Challenges of the Knowledge Society (May 2016)
THEORETICAL AND PRACTICAL CONSIDERATIONS RELATING TO THE OFFENSE OF DRIVING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL OR OTHER SUBSTANCES. COMPARATIVE LAW ISSUES
Abstract
Along with the enforcement of the New Criminal Code, the offense provided by art. 87 from the Emergency Ordinance no. 195/2002 was abolished and introduced in the New Criminal Code in art. 336 under the name “Driving a vehicle under the influence of alcohol or other substances”. The introduction of this offense in the Criminal Code was made as a result of some modifications regarding the offense objective content and sanctioning character. The most important modifications consist in the incrimination conditions in respect to the moment alcohol must be identified in the blood so that the material element of the objective side of the offense is met. This modification further led to a series of problems, mainly regarding the moment the offense is consumed, moment that in the legislator’s opinion is the moment the biological samples are taken. This opinion does not consist with the fact that this offense is a danger offense and it is consumed at the moment it occurred. According to the Romanian Constitutional Court decision no. 734/2014, after the moment the offender is stopped in traffic, he no longer represents a danger to the values protected by the criminal law and it would be absurd to punish him for an action that no longer represents a danger to society, considering the moment the biological samples are taken. Moreover, this legal issue lead to acquittal solutions regarding the offense provided and sanctioned by art. 336 from the Criminal Code.
