China Daily Global Edition (USA)
Guideline on drunken driving a welcome move
Editor’s note: The Supreme People’s Court recently issued a pilot guideline on the penalties for drunken driving, which stipulates that drunken driving that might cause very little harm to society should not be considered a crime, and thus be exempt from the penalties set out for dangerous driving in the Criminal Law, sparking a heated public debate. Following are the views of three experts on the subject:
The reasonable change should be appreciated
Public debates have followed almost all the strict legal stances taken by the authorities since 2011. Even after drunken driving was made a crime under the amended Criminal Law and Road Traffic Safety Law in 2013, a debate ensued. The point of debate this time is whether different levels of penalties should be imposed for drunken driving depending on the gravity of the offense.
Those opposed to the move insist that as long as a driver’s blood alcohol content is 80mg/100 milliliter or above, he/ she should be booked for committing a crime. And people supporting the move say that despite the offending driver’s blood alcohol content being 80mg/100ml or above, if he/she is still “conscious” enough to drive safely, the case should be handled according to Article 13 of the Criminal Law, a proviso clause which could deduce that drivers could be exempt from the penalties set out for dangerous driving.
The pilot guideline issued by the Supreme People’s Court could be viewed as returning to judicial rationality. In fact, many countries, however they describe a crime, have adopted disposal approaches for decriminalization of offences, even though the articles that do not regulate penalty levels depending on the circumstances differ.
Judicial explanation makes law clearer
The pilot guideline should not be interpreted as a watering down of the Criminal Law, which imposed harsher punishments on drunken drivers in 2011, because the Criminal Law does not say all drunken drivers should get penalties set out for dangerous driving. In fact, an article in general provisions of the Criminal Law says: “If an act is obviously minor, causing no serious harm, and is therefore not deemed a crime,” theoretically it could be applied to all individu- al cases, including dangerous driving.
To be precise, even though the eighth amendment to the Criminal Law identifies drunken driving as a crime, it does not stipulate that all drunken driving cases be determined as crimes. The pilot guideline as such, has no conflict with the existing law.
The public should therefore pay attention to the details in the guideline. For example, the guideline says: “If the circumstances are obviously minor, causing no serious harm, conviction and punishment should be avoided; if the circumstances are minor, criminal punishment could be avoided.” While the guideline does not clarify what is the exact difference between “obviously minor” and “minor” circumstances, the function of judicial explanations is to make the law more practical, for instance, by giving judges a precise reference point to base their judgments on, instead of empowering them to use a wide range of templates to determine the circumstances.
Reflect on the use of proviso clause in Criminal Law
The new pilot guideline of the Supreme People’s Court uses the proviso clause in Article 13 of the Criminal Law as a disposal approach for decriminalization of drunken driving, which needs to be reflected upon.
The proviso clause in Article 13 has only an indirect guiding significance; it need not necessarily be directly applied in practice. The determination standard of “if an act is obviously minor, causing no serious harm” is to assess the level of social harm an offense has caused, which gives law enforcement officers a big say in deciding the extent of the social harm so caused.