【Brief Introduction of the Case】
Shijiazhuang, Hebei, a community parking lot, patrol police in the routine patrol, found a car in the music ringing, the headlights are also on, they went forward to check.
When I knocked on the car door, I saw a man asleep in the cab, snoring like thunder, full of alcohol.
The patrol police then notified the traffic police to come and deal with it according to the regulations.
After the traffic police arrived at the scene, after investigation, the man was Duan Mou, and the on-site alcohol exhalation test was 159mg/100ml.
Subsequently, Duan Was tested according to the regulations, and the blood test results showed that the ethanol content in his blood was 185mg/100ml.
Subsequently, the traffic police department believed that Duan's behavior constituted "drunken driving of a motor vehicle" and imposed an administrative penalty of revoking the driver's license of the motor vehicle.
At the same time, it is believed that his drunken driving of motor vehicles is suspected of constituting the crime of dangerous driving and is being further handled. (Source of the case, Intermediate People's Court of Shijiazhuang City, Hebei Province.) ）
After receiving the administrative punishment decision of the traffic police team, Duan was not satisfied and applied for an administrative reconsideration according to law, but the administrative reconsideration upheld the administrative punishment decision of the traffic police team.
Duan was still not satisfied, and filed an administrative lawsuit with the court, requesting that the punishment decision of the traffic police department be revoked, the main reasons for which were:
1. It is true that he was drunk at the time of the incident, but he poured the wine into the mineral water bottle after driving the car into the parking lot, and slept in the car afterwards, because it was cold, and started the vehicle heating;
2. After getting drunk, sleeping in the car, not driving, not drunk driving;
3. The administrative punishment decision of the traffic police department shall be revoked in accordance with law if the facts are wrong and the evidence is insufficient.
During the court trial, the traffic police department put forward a reply opinion in accordance with the law, the main contents of which were:
1. The on-site law enforcement recorder shows that Duan was in the cab position of the vehicle when he was seized, his vehicle was in a state of activation, the headlights and double flashing lights were on, and when he answered the traffic police's inquiry, he admitted that he had drunk alcohol in a restaurant;
2. When Duan was questioned by the police, he admitted that after drinking in a nearby restaurant, he thought it was relatively close, and he was lucky to drive to the parking lot where the incident occurred;
3. Duan provided photos of liquor and mineral water in the car, arguing that it was drunk in the car, which was inconsistent with common sense;
4. According to the law, after Duan X is drunk, he starts a motor vehicle, even if he does not drive, there is a danger, which poses a threat to public safety, and can be identified as drunk driving a motor vehicle according to law, and he is punished.
During the trial, the court held that in administrative litigation, the "burden of proof is reversed", that is, the traffic police department in this case has the obligation to adduce evidence for the administrative punishment imposed on it.
Article 34 of the Mainland's Administrative Procedure Law stipulates: "The defendant bears the burden of proof for the administrative act made, and shall provide evidence of the administrative act and the normative documents on which it is based." If the defendant does not provide evidence or fails to provide evidence within the time limit without a legitimate reason, it is deemed that there is no corresponding evidence. ”
In this case, the traffic police department determined that Duan X was "drunk driving", which should prove two aspects of the facts, one is that Duan X is drunk, and the other is driving a motor vehicle after getting drunk.
For the first point, there are video footage of on-site law enforcement, alcohol breath test results, and hospital blood ethanol content test results as evidence, "drunk" is not controversial.
For the second point, whether Duan Mou drove a motor vehicle after getting drunk is doubtful, and the evidence of "driving" is insufficient.
Therefore, the traffic police department identified Duan Mou as "drunk driving" and imposed administrative penalties on him, which did not meet the requirements of "clear facts and sufficient evidence" stipulated by law.
Therefore, in the end, the court held that the administrative punishment decision made by the traffic police department in this case was unclear and the evidence was insufficient, and the judgment revoked the administrative punishment decision.
#315全民行动 #
【Lawyer's Opinion】
I. The traffic police department in this case determined that duan's "drunk driving" evidence was insufficient, and the administrative punishment of revoking his driver's license could not be established.
According to the provisions of the Mainland's Road Traffic Safety Law and the Administrative Punishment Law, "clear facts, sufficient evidence, correct application of law, and legal procedures" are the basic requirements for administrative punishment.
In this case, for Duan's "drunkenness", there are on-site law enforcement video recordings, alcohol breath test results, and hospital blood ethanol content test results as evidence, there is no dispute.
However, there is obviously insufficient evidence for its "driving".
The evidence provided by the traffic police department proves that Duan Mou drove a motor vehicle after getting drunk, and there are two main evidences: (1) The statement to the traffic police department at the scene of his drunkenness, admitting that he drank nearby, and then drove by chance.
For this evidence, the first is that Duan Mou said in a drunken state, the authenticity is doubtful, and it is not excluded that it is wine talk and nonsense. Second, there is no other objective evidence to corroborate it, and it cannot be confirmed.
(2) For the photos of liquor and mineral water bottles provided by Duan Mou, confirming that they were drunk after parking, the traffic police department believed that it was unreasonable and did not accept it, but at the same time did not provide corresponding evidence to confirm.
First of all, the traffic police department believes that it is unreasonable, this is only speculation, can not be used as evidence of administrative punishment. Moreover, it does not conform to common sense, does not mean that it will not happen, and reasonable doubt cannot be excluded.
Second, importantly, the traffic police department failed to provide evidence on how to rule this possibility out.
Therefore, the traffic police department in this case determined that Duan X was "drunk driving", on the surface, there was a lot of evidence, but in fact, it was weak and weak, lacked logic, could not form a chain of evidence at all, and could not prove that Duan X's behavior was illegal, reaching the level of "clear facts and sufficient evidence".
Obviously, its administrative punishment cannot be established according to law.
2. In administrative litigation, the "burden of proof is reversed", and the administrative organ has the obligation to prove the administrative act it has made. Where the evidence is insufficient, or evidence cannot be adduced, the people's court has the right to revoke it.
In this case, the traffic police department of the public security organ only provided evidence for Duan's "drunkenness", but failed to provide sufficient evidence for his "driving" after being drunk.
Therefore, judging from the evidence in this case, the traffic police department of the public security organ only provided evidence to prove that Duan was "drunk", but there was no evidence to prove that he drove a motor vehicle.
To determine "drunk driving", both must be possessed at the same time, and one is indispensable, so the obvious evidence is insufficient and cannot be established.
Accordingly, in the end, the court ruled that the administrative punishment was "unclear in facts and insufficient evidence", which was in line with the provisions of the law, had a basis in the law, and was correct.
According to the relevant provisions of mainland law, the requirements for evidence in criminal cases are generally higher than those in administrative cases. In this case, after the administrative punishment case of the public security traffic police department was revoked, the possibility of successful handling of the criminal case was unlikely.
In this case, if the traffic police department found that Duan X's "drunk driving" was established, according to the criminal law, Duan X may constitute the crime of dangerous driving and will be sentenced to 1 month to 6 months of detention.
However, in this case, the public security traffic police department's determination of Duan X's "drunk driving" was judged by the court to be "unclear facts and insufficient evidence", then according to the requirements of the criminal case for evidence, the charge of Duan X's dangerous driving crime will also face the situation of "unclear facts and insufficient evidence", and the criminal offense cannot be established.
Finally, when you think that your rights and interests have been violated, it is a legitimate right granted by law to bravely take up the legal weapon and protect your legitimate rights and interests.
This can also promote the prudent use of power by administrative law enforcement organs and enforce the law according to law.
In fact, our society needs more people like Duan Mou. It is precisely because of their existence, the rule of law, that they are more perfect and more progressive.
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I am Zhou Lawyer, pro bono law popularization, welcome attention, together with the case.