Drunk Driving Into The Punishment After The Judicial Application Of The Problem

Since the implementation of Amendment (Ⅷ) to the Criminal Law of the People’s Republic of China which criminalized’drunk driving’on May1st,2011,it has seen great social effect through the investigation and conviction of a huge bulk of ’drunk driving’cases accused of’dangerous driving offenses’around the nation. However, a series of problems have been emerging in the judicial application of practical accusation such as’whether all kinds of drunk driving should be criminalized’,’should parking a car in one’s neighborhood be drunk driving’, or’how to charge a suspect without a result of alcohol tests due to his/her escape from the scene’, which arose a heated discussion among people from law professionals to practioners, and even the whole public. The author analyzes the problems exist in the process of law enforcement, judicial application, conviction and sentence in order to comprehend and apply the accusation more appropriately. The major body of this paper consists of four parts:Part Ⅰ, after introducing the context of lawmaking, the author dissect the composition characteristics of the dangerous driving offence, and briefly discuss the offence caused by drunk driving.Part Ⅱ,the author analyzes the main problems emerged from the process of law enforcement. As for the evidence collection and identification, he briefly introduces the timeliness of the evidence, discusses the proving effect of the breath alcohol test result, how to manage the situation when the suspect escape or refuse to take the test, and suggest the police should pay attention to the qualifications of the judicial identification institutions and experts. As for the application of enforcement measures, he respectively analyzes the application of protective restriction, coercive summon, administrative and criminal custody, guaranteed pending trial and residential surveillance; he argues the law enforcement should be prudent even when using custody, and could directly apply guaranteed pending trial or residential surveillance to the suspect except for the situations of Article61in the Criminal Procedure Law, because arrest could not be used for the maximum statutory penalty of drunk driving is criminal detention.Part Ⅲ,the author analyzes some problems arisen from the judicial application. Firstly, using methods such as case study, the author discusses the identification of mens rea and objective respects like’road’,’motor vehicle’ and ’drunk’ in a drunk driving case. Secondly, the author argues’all kinds of drunk driving should not be criminalized’from legislation purpose, statutory crime and penalty, the constitutive conditions of the crime and the proviso in Article13.Thirdly, the author distinguishes ’dangerous driving crime’,’traffic accident crime’and’crime of endangering public security with dangerous methods’, and raises a four-steps assumption to identify a drunk driving behavior.Part Ⅳ,the author gives some suggestions to solve the problems found in the process of sentencing. Based on analyzing the situations when exemption or probation is applied to a drunk driving case and facing the public’s query of decriminalization or exemption or probation may lead to judicial injustice, he suggests that sentencing should be normalized and the unified standards and guidance case be made in order to avoid’equal drunk driving, but no equal sentencing’...