Stuttgart Higher Regional Court order of 07.02.2010, 4 Ss 369/10
is in the measurement of alcohol in breath control time of 10 minutes are not adhered to because there was in the mouth, a foreign substance, can the measurement result should nevertheless be used if the limit of 0.25 mg / l is not negligible (about 20%) is exceeded and a haircut is made. In these cases, it requires the assistance of an expert (different from OLG Hamm, decision of 24.01.2008 - 2 Ss OWi 37/08 - VRS 114, 292).
Official motto
The appeal of those affected by the decision of the Stuttgart District Court on 8 March 2010, dismissed as unfounded
n.
The complainant shall bear the cost of his appeal.
I. The district court imposed against the person concerned because of a misdemeanor negligent breach of the 0.5 blood alcohol limit, a fine of 1,200 EUR and sat a driving ban of three months laid. According to the findings sailed the person concerned on 20 August 2009 compared with 1.55 clock in his car ... the ... street. He could see that he had previous alcohol consumption as a result of alcohol stored in the body that the road permissible limit of 0.25 mg / l was exceeded. Two breath testing carried out at 2.22 and 2.25 clock clock showed concentrations of 0.301 mg / l and of 0.297 mg / l.
The person concerned has admitted to having taken alcohol before driving himself, but to a lesser extent. During the journey, and the total control he had a chewing gum in the mouth. This place - the district court - but not the accuracy of the measurement results in Question. Although it was after the testimony of police officers who had carried out the inspection, questionable whether the person concerned had actually been during the inspection and performing the measurements a piece of gum in your mouth. In any case, the witness was able to rule out that the person concerned had chewed. The district court held on the basis of these data, the measurements for recyclable. To this end it has heard an expert, which it follows. It sets this:
"The expert explained that the accuracy of the information of the person concerned assumed, though not the detailed conditions for the detector Dräger Alcotest observed, had as its enters the oral cavity in the last 10 minutes before the measurement is not a foreign substance should, however, this present case does not lead to a distortion of the measurement result that is outside the allowed measurement of fluctuation. Such distortions have been identified so far, none of the surveyed foreign substances. Although he claims that the studies on the influence of foreign substances in the oral cavity in breath testing so far had been mainly carried out in alcohol-fasting subjects, so that already intoxicated subjects may require a slightly different mapping values to unavoidable measurement error variations or by the foreign substance caused distortions can not be sure, but was of deviations of up to 0.02 mg / l assumed.
Such a deviation was only in investigations after the use of a "Fisherman's Friend" candies been identified, was in all other foreign substances such as chewing gums and lozenges there have been no tampering. The expert also pointed out that dissolved at the mere chewing gum or sucking on a candy, much less foreign substances in the oral cavity, as this was the case during chewing. According to the results of scientific investigations is therefore present assumed on the basis of the testimony of the witness ... of not influence the measurement result from yourself. The drinking parties entering an appearance also fit with the detected breath alcohol concentration together under any circumstances. Would she vote for the measurement was a result of 0.1 to a maximum of 0.2 parts per thousand have been expected. Overall, the expert described, therefore, the entering of the person concerned as inconsistent. "
The interested party has against the decision to appeal filed, which he founded with the violation of substantive law. In particular, he argues that the measure was due to failure to control time of 10 minutes unusable.
The Attorney General has joined the argument of defense counsel, seeking the annulment of the sentence and acquittal of the person affected by the appeal court.
The appeal is without merit.
first According to § 24a para 1 and 3 StVG is irregular, anyone who drives on the road a motor vehicle negligently, even though he has 0.25 mg / l or more alcohol in the breath. For the usefulness of a breath test much compliance with the so-called control period of 10 minutes before measurement. During this time the person does not measure may possibly influence Substances to commit or deal with them. In addition to eating, drinking and smoking involve the use of mouthwash, spray etc. (so Schoknecht, evidential breath alcohol analysis, advice from the Federal Health Office, 1992, p. 12). Is maintained in addition to other conditions such as problems in keeping the waiting time of 20 minutes between drinkers and start the measurement, the control time, it requires no safety margin of the outcome of the measurement (BGHSt 46, 358 [367]). The question of how to proceed if the inspection time is not respected, is assessed differently. According to the OLG Hamm (VRS 114, 292 [294]) is the measurement of total unusable and is not about a haircut be recycled. The Higher Regional Court Bamberg (BA 45, 197) joins the at least for the case where the limit is just reached (in the underlying case, 0.253 mg / l). The Senate has just as in the case, in which the waiting time of 20 minutes, delivered a general unexploitability measurement not appropriate. In the former case, a group unexploitability will then not be accepted if the measured breath alcohol level nationwide (about 20%) is above the limit. In this case, by requiring an expert opinion to clarify whether associated with the failure of the waiting time fluctuations of the measured values can be compensated by a safety margin (for instance OLG Celle NZV 2004, 318; OLG Karlsruhe VRS 107, 52 and NStZ-RR 2006, 250; Hentschel / King / permanent road traffic law, 40 Edition, § 24a para StVG 16 a). From the report by Schoknecht (ibid.) It is not clear that the measurement is unusable in any case, if the control time of 10 minutes is not met. This aim is only to be ruled out that the subject might not measure affecting substances has brought to them. Examples mouthwash and spray are called (in which alcoholic substances may be included). It follows that the measurements in each case, despite non-compliance with the inspection time can be meaningful. Since the condition of compliance with the Control time has not been respected, but as with the non-compliance with the waiting time to make a haircut (cf. BGH supra). A usefulness of the measurements are therefore only be considered if the limit of § 24a Section 1 Road Traffic Act has been passed is not insignificant, so a recoverability in the case of the OLG Bamberg (supra) and the Higher Regional Court of Karlsruhe (VRS 107 52) retires (local values of 0.253 and 0.260 mg / l). The broader view of the OLG Hamm (supra) does not follow the Senate. To answer these questions, we need the assistance of an expert who has to make observations on the amount of the haircut.
second Based on these criteria, the results are usable. According to the findings of the district court were collected at 2.22 and 2.25 clock clock measuring breath alcohol concentration of 0.301 mg / l and 0.297 mg / l, on average, thus 0.299 mg / l. The limit value of 0.25 mg / l is not only slightly, but at about 20%. Therefore, the way is opened, with the help of an expert to assess the measurements are reliable. Which has met the district court in this case. From the presentation of the expert can be concluded in a transparent way, why the samples are nevertheless usable. The safety margin of 0.02 mg / l is appropriate. This is no prohibition on the use.
third A presentation of the case to the Federal Court pursuant to § 79 paragraph 3 sentence 1 requires OWiG conjunction with § 121 para 2 GVG not, since the meaning of the OLG Hamm, the measurement is in these cases generally unusable, non-supporting in that it was a note for the new trial. From the decision of the OLG Bamberg gives way to the Senate does not, as this is a different factual situations (lower reading) is based.
The appeal is in the rest unfounded. The district court allowed no deviation from 241.1 in the plant and the BKatV given the massive registrations of the person concerned, the fine of 1,000 EUR 1,200 EUR increase. A violation of the prohibition of double recovery is contrary to the defender (letter of 7 May 2010) not herein. The imposition of the ban of 3 months is not objectionable.
is in the measurement of alcohol in breath control time of 10 minutes are not adhered to because there was in the mouth, a foreign substance, can the measurement result should nevertheless be used if the limit of 0.25 mg / l is not negligible (about 20%) is exceeded and a haircut is made. In these cases, it requires the assistance of an expert (different from OLG Hamm, decision of 24.01.2008 - 2 Ss OWi 37/08 - VRS 114, 292).
Official motto
tenor
The appeal of those affected by the decision of the Stuttgart District Court on 8 March 2010, dismissed as unfounded
n.
The complainant shall bear the cost of his appeal.
reasons
I. The district court imposed against the person concerned because of a misdemeanor negligent breach of the 0.5 blood alcohol limit, a fine of 1,200 EUR and sat a driving ban of three months laid. According to the findings sailed the person concerned on 20 August 2009 compared with 1.55 clock in his car ... the ... street. He could see that he had previous alcohol consumption as a result of alcohol stored in the body that the road permissible limit of 0.25 mg / l was exceeded. Two breath testing carried out at 2.22 and 2.25 clock clock showed concentrations of 0.301 mg / l and of 0.297 mg / l.
The person concerned has admitted to having taken alcohol before driving himself, but to a lesser extent. During the journey, and the total control he had a chewing gum in the mouth. This place - the district court - but not the accuracy of the measurement results in Question. Although it was after the testimony of police officers who had carried out the inspection, questionable whether the person concerned had actually been during the inspection and performing the measurements a piece of gum in your mouth. In any case, the witness was able to rule out that the person concerned had chewed. The district court held on the basis of these data, the measurements for recyclable. To this end it has heard an expert, which it follows. It sets this:
"The expert explained that the accuracy of the information of the person concerned assumed, though not the detailed conditions for the detector Dräger Alcotest observed, had as its enters the oral cavity in the last 10 minutes before the measurement is not a foreign substance should, however, this present case does not lead to a distortion of the measurement result that is outside the allowed measurement of fluctuation. Such distortions have been identified so far, none of the surveyed foreign substances. Although he claims that the studies on the influence of foreign substances in the oral cavity in breath testing so far had been mainly carried out in alcohol-fasting subjects, so that already intoxicated subjects may require a slightly different mapping values to unavoidable measurement error variations or by the foreign substance caused distortions can not be sure, but was of deviations of up to 0.02 mg / l assumed.
Such a deviation was only in investigations after the use of a "Fisherman's Friend" candies been identified, was in all other foreign substances such as chewing gums and lozenges there have been no tampering. The expert also pointed out that dissolved at the mere chewing gum or sucking on a candy, much less foreign substances in the oral cavity, as this was the case during chewing. According to the results of scientific investigations is therefore present assumed on the basis of the testimony of the witness ... of not influence the measurement result from yourself. The drinking parties entering an appearance also fit with the detected breath alcohol concentration together under any circumstances. Would she vote for the measurement was a result of 0.1 to a maximum of 0.2 parts per thousand have been expected. Overall, the expert described, therefore, the entering of the person concerned as inconsistent. "
The interested party has against the decision to appeal filed, which he founded with the violation of substantive law. In particular, he argues that the measure was due to failure to control time of 10 minutes unusable.
The Attorney General has joined the argument of defense counsel, seeking the annulment of the sentence and acquittal of the person affected by the appeal court.
II
The appeal is without merit.
first According to § 24a para 1 and 3 StVG is irregular, anyone who drives on the road a motor vehicle negligently, even though he has 0.25 mg / l or more alcohol in the breath. For the usefulness of a breath test much compliance with the so-called control period of 10 minutes before measurement. During this time the person does not measure may possibly influence Substances to commit or deal with them. In addition to eating, drinking and smoking involve the use of mouthwash, spray etc. (so Schoknecht, evidential breath alcohol analysis, advice from the Federal Health Office, 1992, p. 12). Is maintained in addition to other conditions such as problems in keeping the waiting time of 20 minutes between drinkers and start the measurement, the control time, it requires no safety margin of the outcome of the measurement (BGHSt 46, 358 [367]). The question of how to proceed if the inspection time is not respected, is assessed differently. According to the OLG Hamm (VRS 114, 292 [294]) is the measurement of total unusable and is not about a haircut be recycled. The Higher Regional Court Bamberg (BA 45, 197) joins the at least for the case where the limit is just reached (in the underlying case, 0.253 mg / l). The Senate has just as in the case, in which the waiting time of 20 minutes, delivered a general unexploitability measurement not appropriate. In the former case, a group unexploitability will then not be accepted if the measured breath alcohol level nationwide (about 20%) is above the limit. In this case, by requiring an expert opinion to clarify whether associated with the failure of the waiting time fluctuations of the measured values can be compensated by a safety margin (for instance OLG Celle NZV 2004, 318; OLG Karlsruhe VRS 107, 52 and NStZ-RR 2006, 250; Hentschel / King / permanent road traffic law, 40 Edition, § 24a para StVG 16 a). From the report by Schoknecht (ibid.) It is not clear that the measurement is unusable in any case, if the control time of 10 minutes is not met. This aim is only to be ruled out that the subject might not measure affecting substances has brought to them. Examples mouthwash and spray are called (in which alcoholic substances may be included). It follows that the measurements in each case, despite non-compliance with the inspection time can be meaningful. Since the condition of compliance with the Control time has not been respected, but as with the non-compliance with the waiting time to make a haircut (cf. BGH supra). A usefulness of the measurements are therefore only be considered if the limit of § 24a Section 1 Road Traffic Act has been passed is not insignificant, so a recoverability in the case of the OLG Bamberg (supra) and the Higher Regional Court of Karlsruhe (VRS 107 52) retires (local values of 0.253 and 0.260 mg / l). The broader view of the OLG Hamm (supra) does not follow the Senate. To answer these questions, we need the assistance of an expert who has to make observations on the amount of the haircut.
second Based on these criteria, the results are usable. According to the findings of the district court were collected at 2.22 and 2.25 clock clock measuring breath alcohol concentration of 0.301 mg / l and 0.297 mg / l, on average, thus 0.299 mg / l. The limit value of 0.25 mg / l is not only slightly, but at about 20%. Therefore, the way is opened, with the help of an expert to assess the measurements are reliable. Which has met the district court in this case. From the presentation of the expert can be concluded in a transparent way, why the samples are nevertheless usable. The safety margin of 0.02 mg / l is appropriate. This is no prohibition on the use.
third A presentation of the case to the Federal Court pursuant to § 79 paragraph 3 sentence 1 requires OWiG conjunction with § 121 para 2 GVG not, since the meaning of the OLG Hamm, the measurement is in these cases generally unusable, non-supporting in that it was a note for the new trial. From the decision of the OLG Bamberg gives way to the Senate does not, as this is a different factual situations (lower reading) is based.
III.
The appeal is in the rest unfounded. The district court allowed no deviation from 241.1 in the plant and the BKatV given the massive registrations of the person concerned, the fine of 1,000 EUR 1,200 EUR increase. A violation of the prohibition of double recovery is contrary to the defender (letter of 7 May 2010) not herein. The imposition of the ban of 3 months is not objectionable.
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