醉酒驾车行为刑法适用之解读

如何正确理解和实施刑法修正案(八),需要做深入研究,从醉驾入罪的立法原因入手,对醉酒驾车犯罪的性质、构成要件进行分析;提出在司法实践中,应正确贯彻宽严相济的刑事政策,对醉酒驾车行为要结合犯罪情节进行刑法适用并要有机地与其他法律法规结合适用,从而做到对醉驾案件的公正处理,实现刑法对醉酒驾车行为的惩罚效果。     

The deterioration of deterrence effects of driving legislation: Have we been giving wrong signals to policymakers?

This paper suggests that the apparently observed initial success of legislation to control drunken driving accidents by law enforcement and sanctions, followed by a return of accident levels to initial trends may be an artifact of failure to properly model the accident process. The point is illustrated by simulating a model of accidents in which drunken driving is controllable with a change in laws. It shows that this control effect can easily be swamped by other plausible accident inducing forces. Finally, it is argued that the cost of failing to maintain efforts to control drunken driving may be greater than the social costs of maintaining high enforcement levels and stiff penalties.     

RESPONSES OF THE CRIMINAL JUSTICE SYSTEM TO LEGISLATION PROVIDING MORE SEVERE THREATENED SANCTIONS

In 1971, the Tennessee legislature enacted legislation providing for mandatory jail sentences and driver's license revocations for anyone convicted of driving while intoxicated. This new law had no demonstrable impact on the highway traffic fatalities rate-the intended objective. This paper explores the reasons for this apparent lack of impact. Data suggest that, while there was some increase in the severity of sanctions imposed on drunken drivers, there was still a consistent tendency to suspend the jail sentences and grant drivers restricted driving privileges. Nor is there any reason to believe that the police intensified their efforts to apprehend larger numbers of drunken drivers. Thus, the more severe sanctions threatened in the new law were generally mitigated in practice. Some possible interpretations for this are offered.     

A Criminological Approach to Explain Chronic Drunk Driving

The purpose of this paper is to use criminological theories to explain chronic drunk driving. There is little criminological research explaining recidivist drunk driving with criminological theories. Instead, most researchers posit that repeat drunk driving is explained as a byproduct of substance abuse. Although substance abuse is likely correlated to chronic drunk driving, theoretical explanations need to go further to understand a broader set of social and psychological predictors. Factor analysis and linear regression techniques are used to estimate the relationship between items from two assessment instruments with a number of drunken driving offenses. The sample consists of nearly 3,500 individuals on probation and parole in a Southwestern state. The findings support our contention that criminological frameworks are helpful to understand chronic DUI. We found significant results for volatility, antisocial friends, teenage deviance, and negative views of the law, while controlling for age, gender, marital status, and race. DUIs are a serious problem for the criminal justice system and understanding the individual level correlates of repetitive DUI is crucial for policy development. Further, chronic DUI offers criminologists an opportunity to determine the ability of criminological theories to explain this type of behavior.     

反思“醉驾”入罪——规范理解与情境预防

面对社会上日益严重的醉酒驾驶问题,《刑法修正案八》规定了＂危险驾驶罪＂,有关醉驾的刑法规范主要体现了刑法保护法益前移与抽象危险犯的立法精神。而用刑法手段减少风险的发生、确保交通安全并不能有效达至理想效果,超越规范层面的惩罚醉驾的政策与风险防治因素为情境预防理论应用于保障社会公共安全问题提供了可寻的依据。从具体犯罪的预防出发思考减少行为人实施犯罪的机会,应用情境预防理论控制醉驾的发生是可行的新路径。     

The legal control of drunken driving: A comment on methodological concerns in assessing deterrent effectiveness

Appearing in this volume are papers by Votey and Phillips, Ray, and Votey that raise basic questions about the effectiveness of efforts to reduce drunken driving through legal controls implemented in the criminal justice system. The primary issues of extent, source, and duration of any effect are raised by those authors. This paper discusses the concern for deterrence expressed by Phillips, et al., and particularly focuses on some methodological problems in demonstrating the deterrent effectiveness of criminal sanctions on drunken driving.     

论抽象危险犯的正当性——以醉驾入刑为视角

抽象危险犯是将一种具有典型危险性的行为直接规定为犯罪的犯罪形态。醉驾入刑体现了抽象危险犯的提前保护法益、规范行动指引、充分发挥国家在风险社会中的管理职能等价值,具有很强的必要性和实效性。为了防止刑罚的过度扩张,亦有必要对抽象危险犯作一定限制,完善醉驾的定罪标准。     

危险驾驶罪罪过等问题之规范研究

危险驾驶罪是抽象危险犯,危险的实现并非其构成要件要素,危险的载体为追逐竞驶行为或醉酒驾驶行为自身。在具体危险犯中,危险的实现是构成要件要素,危险与行为分离,其载体为刑法保护的具体人或物。因罪过是对客观构成要件要素的认知与所持的态度,故在没有罪过阻却事由的情况下,行为人只要认识到自己是在道路上追逐竞驶或醉酒驾驶就意味着对与行为相伴随的抽象危险的希望或放任,动机可能是从抽象危险中寻求刺激或为了某一目的而放任抽象危险的发生等。在刑法没有明文规定过失可以构成本罪的情况下,本罪的罪过只能是故意。法定刑的高低并不必然决定罪过的性质,法定刑的轻重还与犯罪的客观方面相关。罪过也不能仅从社会意义与便于司法操作的角度认定。对危险驾驶罪的体系性考察,应结合社会现实从刑法规范动态不平衡、相互协调的角度才能得出合理的结论。     

Factors associated with breath test refusals in drunken driving arrests.

OBJECTIVE: Jurisdictions with per se breath alcohol legislation rely heavily on breath test evidence in prosecuting drunk driving cases. Depending on other legal considerations, where subjects refuse the breath test, prosecution may be more difficult. The objective was to identify factors significantly associated with the risk of test refusal. This knowledge would be relevant for improving the compliance rate. METHOD: A retrospective observational study evaluated drunken driving arrest records (n = 38,687) within Washington State during 2003 where breath tests were requested under implied consent legislation. The association was determined between the risk of test refusal and several categorical variables including: arresting agency, gender, race, age, accident involvement, repeat offense, pre-arrest breath test, driver's license and all possible two-way interactions. The association was quantified by odds ratios (OR) and 95% confidence intervals (CI) using a logistic regression model. RESULTS: The overall refusal rate was 19.7%. The single main effect variable associated with the greatest reduction in risk of refusal was the performance of a pre-arrest breath test (OR = 0.31, 95% CI 0.30-0.33). No single main effect variables showed significant association with an increased risk of refusal. Several two-way interactions, however, were significant. Other possible predictor variables, not included in the analysis, are also discussed. CONCLUSIONS: An arrested subject's decision to refuse the breath test is clearly a multivariate issue. Knowledge of these results should help in developing a jurisdictionally specific breath test compliance model by identifying the legal, demographic and procedural factors contributing most significantly to breath test refusal rates.     

A legal analysis of sobriety checkpoints

Law enforcement agents are asked to help solve problems involving alcohol abuse in a society exhibiting reluctance to change its attitude about drinking and driving. As the public’s concern over drunken driving intensifies, use of the sobriety checkpoint is becoming a major law enforcement/public policy issue. Recent case law upholds use of the checkpoint in order to deter and detect the drunken driver. Although the United States Supreme Court has not directly ruled on the constitutionality of the sobriety checkpoint, there is a considerable body of state case law upholding its validity. Generally, with some exceptions, sobriety checkpoints appear to be constitutional if law enforcement agents follow proper guidelines and procedures. This paper analyzes case law pertaining to checkpoints, and gives law enforcement agencies direction in establishing constitutionally sound sobriety checkpoints, in conclusion, the article synthesizes roadblock and sobriety checkpoint law to provide law enforcement officers a plan for proper checkpoint construction.     

论《刑法》第133条之1的规范目的及其适用

醉酒型危险驾驶罪是过失犯罪,其成立要件是,行为人故意在道路上醉酒驾驶了机动车,但对其醉酒驾驶行为所引起的公共安全的抽象危险仅仅存在过失。对故意在道路上醉酒驾驶机动车并故意引起公共安全的抽象危险的行为,应当认定为以危险方法危害公共安全罪的未遂犯。在确定拘役的期限时,要以血液里的酒精含量为基准,同时考虑案件的各种具体情节;在计算罚金的数额时,要以行为人的税后月收入为基准,同时考虑行为人血液里的酒精含量。在道路上醉酒驾驶机动车而成立的危险驾驶罪,完全可能由于发生了严重的实害结果而转化为其它犯罪,或者由于行为人主观意思的质变而被其它犯罪所吸收,从而需要按照发生了转化或者吸收结果的重罪来处罚。     

Study of rearrests for drunken driving in Norway

The National Institute of Forensic Toxicology (NIFT) in Oslo receives blood samples from all Norwegian drivers suspected of driving under the influence of alcohol. It is well known that a large proportion of the arrested drunken drivers are repeat offenders. The purposes of this investigation was to find the arrest rates (the percentage of subjects arrested once or more) among drunken drivers followed retrospectively and prospectively during the 11-year period 1984–1994 and the probability of `abstaining' from becoming a recidivist during the 9 years subsequent to the year of selection. By examining the rearrest rates during the 3 following years for drivers selected in 1986, 1989, 1991 and 1992 we tried to look for major effects due to the change in the Norwegian road traffic act of 1988. Altogether 45% of the selected drunken drivers were arrested two or more times. Totally the `9-year survival rate' (i.e. not being rearrested) was 60% for drivers with blood alcohol concentration (BAC) selected from the interval 0.06–0.09%; 56% from BAC 0.13–0.16% and 51% from 0.26–0.29%. The data were further evaluated with respect to frequency of rearrest during 3 years after selection, and was around 30% in 1986, while it was lower for drivers selected in 1992 (19%). An explanation for the reduction in rearrest rate may be the changes in the road traffic act which took place in 1988.     

Drugs in motorists traveling Swedish roads: on-the-road-detection of intoxicated drivers and screening for drugs in these offenders

This paper deals with the police officer's or police doctor's ability to find drivers under the influence of drugs. We have also studied whether the protocol on the driver's previous histories of drug intake is useful for directing the chemist in his analytical approach to revealing intoxicants in the suspects' body fluids. A comprehensive procedure for screening traffic-hazardous drugs in the urine was found necessary and is described. By using this method, we have studied the incidence of drunken drivers with detectable medicinal or illicit agents. The results demonstrate that 91% of those drivers found by the officer or doctor of the police to be on intoxicants other than ethanol, carried some kind of traffic-hazardous drug in their body fluids, and that the doctor was a better judge than the police in identifying these offenders. By using a series of chemical methods for drug screening, we found that every third driver suspected of drunken driving due to ethanol, but not to other intoxicants, held some kind of a traffic-hazardous drug substance in his urine; benzodiazepines and cannabinoids were the most common findings. The data imply that 34% of these suspects revealed their intakes of traffic-dangerous intoxicants. We conclude that the judgements of both the officer and doctor of the police are needed for an efficacious detection of drivers under the influence of drugs. Moreover, the results infer that the chemist has to screen for intoxicants to reveal these in a suspect driver. We also conclude that drugs, particularly the benzodiazepines or cannabinoids, may be commonly encountered in drunken drivers, suspected of being inebriated by ethanol but no other toxicants.     

Carbohydrate-deficient transferrin (CDT): A reliable indicator of the risk of driving under the influence of alcohol when determined by capillary electrophoresis

Carbohydrate-deficient transferrin (CDT) is a marker of chronic alcohol abuse, which has recently been introduced to evaluate the physical fitness for obtaining a driving license. The aim of the present study was to evaluate the prevalence of elevated CDT levels in subjects stopped while driving under the influence of alcohol by using a validated method based on capillary electrophoresis. The study was carried out on a group of 40 drunken drivers (group A) and on a control group (n = 51) of subjects chosen from the general population (group B). CDT was directly determined by capillary electrophoresis in free solution and UV detection at 200 nm. CDT results from both groups were classified as “negative” or “positive” on the basis of the cut-off set at 2.00% (CDT index). The subjects classified as “positive” in group A were 24 (60%), whereas in group B were 2. The subjects classified as “negative” in group A were 16 (40%), whereas in group B was 49 (96.1%). The comparison of the observed percentages, evaluated with the χ²-test, was highly significant (p < 0.001). The present study confirms the high prevalence of chronic alcohol abusers among drunken drivers and the usefulness of CDT as a predictor of the risk of drunk driving.     

关于我国网络信息安全应急的立法构想

随着网络信息技术的高速发展及其广泛应用,网络安全问题日益突出,网络紧急事件的不断增多亟待立法加以规范。通过对网络信息安全应急立法的价值定位即安全价值、效率价值和发展价值的研究,从我国立法现状及其存在的缺陷出发,结合国外有关立法经验,提出我国网络信息安全应急的立法构想。     

Investigating the impact of extended bar closing times on police stops for DUI

Researchers have often studied whether changes in the availability of alcohol impact associated problem behaviors like drunk driving. In July of 2003, the state of Minnesota approved legislation to extend by one hour the closing time for eating and social establishments that serve alcohol. This study utilized a time-series model to examine the impact of the extended closing time on the number of police stops for DUI in one jurisdiction in Minnesota. While results of the time-series indicated that there was a significant increase in the number of police stops for DUI following this legislative change, incident-specific analyses suggested that this increase might have been largely a result of increased proactive responses by local police. Implications and suggestions for future research are discussed.     

Laws That Bit The Bullet: A Review of Legislative Responses to School Shootings

The recent mass shooting at Sandy Hook Elementary School in Newtown, Connecticut sparked an immediate discourse calling for a review of gun control legislation. However, this discourse was not new; rather, it was one that routinely follows this type of tragedy. In the wake of school shootings such as Columbine, Virginia Tech, and Jonesboro, a similar discourse appeared which prompted policymakers to introduce a number of pieces of legislation aimed at more efficient firearms regulation. While a few of these bills were enacted, many never made it past introduction. The flurry of legislative responses to such incidences warrants further discussion as to whether these bills are effective, or rather simply “feel good legislation.” Further, public opinion is a driving force behind such policy, but how can this change in the wake of school shootings? This paper examines both considerations and proposes directions for continued research in this critical and understudied area.     

现代罪刑法定原则社会保护机能真义之检讨

罪刑法定原则为限制国家司法权的滥用、防止罪刑擅断以保障犯罪嫌疑人、被告人的人权而诞生。但是,孙伟铭、黎景全案以危险方法危害公共安全罪定性后,最高人民法院又印发醉酒驾车犯罪法律适用问题指导意见及相关典型案例的通知,并指出对此类醉酒驾车造成重大伤亡的,应依法以危险方法危害公共安全罪定罪。故有必要对现代罪刑法定原则社会保护机能的真正意义做一探讨,使罪刑法定原则的社会保护机能在罪刑法定原则的框架内得到实现;使刑法的社会效果在法律效果的框架内得到正当合理的实现。     

醉驾入刑诸问题新探讨

醉驾入刑一年多来,其法治效果和社会效果显现,但同时也存在一些问题。在法律与政策精神上,司法机关对醉驾行为的处理既要坚持从严惩处的态度,同时也要正确贯彻宽严相济的基本刑事政策。醉驾的情形多种多样,对醉驾入罪应根据其情节的不同区别对待,同时合理理解和正确适用醉驾的标准,并从立法上完善醉驾入刑的规定。     

The role of prior punishment in preventive detention decisions

ABSTRACT

Preventive detention legislation allows for ongoing detention or supervision following completion of an offender’s sentence. Consideration of public protection should drive the administration of preventive detention, however research has indicated retributive concerns also drive decision making. Two studies were conducted to examine the motives driving preventive detention decisions, and how contextual variables affected the balance between retributive and public protection motives. In Study 1, participants were presented with information about an offender’s remorse, prior punishment, and risk of re-offence. In Study 2, participants were presented with information about an offender’s prior punishment and offence type, and the relative strength of various potential mediators was tested, to determine factors driving effects of prior punishment information. Overall, results demonstrated participants were driven by both retributive and public protection motives, as well as personal characteristics (e.g. political orientation, prejudice against offenders) when making preventive detention decisions. Findings are discussed in terms of their implications for preventive detention legislation.