Article 133 of the Criminal Law (Crime of Dangerous Driving)

【 Crime of dangerous driving 】

Whoever drives a motor vehicle on roads under any of the following circumstances shall be sentenced to criminal detention and concurrently be fined:

(1) pursuing competitive driving in a bad way;

(2) driving a motor vehicle while intoxicated;

(3) Engaged in school bus business or passenger transport, seriously exceeding the rated passengers, or seriously exceeding the prescribed speed;

(4) Transporting hazardous chemicals in violation of the regulations on the safety administration of hazardous chemicals, endangering public safety.

If the owner or manager of a motor vehicle is directly responsible for the acts in item 3 or 4 of the preceding paragraph, he shall be punished in accordance with the provisions of the preceding paragraph.

Whoever commits the acts mentioned in the preceding two paragraphs, which at the same time constitute other crimes, shall be convicted and punished in accordance with the provisions for heavier punishment.

[Pre-amendment provision]

Article 133 Whoever drives a motor vehicle in pursuit of competitive driving on roads, if the circumstances are flagrant, or drives a motor vehicle drunk on roads, shall be sentenced to criminal detention and concurrently be fined.

Whoever commits the acts mentioned in the preceding paragraph, which also constitute other crimes, shall be convicted and punished in accordance with the provisions for heavier punishment.

【 Amendment note 】

This crime is added by Article 22 of Amendment (VIII) to the Criminal Law. Article 8 of the Amendment to the Criminal Law (9) makes the following amendments to the original provisions: First, add provisions to engage in school bus business or passenger transport, seriously exceeding the rated passengers, or seriously exceeding the prescribed speed; And in violation of the safety management of dangerous chemicals transport dangerous chemicals, endangering public safety, constitute a dangerous driving crime. Second, it is clear that the owner and manager of the motor vehicle are directly responsible for these two types of dangerous driving behavior, and their criminal responsibility shall be investigated in accordance with the provisions of the crime of dangerous driving.

[Criminal detention] "Criminal detention refers to a punishment executed by the public security organ nearby, depriving criminals of personal freedom for a short period of time and forcing them to reform through labor." The term of criminal detention shall be not less than one month but not more than six months, and the combined punishment for several crimes shall not exceed one year. The term of detention shall take effect from the date on which the judgment of the people's court is made, but if he is detained before the judgment is made, one day of detention shall be counted as one day of the term of imprisonment."

【 Legislation, key points 】

(1) The "road" in the first paragraph of this article, according to the provisions of Article 119 of the Road Traffic Safety Law, means: highways, urban roads and places that are under the jurisdiction of the unit but allow the passage of social motor vehicles, including squares, public parking lots and other places used for public passage. Similarly, according to the provisions of this article, "motor vehicle" means a wheeled vehicle that is driven or pulled by a power device and is driven on the road for the use of personnel or for the transport of goods and for carrying out special engineering operations.

2, "chase racing" is commonly referred to as "drag racing", refers to the road, with other vehicles as the goal of competition, chase driving. Specific situations include the "time trial" of car driving on the road, or several vehicles chasing each other while moving at the same time, including both the chase race exceeding the limit speed, and the chase race not exceeding the limit speed. According to the provisions of this article, the pursuit of competitive driving on the road shall constitute a crime only if the circumstances are bad. Judging whether the "circumstances are bad" should be determined from the aspects of the degree of harm caused by the chase and the consequences of the harm.

3. Driving a motor vehicle while intoxicated on the road. According to the provisions of the former General Administration of Quality Supervision, Inspection and Quarantine issued on May 31, 2004, the threshold and test of Blood and breath alcohol content of Vehicle drivers (GB19522-2004), drinking and driving means that the blood alcohol content of vehicle drivers is greater than or equal to 20mg/100ml. Driving behavior less than 80mg/100ml; Drunk driving refers to the driving behavior in which the blood alcohol content of the driver is greater than or equal to 80mg/100ml. In practice, law enforcement departments should use this standard to judge the two behaviors of drunk driving and drunk driving.

4. The criminal liability of those who have not obtained the qualification of school bus operation. Some vehicles engaged in school bus business have not been licensed, some vehicles engaged in passenger transport do not have operational qualifications, there are some vehicles that have not obtained passenger road transport business licenses illegally engaged in passenger transport, and even trucks in violation of the provisions of manned, tractor manned; Some practitioners do not have the relevant qualifications, such as some school bus drivers are held by kindergarten managers, and some passenger vehicle drivers do not have the corresponding driving qualifications. However, the failure to obtain a license or do not have the relevant qualifications, does not affect the identification of criminal responsibility for this crime, as long as it is engaged in school bus business or passenger transport, seriously exceed the rated passengers, or seriously exceed the stipulated speed, shall be investigated for criminal responsibility in accordance with the provisions of this article.

(5) Judgment on whether the transportation of hazardous chemicals "endangers public safety". It should be combined with the nature, variety and quantity of the hazardous chemicals transported, the time and route of transportation, the specific content and severity of the violation of safety management provisions, and the consequences of damage that may be caused in the event of an accident.

6. The criminal responsibility of drug drivers. For those who drive motor vehicles after consuming or injecting drugs, measures such as cancellation of motor vehicle driving licenses and compulsory isolation for drug rehabilitation may be taken in accordance with the law, and those who cause serious consequences for "drug driving" may also be investigated for criminal responsibility for causing a traffic accident or endangering public security by dangerous means according to the specific circumstances of the case.

【 Judicial Guidance Document 】

Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases of Drunk Driving Motor Vehicles (Fa [2013] 15, 20131218)

(1) Driving a motor vehicle on the road with a blood alcohol content of 80 mg /100 ml or more is a drunk driving motor vehicle and shall be convicted and punished for the crime of dangerous driving in accordance with the provisions of the first paragraph of Article 133 of the Criminal Law.

The "roads" and "motor vehicles" mentioned in the preceding paragraph shall be governed by the relevant provisions of the Road Traffic Safety Law.

(2) Drunken driving of a motor vehicle, in any of the following circumstances, in accordance with the provisions of Article 133, paragraph 1 of the Criminal Law, heavier punishment:

(1) causing a traffic accident and taking full or main responsibility for the accident, or fleeing after causing a traffic accident, but no other crime has been constituted;

(2) Blood alcohol content of 200 mg /100 ml or more;

(3) driving on expressways or urban expressways;

(4) driving a motor vehicle for operation carrying passengers;

(5) seriously overdriving, overloading or speeding, driving motor vehicles without driving qualifications, using forged or altered motor vehicle license plates and other acts in serious violation of the Road Traffic Safety Law;

(6) evading inspection by public security organs according to law, or refusing or obstructing inspection by public security organs according to law has not constituted other crimes;

(7) Having received administrative punishment or criminal investigation for driving a motor vehicle after drinking;

(8) Other circumstances under which heavier punishment may be imposed.

3. Drunken driving of a motor vehicle, obstruction of public security organs by means of violence or threat, and constitute other crimes such as the crime of obstructing public affairs, shall be punished in accordance with the provisions on combined punishment for several crimes.

4. When a defendant is fined for drunken driving of a motor vehicle, the amount of the fine appropriate to the main penalty shall be determined according to the degree of drunkenness of the defendant, whether the actual damage has been caused, the attitude of confession and repentance, etc.

5. Public security organs, when investigating and dealing with suspects of drunk driving motor vehicles, shall make records of the process of seizure, breath alcohol content examination and blood sample drawing; If conditions permit, photographs, sound recordings or video recordings shall be taken; If there are witnesses, witness testimony shall be collected.

Sixth, the blood alcohol content test and identification opinion is the basis for determining whether the criminal suspect is drunk. If a criminal suspect has reached the drunkenness standard stipulated in Article 1 of these Opinions by breath alcohol test and escapes before taking a blood sample, the result of breath alcohol test may be used as the basis for determining his drunkenness.

When a criminal suspect is examined by the public security organ in accordance with the law, in order to avoid legal investigation, he drinks alcohol again before the breath alcohol content test or the drawing of a blood sample, and after the test, his blood alcohol content reaches the drunkenness standard stipulated in Article 1 of this Opinion, he shall be identified as drunk.

7. Handling criminal cases of drunk driving motor vehicles shall strictly implement the relevant provisions of the Criminal Procedure Law, effectively protect the litigation rights of criminal suspects and defendants, and promptly investigate, prosecute and trial within the legal time limit for litigation.

A criminal suspect or defendant who drives a motor vehicle while intoxicated may, according to the circumstances of the case, be detained or released on bail pending trial. Those who meet the conditions for bail pending trial, but the criminal suspect or defendant cannot put forward a guarantor and does not pay a bond, may be placed under residential surveillance. A criminal suspect or defendant who violates the provisions on bail pending trial or residential surveillance may be arrested if the circumstances are serious.

【 Public Security document 】

Guidance of the Ministry of Public Security on the Handling of Drunk Driving Motor Vehicle Crime Cases by Public Security Organs (Public Transport Administration [2011] No. 190, 20110919)

3. Further standardize filing and investigation

8. Strictly grasp the standards for filing cases. If the blood alcohol content of the driver reaches the standard of drunken driving, he shall be placed on file for investigation on suspicion of dangerous driving; Those who fail to meet the standards for drunken driving of motor vehicles shall be given administrative penalties in accordance with the relevant provisions of the Road Traffic Safety Law. After the party is arrested, in order to avoid legal investigation, drink alcohol again before breath alcohol test or blood sample extraction, after the test of its blood alcohol content to meet the standards of drunken driving motor vehicles, shall be filed for investigation. If the party who passes the breath alcohol test and meets the standards for drunk driving a motor vehicle escapes before taking a blood sample, a case shall be filed for investigation on the basis of the breath alcohol content.

9. Collect evidence comprehensively and objectively. For drunk driving motor vehicle cases that have been filed, criminal evidence materials shall be comprehensively and objectively collected, and strictly examined and verified. It is necessary to check and verify the basic situation of vehicles and personnel and the illegal and criminal information of motor vehicle drivers in a timely manner, and record in detail the process of seizing drunk driving motor vehicles at the scene, the basic characteristics of personnel and vehicles, and the situation of taking breath alcohol tests at the scene, implementing compulsory measures, extracting blood samples, oral summons, fixed evidence, etc. When interrogating a criminal suspect, the criminal suspect's guilt or innocence and the seriousness of the circumstances should be interrogated, and the innocent plea should be heard. It is necessary to collect witness testimony, audio-visual materials and other evidence materials that can prove whether the suspect is drunk driving a motor vehicle in a timely manner.

【 Guiding Case. Court 】

[Dangerous Driving Case of Zhang and Jin, FZD2014-32]

A motor vehicle driver, out of competition, the pursuit of excitement, anger or other motives, zigzag through the road, fast chase driving, belongs to the People's Republic of China Criminal Law article 133, one of the provisions of "chase racing".

2 Although the pursuit of competitive driving has not caused casualties or property losses, but the comprehensive consideration of exceeding the speed limit, running red lights, forced overtaking, resisting traffic law enforcement and other serious violations of road traffic safety law, enough to threaten the life and property safety of others, belong to the dangerous driving crime of "bad circumstances".

【 Court Bulletin Case 】

Shanghai Pudong New Area People's Procuratorate v. Zhang Jiwei, Jin Xin Dangerous Driving Case, GB2013-12

According to the provisions of Article 133 of the Criminal Law of the People's Republic of China, if the perpetrator drives a motor vehicle on the road to chase a race, and the circumstances are egregious, he shall be convicted and punished for the crime of dangerous driving.

[Court Reference Case]

[Reference Case No. 760: Xie Zhongde's dangerous driving case

Can a "country lane" be considered a "road" in the offence of dangerous driving?

The understanding of "road" in the crime of dangerous driving should focus on whether the driving behavior has "public", as long as it has "public", it should be identified as "road". In recent years, with the development of economy, some roads in rural areas have undergone obvious highway evolution, the number of motor vehicles running has increased substantially, and the traffic accidents of motor vehicles on rural roads have also increased significantly. Therefore, bringing rural roads with a certain scale and strong publicity into the category of "road" not only conforms to the legislative value orientation, but also conforms to the development needs of judicial practice.

[Reference Case No. 891: Liao Kaitian's dangerous Driving case

Does drunk driving on a residential road constitute a dangerous driving offence?

Social vehicles can enter and exit and park in the community as long as they register the license plate number or pay a certain fee, and the road and parking lot in the community under the management mode belong to the "road" stipulated in the road traffic Safety Law. The defendant drove a motor vehicle drunk in the community, which belongs to drunk driving on the road, and its behavior constitutes the crime of dangerous driving.

[Reference Case No. 892: Lin's dangerous driving case

Drunken driving exceeding the electric bicycle, does it constitute a dangerous driving crime?

It is not appropriate to identify the exceeding electric bicycle as a "motor vehicle", and drunken driving on the road exceeding the electric bicycle does not constitute a dangerous driving crime. If the perpetrator drives an electric bicycle exceeding the speed limit (more than 15km/h), it can be given a warning, a fine or an administrative penalty of detaining the vehicle. If a minor traffic accident occurs, it can be remedied through civil compensation. If a major traffic accident occurs and meets the constitutive requirements of the crime of causing a traffic accident, it may be dealt with according to law.

[Reference Case No. 893: Tang Haobin's dangerous Driving case

Does moving a parking space on the road while drunk constitute a dangerous driving offence?

As long as the perpetrator drives the motor vehicle drunk on the road, it has the danger of legal fiction and conforms to the objective conditions of the crime of dangerous driving. For the purpose of moving the parking space and drunk driving a motor vehicle on the road, and the driving distance is short, the speed is slow, and there is no serious consequences, can not be treated as a crime.

In the case of short distance drunk driving for the purpose of moving the car, if there is no actual harm result or only minor collision or rubbing consequences, according to the specific circumstances, it can be determined that the crime is significantly minor, the "proviso" clause is applied, and it is not treated as a crime, or it is exempted from criminal punishment. If only a minor traffic accident occurs, resulting in vehicle scratching, causing minor injuries, etc., and the perpetrator admits guilt, regrets his guilt, actively compensates for the loss of the victim and obtains understanding, it may not be treated as a crime or be exempted from criminal punishment. If there is a traffic accident that causes more than minor injuries, it is generally not appropriate to consider that the circumstances of the crime are significantly minor, but combined with the specific case, the perpetrator's confession, repentance and compensation, in order to reflect the spirit of leniency, probation can be applied to the defendant.

[Reference Case No. 894: Wu Xiaoming's dangerous driving case

How to determine the criminal circumstances in drunk driving dangerous driving cases are minor?

In drunk driving dangerous driving cases, from the perspective of behavior and actor, the sentencing circumstances can be divided into two categories:

In terms of behavior, there are mainly the following scenarios: (1) The space-time environment of drunk driving, that is, time, road section and distance. They include: whether the time of drunk driving is late at night when there is less traffic or during the daytime peak traffic, how long the drunk driving lasts, and the length of time between drinking and driving; Whether the section of drunk driving is a busy city or a sparsely populated area, whether it is an ordinary road or an urban expressway or a highway; Drunk driving distance at the time of seizure, remaining distance from the destination. (2) The condition of the motor vehicle for drunk driving. Including: "meat wrapped in iron" car or "meat wrapped in iron" ordinary motorcycle; Whether it is a private car or a passenger bus in operation; Yes match