What is assumed by transfer of the right of management to the drunk driver?
Many citizens, transferring the right of management to friends, relatives and acquaintances, do not even assume what problem they can face in case to catch the driver on their car in a state of intoxication. Let`s try to understand, for as in what cases the owner will bear responsibility.
Article 12. 8. The Administrative Code the part 2 establishing that transfer of driving to the person which is in a state of intoxication - attracts deprivation of the right of control of vehicles for a period of one and a half till two years is, perhaps, one of the most disputable as contradicts a row standardly - legal acts, including regarding observance of the rights and freedoms of citizens.
Under article 12. 8. 2 The Administrative Code can involve both the owner of the vehicle, and the other person who transferred control and holding the power of attorney, and, both hand-written, and notarized even if in it it is not specified about the right of transfer of the vehicle to the third parties. The code establishes the fact of voluntary transfer of management, but does not provide explanations regarding an event of transfer of management, and it is one of the most important circumstances.
Most often the situations connected with transfer of the right of management are made out as follows : the driver with strong indications of intoxication is detained and after passing of medical survey suggest to use legitimate right to call other driver to avoid the placement of the car on an auto pound. Many also use this right and, as a rule, call the owner of the vehicle. The arrived owner given the car perhaps, a few days ago, shows to the inspector the driver`s license and at this moment there is a registration of the driver by the second part of article 12. 8 Administrative Code.
So, the time factor, namely the answer to a question is absolutely unspecified: when the car and in what state there was his driver was given? The inspector of traffic police, carrying out registration under article 12. 8. 2 Administrative Code cannot know when the right of management, certainly, behind an exception was transferred, cases when the owner or the person who transferred the right is in the same car - in that case the matter will be simply irrelevant.
What to do to the owner if it in the car was not and to it it was necessary to arrive to the place where there is its car? The owner, contrary to illegal requirements of the inspector, is not obliged to to show it the driver`s license. The inspector of traffic police has the right to stop the car under control of the owner or the other person and only after it to carry out an inspection of documents. Prior to movement implementation any person can be as in the car, and driving this car. Everything that you can show to the inspector, in this case as to the police officer, is the all-civil passport . However, certainly, and it cannot become the basis for impossibility of drawing up the protocol concerning you.
It is necessary to pay attention that for qualification of structure of an offense according to the p. 2 of Art. 12. 8 Codes of the Russian Federation on Administrative Offences, proceeding from sense of part 2 of article 12. 8 Administrative Code, it is necessary to establish the fact of transfer of driving to the person which is in a state of intoxication. Transfer of driving to the person which is in a state of intoxication means that such transfer is carried out voluntarily and the person transferring the right of control of the car obviously knows that the person to whom it transfers control is in a state of intoxication, and it cannot be known.
It is possible to assume, by the way, that the person transferring the right of management, maybe, at least, is inclined to be assumed that the driver is in a state of intoxication and that only because the administrative offense is characterized by deliberate fault or inaction of the person made responsible.
Immemorial question “ What was earlier - egg or " chicken; has a direct bearing also on our question. Notice, at first transfer of driving took place, and survey on a state of intoxication by results of which the state of intoxication also was established was carried out only then. And what, the code provided responsibility? For transfer of management to the person which is in a state of intoxication.
However finding of the driver in a state of intoxication (alcoholic, narcotic) is established by exclusively medical examination which is carried out in accordance with the established procedure. Thus, without knowing about the fact of the use by the driver of alcohol, it is necessary to consider involvement of the citizen to administrative responsibility as a frank arbitrariness from the employee of traffic police.
It is necessary to remember that between stay in a state of intoxication and the fact of the use of the substances (narcotic preparations or alcoholic beverages) causing intoxication there is very big difference. So, for example, the conclusion can be made by the narcologist: the fact of alcohol intake is elicited, the state of intoxication is not established. Thus, even in the presence of sufficient criteria to believe that the driver can is in a state of intoxication, to define, the driver is sober or not, it is impossible.
It is also possible to assume that the person transferring control itself is in a state of intoxication and the state cannot adequately identify the person receiving keys from his hands. At the level of implication article needs to be read taking into account such amendment: before transfer of the right of management the citizen transferring the right of management is obliged to receive confirmation from the citizen that that is not in a state of intoxication, and as the only confirmation of it serves the act of medical examination.
There is also other article attracting responsibility for control of your car of the person which is in a state of intoxication. It is article 12. 32 Administrative Code. The admission to driving of the driver who is in a state of intoxication, or not having the right of driving - attracts imposing of an administrative penalty on the officials responsible for technical condition and operation of vehicles, of twenty thousand rubles.
In the context of article it is seen that the official of the organization who let out to the line of the driver without carrying out the corresponding check can be brought to responsibility under this article. A number of citizens, by the way, resort to retraining of article 12. 8. 2 Administrative Code on more liberal - 12. 32. The owner only needs to prove that the car is operated in the organization, therefore, administrative proceedings can be initiated against the official.
As above concerning part 2 of article 12 was considered. 8 Administrative Code, and also article 12. 32 The Administrative Code is supposed that the person which transferred the right of management and also the official responsible for release of vehicles to the line, can bear responsibility including for the fact that absolutely sober driver who received the vehicle, having passed 100 meters to the next stall, drank beer and continued the movement then IDPS was stopped.
Insolvency of one and the second considered article confirms also the fact that in case of refusal the driver from medical survey alcoholic intoxication is not established, therefore, Art. 12. 8th item 2 12. 32 Administrative Code are not applicable.
Case of the administrative offense excited according to the p. 2 of Art. 12. 8 concerning the person which transferred the right of management to the person which is in a state of intoxication stops in the absence of structure and an event of an administrative offense according to the p. 2 of Art. 24. 5 in case the person to whom driving in an alcohol intoxication was imputed is able to defend the correctness in court and to carry the case.
We can speak as much as long about unacceptability of driving in a state of intoxication, but you should not forget also that now very large number of attraction on 12. 8. 1 Administrative Code is made unreasonably. Do not take the wheel in a state of intoxication and dissuade from such act of your friends and acquaintances! Do not break! Good luck on roads!