On The Conviction And Sentencing Of Drunken Dangerous Driving Crime

It has been nine years since the Amendment VIII to the Criminal Law has constituted a crime by driving a motor vehicle while intoxicated on the road.From the judicial practice,on the one hand,drunken driving does enhance the awareness of "driving without drinking,drinking without driving" and reduce the probability of traffic accidents caused by drunken driving;on the other hand,any person who meets the drunk driving standards shall be convicted,making the crime of dangerous driving under the influence of alcohol has become the crime with the largest number of cases,and the conviction groups are large and sentencing standards are confusing,which not only puts pressure on judicial officers but also triggers public doubts.How to use as little as possible judicial input to achieve the effect of judicial justice,judicial education,legislators and scholars need to continue to study the topic.Besides the introduction and conclusion,this paper is divided into five parts:The first part,the sample selection,data analysis method and basic situation of drunken dangerous driving crime.Using simple random sampling method,4525 drunken dangerous driving cases closed in courts of 31 provinces,autonomous regions and municipalities directly under the Central Government during the three years from 2017 to 2019 were selected.Analyze the data by means of statistics and criminal jurisprudence,and get the overall characteristics,conviction standards and sentencing factors of the crime by using SPSS software.Through the above analysis,the crime in the judicial trial of the basic situation: First,in the conviction,only the drunk driving standards for conviction,almost no analysis of the elements of the crime.Second,in sentencing,there is no unified standard,the regional differences are large.Third,in other cases with counsel is far from the goal of full coverage of the defence by lawyers;in the application of trial procedures,the number of cases applying the speedy trial procedure is small,and judicial resources are wasted.The second part,the judicial practice in the crime of drunken dangerous driving conviction and sentencing summed up the standard.In the aspect of conviction,the legislature has not made a unified and clear stipulation on the conviction of this crime.In judicial practice,the subjective,objective and object elements of the crime are not analyzed,which leads to drunken driving overnight,drunken driving with proper cause,drunken driving in a place under the management of a unit,and drunken driving of a two-wheeled motorcycle exceeding the standards are all identified as drunken dangerous driving crimes;The inconsistency in the application of the proviso has led to confusion of the standards for relative non-prosecution and exemption from criminal penalties.In terms of sentencing: firstly,the term of criminal detention shall be appropriately increased according to the blood alcohol concentration and circumstances for heavier punishment,and there is no uniform standard for how long to increase;secondly,the standard for the amount of fine shall be increased according to the term of criminal detention is more ambiguous;thirdly,the standard of sentencing of the crime is vague,which leads to different regulations of probation in different provinces and aggravated the phenomenon of different sentencing.The third part,the judicial practice in the crime of dangerous driving under the influence of alcohol problem analysis.In judicial practice,the conviction standard of the crime is confused: Firstly,the crime constitutes a crime,the object of the crime is road traffic safety management system or public traffic safety is controversial.The subjective intentional content of the crime and the subjective form of drunken driving behavior of the night are wrong.Objectively,the conviction based on the absolute drunk standard is too low,the meaning of "road" is not unified,and the application scope of the crime is enlarged.In the subject aspect,there is a deviation in the cognizance of principal and accessory.The application standards set out in the Proviso are not uniform.Secondly,there is a dispute between behavior offense or dangerous offense.Thirdly,it is unreasonable to distinguish the crime of traffic accident,the crime of drunk dangerous driving and the crime of endangering public security by dangerous means.It shall be specified that the crime is an act offender,and the drunken driving shall be convicted in strict accordance with the constitutive elements of a crime,and the circumstances under which the "proviso" applies to such drunken driving shall be specified.The fourth part,in judicial practice,the problem of sentencing standard of drunken dangerous driving crime analysis.First,the influence factors and the degree of the influence of the duration of detention penalty are different,the benchmark penalty of the duration of detention penalty is very different.Second,in practice,the factors that affect the limit of fine are not scientific,and the amount of fine is too low after the conviction of the crime.Third,the application of probation rate of influence factors are not uniform,the application of probation standards are different.The fifth part,restatement of the rules of conviction and sentencing of drunken dangerous driving crime.To establish more scientific,clear and reasonable standards of conviction and sentencing,and to reduce the situation of different sentences in the same case in judicial practice,we can proceed from the following aspects: Firstly,it is necessary to clarify the conviction criteria and make the conviction in strict accordance with the constitutive elements of crimes,clarify the types of disputed crimes,and interpret the provisions of the "proviso" from the perspective of modesty of the Criminal Law.Secondly,the establishment of a relatively unified sentencing standards.It is necessary to establish the standards for misdemeanor and serious crimes,set up scientific factors of fine penalty,clarify the starting point of fine penalty,formulate scientific standards for the application of probation,and improve the rate of probation.Thirdly,revise the Law on Road Traffic Safety to make the legislative standards more detailed and scientific,and make more use of administrative penalties to restrain drunken driving.