Accusation of Driving Under the Influence

Accusation of Driving Under the Influence (Section 316 StGB)

One beer in the evening or a glass of wine in a social setting can quickly turn into several. Many people eventually find themselves facing one of the following questions:

• “I’ve had two beers – am I still allowed to drive?”
• “I am a first-time offender – what penalties do I face for drunk driving?”
• “Does this also apply to bicycles or e-scooters?”
• “The police have seized my driver’s license – what does that mean for me?”

For all these situations, the criminal offense of driving under the influence according to Section 316 StGB is applicable. Drunk driving is not a trivial offense, but a criminal matter with potential consequences for freedom, finances, and your driving license. If you have received a police summons or a penal order for driving under the influence, the following applies: stay calm, do not provide any information on the matter, and seek legal assistance early on. As the accused, you are not obliged to appear at the police station or to comment on the allegations.

Intentional and Negligent Drunk Driving

Section 316 (1) StGB covers intentional driving under the influence. Intent exists if the driver knows or at least accepts that they are no longer fit to drive due to alcohol or other intoxicants and drives anyway. Many defendants report that they felt “still fit to drive” or had “only a little” to drink. However, a mistake regarding one’s own unfitness to drive does not automatically lead to immunity from prosecution, but it can mean that no intent, but only negligence exists. This is covered separately in Section 316 (2) StGB and is generally punished more leniently. In practice, there is often a dispute as to whether drunk driving was committed intentionally or negligently. Courts sometimes quickly infer intent from high blood alcohol levels. However, the permille value alone is not sufficient for this. It always depends on the individual case: personality and drinking habits, type and timing of alcohol consumption, the situation when starting the journey, and the external course of the journey. This is precisely where a specialist lawyer for criminal law can step in to push for negligent instead of intentional drunk driving in the client’s interest – with significantly more favorable consequences for the sentence.

The Offense – When Does Drunk Driving Occur?

The objective elements of Section 316 StGB first require that a vehicle is operated in public traffic. Operating means setting the vehicle in motion independently or steering it while it is moving. Not every action on the vehicle is sufficient: simply starting the engine or releasing the brake without driving off does not yet fulfill the offense. Whether “operating” has already occurred must therefore always be assessed on the basis of the specific individual case. The term vehicle includes:

• Motor vehicles such as cars, trucks, motorcycles
• E-scooters, e-bikes, and certain pedelecs
• Non-motorized vehicles such as bicycles
• Watercraft and rail vehicles

Inline skates or skateboards, for example, are not covered. Public traffic is established if the traffic area is fundamentally accessible to everyone or an indefinite group of people. This is the case with roads, public parking lots, or freely accessible company premises. Purely private areas to which only a strictly limited group of people has access are not included.

Unfitness to Drive – The Core of Drunk Driving

Drunk driving requires that the driver, as a result of consuming alcohol or other intoxicants, is no longer able to operate the vehicle safely. This refers to the overall traffic-specific performance: reaction time, concentration, orientation, judgment, and emotional control. If these abilities are significantly reduced, unfitness to drive exists.

Alcohol-Related Unfitness to Drive

Alcohol typically leads to an overestimation of one’s own performance, while reaction time, attention, and coordination decrease. How strongly this affects a person depends on many factors: the amount and course of drinking, body weight, habituation, and individual constitution. In case law, empirical values have emerged that play a major role in practice:

• Absolute unfitness to drive: For motor vehicles – and e-scooters, which the Federal Court of Justice has placed on an equal footing – the following applies: From 1.1 ‰ BAC, it is irrefutably presumed that the driver was unfit to drive. Further abnormalities then no longer need to be proven. For cyclists, case law assumes absolute unfitness to drive at 1.6 ‰ BAC.
• Relative unfitness to drive: If the blood alcohol level is lower, a punishable offense of drunk driving may still exist if so-called alcohol-related deficiencies are added. As a guideline: From 0.3 ‰ and clear abnormalities (weaving, red light violations, accident, loss of control over the vehicle), the court can assume relative unfitness to drive.

Unfitness to drive due to drugs or medication

Section 316 StGB covers not only alcohol but also other intoxicants such as narcotics or certain medications. Unlike alcohol, there are no rigid permille or active substance limits here. The decisive factor is whether the substance is detectable and has led to a relevant impairment of driving safety. The courts evaluate the type and amount of the active substance, the time interval to the journey, the driving behavior, and the physical and mental abnormalities of the driver. The higher the detected concentration of the active substance, the lower the requirements placed on specific driving errors.

Drunk Driving with Car, Bicycle, and E-Scooter

Daily practice shows that drunk driving no longer only concerns “classic” car trips after a visit to a pub.

Drunk Driving with a Car

The typical drunk driving offense involves operating a car after consuming alcohol. Whether a check occurs during a police stop, an accident, or due to an unusual driving style – if unfitness to drive is established, the following are threatened:

• Criminal proceedings under Section 316 StGB,
• Seizure and subsequent revocation of the driving license,
• A fine or – in the case of previous convictions or accidents – imprisonment.

It becomes particularly critical in the case of drunk driving involving an accident. Here, endangering road traffic (Section 315c StGB) or other offenses may also be involved, which can lead to a significantly higher sentence and a longer ban period.

Drunk Driving with a Bicycle

Many people underestimate the fact that drunk driving with a bicycle can also be a punishable offense. If a cyclist is found to have a BAC of 1.6 ‰ or more, case law assumes absolute unfitness to drive. The consequences are serious:

• Criminal proceedings for driving under the influence,
• Regular ordering of a medical-psychological assessment (MPU),
• Risk of revocation of the driving license – including the motor vehicle license, even though “only” a bicycle was ridden.

Especially for first-time offenders caught drunk driving on a bicycle, it often comes as a surprise that their entire fitness to drive is put to the test.

Drunk Driving with an E-Scooter

E-scooters are largely treated like motor vehicles under criminal law. This means:

• The same blood alcohol limits as for cars,
• The same classification of unfitness to drive,
• Regularly the same consequences for the driver’s license: revocation of the driving license according to Section 69 StGB.

In many cases, e-scooters are used because people want to avoid driving a car while drunk. Many are not aware that drunk driving with an e-scooter is evaluated almost identically to driving a car in legal terms. Here, too, it may be possible for first-time offenders who only wanted to travel a short distance to assert mitigating circumstances in individual cases – but this requires a targeted defense strategy.

Seizure and Revocation of the Driver’s License After Drunk Driving

In practice, many defendants experience the driver’s license being seized on the spot. According to Section 111a StPO, the police can provisionally revoke the driving license if there are urgent reasons to assume that the court will later revoke the driving license. From this point on, you are no longer allowed to operate a motor vehicle – even if no judgment has yet been reached. The judgment or penal order then threatens:

• The revocation of the driving license according to Section 69 StGB and
• The setting of a ban period according to Section 69a StGB, during which no new driving license may be issued.

The ban period can be between six months and five years, and in particularly serious cases even longer. For first-time offenders and lower blood alcohol levels, a shorter ban period is possible, while repeat offenders must regularly expect longer ban periods. Even with a foreign driver’s license, the driving license authority can ban its use within the federal territory and take the license into temporary custody.

Shortening the Ban Period After Drunk Driving

In suitable cases, a shortened ban period can be achieved, for example if:

• You have no other criminal record and it is a one-time offense,
• There was no endangerment of other road users and no accident occurred,
• Professional or existential disadvantages are particularly severe,
• You have participated in traffic psychology measures or courses.

Whether an application for shortening the ban period after drunk driving has a prospect of success should always be examined on a case-by-case basis. Here, it can be useful to set the appropriate course early in the proceedings.

Sentencing for Drunk Driving

The statutory sentence for driving under the influence is regulated in Section 316 StGB. For both intentional and negligent drunk driving, the range extends from a fine to one year of imprisonment. In practice, the specific penalty depends on numerous factors:

• Level of blood alcohol concentration,
• Involvement in an accident and any personal injury,
• Previous convictions and earlier traffic offenses,
• Professional situation and dependence on the driving license,
• Behavior after the offense (e.g., remorse, restitution).

It should be noted that a fine of more than 90 daily rates or a prison sentence of more than three months regularly leads to an entry in the certificate of conduct, provided that no other entries already exist. This can be of significant weight, particularly with regard to employers and professional licenses.

How Should I Behave During a Traffic Stop After Consuming Alcohol?

If I am stopped by the police after consuming alcohol, many people spontaneously ask: “What must I do – and what is better not to do?” You are obliged to:

• Provide your personal details and
• Tolerate measures such as a blood sample if ordered.

You are not obliged to:

• Blow into a breathalyzer,
• Provide voluntary urine or saliva samples,
• Participate in physical tests (e.g., walking in a straight line, finger-to-nose test), or
• Provide information on the amount drunk, time of drinking, route driven, or consumption habits.

The principle is: You do not have to actively contribute to your own conviction. Every additional detail can later be used as evidence against you. Restraint and silence are therefore usually the best option until you have sought legal advice.

Do I Need a Lawyer for Drunk Driving?

Criminal proceedings for drunk driving rarely concern only “that one evening,” but regularly involve:

• Your driving license,
• Your professional prospects,
• Possible MPU requirements, and
• Your criminal record and certificate of conduct situation.

At the latest when you have received a summons as a suspect, a penal order, or a notification about the seizure of your driver’s license, you should contact a specialized criminal defense lawyer. They can request access to the files, examine the evidence, legally evaluate the question of intent or negligence, and develop a strategy with you – for example, to avoid an entry in the certificate of conduct or to reduce the ban period.

Are you facing an accusation of driving under the influence?

We have extensive experience in traffic criminal law and defense in drunk driving cases – whether involving a car, bicycle, or e-scooter. We accompany you through the entire proceedings and support you in keeping the consequences of drunk driving as low as possible.