Study On The Sentencing Of Driving Under Influence

Since drunk driving was punished,the research focus on the crime of drunk dangerous driving has mostly focused on sentencing.3074 judgments were collected through the China judicial documents network as the object of empirical research to analyze the problems in practice.There are four main sentencing problems: first,the single type of principal punishment stipulated in the current law cannot adapt to the changeable and complex situation,and this centralized way of sentencing needs to be improved by improving legislation;Second,the sentencing standards are different,which is greatly affected by the region.The judges in different regions have different understanding of the recognition of sentencing circumstances and the applicable standards of probation,which leads to the imbalance of sentencing;Third,under the current legal framework,the sentencing provisions are too simple.The single way of punishment and the term of criminal detention without grades have led to the imbalance of sentencing in different regions.The rough penalty provisions are also one of the reasons why the same case is sentenced differently and the judges cannot accurately measure the sentence;Fourth,the penalty function is empty.There are basically two situations in the application of punishment for such crimes.If the circumstances are minor,criminal probation is applicable,and the amount of additional fine is low.If the circumstances are serious,criminal detention is applicable,and the amount of fine is high.This dichotomy is not only not conducive to the realization of the case function,but also unable to achieve the purpose of punishment for the case,resulting in the situation of virtual penalty function.The fundamental reason for the above problems lies in the widespread sentencing concept that punishment is greater than prevention and the lack of balance in penalty setting.We should solve the above problems through specific paths.From the legislative level,we should increase the types of punishment,enrich the order of punishment,and increase the types of main punishment from the existing criminal detention to the coexistence of control,criminal detention and fixed-term imprisonment.Judges should not consider regional factors when determining the main sentence,but should establish a unified national sentencing standard and abandon regional differences.When determining the amount of fines,they should consider regional factors,taking the average monthly income of local residents as an important reference.Refine the applicable rules of criminal detention punishment,clarify the factors that affect the starting point of sentencing,including blood alcohol concentration,driving place and vehicle type,clarify the facts that affect the benchmark punishment,and increase the benchmark punishment by 10% each,up to 100%.The determination of declaratory punishment needs to clarify the legal or discretionary circumstances of sentencing.It is clear that the factors affecting fine punishment include blood alcohol type,road type,vehicle type,confession and punishment,damage results,etc.,and three echelons are set according to the average monthly income of local residents.The applicable standard of probation should be uniformly defined as: the blood alcohol concentration is below 150mg/100 ml,there are no eight kinds of serious circumstances,and there are circumstances of guilty plea and punishment.For the minor crime of drunken dangerous driving,the function of punishment should focus on education and prevention.We should give more sentencing preferences to the circumstances of "guilty plea and punishment",so as to encourage suspect and defendants to actively confess their guilt and punishment,sincerely repent,avoid recidivism,and give full play to the multiple functions of punishment.