Perspective | On the Conviction and Sentencing of Dangerous Driving Offenses in Cases of Drunk Driving

Article 133 of China's Criminal Law enumerates the circumstances of dangerous driving: 1. Engaging in racing with severe circumstances; 2. Driving a motor vehicle while intoxicated; 3. Engaging in school bus operations or passenger transport, severely exceeding the rated passenger capacity or the prescribed speed limit; 4. Transporting hazardous chemicals in violation of safety management regulations, endangering public safety.

The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice issued the "Opinions on Handling Criminal Cases of Drunk Driving" on December 28, 2023, which stipulates that a blood alcohol content of 80 mg/100 ml or more meets the criminal standard for drunk driving.

According to the "Opinions," if one of the following circumstances exists and does not have an exclusive circumstance, it can be recognized as significantly minor in nature and not endangering public safety, and thus may not be prosecuted or criminally charged.

1. Blood alcohol content is less than 150 mg/100 ml;

2. Driving a motor vehicle due to emergency situations such as rescuing injured persons, and not constituting an emergency avoidance;

3. Driving a motor vehicle for short distances in residential areas, parking lots, etc., for moving or parking;

4. Driving a motor vehicle for short distances to replace driving in residential areas, parking lots, etc., or driving out for short distances to hand over to another driver;

5. Other significantly minor circumstances.

Driving a motor vehicle due to emergency situations such as rescuing injured persons after drinking, constituting an emergency avoidance, shall not bear criminal responsibility according to Article 21 of the Criminal Law regarding emergency avoidance.

The exclusive circumstances listed in the above "Opinions" (aggravating circumstances) are as follows: 1. Causing a traffic accident and bearing all or major responsibility for the accident; 2. Fleeing after causing a traffic accident; 3. Driving a vehicle without a driver's license; 4. Serious overloading, overcapacity, or speeding; 5. Driving after using controlled psychotropic or narcotic drugs; 6. Engaging in passenger transport activities while carrying passengers; 7. Engaging in school bus operations while carrying students; 8. Driving on highways; 9. Driving heavy-duty trucks; 10. Transporting hazardous chemicals or dangerous goods; 11. Evading or obstructing law enforcement inspections; 12. Committing acts that obstruct justice, such as threatening, retaliating against, enticing, bribing witnesses or appraisers, or destroying or falsifying evidence; 13. Having been caught or administratively punished for drunk driving within two years; 14. Having been convicted of dangerous driving or receiving a relative non-prosecution within five years; 15. Other circumstances requiring severe handling. The "Opinions" provide detailed regulations for circumstances that should not be prosecuted or dismissed.

In practice, whether to pursue criminal responsibility for other unlisted circumstances should be prosecuted. The case analysis is as follows:

Key Ruling: In dangerous driving cases, if the public security organ collects blood samples but fails to seal them according to regulations, and cannot prove low-temperature storage, and delays sending for inspection, it cannot guarantee the non-contamination of the blood samples, which should be recognized as procedural violations. The appraisal opinion based on this should not be used as the basis for determining the defendant's guilt for dangerous driving.
 

In this case, although the public security organ recorded the process of blood sample collection from the defendant Liu Yong with video, it did not seal the samples with paper bags as required, nor did it indicate the time of blood collection or the purpose of the samples, and did not have the signatures or seals of the person from whom blood was drawn, traffic police, and blood collection personnel. This raises doubts about the integrity of the sample preservation; the blood sample was not sent for inspection in a timely manner, nor was it approved by the head of the traffic management department of the higher public security organ to be sent within the stipulated three days, but was sent on the fourth day. The timely sending procedure is aimed at ensuring the safety and non-contamination of the samples. In this case, the blood sample was neither sealed nor sent in a timely manner, and the procedural violations directly led to reasonable doubts about the appraisal opinion based on this sample.

The photos of the refrigerator provided by the public security organ before the trial can only prove that it has the conditions for low-temperature storage, but cannot prove that the samples stored in the refrigerator are those of the defendant Liu Yong, nor can it prove that Liu Yong's blood samples were stored at low temperatures at that time. The public security organ cannot provide sufficient evidence to prove that Liu Yong's blood samples were stored at low temperatures, and cannot ensure the non-contamination of the samples. In the case where the backup blood sample was destroyed and could not be re-examined, the appraisal opinion regarding the blood alcohol test cannot eliminate reasonable doubt. Therefore, the evidence is insufficient to determine that Liu Yong was driving under the influence, and according to the principle of presumption of innocence, the defendant should be declared not guilty.

Key Ruling: The key to the acquittal in this case lies in the fact that the blood sample was not sealed on the spot, allowing the person to leave, and before sealing, blood samples were taken from others. Although a video of the sealing process was submitted later, there were no witnesses, parties, or video recordings during the entire sealing process, and the possibility of mixing with others' blood cannot be ruled out. The public security organ violated regulations in collecting this evidence and did not send it for inspection immediately, so the inspection report was not recognized by the court.
 

Basic Case Facts:On February 9, 2018, around 21:00, the defendant Long Tianming drove a Beijing Hyundai car with license plate Ning D·E0821 without a license after drinking, while taking his friend home. At 21:57 that evening, the vehicle (traveling at a speed of 65±3 km/h) was driving south on Dongguan Road in Yuanzhou District, Guyuan City, when it collided head-on with the victim Wang Li's Fengshen car with license plate Ning D·P6901 (traveling at a speed of 36±3 km/h), resulting in varying degrees of damage to both vehicles. The traffic police department determined that the defendant Long Tianming was fully responsible for the accident, while Wang Li bore no responsibility.

The court believes:During the process of extracting blood from the defendant Long Tianming,the police allowed the defendant and medical staff to sign without sealing,but after the relevant personnel signed, the blood was still not sealed on the spot, allowing him to leave,and before sealing, blood samples were taken from others. Although a video of the sealing process was submitted later, there were no witnesses, parties involved, or video recordings during the entire sealing process, which does not rule out the possibility of mixing with others' blood. The police violated regulations when collecting this evidence;On February 9, 2018, the defendant's blood sample was taken, and on February 11, it was sent for inspection. Without the approval of the head of the higher-level public security traffic management department, the aforementioned actions violated the "Guiding Opinions of the Ministry of Public Security on Handling Drunk Driving Cases" (Public Transport Management [2011] No. 190), Article 5, which states that blood samples must be registered and sealed on the spot and immediately sent to a testing institution recognized by the public security agency for alcohol content testing. If it cannot be sent immediately for special reasons, it should be stored at low temperatures according to regulations, and with the approval of the head of the higher-level public security traffic management department, it can be sent within three days.

The identification report is key evidence for the conviction in this case. The court does not recognize it. Although the defendant Long Tianming is suspected of driving after drinking, the existing evidence alone does not meet the standard of sufficient proof to establish that the defendant Long Tianming committed the crime of dangerous driving.

Judgment viewpoint: The key evidence in this case - the physical and chemical test report of the blood alcohol content of the actor, has procedural violations in the preservation, sending, and testing stages of the blood sample. Among them, there is a lack of traceable and documented evidence proving whether the blood sample was stored at low temperatures according to regulations, and it cannot be ruled out that improper storage of the blood sample may affect the test results. The case-handling agency sent the sample for testing beyond the time limit, and the testing institution issued the test report after the time limit, which clearly violates the procedural regulations of the Ministry of Public Security for handling drunk driving cases. This physical and chemical test report cannot be used as the basis for determining that the actor committed the crime of dangerous driving.
 

Basic Case Facts:The appellant Bai XX lives in a community in Yangcheng County. On October 28, 2016, around 16:30, Bai XX drove a Nissan car with license plate Jin EXX** after drinking. While reversing to move a parking space near the east gate of a community, he brushed against Guo XX, who was talking by the roadside. As Guo XX moved, he knocked down Shangguan XX. After Guo XX called the police, Bai XX stayed at the scene to await processing. A breath test showed Bai XX's blood alcohol content was 183 mg/100 ml. At 17:29, the police took Bai XX to Yangcheng County Hospital to extract two blood samples. On November 2, 2016, the Yangcheng County Traffic Police Brigade sent Bai XX's blood samples to the Jin City Public Security Judicial Appraisal Center for testing. On the same day, Bai XX reached a reconciliation agreement with Guo XX and Shangguan XX: Bai XX apologized to Guo XX and Shangguan XX; Guo XX and Shangguan XX did not make any compensation requests from Bai XX and were willing to forgive him, agreeing not to file any complaints with the traffic police or other judicial authorities. On November 7, 2016, the Jin City Public Security Judicial Appraisal Center issued the physical and chemical test report No. [2016] 1069, showing Bai XX's blood alcohol content was 231.9 mg/100 ml. On November 16, 2016, the Yangcheng County Public Security Bureau delivered a notice of appraisal opinion to Bai XX, stating "If you have any objections to this appraisal opinion, you can apply for supplementary appraisal or re-appraisal."

The court believes:Regarding the reasons and opinions raised by the appellant and the defense counsel, combined with the facts and evidence of the case, the judgment is as follows: Regarding the reasons and opinions raised by the appellant and the defense counsel that the case-handling agency violated legal procedures in the extraction, preservation, submission, and testing of the blood sample of Bai Moumou, and that the test report should be excluded. It was found that: 1. Blood sample extraction. Article 5 of the "Guiding Opinions of the Ministry of Public Security on Handling Criminal Cases of Drunk Driving by Public Security Organs" states: "Traffic police should monitor the entire process of blood sample extraction from the parties involved to ensure that evidence collection is legal and effective." Article 11 of the "Procedural Regulations for Handling Criminal Cases of Drunk Driving by Public Security Organs in Shanxi Province" states: "...(3) Blood samples should be extracted... two backup blood samples should be extracted, and alcohol-based disinfectants should not be used on the skin. (4) Anticoagulants should be added to the blood samples... and placed in sealed bags. One for filing, one for testing. The sealing material of the sealed bag should indicate the name of the party involved..." The "Blood Sample Extraction Registration Form" signed by the case-handling police, medical personnel, and Bai Moumou confirms that on October 28, 2016, at 17:29, medical personnel Zhang Yanfang extracted Bai Moumou's blood sample using iodine for disinfection, the container for the blood sample was an anticoagulant tube, and the sealing method for the blood sample was vacuum sealing, with two traffic police monitoring the extraction on-site; the test report states that the test material used was "5 milliliters of blood, packaged in a sealed vacuum tube marked with Bai Moumou's name, extraction time was October 28, 2016, at 17:29." The above evidence corroborates each other, proving that the extraction of the blood sample from the appellant Bai Moumou complies with procedural requirements. The opinion raised by Bai Moumou and the defense counsel that the blood sample extraction violated procedures is not valid. 2. Blood sample preservation. Article 5 of the "Guiding Opinions of the Ministry of Public Security on Handling Criminal Cases of Drunk Driving by Public Security Organs" and Article 18 of the "Procedural Regulations for Handling Criminal Cases of Drunk Driving by Public Security Organs in Shanxi Province" both state that if the extracted blood sample cannot be submitted immediately (within twenty-four hours) due to special reasons, it should be preserved at low temperatures according to regulations. The "Sample and Specimen Management Procedures" provided by the identification agency state: "If the environmental conditions for storing the samples are critical, they should be monitored and recorded to confirm compliance with requirements" "Upon receiving samples, the... physical and chemical laboratory should check and record the packaging, appearance, and condition of the samples... A detailed description of volatile, ... expansion, deformation, and other characteristics should be provided." The prosecution provided a "Situation Explanation" issued by the case-handling police and photos of the evidence storage room and the refrigerator placed in the storage room taken two years after the incident to prove that the delayed submission of the blood sample was preserved according to regulations. During the retrial hearing, the case-handling police stated that the delayed submission of the blood sample was preserved at low temperatures. The identification personnel testified that "(the blood sample) receiving procedures are standardized processes" "The person receiving the case generally checks the temperature and whether the sample preservation and packaging comply with the submission regulations... (but) does not record the temperature, nor does it use instruments for detection... As for the specific case in 2016, I cannot recall (whether Bai Moumou's submitted blood sample was preserved at low temperatures), but we strictly follow the regulations in handling cases." The identification personnel also stated: "(Delayed submission of blood samples) may cause an increase in ethanol content; we have forensic textbooks as supporting evidence. If the blood deteriorates, there will be corresponding phenomena leading to an increase in ethanol." Based on the above regulations and the statements made by the case-handling police and identification personnel in court,The trial believes that the investigation and testing departments cannot provide objective records of the preservation and handover of the blood samples, proving that the blood samples in this case were preserved at low temperatures according to regulations before testing.Based on the existing evidence in this case, it cannot be confirmed that the delayed submission of the blood sample was preserved according to regulations.That is, it cannot be ruled out that the non-compliance in blood sample preservation may affect the test results.3. Blood sample submission. Article 5 of the "Guiding Opinions of the Ministry of Public Security on Handling Criminal Cases of Drunk Driving by Public Security Organs" ("Standardizing Blood Sample Extraction and Submission") and Article 18 of the "Procedural Regulations for Handling Criminal Cases of Drunk Driving by Public Security Organs in Shanxi Province" both state that if the extracted blood sample cannot be submitted immediately (within twenty-four hours) due to special reasons, it can be submitted within three days with the approval of the head of the traffic management department of the higher public security agency. The blood sample extraction time in this case was October 28, 2016, and the case-handling agency requested to delay the submission time to October 30, 2016. According to regulations, the blood sample should be submitted no later than October 31, 2016. However, the actual submission time of the blood sample in this case was November 2, 2016, exceeding the prescribed deadline by two days. In addition, regarding the reason for the delayed submission of the blood sample, the case-handling traffic police stated that October 29 and 30, 2016, were weekends, and there was no one at the Jinzhong City Public Security Judicial Appraisal Center to receive the samples, and after work on October 31 and November 1, there was a backlog of cases, and they were busy receiving the public. The correspondence and duty roster from the Jinzhong City Public Security Judicial Appraisal Center prove that there were personnel on duty to receive blood samples for submission on October 29 and 30, 2016. Based on the above facts and procedural regulations, the trial believes that the guiding opinions and procedural regulations of the Ministry of Public Security and the Shanxi Provincial Public Security Department regarding handling drunk driving cases clearly state that the extracted blood samples should be submitted immediately, and if submission is not possible due to special circumstances, it should be submitted no later than three days after approval. These regulations are intended to improve case handling efficiency and ensure case quality. The submission of the blood sample in this case violated the procedural regulations of the Ministry of Public Security and the Shanxi Provincial Public Security Department regarding handling criminal cases of drunk driving. The reasons and opinions raised by the appellant and the defense counsel are valid. 4. Blood sample testing. Article 6 of the "Guiding Opinions of the Ministry of Public Security on Handling Criminal Cases of Drunk Driving by Public Security Organs" states that the testing and identification agency should issue a test report within three days of receiving the submitted blood sample. The "Procedural Regulations for Handling Criminal Cases of Drunk Driving by Public Security Organs in Shanxi Province" issued on December 14, 2018, further shortened the time limit for the testing and identification agency to issue a test report to six hours. The identification agency accepted the submitted blood sample on November 2, 2016, and issued the test report on November 7, 2016, exceeding the prescribed time limit by two days. The reasons and opinions raised by the appellant and the defense counsel regarding the violation of legal procedures in blood sample testing are valid. In summary,The key evidence in this case - the physical and chemical test report of Bai Moumou's blood alcohol content - involved violations of procedural regulations in the preservation, submission, and testing stages of the blood sample. Among them, whether the blood sample awaiting testing was preserved at low temperatures according to regulations lacks traceable and documented evidence, and it cannot be ruled out that the non-compliance in blood sample preservation may affect the test results.The case-handling agency exceeded the time limit for sending samples for inspection, and the identification agency issued the inspection report after the time limit, which clearly violates the procedural regulations of the Ministry of Public Security for handling drunk driving cases. The physical and chemical inspection report in this case cannot be used as the basis for determining that Bai XX constitutes the crime of dangerous driving. The reasons put forward by the appellant and the defense are valid. Regarding whether the police agency's procedural violation in destroying the blood sample objectively deprived Bai XX of the right to apply for re-identification, it was found that Article 11, items (3), (4), and (6) of the "Procedural Regulations for Handling Drunk Driving Cases by Public Security Agencies in Shanxi Province" stipulate that two backup samples should be taken, one for filing and one for inspection, and the filed blood sample should be kept in the evidence storage room of the case-handling department. Article 11 of the "Guiding Opinions of the Ministry of Public Security on Handling Criminal Cases of Drunk Driving" states that public security agencies should ensure proper case handling and, after transferring the case for review and prosecution, should promptly understand the prosecution and judgment situation of the case. The "Destruction File of Remaining Alcohol Testing Materials and Backup Blood Samples" confirms that Bai XX's backup blood sample was destroyed by the Jinzhong City Public Security Judicial Appraisal Center on March 28, 2019, after the Yangcheng County Public Security Bureau Traffic Police Team signed a written opinion stating "the case has been concluded, and we agree to destroy it." The court found that: 1. The case-handling department's transfer of the backup blood sample to the identification agency for storage did not meet the regulatory requirements. 2. The case-handling department agreed to the identification agency's destruction of the backup blood sample while the case was still pending, which affected Bai XX's exercise of the right to apply for re-identification. The original judgment did not clarify who should bear the responsibility for the destruction of the backup blood sample leading to the inability to conduct re-identification and the adverse consequences arising therefrom, which is inappropriate. The reasons and opinions put forward by the appellant and the defense are valid. In summary, this court believes that the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security's "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Drunk Driving" clearly state in Article 6: "The inspection and identification opinion of blood alcohol content is the basis for determining whether the suspect is drunk. If the suspect's breath alcohol content test reaches the drunk standard stipulated in the first article of this opinion before the blood sample is taken, the breath alcohol content test result can be used as the basis for determining their drunkenness." The original judgment determined that Bai XX committed the crime of dangerous driving, but the blood alcohol content inspection and identification opinion relied upon lacked sufficient evidence to prove that the blood sample was preserved in accordance with regulations and violated the procedural regulations of the Ministry of Public Security and the Shanxi Provincial Public Security Department regarding handling criminal cases of drunk driving. Therefore, this inspection report cannot be used as the basis for determining that Bai XX constitutes the crime of dangerous driving. Furthermore, Bai XX did not escape before the blood sample was taken, and this case does not meet the legal provisions for using the breath alcohol content test result as the basis for determining drunkenness, so Bai XX's breath alcohol content test result cannot be used as the basis for determining their drunkenness. The original judgment's determination that Bai XX constitutes the crime of dangerous driving is insufficiently supported by evidence and cannot be established, and should be reversed. The judgment result is: 1. The criminal judgment of the Yangcheng County People's Court (2019) Jin 0522 Criminal First Instance No. 206 is revoked. 2. The appellant (original defendant) Bai XX is not guilty. This judgment is final.

By searching the above legal provisions and judicial practice cases, the key points of criminal defense are interpreted, specifically:

1. The number of law enforcement personnel is illegal. According to legal provisions, blood sampling from a suspect must have two police officers or one police officer and two auxiliary police officers present.
 

2. The disinfectants used on the suspect are illegal, for example, using alcohol-based disinfectants on the skin before taking blood samples. In practice, substances like alcohol, tincture of iodine, and iodine-based disinfectants (which mainly contain ethanol and iodine) cannot be used for disinfection.

3. The sampling packaging is illegal. According to legal provisions, sampling must be registered and packaged on-site. There are special requirements for packaging, which must indicate the tested person's name and the time of blood collection, with the time of blood collection precise to the hour. Additionally, the sealing area should have the signatures of two police officers, the medical personnel who drew the blood, and the tested person, along with the packaging date, and photographs should be taken for record. If the blood sample is not packaged according to these procedures, it cannot be determined whether the sample has been tampered with or contaminated. Therefore, the sampling packaging procedure is crucial for determining the identity and purity of the blood sample.

4. Whether the blood collection tube has a production label. If the blood collection tube does not have a production label, it may be impossible to determine whether an anticoagulant blood collection tube was used and the validity date of the anticoagulant, and it cannot be determined whether the blood sample has been contaminated.

The "Technical Specifications for Blood Collection from Law Enforcement Personnel in Road Traffic" stipulates that "the extracted blood samples should be stored in a refrigerator, with the refrigeration temperature maintained between 2°C and 8°C. After testing, the verification samples should be stored in a low-temperature freezer, with the freezing temperature maintained between -18°C and -10°C, and the preservation period should not be less than 3 months. The remaining samples and verification samples can be preserved by the testing agency or the case-handling unit with sample preservation capabilities upon mutual agreement." "The process of sending blood samples for inspection should maintain low temperatures."
 

1. The inspection method is illegal. From March 1, 2024, the national standard "Inspection of Ethanol, Methanol, Propanol, Acetone, Isopropanol, and Butanol in Blood and Urine" (GB/T42430-2023) will be issued, and blood ethanol testing should follow the above inspection methods.
 

2. The identification process is illegal. The identification of blood alcohol content requires two identification personnel, and in practice, some identification personnel did not participate in the identification, leading to illegal identification procedures. According to the "Internal Review Work Regulations of Judicial Appraisal Institutions," identification personnel cannot serve as reviewers for the same judicial identification opinion. In practice, some identification agencies violate the identification procedures by having one person conduct the identification and another person review.

Regarding whether electric bicycles are classified as motor vehicles. Article 2 of the "Standardization Law of the People's Republic of China" states that "mandatory standards must be followed." Accordingly, the "Technical Conditions for the Safe Operation of Motor Vehicles" is a mandatory national standard; however, whether mandatory national standards fall under administrative regulations or departmental rules is not clearly defined by law. Based on the formulation and publication procedures, structural system, and content of the name, mandatory national standards do not fall under regulations. Therefore, it should not be unilaterally concluded that exceeding standards for electric bicycles qualifies them as motor vehicles based on compliance with the "National Standards for Motor Vehicles"; moreover, the public generally does not consider exceeding standards for electric bicycles as motor vehicles. Based on this, the author believes that driving electric bicycles does not constitute driving a motor vehicle, and therefore, drunk driving an exceeding standard electric bicycle does not constitute the crime of dangerous driving.
 

It was found through research that in the "Criminal Trial Reference" by the Fifth Criminal Division of the Supreme People's Court, Zeng Lin commented on the "No. 894 Lin's Dangerous Driving Case" that to avoid a broad criminal strike, before the relevant departments clearly include over-standard electric vehicles in the motor vehicle product catalog for regulation, public security and judicial authorities should not classify the act of drunk driving an over-standard electric bicycle as a crime, as it does not pose a significant threat to road traffic safety.

The (2021) Qiong 9028 Criminal First Instance No. 165 judgment also recognized that "the two-wheeled electric vehicle driven by Chen is an over-standard vehicle, but since the relevant regulations do not clearly state that over-standard vehicles belong to motor vehicles, and the public generally believes that over-standard vehicles do not belong to motor vehicles, the person driving under the influence of alcohol does not have the legal awareness of dangerous driving of a motor vehicle. Therefore, in the absence of clear regulations stating that over-standard vehicles belong to motor vehicles, it is not appropriate to convict and punish the act of drunk driving an over-standard vehicle as dangerous driving."