SPC, SPP, MPS opinion on drunk driving

The Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security Issue

the Notice of the "Opinion on Several Issues Regarding the Applicable Law for Handling Criminal Cases of Driving Motor Vehicles While Intoxicated"

(Legal Release [2013] No. 15)

High people's courts, people's procuratorates and public security offices of all provinces, autonomous regions and directly governed municipalities; liberation army military courts and military procuratorates; General Political Department Security Department; Xinjiang Uighur Autonomous Region High People's Court Production and Construction Corps branch court. The Xinjiang Production and Construction Corps people's procuratorates and public security bureau: Since the implementation of the "Eighth Amendment to the Criminal Law of the PRC", each area has strictly enforced the law and investigated a wave of cases of driving motor vehicles while intoxicated, achieving good legal and social efficacy. So as to ensure the correct and unified implementation of the law, the lawful punishment of crimes of driving motor vehicles while intoxicated and to protect the public safety and safety of the masses' lives and property, the Supreme People's Court, Supreme People's Procuratorate and Ministry of Public Security have, upon deep investigation and research and wide-spread solicitation of opinions, formulated the "Opinion on Several Issues Regarding the Applicable Law for Handling Criminal Cases of Driving Motor Vehicles While Intoxicated". It is hereby issued to you; please earnestly organize its study and truly implement it. Please promptly report any problems in enforcement to the Supreme People's Court, Supreme People's Procuratorate and Ministry of Public Security.

December 18, 2013

The Supreme People's Court, Supreme People's Procuratorate and Ministry of Public Security Opinion on Several Issues Regarding the Applicable Law for Handling Criminal Cases of Driving of Motor Vehicles While Intoxicated.

This opinion was formulated on the basis of the Criminal Law, the Criminal Procedure Law and relevant provisions together with the practice of investigation, prosecution and judgment so as to ensure the correct and uniform enforcement of the law, the lawful punishment of the crime of operating a motor vehicle while intoxicated, to protect the public safety and the safety of the masses' lives and assets,

I. Driving a motor vehicle on the road, where blood alcohol content is 80 mg/100 ml or more, is driving a motor vehicle while intoxicated and is convicted and prosecuted according to the provisions of the first paragraph of Criminal Law article 133(1) as the crime of dangerous driving. "Road" and "Motor Vehicle" as provided for in the previous clause, apply the relevant provisions of the Road Traffic Safety Law.

II. In any of the following situations, the driving of motor vehicles while intoxicated is given a severe punishment in accordance with the first paragraph of Criminal Law article 133(1):

(1) Bears full or partial responsibility for causing a traffic accident, or flees after causing a traffic accident, where it does not constitute another crime;

(2) blood alcohol content reaches 200 mg/100 ml or more;

(3) drove on a highway or city expressway;

(4) operated a business vehicle carrying passengers;

(5) Had conduct severely violating traffic safety laws such as driving with too many people, too much cargo or over the speed limit, driving without driving credentials or using a fake or altered license plate;

(6) to escape the public security organs lawful inspection, or refuse or obstructed the public security organs lawful inspection, where is does not constitute another crime;

(7) Previously received administrative penalties or criminal prosecution for driving motor vehicles while intoxicated;

(8) Other situation that may be given severe punishments.

III. Where driving a motor vehicle while intoxicated and obstructing public security organs' lawful inspection through violence or threats, also constitutes the crime of interfering with public functions or other crimes, follow provisions for combined penalties for multiple offenses in punishing.

IV. In sentencing defendants who have driven motor vehicles while intoxicated to fines, the appropriate amount of the fine shall be determined on the basis of circumstances such as the defendants' level of intoxication, whether or not they caused actual harm and their repentant attitude.

V. When public security organs investigate persons suspect of driving a motor vehicle while intoxicated, they shall make a record of the process of their investigation experience, blood/alcohol breath tests and taking of blood samples; where there is the capacity, they shall take pictures, audio recordings or video; where there are witnesses, the witness's testimony shall be collected.

VI. The evaluation opinion on blood alcohol content levels is the basis for ascertaining whether a criminal suspect was intoxicated. Where criminal suspects reach the intoxication standard provided in the first article of this Opinion on a blood/alcohol volume breath test, but escape before a blood sample is taken, the breath test inspection results may be the basis of ascertaining that they are intoxicated. Criminal suspects who, for the purpose of avoiding legal prosecution, again drink alcohol before being given a bloodalcohol volume breath test or having a blood sample extracted, shall be considered intoxicated upon an inspection showing that that their blood/alcohol volume had reached the intoxication standard in article 1 of this Opinion.

VII. The handling of cases of driving a motor vehicle while intoxicated shall strictly implement the relevant provisions of the criminal procedure law, and effectively safeguard the procedural rights of criminal suspects and defendants, and promptly investigate, prosecute and adjudge within the statutory time limits for litigation. Criminal suspects and defendants accused of driving motor vehicles while intoxicated, may according to the circumstances of the case,be be taken into custody or released on guarantee pending further investigation. Suspects or defendants meeting the requirements for release on guarantee pending further investigation who cannot provide a guarantor or guarantee deposit, may be put under residential surveillance. Criminal suspects or defendants that violate release on guarantee or residential surveillance, may be arrested where the circumstances are serious.