If the measurement result of a breath test, for example by taking a cough solver, which has taken the suspect has been tampered with or may have been falsified and / or was not maintained during the measuring process, the so-called control time is to measure total unusable and can not be used as an increased safety margin. This is especially true if the check time is not met ( aA: OLG Stuttgart Decision of 02.07.2010, 4 Ss 369/10 ).
OLG Hamm, decision of 24.01.2008, Az: 2 Ss OWi 37/08
The legal complaint against the person concerned the decision of the district court Schwelm of 26 October 2007, the 2nd Senate for fine things of the Oberlandesgericht Hamm, 24 01. decided in 2008 by the judge at the High Court as a judge at the request of the Attorney General after consultation with the victim or his lawyer:
The verdict will be contested with the underlying findings repealed.
The case is for a new trial and decision - back to the district court Schwelm - even on the costs of the appeal proceedings.
reasons
I.
The district court convicted the person concerned because of a negligent violation of § 24a para 1
StVG to a fine of 250 €, imposed a driving ban of one month and the regulations of § 25 para 2 a StVG exercised. In contrast, applies the appeal of the person concerned has given notice of the violation of the procedural and substantive law. The general prosecutor's office has applied to set aside the contested decision.
II
The AG made the following findings and stated:
sailed "on 20.02.2007, the person concerned by car Suzuki, Ind. XXXXXX Vehicle Registration, public roads in Schwelm, namely Hattinger the road. He has been te-alcohol drinking. The interested party led the vehicle with a breath-alcohol concentration of 0.36 mg / I.
The breath test was performed by the calibrated Dräger Evidential.
The person concerned has therefore introduced a motor vehicle with a breath alcohol concentration of 0.25 mg / 1 or more.
The person concerned has previously admitted that he had only drunk a beer with coke in the night. He had taken cough and cold solver, so that is not excluded that the test result had been falsified. It is possible that each of the measurement by about remaining in gum pockets remains of cough drops the measurement had been falsified VER. Moreover, the measurement protocol would not confirm that throughout the process, a civil servant was present. The measurement result is therefore not to exploit.
Affected parties led to a motor vehicle with a breath alcohol concentration of 0.25 mg / 1 or more. The court is due to the measurement protocol and discussed the certificate of measurement convinced that the measured value is usable without haircuts. The unit has received type approval for the official monitoring of road traffic, in compliance with the calibration period, it was calibrated, the conditions for a valid measurement procedures were respected. Evidence of distortion the measurement result due to other confounding factors do not exist. Against this it that once before, namely, to clock 01.15 and 01.17 clock, measurements have been carried out, with readings have been reached over 0.25 mg / 1. That could have been achieved in each case in the measurements mouth residual alcohol from the number pockets, is excluded to the satisfaction of the court.
The value of breath alcohol concentration has also been determined accurately. The technical procedures have been followed, which also measured the employee, wife Gehrisch, has confirmed on the measurement protocol. A time of 20 minutes since the end of drinking has been preserved. Furthermore, the control time of 10 minutes before the breath alcohol concentration measurement on hold. The person concerned had gone at 00:45 clock, the measurements were carried out to clock 01.25 and 01.27 clock. There was therefore before a double measurement at intervals of 5 minutes and permissible variation between the individual measurement values. "
III.
The gem. § 79 para 1 No. 2 OWiG permitted further appeal form and brought in time .. and you also have been justified - at least for now - Success
The Attorney General has its waiver request in the following reasons:
"1 The repeal of the contested ruling is caused due to the already collected Verfahrensrüge If the audit alleges. an educational deficiency lies in the fact that the court an expert opinion on the question of whether a periodontal pocket in a remaining balance of a cough solver, the result of the second measurement with the Dräger 7110 Evidential could have been distorted, has not raised this complaint proves first as permitted . The legal complaint is the fact failed to identify the court, and the evidence of this, the trial judge would have to operate. Moreover, given the circumstances which the court would have had to push for further investigation and is expected to result from the failure of evidence would have been. The legal complaint performs in this regard that such evidence would have shown that the test result may have a remaining balance in a periodontal pocket can be falsified. On the necessity of taking evidence out of the legal complaint that the total of the first measurement of the evening, namely, which was measured using the Dräger 6510, a blood alcohol concentration of 0.39 0/0o. In contrast, the measurement using the device have Dräger 7110 Evidential who ejected from two measurements were carried out by 01.13 bis 01.20 Clock clock, initially no test result, but the error message "interference". A from 01.22 clock 01:29 Clock carried out another test with the Dräger 7110 Evidential then have a test result of 0.36 mg / 1 reported. With such a difference to urge the possibility of a failure. The district court would have to say the obvious source of error in cough solver remains must engage in the periodontal pocket, especially since were already made by letter of 08.06.2007 support appropriate versions. Next performs the appeal, the district court had no reason to assume that such evidence was unnecessary. In particular, give the first measurement with the Dräger 7110 Evidential no reason for such an assumption. While it is true that the two individual measurements in each of these measurements would have had values of over 0.25 mg / 1, but this measurement had been a total output from the device to be invalid.
the complaint proves to be well founded. Contrary of the grounds, in view of the different measurement results in terms of the used equipment Dräger 6510 and the equipment used in the episode 7110 Evidential obviously not excluded that there has been a distortion of results due to other confounding factors. The imposition of an expert evidence on the question of whether a periodontal pocket in a remaining balance of the cough solver the result of the second measurement with the device Dräger 7110 Evidential could have been distorted and is concentrated in that regard.
second The tax on BASIC SUBMISSION to be carried out through review of the sentence also covers an error of law to the detriment of the defendant.
The district court assumed that the control period was observed from 10 minutes before the breath alcohol concentration measurement. The measurement protocol is, however, on compliance with the control period, no information. The officer has measured here only confirmed to be empowered to apply the instrument, the volunteers, the test procedure describes the measurement procedure performed according to instructions and checked the display with the printed result on line have to. This confirmation, however, relates not to the control period, but only to the specific measurement. Compliance with the inspection time of 10 minutes before the start of the measurement, during which the subject may take any substances to be, is hereinafter referred to at least questionable. Compliance with the inspection time is required to minimize distortion of the measurement result by any existing residual alcohol or other residual substances in the mouth excluded (cf. OLG Hamm, decision of 13.12.2000 - 4 Ss OWi 1154 / 2000 -). According to the findings of the person concerned has taken after his statement prior to conducting the breath test a cough solver. This can not be ruled out without expert advice be that it has come by taking this cough solver to a distortion of the measurement result. "
this true and compelling versions occurs in the Senate, at its substantive examination. The contested sentence could not stand and was therefore annulled. A decision on the merits of the Senate came gem.
§ 79 para 6 OWiG not considered, since a new trial, as the Attorney General correctly points out, additional observations can be made. Particular, it appears possible that with a property of the alleged falsification of the measurement result report from an understanding in a periodontal pocket remaining . Rest of the cough solver can be excluded and that will be determined by examination of the measurement by leading officials can show that the control period was observed "
IV
for the new trial points of the Senate to:
If, in the new trial point out that the measurement result by the cough solver that has been taken, the person concerned according to the statements, has been corrupted or may be and / or that has not been observed during the measuring process, the so-called control period, then the measurement of total unusable and can not be used with an increased safety margin (BGHSt 46, 358 = NZV 2001, 267). This is especially true if the control period is not met (this BayObLG NJW cf. 2005, 232 = NZV 2005, 53 = DAR 2005, 40 = VRS 2005, 108, 42; OLG Dresden NStZ 2004, 352 = BA 2005, 487 ; to also OLG Hamm NZV cf. 2005, 109 = VRS 107, 468; VA, 2007, 35 = VRR 2007, 70, Bamberg Higher Regional Court, decision of 27 November 2007, 2 Ss OWi 1489/07, including Maatz BA 2001, 21, 30 et seq; to all, Burhoff in: Burhoff (Ed.), Handbook for the traffic law OWi process, para 2015 et seq.). The part of the conflicting decisions of the OLG Karlsruhe (OLG Karlsruhe NZV 2004, 426 f. = VRS 107, 52 f. = DAR 2004, 466 f. = VA 2004, 120, NJW 2006, 1988 = VA 2006 140 (LS.) = NZV 2006, 438 = VRR 2006, 355) concern in other situations.
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