Dilemma And Reflection On The Application Of "Drunk Driving" Dangerous Driving Crime

Due to a series of serious and malignant traffic accidents caused by drunk driving,the Amendment to criminal Law(VIII)issued in 2011 added the crime of dangerous driving,stipulating drunk driving and other behaviors as crimes.Since its establishment,the crime has played a pivotal role in maintaining road traffic order and protecting people’s life and property safety.However,as the incriminating conditions of this crime are too single,with the passage of time,the serious problems in the application of this crime are gradually exposed.For example,the incrimination standard is too low and simple,so that a large number of minor "drunk driving" acts are treated as crimes,resulting in a large scope of attack,judicial resources consumption and other problems.At the same time in sentencing,the application of courts throughout the country is also chaotic,"the same case different sentencing","with punishment instead of punishment" phenomenon is more prominent;As the maximum sentence only six months of detention "misdemeanor",and its applicable after accompanying consequences,like other felony,bring a heavy burden to the criminal himself and the family,if these problems can not be effectively solved in the future for,in the long run,will damage the judicial impartiality and authority,also can affect the stability of the society.Through the in-depth study of 700 sample cases,it is found that the reasons for various problems in trial practice mainly include the following aspects: at the legislative level,the threshold of incrimination of "drunk driving" is relatively lack of scientific nature,and the design of the crime charge clause is too simple to cause incrimination of "alcohol only" and completely ignore the plot factors;At the judicial level,there is a lack of clear criminal law basis for the identification of over-standard electric vehicles as motor vehicles,the practice of the conviction and sentencing factors of this crime in the trial is a mere formality,and the judge dare not use the "proviso" mechanism for the crime of minor "drunk driving",all of which are important factors causing the application dilemma.In terms of law enforcement,the link between road Traffic Safety Law and Criminal Law is not scientific after the revision,which leads to the failure of minor "drunk driving" cases and the phenomenon of inverted punishment,etc.,which are all important factors.In view of the problems in the application of this crime,we believe that we should abandon the concept of "alcohol-only theory" and dare to innovate boldly.First,it is necessary to improve the judgment standard of "drunk driving".For minor drunk driving behavior,in addition to blood alcohol content testing,we can also comprehensively judge whether the actual loss of control ability through various methods such as human equity experiment,so as to avoid treating significantly minor "drunk driving" behavior as a crime.Second,the Supreme People’s Court can issue clear Sentencing Guidelines to standardize the standards of conviction and sentencing,and strengthen the reference system of guiding cases to make trial practice more operational and avoid the phenomenon of "different judgments in the same case" as far as possible.Third,to explore the feasibility of expanding the scope of conditional non-prosecution,that is,it is no longer limited to minors,and the applicable charges are no longer limited to the charges listed in chapter 4,5 and 6 of the "Criminal Law",so as to establish a criminal channel for minor "drunk driving" cases;Fourth,we should establish the elimination system of "minor crime" criminal record,help the perpetrator to return to society,better fill in the damaged social legal interests,maintain social harmony and stability,and effectively reduce the accompanying consequences;In addition,administrative law enforcement and judicial seamless connection should be strengthened to ensure that minor "drunk driving" cases can still be punished accordingly.Only in this way,can the criminal law give full play to the regulation of "drunk driving" and other dangerous driving behaviors while minimizing its consequences,and achieve social harmony and stability.