About the peculiarities of the objective side of driving a vehicle in a state of intoxication by a person who has been subjected to administrative punishment or has a criminal record

Erte Dar'ya ORCID: 0009-0008-7369-5452 Graduate student, Department of criminal law, Saint Petersburg University of the Ministry of the Interior of Russia 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1 ertedaria@yandex.ru Other publications by this author

Within the framework of the state policy of the Russian Federation, special attention is paid to ensuring road safety. The importance of such a process is emphasized by the progressive strengthening of responsibility for persons who commit traffic violations and have an increased social risk.

Reducing the number of road accidents and reducing the severity of their consequences are becoming the most acute and urgent tasks not only in Russia, but also in other countries ^[1].

According to current data from the Scientific Center for Road Safety of the Ministry of Internal Affairs of Russia, in 2023 there was an increase in road traffic accidents on the territory of the Russian Federation. The number of road accidents (hereinafter referred to as accidents) increased by 4.5% (132,466), the number of dead - by 2.3% (14,504), injured – by 4.3% (166,500) (Road traffic accidents in the Russian Federation in 2023: information and analytical review: FKU N websiteCentral Office of the Ministry of Internal Affairs of Russia, 2024. URL: https://media.mvd.ru/files/embed/5767457 (date of application: 07/15/2024)).

The above statistics indicate that the importance of ensuring road safety does not lose its relevance. Such activities are a dynamic process and require constant improvement.

It is obvious that in this context, persons driving vehicles under the influence of alcohol cause special concerns and pose a real threat to the safety of life and health of the population.

When qualifying criminal acts related to driving a vehicle while intoxicated by a person who has been subjected to administrative punishment or has a criminal record, the greatest difficulty for law enforcement officers is to establish the objective side of this corpus delicti.

Some problems of criminal liability for driving a vehicle under the influence of a person subjected to administrative punishment or having a criminal record were considered in the works of M.V. Baranchikova ^[2], K.R. Kolesnik ^[3], N.A. Morozova ^[4], A.I. Chuchaev ^[5] and others.

In the scientific community, the recognition of the public danger of an act qualifying under Article 264.1 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation) was long before its criminalization. According to sociological surveys, 80% of respondents expressed fears for their lives and health, which are threatened by "persons who are under the influence of alcohol or drugs while driving vehicles, and persons deprived of a driver's license enjoy permissiveness because they are outside the legal regulation" (Transcript of the meeting on March 13, 2013: Official website of the State The Duma of the Federal Assembly of the Russian Federation. URL: http://duma.gov.ru/legislative/transcripts / (date of access: 07/15/2024)). Based on this, we state that the degree of public danger of the considered corpus delicti is assessed by both society and the state as high, which means that its criminalization is not only the political will of the legislator.

When establishing the public danger of crimes with administrative prejudice, there are some difficulties that I.V. Goncharov rightly drew attention to. So, in his opinion: "the administrative prejudice is in conflict with the theory of criminalization, and the reflected composition with a similar design does not correspond to the degree of public danger that the legislator reflected in Article 14 of the Criminal Code of the Russian Federation, because the degree of public danger presupposes a quantitative characteristic that operates with the category of "character", which translates the act into a crime. The degree of public danger indicates the extent of the "quality" of this act, indicating that a person may commit a new similar crime" ^[6].

However, the social conditionality of criminalization of such acts is a strong argument in favor of establishing criminal liability for driving under the influence of alcohol.

In accordance with Article 8 of the Criminal Code of the Russian Federation, the basis of criminal liability is the commission of an act containing all the signs of a crime provided for by the Criminal Code of the Russian Federation. One of these mandatory features is the objective side.

According to I. Renneberg, the objective side of the crime is nothing more than "the totality of those objective circumstances of criminal actions that affect their social danger and moral and political reprehensibility and, therefore, are indicated as objective signs of a crime as part of a crime provided for by a criminal law norm" ^[7]. In our opinion, the disadvantage of such a definition is the expression of the form of a socially dangerous act exclusively through action, which contradicts its essence.

Another opinion is held by scientists who believe that "the objective side of a crime is understood as a set of factual signs and circumstances characterizing the external an act of a specific socially dangerous encroachment on a legally protected interest, benefit, value recognized as the object of a crime" ^[8]. However, such a concept also cannot be considered accurate, since it does not contain an indication of the consequences that may occur as a result of committing a socially dangerous act.

In our opinion, the definition most accurately reflects the objective side of the corpus delicti, according to which the objective side is understood as the external an act of human behavior that causes or is capable of causing harm to objects protected by criminal law and includes a socially dangerous act (action or inaction), socially dangerous consequences (criminal result), causation, as well as the place, time, situation, method, tools and means of committing a crime.

Let's define the features of the objective side of the crime provided for in Article 264. 1 of the Criminal Code of the Russian Federation.

According to the construction of the objective side, the corpus delicti provided for in Article 264.1 of the Criminal Code of the Russian Federation is formal, not requiring the onset of socially dangerous consequences and a causal relationship between them. The objective side of Article 264.1. of the Criminal Code of the Russian Federation is expressed in the form of actions to control a mechanical vehicle and covers the rules of the road and operation of vehicles, which include cars, trams, motorcycles, ATVs, mopeds, other mechanical vehicles, namely tractors, self-propelled road construction and other self-propelled vehicles, which are controlled by in accordance with the legislation of the Russian Federation on road safety, a special right is granted. A similar explanation is provided in paragraph 1 of the notes to Article 264 of the Criminal Code of the Russian Federation, which is formulated in an open manner, with reference to Article 25 of Federal Law No. 196-FZ dated December 10, 1995 "On Road Safety" and in Resolution No. 25 of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008. However, the legislator does not explain the concept of "other self-propelled vehicles". In the same resolution of the Plenum of the Supreme Court of the Russian Federation, it was established that the crime can be considered completed from the moment the movement of a mechanical vehicle begins by a person who is intoxicated and has an administrative penalty or criminal record, regardless of the duration of driving ^[10].

Thus, the crime is considered to be over from the moment the vehicle is driven by an intoxicated driver, regardless of the distance traveled by him.

From the point of view of practical application, such a formulation is of great importance for the detection, fixation and suppression of crime by law enforcement agencies. It allows the police to act immediately in order to prevent an accident, and also ensures the inevitability of punishment in cases where violators try to avoid responsibility by stopping the vehicle immediately after the violation.

The objective side of the crime provided for in Article 264.1 of the Criminal Code of the Russian Federation is represented by alternative actions: driving a vehicle by a person who is intoxicated or driving a vehicle by a person who refused a medical examination for intoxication.

The corpus delicti under consideration is a norm with double prevention, namely, "these are norms on criminal liability for such acts that create conditions for the commission of other, more serious crimes" ^[11]. Such norms have a double preventive value: firstly, they counteract the commission of those actions directly covered by the objective side of these acts; secondly, due to their construction of the formal objective side, they prevent the commission of more serious crimes with socially dangerous consequences if the first acts remain unresponsive.

The problematic aspects of the objective side of the corpus delicti provided for in Article 264. 1 of the Criminal Code of the Russian Federation are also of scientific interest for the purpose of their further practical adaptation.

The first problem, to a greater extent methodological, is related to the duality of the application of administrative and criminal liability in the fight against violations of traffic rules. According to N.I. Pikurov, "for law enforcement practice, the qualification of crimes is particularly difficult, determined by the need to apply the norms of various branches of law, specifying blank dispositions or otherwise related to criminal law" ^[12]. And this is not the only difficulty: in addition to the problems of qualification, there is a lack of understanding among drivers why one driving drunk or in the absence of driving rights without dangerous consequences is an administrative offense, and the subsequent one is already a criminal offense.

According to A.S. Rubtsova, "if the legislator believed that it was necessary to create a norm with double prevention, then it would be logical to criminalize single driving while intoxicated" ^[13]. However, with such a legislative solution, new, more serious difficulties would arise with excessive criminalization, an increase in the burden on investigative and judicial authorities and a quantitative increase in crimes in this area. And all these problems with the constant public danger of the act.

In solving these problems, certain provisions of the explanation of the Constitutional Court of the Russian Federation concerning the practical application of administrative prejudice require attention:

- the legislator's dualistic approach to combining administrative and criminal liability for similar acts is due to their complementarity with each other, due to the similarity of tasks, goals and principles of the types of punishments under consideration;

- the presence in the legal regulation of related administrative offenses and criminal offenses is provided for the purpose of converting one into another and vice versa, taking into account changes in the degree of public danger;

- criminalization of administrative offenses is inextricably linked with the construction of the corpus delicti provided for in Article 264.1 of the Criminal Code of the Russian Federation. The difference from administrative offenses consists only in one element – the subject.

The second problem is caused by the peculiarities of proving an already committed crime; they are characterized by several points. The first one is related to the key aspect of proving crimes related to violations of traffic rules with a formal composition, namely the moment when the vehicle was moving. Determining the moment of movement is the primary task of law enforcement agencies in the investigation and proof of criminal offenses, and in some cases, may cause difficulties due to controversial situations, since the movement of the vehicle is not always obvious.

In practical and theoretical activities, the movement of a vehicle is recognized as the movement of a vehicle from its parking place, characterized by the rotation of the wheels, a change in its position or other objective signs. The evidence in this case is visual fixation with the help of photo and video materials, the conclusion of specialists and experts and witness testimony.

The debatable question remains whether it is possible to consider the movement of a vehicle, putting it into operation by starting the engine, but so far in practice such a circumstance is not equated to movement. Another issue that requires scientific development is whether the movement of the vehicle recognizes the scrolling of its wheels as a result of pushing a person in a state of intoxication. Here is an example of a possible situation: a car stuck on a country road after rain, in which there was a sober driver and a passenger intoxicated, who had previously been brought to administrative responsibility for driving under the influence of alcohol. Will the passenger's actions qualify under Article 264.1 if: 1) the passenger will push the car out, thereby setting it in motion; 2) the passenger will get behind the wheel and steer while the driver pushes the car out.

It seems that today such controversial situations do not have a clear algorithm of actions for law enforcement agencies and courts, and are resolved individually. It is important to note here that the moment of movement of the vehicle must be considered in conjunction with the intent of the subject and make a decision taking into account all the circumstances of the case.

The second aspect of evidence relevant to Article 264.1 of the Criminal Code of the Russian Federation is the establishment of a state of alcoholic and narcotic intoxication while driving a vehicle. Disputes and difficulties related to proving alcohol and drug intoxication in cases of driving vehicles are relevant and important for the judicial system.

So, when investigating criminal cases with the definition of alcohol and drug intoxication, the problem point is the untimely examination caused by the late arrival of employees of the State Road Safety Inspectorate and / or the search for witnesses. In this case, the time gap between an accident and the actions of law enforcement agencies (more than 2 hours) is fraught with a decrease in blood alcohol levels, and the driver's state of intoxication will already be different from his state at the time of driving. The key to timely operational actions is sufficient staffing and well-established interdepartmental interaction with forensic experts. Also, the involvement of various experts in order to collect opinions on atypical episodes of intoxication can have a significant impact on the results of the investigation.

Despite the fact that the examination procedure is legally fixed and strict standards, there are frequent cases of violations of the testing procedure or distortion of the results, including on the part of the driver himself (substitution of samples for analysis, falsification of independent examinations). This may cause the results of the examination to be disputed. The accuracy of alcohol measurement in the driver's body can be affected by various factors, such as: the time gap between driving and passing an examination, the quality of the breathalyzers used, as well as the individual characteristics of the driver. These aspects are particularly problematic in a small excess of the permitted content of ethyl alcohol, namely 0.16 mg per liter of exhaled air.

On the part of law enforcement agencies, it is extremely important to comply with paragraph 9 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 10/24/2006 No. 18 (ed. dated 02/29/2012) "On some issues arising from the courts when applying the Special Part of the Code of Administrative Offences of the Russian Federation", according to which the legality of the grounds for referral for medical examination should be checked, the driver should be properly informed about his rights and the possibility of conducting an independent examination, to hand over copies of the protocol on referral for medical examination to a medical organization, etc.

Another important point, which is often not paid attention to in practice, is the establishment of a person's intent to use alcohol or narcotic drugs in the investigation of the crimes in question. Because in some cases, it is possible for a person to unknowingly use alcohol-containing or narcotic substances against his will, for example, fraudulently or violently.

The third problem is to establish the place of commission of the crime provided for in Article 264.1 of the Criminal Code of the Russian Federation. It often follows from the content of the law that unlawful encroachment must take place in specific conditions of place and time in order to be recognized as a crime ^[14]. So, on the basis of clause 1.2 of the Rules of the Road, "road traffic is a set of public relations that arise in the process of moving people and goods with or without vehicles within roads." The effect of Article 264 of the Criminal Code of the Russian Federation and the provision of paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 No. 25 "On judicial practice in cases of crimes related to violation of traffic Rules and operation of vehicles, as well as their unlawful seizure without the purpose of theft" limited the boundaries of roads.

However, it should be noted that the objective side of the crime provided for in Article 264.1 of the Criminal Code of the Russian Federation is expressed not in violation of traffic Rules or operation of vehicles, but in driving a mechanical vehicle, which, within the meaning of the law, is not tied to any specific place of its commission. Therefore, we are talking about the movement of transport, which can be carried out not only on roads as such, but also in other places: in the yard, in closed industrial areas, in the field, on construction sites, car parks, railway crossings, etc. Such movement also poses a danger, therefore criminal liability under Article 264.1 of the Criminal Code of the Russian Federation should occur regardless of the place where this violation of the rules of safety of transport operation was committed ^[15].

Thus, within the framework of the study, we analyzed the problematic aspects of the objective side of the crime provided for in Article 264. 1 of the Criminal Code of the Russian Federation. In conclusion, we formulate a number of generalizations:

1. The corpus delicti provided for in Article 264.1 of the Criminal Code of the Russian Federation is formal by design of the objective side, since the very fact of repeated disregard for traffic rules is a potentially socially dangerous action that can lead to serious consequences.

2. Like any other types of crimes, the act in question is not devoid of problematic aspects that affect the objective side of the crime:

1) Special attention should be paid to the peculiarities of the transition of an administrative offense into a criminal offense and vice versa, while the objective side and public danger remain unchanged.

2) Determining the moment when a vehicle is moving and establishing the state of alcoholic and narcotic intoxication when driving a vehicle is an important part of proving in criminal proceedings, which requires the development of a unified approach in law enforcement practice.

3) Criminal liability for driving under the influence of alcohol must occur regardless of the place where the crime was committed. In this case, it is categorically impossible to limit the effect of the criminal law norm exclusively to the limits of roads.

3. Identification of problematic issues contributes to the most flexible adaptation of criminal law norms in practice and to increase the effectiveness of their application in the fight against road traffic crimes.