Part 1, Article 12.8 of the Code of Administrative Offences of the Russian Federation. Driving a vehicle while intoxicated. The court terminated the proceedings due to the lack of evidence.

By the decision of the Magistrate of the 1st judicial section of the Bagrationovsky judicial district of the Kaliningrad region Sechko E. Yu. OUR CLIENT was found guilty of committing an offense under Part 1 of Article 12.8 of the Code of Administrative Offenses of the Russian Federation, under which a punishment was imposed in the form of an administrative fine in the amount of 30,000 rubles with deprivation of the right to drive vehicles for a period of one year and six months.

By the decision of the Bagrationovsky District Court of the Kaliningrad region, the complaint of the lawyer Grozny B.A. was satisfied, the decision of the Magistrate was overturned and the proceedings on the case were terminated due to the absence of elements of an administrative offense.

In canceling the ruling and terminating the proceedings, the court stated the following:

In accordance with Part 1 of Article 12.8 of the Code of the Russian Federation on Administrative Offenses, driving a vehicle by a driver in a state of intoxication, if such actions do not constitute a criminal offense, entails the imposition of an administrative fine in the amount of thirty thousand rubles with deprivation of the right to drive vehicles for a period of one and a half to two years.

According to the note to this rule, the use of substances that cause alcohol or drug intoxication, or psychotropic or other substances that cause intoxication is prohibited. Administrative liability provided for by this article and part 3 of article 12.27 of this Code occurs in the event of an established fact of the use of substances causing alcoholic intoxication, which is determined by the presence of absolute ethyl alcohol in a concentration exceeding the possible total measurement error, namely 0.16 milligrams per liter of exhaled air, or the presence of absolute ethyl alcohol in a concentration of 0.3 grams or more per liter of blood, or in the event of the presence of narcotic drugs or psychotropic substances in the human body.

By virtue of paragraph 1 of clause 2.7 of the Traffic Regulations of the Russian Federation, approved by Resolution of the Council of Ministers of the Government of the Russian Federation dated October 23, 1993 No. 1090 (hereinafter referred to as the Traffic Regulations), a driver is prohibited from driving a vehicle while intoxicated (alcoholic, narcotic or otherwise), under the influence of medications that impair reaction and attention, in a sick or tired state that threatens traffic safety.

The basis for bringing OUR CLIENT to administrative liability, as provided for in Part 1 of Article 12.8 of the Code of the Russian Federation on Administrative Offenses, was the fact that he, in violation of paragraph 2.7 of the Traffic Regulations approved by Resolution of the Council of Ministers - the Government of the Russian Federation dated October 23, 1993 No. 1090 (hereinafter referred to as the Traffic Regulations), drove a vehicle while intoxicated on the Kaliningrad-Mamonovo highway in the Bagrationovsky District of the Kaliningrad Region.

In accordance with Article 26.2 of the Code of the Russian Federation on Administrative Offenses, evidence in a case of an administrative offense is any factual data on the basis of which the judge, body, or official in charge of the case establishes the presence or absence of an administrative offense, the guilt of the person brought to administrative liability, as well as other circumstances that are important for the correct resolution of the case. These data are established by the protocol on the administrative offence, other protocols provided for by this Code, explanations of the person in respect of whom proceedings are being conducted on the case of the administrative offence, testimony of the victim, witnesses, expert opinions, other documents, as well as testimony of special technical means, material evidence (parts 1, 2 of this article).

By the Decree of the Government of the Russian Federation of June 26, 2008, No. 475, the Rules for the examination of a person who drives a vehicle for alcohol intoxication and the registration of its results, the referral of said person for a medical examination for intoxication, the medical examination of this person for intoxication and the registration of its results (hereinafter referred to as the Rules) were approved.

The basis for believing that the driver OUR PRINCIPAL is intoxicated was the presence of a sign of intoxication detected in him by the traffic police officer - the smell of alcohol from the mouth, specified in paragraph 3 of the Rules.

In connection with the presence of a sign of intoxication, the traffic police official, in the manner prescribed by the Rules, offered OUR PRINCIPAL to undergo an examination for alcohol intoxication.

OUR PRINCIPAL did not agree with the results of the alcohol intoxication test conducted on him, which he personally indicated in the relevant report.

In accordance with paragraph 10 of the Rules, a driver of a vehicle is subject to referral for a medical examination for alcohol intoxication: in case of refusal to undergo an alcohol intoxication test; in case of disagreement with the results of the alcohol intoxication test; in case of sufficient grounds to believe that the driver of the vehicle is intoxicated and the alcohol intoxication test result is negative.

A traffic police official referred OUR PRINCIPAL for a medical examination for alcohol intoxication, which the latter agreed to undergo, which he personally indicated in the report on referral for a medical examination.

Subparagraph 1 of paragraph 5 of the Procedure for conducting a medical examination for intoxication (alcohol, drugs or other toxic), approved by Order of the Ministry of Health of Russia dated December 18, 2015 No. 933n, which entered into force, with the exception of certain provisions, on March 26, 2016 (hereinafter referred to as the Procedure) stipulates that a medical examination is conducted, in particular, with respect to a person who drives a vehicle, on the basis of a protocol on referral for a medical examination, drawn up in accordance with the requirements of Article 27.12 of the Code of the Russian Federation on Administrative Offenses by an official who has been granted the right of state supervision and control over the safety of traffic and operation of a vehicle of the relevant type.

According to paragraph 8 of the Procedure, during the medical examination, its results are entered into the Medical Examination Report for the state of intoxication (alcohol, narcotic or other toxic), the form of which is provided for in Appendix No. 2 to the said order (hereinafter referred to as the Report).

By virtue of paragraph 9 of the Procedure, after the personal data of the person being examined are indicated in the Report, the medical examination in all cases begins with the first test of exhaled air for the presence of alcohol, after which a specialist doctor (paramedic) collects complaints, anamnesis and an examination in order to identify clinical signs of intoxication, as provided for in Appendix No. 2 to the Procedure.

A positive result of the exhaled air test is considered to be the presence of absolute ethyl alcohol in a concentration exceeding the possible total measurement error, namely 0.16 milligrams per liter of exhaled air. If the first test of exhaled air is positive, a repeat test of exhaled air is conducted 15-20 minutes after the first test. The results of the first test are indicated in subparagraph 13.1 of the Act, and the repeat test - in subparagraph 13.2 of the Act.

If the first test of exhaled air is negative, a repeat test of exhaled air for alcohol is not conducted, which is recorded in subparagraph 13.2 of the Act (paragraph 11 of the Procedure).

According to paragraph 15 of the Procedure, a medical conclusion "state of intoxication established" is issued in the event of examination of persons specified in subparagraph 1 of paragraph 5 of the Procedure, if the repeat test of exhaled air for alcohol is positive or if one or more narcotic drugs and (or) psychotropic substances are detected in a biological sample based on the results of chemical-toxicological tests.

Based on the results of the medical examination conducted in the State Budgetary Healthcare Institution "Narcological Dispensary of the Kaliningrad Region" regarding Rybalka Aleksandr, a conclusion was made about his being in a state of intoxication, recorded in the act of medical examination for intoxication No. KD 001196.

From the content of the said act of medical examination for intoxication, it can be seen that the concentration of absolute ethyl alcohol in the exhaled air of OUR PRINCIPAL was as a result of the study - 0.15 mg / l.

According to the certificate issued to the traffic police inspector based on the results of the examination of OUR PRINCIPAL, no clinical signs were found that allow us to assume the presence of intoxication.

Meanwhile, according to certificate No. 784, volatile poisons (ethyl alcohol) were found in the blood taken from OUR PRINCIPAL - 0.47 g / l. According to certificate No. 783, volatile poisons (ethyl alcohol) - 1.0 g/l were found in the urine collected from OUR PRINCIPALS. A medical conclusion was made regarding OUR PRINCIPALS: a state of intoxication was established. At the same time, in accordance with paragraph 4 of the Procedure, a medical examination includes the following examinations by specialist doctors, instrumental and laboratory tests: a) examination by a specialist doctor (paramedic); b) testing of exhaled air for the presence of alcohol; c) determination of the presence of psychoactive substances in urine; d) testing of the level of psychoactive substances in urine; d) testing of the level of psychoactive substances in the blood.

In accordance with paragraph 12 of the Procedure, during a medical examination of persons specified in subparagraphs 2-10 of paragraph 5 of this Procedure, in the presence of at least three clinical signs of intoxication, as provided for in Appendix No. 2 to this Procedure, and a negative result of the first or repeated test of exhaled air for the presence of alcohol, a sample of a biological object (urine, blood) is taken for sending for chemical-toxicological testing in order to determine the agents (substances) or their metabolites (except alcohol) that caused intoxication.

Consequently, the results of the test of OUR PRINCIPAL'S exhaled air for the presence of alcohol, reflected in act No. KD001196, are final for assessing his actions within the framework of Part 1 of Article 12.8 of the Code of the Russian Federation on Administrative Offenses.

The above indicates that the medical examination for intoxication was conducted by a medical worker in violation of the established Procedure for conducting a medical examination.

This circumstance was not taken into account by the courts and did not receive a proper legal assessment under the rules of Article 26.11 of the Code of the Russian Federation on Administrative Offenses.

By virtue of Parts 1 and 4 of Article 1.5 of the Code of the Russian Federation on Administrative Offenses, a person is subject to administrative liability only for those administrative offenses for which his guilt has been established. Irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person.

Thus, the fact of OUR PRINCIPALS' use of substances causing alcoholic intoxication is subject to establishment based on the concentration of absolute ethyl alcohol in exhaled air, which was determined during the conducted study of exhaled air to be 0.15 mg/l.

Since this concentration of absolute ethyl alcohol in the exhaled air of OUR PRINCIPAL does not exceed the possible total measurement error of 0.16 mg/l, there are no grounds for bringing this person to administrative liability for committing an administrative offense under Part 1 of Article 12.8 of the Code of the Russian Federation on Administrative Offenses.

In this regard, the actions of OUR PRINCIPAL do not constitute an administrative offense under Part 1 of Article 12.8 of the Code of the Russian Federation on Administrative Offenses.

Under such circumstances, the ruling of the justice of the peace on the case of an administrative offense under Part 1 of Article 12.8 of the Code of the Russian Federation on Administrative Offenses is subject to cancellation.

Proceedings on a case of an administrative offence are subject to termination on the basis of paragraph 2 of part 1 of Article 24.5 of the Code of the Russian Federation on Administrative Offences due to the absence of elements of an administrative offence.