In The Judicial Determination Of Drunk Driving Cases Difficult Problem Research

The criminal law amendment(8)in 2011 officially criminalized drunk driving,and the ten-year punishment for drunk driving has played a good role in controlling drunk driving motor vehicles.However,there are still some difficult problems in the judicial identification of drunk dangerous driving cases,such as how to identify some controversial issues in the basic elements such as "roads","motor vehicles","drunk driving",and whether semi open sections such as community parking lots,campuses and country roads can be identified as"roads",Can drunk driving of electric bicycles exceeding the standard be recognized as a crime of dangerous driving?How to recognize that the vehicle slips when resting in the driver’s seat after drinking?How to make judicial determination on special drunk driving cases such as Norwegian model,overnight driving type and crisis driving type?With regard to the application of probation,proviso clauses and surrender,how to achieve the compatibility between crime and responsibility in the discretion of punishment and the balance of sentencing?The research shows that "roads" need to meet the "publicity" and allow the unspecified majority of the society to pass;"Drunkenness" means that the alcohol content in the blood reaches 80mg/100ml,which can be divided into "absolutely incapable of driving" and"relatively incapable of driving" according to the practice of Germany,and an assessment system for impaired driving ability should be established to assist;Excessive electric bicycles should not be recognized as "motor vehicles";"Driving" needs to meet the requirement that the actor manipulates the motor vehicle,completes the gear and releases the braking device,which makes the motor vehicle displace.For special drunk driving cases,such as overnight driving,driving in crisis situations,and changing vehicles,which are controversial,it is determined according to the actor’s subjective mentality,the place where the vehicle is moved,the type of the vehicle he is driving,whether he has the possibility of expectation,whether he is in an emergency,etc.,and the actor’s subjective viciousness,the circumstances of the crime,the distance of moving the vehicle and other factors are comprehensively considered,and the special drunk driving actor is given a lighter,mitigated or exempted punishment by probation,conviction and exemption from punishment,or a proviso clause.To achieve a balanced application of punishment,it is necessary to determine uniform standards,comprehensively determine the starting point of sentencing,statutory and discretionary sentencing circumstances based on factors such as personal danger and social harm,and regulate the application of probation,proviso clauses,and voluntary surrender.It is necessary to clearly define the general and exclusionary provisions for the application of probation,and to standardize the application of probation by comprehensively considering the time,space,performance after arrival of the perpetrator,and the consequences of the accident.The proviso clause can be applied to the drunk driving behavior that is obviously minor and not harmful;the drunk driving case that voluntarily surrenders to the crime and truthfully confesses his crime can be subject to the provisions of surrender,and the perpetrator is given a lighter punishment.It is hoped that it will be beneficial to judicial practice,better convict and sentencing for drunk driving,realize the adaptation of culpability and punishment,realize the balance of sentencing between different regions and different courts,and achieve the harmonious unity of legal effect and social effect of drunk driving.