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In which case can you be prosecuted under article 286 1 of the Criminal Code for drunk driving? Grounds for stopping the car by police. The procedure for passing the inspection. Criminal misconduct court.

In what case can you be prosecuted under article 286 1 of the Criminal Code for drunk driving? Grounds for stopping the car by police. The procedure for passing the inspection. Criminal misconduct court.

So, in the previous article we studied what responsibility the driver faces when driving while intoxicated by the new norm of Article 286-1 of the Criminal Code of Ukraine from 1 July 2020.

Now we’ll tell you in which cases you can be prosecuted under Article 286-1 of the Criminal Code for drunk driving, what are the reasons for the police to stop the car, the procedure for attracting and the court.

The following are possible cases and the sequence of your actions, the police, the court.

Stage 1

Driving a vehicle (with the engine running or in tow).
Note: as before making the changes, prosecution is only possible if the person drove the vehicle. That is, being in a vehicle, repairing it, or simply staying in it with the engine turned off does not entail liability.

Stage 2

You, as a driver, violated the rules of the road.
But it should be noted that there are other legal reasons for stopping the car. This is provided for in Article 35 of the Law of Ukraine on the National Police (obvious technical malfunction, information about a criminal or administrative offense committed by the driver or passengers if the vehicle is wanted and others)

Stage 3

A policeman, while driving his car, found that the driver violated the rules of the road and therefore stopped your car using flashing beacons and a loudspeaker.

Stage 4

At the request of a policeman, a driver is obliged to stop his vehicle and is required to present, and not give, a driver's license to the policeman, although it should be noted that police officers are very nervous about this. You must also present a certificate of registration of the vehicle (registration certificate) and a valid OSAGO policy that confirms car insurance.

Stage 5

For violation of traffic rules (not related to traffic accidents or with Article 286-1 of the Criminal Code of Ukraine), the on-site police officer makes a decision on bringing the driver to administrative responsibility and hands him a copy of the decision. Which, by the way, can be appealed in court within 10 days.

Stage 6

If a policeman detects signs of alcohol or drug intoxication, namely, the smell of alcohol from the mouth, dilated pupils of the eyes, redness of the eyes, incoherent speech, uncoordinated movements, the policeman requires the driver to undergo a medical examination for the state of alcohol in accordance with the established procedure, drug or other intoxication or regarding the use of drugs that reduce attention and speed of reaction.
The driver is obliged to be accompanied and present police officers to pass within two hours from the moment of its stop this medical examination.

A medical examination is carried out by:
by a doctor of a health care institution (in rural areas, in the absence of a doctor, by a feldsher of a feldsher-midwife station who has undergone special training).

So at this stage you have the choice to agree to the inspection or refuse. Consider them individually as option A and option B.

Advice from the law firm Alibi: regardless of the option, at this stage there is already a need to ask to attract, provide a lawyer, since timely legal assistance can help prevent violation of rights and protect the interests of a person suspected of committing a criminal offense. This is provided for in the Code of Criminal Procedure as an advocate.

The defense attorney may at any time be attracted by the suspect, the accused, their legal representatives, as well as other persons at the request or with the consent of the suspect, the accused to participate in criminal proceedings. The investigator, prosecutor, investigating judge, court must provide the detained person or person in custody with assistance in establishing contact with the defense counsel or persons who may invite the defense counsel, as well as provide the opportunity to use the means of communication to invite the defense counsel. The investigator, prosecutor, investigating judge, court are obliged to refrain from providing recommendations on the involvement of a specific defense counsel.

If the driver refuses to undergo a survey in accordance with article 286-1 of the Criminal Code? (Option A)

Step 7. Option A.

The driver refuses to undergo, in accordance with the established procedure, a medical examination for the state of alcoholic, narcotic or other intoxication or regarding the use of drugs that reduce attention and reaction speed.

A police officer has the right, without the decision of an investigating judge of the court, to detain a person suspected of committing a criminal offense under Article 286-1 of the Criminal Code of Ukraine, provided that this person:
1) refuses to comply with the legal requirement of the authorized official to terminate the criminal misconduct or resists;
2) tries to leave the scene of the criminal misconduct;
3) during direct prosecution after the commission of the criminal misconduct does not fully comply with the legal requirements ennogo officer;
4) is in a state of alcoholic, narcotic or other intoxication and can cause harm to themselves or others.

Detention is carried out for no more than three hours with the obligatory delivery of such a person to a medical institution to ensure that an appropriate medical examination is completed.

The police officer must immediately inform the person in the language of his understanding of the reason for the detention and of which criminal offense he is suspected of, and also explain his right to have a lawyer, receive medical care, give explanations, testimony or not say anything about suspicion against him, immediately notify other persons of their detention and location. The detainee is given the opportunity to notify other persons of his detention and whereabouts.
The police officer who made the arrest searches the detainee.

What should a police officer do when detained for drunk driving under Article 286-1 of the Criminal Code:

1) immediately register the detainee;
2) explain to the detainee the reasons for his detention, rights and obligations;
3) release the detainee immediately after the disappearance of the grounds for detention or the expiration of the period for detention;
4 ) ensure the proper treatment of the detainee and the observance of his rights provided for by the Constitution of Ukraine, this Code and other laws of Ukraine;
5) ensure that all actions carried out with the involvement of the detainee are recorded, including the time of their beginning and end, as well as persons , the wire those who have taken such actions or who were present during such actions;
6) ensure the prompt provision of appropriate medical care and the fixation by the medical worker of any bodily injuries or deterioration of the detainee's health. The structure of persons providing medical assistance to a detainee, at his request, may allow a specific person who has the right to engage in medical activities.

If the driver agrees to be tested for alcohol or drug intoxication? (Option B)

Stage 7

The driver agrees to undergo, in accordance with the established procedure, a medical examination for the state of alcoholic, narcotic or other intoxication or regarding the use of drugs that reduce the attention and speed of the reaction in a medical institution specially approved by the state authorities by passing blood or urine for tests.

Stage 8

If, after passing the driver in accordance with the established procedure for a medical examination for alcohol, drug or other intoxication or regarding the use of drugs that reduce the attention and speed of the reaction, the number of ppm is less than 0.2, then the police officer must inform the driver about the absence of his actions corpus delicti provided for in Article.286-1 of the Criminal Code of Ukraine and give the opportunity to continue driving on a vehicle.

Stage 9

If, after passing by the driver in accordance with the established procedure for medical examination for the state of alcoholic, narcotic or other intoxication, or regarding the use of drugs that reduce the attention and speed of the reaction, the number of ppm in the driver’s body is more than 0.2, the police officer compiles and collects evidence for this fact regarding the violator, the procedural documents provided for by the Criminal Procedure Code of Ukraine, namely: it examines the place of occurrence action, conducts a search of the detainee, interviews individuals, seizes the tools and means of committing the offense, things and documents that are the direct subject of a criminal misconduct or found during the detention, and also conducts investigative (search) actions and secret investigative (search) actions, collects evidence, material evidence, documents, expert opinions, explanations of persons, results of a medical examination, expert opinion, testimonies of technical devices and technical means, guides photographic features and filming, recording, or the means of photography and filming, video.

Note: prior to the opening of criminal proceedings, a policeman has the right only:

1) select the explanations;
2) conduct a medical examination;
3) receive a specialist’s opinion and take testimonies of technical devices and equipment that have the functions of photo and film shooting, video recording, or photo and filming, video recordings;
4) to seize the instruments and means of committing a criminal offense, things and documents that are the direct subject of a criminal offense, or discovered during the detention of a person, personal search or inspection of things.
5) conduct an inspection of the scene of the incident .

Remember! The driver has the right to refuse to sign any documents.

Step 10

A policeman has the right to use a tow truck to send a driver’s vehicle to a penalty area or transfer the vehicle for storage to a person agreed with the driver who is present at the time this issue is resolved.
Things and documents that are an instrument and / or means of committing a criminal misconduct or direct object of assault found during detention, a personal search of the detainee or search of things shall be seized by the police.

Seized items and documents shall be stored by the body that seized them, pending examination of the criminal case on the merits in court.

In exceptional cases, the confiscated things and documents may be returned to the owner prior to the examination of the criminal case on the merits in court. Depending on the results of the review, the seized items and documents will be confiscated or returned to the owner, or destroyed in the prescribed manner.

A protocol is drawn up on the seizure of things and documents, or an appropriate entry is made in the protocol on detention.

Items and documents confiscated during a search of a detainee are recognized as material evidence, as a result of which the interrogating officer issues a relevant decision, and are attached to the inquiry materials.

A policeman withdraws a driver’s license before the sentence comes into force, but not more than three months from the date of such withdrawal, and issues a temporary permit for the right to drive vehicles.

Stage 11

A policeman shall register the fact of the commission of this criminal offense under Article 286-1 of the Criminal Code of Ukraine in the Unified Register of Pre-trial Investigations.

A pre-trial investigation is not allowed before entering information into the Unified Register of Pre-trial Investigations.

However, for a pre-trial investigation of criminal misconduct, it is allowed to carry out all investigative actions, as well as covert investigative actions, as well as the site of the incident can be conducted, explanations selected, a medical examination carried out, a specialist opinion obtained and testimonies of technical devices and equipment having the functions of photo and filming, video recording, or means of photo and filming, video recording, and also the instrument and means of committing a criminal offense, things and a document were seized s that are the direct subject of a criminal offense, or discovered during the detention of a person, personal search or inspection of things.

Stage 12

A written notice of suspected criminal misconduct is compiled by the inquiry officer (police officer) in agreement with the prosecutor.

Simultaneously with the delivery of a notice of suspicion, the person is informed of the results of the medical examination and the expert’s opinion, if any. In case of disagreement with the results of a medical examination or with the conclusion of a specialist, a person has the right to apply to the inquiry officer or prosecutor with an application for an examination within 48 hours. In this case, the inquirer or the prosecutor has the right to contact the expert for the examination in compliance with the rules provided for by this Code.

If, within the prescribed period, a person does not apply for an examination, the corresponding application can only be submitted during the trial.

The investigator must, as soon as possible, but not later than seventy-two hours from the moment of the person’s arrest, submit to the prosecutor all collected inquiry materials together with a report of suspicion, which he immediately informs the suspect, his defense counsel, legal representative, and the victim.

From the day the suspect is notified to the person, the pre-trial investigation must be completed: within 72 hours - if the person is notified of the suspicion of a criminal misconduct or detention of the person.

The term of the preliminary investigation may be extended and the total period of the pre-trial investigation may not exceed: one month from the date of notification to the person of the suspicion of a criminal offense

Stage 13

Based on the results of the investigation, the inquiry officer draws up an indictment and submits them to the prosecutor for approval.

The prosecutor is obliged no later than three days after receiving the inquiry materials together with a report of suspicion, and in case of detention of the person within 24 hours to go to court with an indictment,

If the prosecutor decides to appeal to the court with an indictment, the prosecutor must ensure that the person who committed the criminal offense under Article 286-1, or his defense counsel, the victim or his representative, receive copies of the inquiry materials by serving them, and if not possible of such delivery - in the manner prescribed by this Code for the delivery of messages, including by sending copies of inquiry materials to the last known place of residence or stay of such persons. In case of refusal of these persons to receive them or delays in receiving these persons are considered to be those who have gained access to the inquiry materials.

A report shall be drawn up on the refusal to receive copies of the materials of inquiry or not to receive such copies, which shall be signed by the prosecutor and the person who refused to receive, or by the prosecutor if the person did not appear to receive copies of the materials of inquiry. "

Step 14. Court under Article 286 1.

After receiving the indictment of a criminal offense, the court within five days, and in the case of detention of the person, immediately appoints a trial.

Step 15.

The court considers the indictment of committing a criminal offense without a trial in court in the absence of participants in the trial, if the accused does not dispute the circumstances established during the inquiry and agrees to the consideration of the indictment.

Advice: as soon as possible, the driver should seek legal assistance from specialists, since missing the deadlines will have negative consequences and almost make it impossible to get a verdict of not guilty. Therefore, if you are charged with article 286-1 of the Criminal Code, immediately contact the Alibi Law Firm for help at 050-130-56-66 and 067-130-56-66. We will help you!


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