proved that the harmful effect of alcohol on human performance is most obvious when such a person needs to monitor the sensory impact corresponding to the simultaneous performance of 2 types of activities. The data collected during an in-depth study of road traffic accidents helped scientists to determine the pattern that accidents of people driving under the influence of alcohol are characterized by the fact that attention of such persons before road accidents was directed to a certain source of information, which is secondary to the tasks of driving a vehicle [5]. In other words, the attention of drivers who were under the influence of alcohol was scattered, and this prevented them from seeing critical changes in the road situation in a timely manner and possibly from avoiding an accident by responding correctly to such changes (changed traffic conditions) in order to prevent the emergency situation from developing into a traffic accident [6].

Methods

The following methods of scientific cognition were used in the article: Abstract-logical, analysis, synthesis, historical, comparison, induction, deduction, generalization, modeling in order to determine the methodological support for researching the theoretical and practical bases of foreign experience of responsibility for driving vehicles in condition of alcohol intoxication (international standards, administrative and criminal aspect).

The method of deduction made it possible to formulate directions for improving prosecution for driving vehicles in condition of alcohol intoxication, using knowledge about the trends in the development of institutions of administrative and criminal responsibility, including responsibility for violations of road safety regulations. With the help of the inductive method, the practical problems of responsibility for driving vehicles in condition of alcohol intoxication have been established, and proposals have been made for the preparation of road traffic accident materials. When conducting the research, general scientific and special methods of scientific knowledge were used. Thus, with the help of the dialectical method of scientific knowledge, investigated were concepts, signs and types of traffic accidents, the essence and features of administrative responsibility for violation of the Traffic Rules, (violation that caused the traffic accident) as socio-legal phenomena in their contradictions, development and changes.

The historical-legal method was used in the study of the genesis of responsibility for driving vehicles in condition of alcohol intoxication. The formal-logical method contributed to the formulation of definitions and classifications of legal categories in the researched sphere. With the help of the logical and legal method, practical recommendations for responsibility for driving vehicles in condition of alcohol intoxication have been developed. The method of analysis and synthesis made it possible to consider the foreign experience of traffic accident registration and to formulate on its basis the general principles of responsibility for driving vehicles in condition of alcohol intoxication. The comparative legal method was used when comparing domestic and foreign legislation, as well as for comparing practice of its application in relation to prosecution for driving vehicles in condition of alcohol intoxication.

Results and Discussion

According to the statistical data of the National Police of Ukraine (hereinafter-the NPU), in 11 months of 2023, 123, 432 administrative offenses related to driving a vehicle while intoxicated were detected in Ukraine, which is 2.53% of the total number of all detected administrative offenses. The largest percentage of them belongs to violations provided for in Part 1 of Art. 130 of the Code of Ukraine on Administrative Offenses,-106,494 (driving a vehicle by persons being in a state of alcoholic, narcotic or other intoxication..., as well as driver’s refusal to be checked in accordance with the established order of examination for the state of intoxication); then violations provided for in part 2 of this article,-8,431 (repeated within a year committing any of the violations provided for in part 1 of this article); then violations provided for in part 3 of the Article-7,218 (actions provided for in part one of this article which were committed by a person who twice during the year was subject to administrative fines for driving while intoxicated or for refusal to be checked for intoxication...); and finally part 4-1,289 (driver’s taking alcohol narcotic drugs, psychotropic substances, their analogues, as well as medicinal products made on their basis, after a traffic accident involving this driver, or after the vehicle was stopped at the request of a police officer, until an authorized person conducts a medical examination for the state of intoxication) [7].

By the way, for the same period of the previous year (11 months of 2020), 119,597 administrative offenses related to driving a vehicle while intoxicated were detected. Their distribution was similar: Part 1 of Art.: 130 of the Code of Ukraine on Administrative Offenses-102,773; Part 2 of Art.130 of the Code of Ukraine on Administrative Offenses-8,757; Part 3 of Art.130 of the Code of Ukraine on Administrative Offenses-7,058; Part 4 of Art.130 of the Code of Ukraine on Administrative Offenses-1,009. The above shows that 13% in the general block of offenses is related to repetition of driving a vehicle while intoxicated [6]. And comparison of the relevant data of the last 2 years gives reason to assert that, despite a slight decrease in the total number of detected offenses in 2023 (by 3.1%), the tendency of repetition remains stably the same (Figures 1 and 2).

Figure 1: The total number and repetition of administrative offenses related to driving vehicles while intoxicated for 2022 and 2023

Figure 2: Distribution of administrative offenses related to driving a motor vehicle while intoxicated (Article 130 of the Code of Ukraine on administrative offenses) by parts (2022 and 2023 years)

During 2022 and 2023, the percentage of decisions made by the courts regarding the imposition of administrative fines based on the materials compiled by the police under Article 130 of the Code of Ukraine on Administrative Offenses was 58.5% and 60.9%, respectively [8].

Distribution of administrative fines accepted by the courts under parts 1-4 of Art.130 of the Code of Ukraine on Administrative Offenses for 2023-summarized by the authors based on the results of processing a sample of data on administrative offenses provided for in parts 1-4 of Art. 130 the Code of Ukraine on Administrative Offenses for 2023 (Table 1).

Table 1: Administrative offenses provided for in parts 1-4 of Art. 130 the Code of Ukraine on Administrative Offenses for 2023

Analysis of these data shows a low percentage of courts applying such effective (“harsh”) sanctions as administrative arrest, paid withdrawal or confiscation of the vehicle [9]. However, there are objective reasons for this-the last 2 penalties can be applied by law only if the vehicle is privately owned by the violator.

An important role in the context of the effectiveness of administrative sanctions belongs to the issue of their implementation (execution) and effectiveness of influencing the further behavior of violators. It should be noted that among the most common administrative penalties-fines, according to the reports of the Judiciary of Ukraine for 2023, only 13.7% of the total amount of fines imposed by courts on offenders under Article 130 of the Code of Ukraine on Administrative Offenses were paid voluntarily (>1091.7 million UAH) [10]. The practice of interaction with the bodies of the State Executive Service regarding execution of administrative sanctions in the form of fines in a compulsory manner shows that such activity is not without certain problems. Not least among them is the return of the executive document to the debt collector (to the police department or the court) by state executors-up to 30%, due to the fact that the debtor has no property or it is impossible to find the debtor, etc. [11]. Regarding the execution of court decisions regarding deprivation of the special right to drive a vehicle, we should note that this measure does not always ensure the actual suspension of such persons from further driving a vehicle. This is clearly evidenced by the statistics of such administrative offenses as “Driving a vehicle by a person deprived of the right to drive a vehicle” (Part 4 of Article 126 of the Code of Ukraine on Administrative Offenses; of them 23,500 were detected by the police in 2021 (in 11 months) [12].

It should be emphasized that, according to the official statistical data of the prosecutor’s office, the number of registered criminal offenses provided for in Article 286 of the Criminal Code of Ukraine in our country predominantly decreases year by year (the reporting period is 6 months).

Between 2018 and 2022, the decrease is 1,481 cases; the average statistical difference over the last 5 years is 235. The last reporting period (2022) is particularly noteworthy; during this period the number of registered criminal offenses under Article 286 of the Criminal Code of Ukraine is 1,021 cases less in comparison with the previous year [9].

The number and dynamics of criminal offenses provided for in Articles 286 and 286-1 of the Criminal Code of Ukraine for the reporting period of 6 months 2019-2023. According to the results of the statistical data analysis of the General Prosecutor’s Office (Table 2).

Table 2: Number and dynamics of criminal offenses provided for in Articles 286 and 286-1 of the Criminal Code of Ukraine for the reporting period of 6 months 2019-2023

But we are sure that this situation arose due to the fact that this year, car accidents committed by people who drove a vehicle while intoxicated began to be separated from the total number of traffic accidents with victims-and these another +306 cases [13]. As a result, the year 2022 gives an opportunity to calculate and with a high probability to assume that the average number of traffic accidents due to the fault of a person driving a vehicle while intoxicated equals 23% [14].

And as sad experience shows, this leads to high-profile traffic accidents with victims, which periodically occur in this or that region of Ukraine. Thus, the fact of the death of an entire family (wife and 3 children) in a traffic accident near the city of Kyiv on 12 July, 2020 due to the actions of a drunk driver roused the entire Ukrainian society. As it turned out later, in 2010 this person had already been convicted for imprisonment under part 2 of Art. 286 of the Criminal Code of Ukraine for performing a similar act (then a woman was injured in a traffic accident). Another example is the traffic accident in the Desnianskyi district of Kyiv in the evening of 15 July 2021. An “Ореl” car almost hit a woman on the sidewalk, and then fled from the scene [15]. After the fugitive’s detention, the driver was found to be intoxicated (2.05% alcohol in the driver’s blood). Previously, this man had already been deprived of the right to drive a motor vehicle for driving in the state of alcohol intoxication, and he had got his previously “taken” rights only few days before the new accident [16]. These cases very clearly demonstrate that the current system of sanctions does not always seem to be effective in preventing repeated homogeneous violations by individuals who, unfortunately, sooner or later are able to cause significant harm to other people. It is unfortunate, but such examples are not isolated in Ukraine [17].

A legitimate continuation of the analysis of administrativedelict proceedings consists in consideration of data on criminal offenses provided for in Article 286-1 of the Criminal Code of Ukraine and the results of their pre-trial investigation and trial [18]. Unfortunately, official statistics (the website of the Prosecutor General’s Office) included this article in the accounting forms only in June 2023 [19]. According to the Prosecutor’s Office of Ukraine, 306 criminal offenses stipulated by this or that part of Article 286-1 of the Criminal Code of Ukraine were registered during 6 months of the current year, in which 174 persons were served with a notice of suspicion. As of 1 July, 2023, proceedings with an indictment were sent to court for 97 criminal offenses, proceedings were closed for 83 (85.5% of them were based on the absence of a criminal offense or absence of an event of a criminal offense), etc. [20].

In some European countries, the amount of fines is tied to the driver’s income level, but one way or another, exceeding the ppm in the blood threatens an intoxicated person with imprisonment for a period of up to 2 years. Thus, in Germany, an excess of up to 0.5 V entails only administrative responsibility and a fine, and an excess of over 0.5 V is a reason for criminal responsibility and a fine. In Japan, for example, even the passengers of this vehicle (if any) are punished for offences related to driving a vehicle in a condition of alcohol intoxication (for not stopping the intoxicated driver). In addition, it was in Japan that the largest fine in history was issued for driving in a condition of alcohol intoxication and a traffic accident with victims-2.5 million US dollars [21].

Separate sociological research conducted in Great Britain in 2017 showed that 57.0% of survey respondents (persons aged 16 and over) consumed alcoholic beverages, equal to 29.2 million of the population [22]. If compared with Ukraine, it would actually be a larger part. The total population of the United Kingdom significantly exceeds the similar indicator in Ukraine, but even for this European country, the given figure indicates a significant spread of such a phenomenon as alcohol consumption. No, the percentage of such persons, we hope, would be much smaller, but it must be recognized that among those 57.0% of respondents, there are certainly categories of such people who are potentially capable of committing the mentioned actions once or regularly. And many marginals are kept from such acts by the system of sanctions, which includes legal responsibility for this type of offence.

There are strict alcohol limits for drivers, with limits in Scotland differing from the rest of the UK [23] (Table 3).

Thus, according to the statistics of the Federal Statistical Office of Germany (destatis), in 2023, 228 people died in traffic accidents related to alcohol consumption, and 17,183 road users received injuries of various degrees of severity. Compared to last year, the number of such car accidents with victims involving drivers who were driving in a condition of alcohol intoxication remained almost unchanged, and the number of fatalities decreased by 6.6%.

Nevertheless, every 13^th person killed on the roads of this country in 2023 died because of a traffic accident that occurred due to driving in condition of alcohol intoxication. However, at the beginning of the current century, the situation was much worse, as in 2000 the loss of human life in alcohol-related accidents reached 1,022 people (13.6% of all fatalities). It is statistically proven that a drunk driver is eight times more likely to cause a fatal traffic accident [24].

Table 3: Norms of the permissible limit of alcohol in the driver's body according to the legislation of Great Britain

Driving in a condition of alcohol intoxication is an administrative offence in Germany. In addition, under certain circumstances, driving under the influence of any drug is already subject to the Criminal Code, which provides for criminal liability for violating these prohibitions [24].

Article 24a-2 of the German Traffic Safety Law dated 19 December 1952 establishes driving a vehicle while intoxicated as an administrative offence. An offence is considered to have been committed, regardless of any material consequence, as soon as traces of one of the substances are found in the blood of the offender (the list is provided separately), since the legislation does not provide for any permissible threshold.

However, there is no specified composition of the offence if the harmful substance comes from a drug that is taken according to a medical prescription. The blood test necessary for the detection of narcotic substances can be carried out without the driver’s consent if there are no medical contraindications. This offence is punishable by a fine of up to 3,000 German marks (or approximately 1,500 euros (UAH 44,944). Article 25 of the aforementioned Law provides that a fine may be accompanied by a ban on driving a vehicle for a period of 1 to 3 months [25,26].

Conclusion

Thus, statistical data give grounds for asserting that application of administrative sanctions in the form of a fine or deprivation of the right to drive for offenses related to driving a vehicle vehicle while intoxicated do not always seem to be sufficient to carry out general and special prevention of this types of violations of traffic rules, and more severe types of administrative sanctions for repeated violations (within a year) due to a number of objective reasons are extremely rarely applied by the courts.

The factor of the driver (the person driving the vehicle) being in a state of alcoholic, narcotic or other intoxication or under the influence of medicines that reduce their attention and reaction rate can negatively affect the quality characteristics of all other factors that significantly affect road traffic security on the part of such persons including: Reducing attention and vigilance of the driver, increasing the response time to changes in the road environment, changing the psycho-emotional state of the driver and leveling the sense of internal responsibility, etc.

Actions (activities) of a person under the influence of alcohol or narcotic substances (in a state of habitual intoxication) simultaneously reduces the level of subjective awareness of the risk and increases the risk of the objective occurrence of negative consequences. It has been established that, on average, the risk of traffic accidents begins to increase exponentially at the level of blood alcohol content from 0.04 g/dL. Also, the use of alcohol or narcotic substances, in addition to increasing the risk of committing traffic accidents (in the case of driving a vehicle while intoxicated), also increases person’s vulnerability to injuries, as well as severity of such injuries (up to life-threatening ones) during any accidents.

Statistical data and analysis of administrative and judicial practice show that application of administrative sanctions in the form of a fine or deprivation of the right to drive for offenses related to driving a vehicle while intoxicated do not always seem to be sufficient to implement general and special prevention this type of violation of traffic rules and more severe types of administrative sanctions for repeated violations (within a year) due to a number of objective reasons are extremely rarely applied by the courts. As a result, against the background of these determinants, there is a steady trend of a significant percentage of repetition of homogeneous torts (up to 13% of the total number of misdemeanors provided for in parts 1, 3 of Article 130 of the Code of Ukraine on Administrative Offenses.

Acknowledgement

None.

Conflict Of Interest

Authors have no conflict of interest to declare.

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Copyright: © 2024 Khrystofor Yarmaki, et al. This is an open access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.