Criminal Liability of Persons Committing Transport Crimes in a

State of Intoxication: A Comparative Legal Study

Sergej Nikolaevich Bezugly

, Gennadij Yuryevich Lesnikov

and Ravil Lutfirahmanovich

Gabdrakhmanov

3 c

Law institute

Belgorod State University, 85 Pobedy Street, 308015 Belgorod, the Belgorod region, Russia

Federal State Institution Research Institute of the Federal Penitentiary Service of Russia, Zhitnyaya St., 14, 119991

Moscow, GSP-1, Russia

Moscow University of MIA of Russia named V. Kikotja, 12 Street Akademika Volgina, 117997 Moscow, Russia

Keywords: Criminal law, criminal law means of counteracting crimes, intoxication, transport crimes, criminal law of the

CIS countries.

Abstract: The article analyzes the features which can be used as the signs of intoxication in the regulation of transport

crimes. The purpose of the work is a comprehensive analysis of the options for using the distinguishing

features of intoxication in transport crimes provided for by the legislation of the CIS countries, the study of

doctrinal provisions on the criminal law significance of intoxication. To achieve the goal, the authors set tasks

that are due to the peculiarities of the legal standards of criminal laws providing for the responsibility of

persons committing transport crimes in a state of intoxication. Namely: identifying typical approaches to the

use of intoxication signs in the regulation of transport crimes; considering the most common options for using

this sign; studying the features of transport crimes

corpus delicti, including the distinguishing features of

intoxication of the subject. The use of comparative jurisprudence method in combination with general

scientific methods made it possible to identify common features of legal regulation, as well as to find

discrepancies in the legal positions of legislators of the CIS countries. In the course of the study, it was

revealed that there are typical approaches to the use of the sign of intoxication in transport crimes. At the same

time, quite specific approaches of legislators were found in terms of the scale of the use of this distinguishing

feature, the peculiarities of the structures of traffic crimes, which include the distinguishing features of

intoxication of the subject. The results of the study make it possible to expand knowledge of criminal law

science, ensure the integration of scientific knowledge about the legal standards of foreign countries, and also

contribute to the process of improving the criminal law, improving its quality and adequacy to modern realities.

1 INTRODUCTION

We cannot think of modern society without transport.

A century ago, the average speed of movement of

passenger traffic and cargo was very low. With the

development of scientific and technological progress,

the transport industry began to develop rapidly,

primarily road transport. The speed of movement of

people increased actively, the delivery of goods

accelerated, and the service sector underwent certain

changes. Transport invaded not only megalopolises,

but also small settlements. However, with all the

visible advantages, the active development of

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transport has created a danger to the health and life of

people who take part in road traffic.

Legislators began to create legal standards

governing the liability of persons who violate traffic

rules as long as they realized the need for legal

regulation of public relations related to the safe

operation of transport. The legislation of the CIS

countries is also changing in accordance with changes

in public relations, as evidenced by the active rule-

making aimed at improving the criminal law and

increasing the safety of transport operation. Common

historical, cultural, political and legal roots within the

framework of the USSR determined the choice of a

Bezugly, S., Lesnikov, G. and Gabdrakhmanov, R.

Criminal Liability of Persons Committing Transport Crimes in a State of Intoxication: A Comparative Legal Study.

DOI: 10.5220/0010634300003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

223-227

ISBN: 978-989-758-532-6; ISSN: 2184-9854

223

group of precisely the CIS countries, in whose

criminal codes the authors identified general

legislative solutions, as well as particular features

characteristic only for specific countries.

Recently, the topic of liability of persons who

have committed crimes in a state of intoxication in a

state of intoxication has been relevant (Bezugly,

Bazarov, Kostennikova, Lesnikov, Mironuk, 2020;

Liu L., Chui WH, Deng Y., 2021; Xiao, Ning,

Schwebel, Hu, 2017), and its relevance increases

significantly when it comes to drunkenness in

transport crimes. In the literature, it is noted that even

staying in a vehicle in a state of intoxication can be

dangerous (Korobeev, Chuchaev, 2018), and driving

while intoxicated is always objectively dangerous.

One can find a large number of works that are

devoted specifically to the topic of liability of persons

in a state of intoxication and transport managers (Fei,

Li, Sun, Qian, Stallones, Xiang, Zhang, 2020;

Wintemute, Wright, Castillo-Carniglia, 2018; Chan,

Chen , Huang, Peng, 2017). There are also studies

examining the effect of drunkenness on driving

(Conway, Sokolovsky, White, Jackson, 2020; Larkin,

DuPont, Madras, 2018); science is trying to

understand exactly the effect of drunkenness on

driving quality. Preventive measures aimed at

reducing the risks of drunk driving are actively

studied (Stelter, Kupersmidt, Brodar, 2019; Burtsev

A.A., 2018)

Unless there are a lot of approaches to the study of

the influence of intoxication on the commission of a

crime, it should be stated that social relations are

changing, and the legal standards of criminal law are

changing, and this makes us conduct the scientific

research that will find, adapt and use positive solutions

to the most pressing issues in this area, developed by

the foreign countries. For example, the development

of medicine and pharmacology also necessitates

constant study of intoxication caused by the use of

both legal and illegal psychoactive substances and its

effect on driving efficiency (Liebenberg, Du Toit-

Prinsloo, Saayman, Steenkamp, 2019). Science has

already accumulated quite a lot of material on the

issues under consideration, but still there are

unresolved issues related to the volume of

criminalization of transport crimes committed in a

state of intoxication, regulation of the distinguishing

features of intoxication in transport crimes.

The hypothesis of the study is that in the CIS

countries there are different approaches to the use of

the distinguishing features of intoxication of a subject

in transport crimes, the scale of its use, the

peculiarities of its inclusion in certain corpus delicti

of transport crimes.

The purpose of the study is to analyze the options

comprehensively for using distinguishing features of

intoxication in transport crimes provided for by the

legislation of the CIS countries, to study doctrinal

provisions on the criminal law significance of

intoxication.

In accordance with the legal standards of criminal

laws regulating the responsibility of persons

committing transport crimes in a state of intoxication,

the authors set the following tasks: identification of

typical approaches to the use of the distinguishing

features of intoxication in the regulation of transport

crimes, consideration of the most common options for

using this sign, study of the structural features of

traffic offenses, in which included a sign of the

subject's intoxication.

The authors made an attempt to systematize the

positive (according to the authors) legislative

positions, explain them and thereby provide science

with their judgments, which, possibly, will be

perceived in related studies.

2 MATERIALS AND METHODS

The study was based on a dialectical approach to the

disclosure of legal phenomena and processes using

general scientific (systemic, logical, analysis and

synthesis) and specific scientific methods. Among the

latter are formal legal, linguistic and legal,

comparative legal, which were used cumulatively to

study the texts of criminal laws of 10 post-Soviet

countries in order to identify the distinguishing

features of the use of the intoxication sign in the

criminal legislation of the CIS countries. The choice

of this group is due to the commonality of the

previous historical development of criminal

legislation within the USSR and the equal period of

post-Soviet development. This makes it possible to

predict, on the one hand, the presence of one-size-fits-

all approach to the use of the sign of intoxication in

transport crimes, on the other hand, the diversity in

the positions of legislators regarding the scale of the

use of the intoxication sign, the specifics of the

regulation of the offenses of transport crimes that

include this sign.

3 RESULTS AND DISCUSSION

In the criminal laws of the CIS countries, the legal

standards that establish responsibility for the

commission of transport crimes by persons in a state

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of intoxication are widespread. It should be pointed

out that in some codes the sign of intoxication is

described not only in corpus delicti where cars,

trolleybuses and other mechanical vehicles are the

target of crime, but also in corpus delicti that provide

for other types of transport as the target of crime.

Thus, in the Criminal Code of the Republic of

Belarus, the condition of intoxication or the condition

caused by the consumption of narcotic drugs,

psychotropic substances, their analogues, toxic or

other intoxicating substances is a qualifying feature in

violation of traffic safety rules or the operation of

small craft. The Criminal Code of the Republic of

Kazakhstan fixes the feature of intoxication in crimes

where the target is air, sea and other vessels, and also

indicates this sign as criminally forming in the legal

standard for driving combat vehicles, warships, and

controlling military aircraft. We can get the

impression that the legislator wanted to cover the

most complete list of acts that are related to transport,

including military equipment. Taking into account the

fact that the new Criminal Code of the Republic of

Kazakhstan was adopted in 2014, the legislator had

certain ideas about the need to criminalize some of

the compositions regulating the liability of persons in

a state of intoxication. We believe that this is due to

certain resonant precedents, forcing to expand the

scope of criminal law regulation.

In the last decade, the sign of intoxication has

begun to be used quite actively as a constructive sign

of an independent corpus delicti. Considering this

issue, it is necessary to indicate the prejudicial corpus

delicti.

The Criminal Code of the Russian Federation

contains Art. 264.1, which provides for liability for

driving a power-driven vehicle in a state of

intoxication by a person who has been subjected to

administrative punishment for driving in a state of

intoxication or has a conviction for certain crimes

committed in a state of intoxication. In our opinion,

there is certain fairness in this approach. By bringing

a person to administrative responsibility, the state

does not apply the repressive apparatus that criminal

legislation presupposes. We can say that a person is

warned about the inadmissibility of such behavior.

However, if by repetition of the act he confirms the

impossibility of his correction by other means (often

by administrative law), then it is necessary to use the

potential of criminal law. Repeated deliberate

commission of an offense by a person who has been

subjected to administrative punishment or who has an

unexpunged or outstanding conviction is

characterized by an increased degree of danger to

society and should be recognized as a crime

(Yelizarova, Sharipova, 2020). Although at present

the government commission on legislative activity

has approved a bill to add part two to Article 264.1,

where the sanction for re-committing the main corpus

delicti will presumably be toughened. In 2020, the

share of persons who committed repeated violations

of Article 264.1 was 20 percent, in 2019 - 15, and in

2018, of all convicts, only one in ten got drunk,

having already been convicted of such a crime.

The legislator of the Republic of Belarus also used

res judicata in the construction of Art. 3171, which

stipulates responsibility for "driving a vehicle by a

person in a state of intoxication, transferring control

of a vehicle to such a person, or refusing to undergo

an inspection (survey) ". It is important to note that in

this legal standard there is an aggravation that

provides for increased punishment for persons who

have previously committed this crime. We believe

that the legislator of the Republic of Belarus acted

more far-sighted, providing for the repetition of such

crimes.

The Criminal Code of the Republic of Kazakhstan

in Article 346 provides for a rule that is built on the

sign of "intoxication", namely: "driving a vehicle by

a person deprived of the right to drive vehicles and

being in a state of alcohol, narcotic and (or) toxic

intoxication, as well as transfer driving a vehicle to

such a person or admitting such a person to drive a

vehicle”. Here it is necessary to have two conditions

at once: the person must be deprived of the right to

drive vehicles; the person must be intoxicated. In

accordance with the Code of the Republic of

Kazakhstan on Administrative Offenses, a person

may be deprived of the right to drive vehicles not only

for driving while intoxicated, but also for a number of

other offenses. From this we can conclude that the

approach used in Art. 346 are more universal and

broader than approaches using only administrative

precedence for specific offenses. In our opinion, this

can be recognized as a positive experience. Any

offense sanctioned by deprivation of the right to drive

a vehicle poses a significant public danger, and

therefore driving in a state of intoxication after the

deprivation of rights becomes even more dangerous

and requires a criminal response.

The legislator of the Azerbaijan Republic used

"intoxication" as an alternative criminogenic feature

in an independent corpus delicti: "violation of traffic

rules or operation of vehicles by a person who is

intoxicated or does not have the right to drive

vehicles", provided for in Art. 263-1. It should be

noted that this corpus delicti is special in relation to

the corpus delicti that regulates liability for “violation

of traffic rules and vehicle operation”.

Criminal Liability of Persons Committing Transport Crimes in a State of Intoxication: A Comparative Legal Study

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In the criminal legislation of the CIS countries,

there are also approaches to the criminalization of

transport crimes, depending on the degree and nature

of intoxication. The Criminal Code of the Republic of

Moldova contains article 264-1, which stipulates

responsibility for “driving a vehicle under the

influence of alcohol or intoxicated by other

substances”. The recognition of an act as a crime

directly depends on the degree and nature of

intoxication. So, driving in a state of light alcohol

intoxication (the condition of a person with a blood

alcohol concentration of 0.3 to 0.5 g/l or an alcohol

vapor concentration in exhaled air from 0.15 to 0.3

mg/l) does not entail criminal liability. But driving in

a state of strong alcohol intoxication (the condition of

a person with an alcohol concentration in the blood of

0.5 g/l and above or the concentration of alcohol

vapors in the exhaled air from 0.3 mg/l and above) or

a state of intoxication caused by drugs and/or other

substances causing intoxication immediately entails

criminal liability. In such a legislative approach, one

can immediately notice the differentiation of the

social danger of various states of intoxication. In our

opinion, this is absolutely fair and correct, as

evidenced by scientific studies that show a direct link

between an increase in the concentration of alcohol in

the blood of drivers and an increased risk of a car

accident (Ballin, 1986). Analyzing Article 264-1 of

the Criminal Code of the Republic of Moldova, it is

important to note that it provides for increased

liability for persons driving a vehicle under the

influence of alcohol or intoxication caused by other

substances and who do not have a driver's license or

are deprived of the right to drive vehicles.

In general, the use of the distinguishing feature of

intoxication in the criminal legislation of the CIS

countries in the design of transport crimes has many

variations. Liability for the transfer of a vehicle to a

person in a state of intoxication is quite widespread in

the criminal legislation of the CIS. The compositions

describing this act are diverse in their characteristics

and the most optimal (in our opinion) legislative

decisions should be indicated. First of all, we have to

mention the Criminal Code of the Republic of

Moldova, which stipulates responsibility for

“deliberate transfer of driving a vehicle to a person

who is knowingly intoxicated, if this entailed

consequences ...” It is very appropriate, in our

opinion, to indicate the deliberate transfer of transport

control, which emphasizes the directionality of the

person’s intent. An important feature is the sign of

"knowingness", which avoids objective imputation.

In general, such a legal standard meets the

requirements of a modern fair criminal law, which

allows taking into account all the nuances of a

committed act, recognizing it as criminal or not

recognizing it. Quite often, in such crimes, legislators

mention officials (the Criminal Code of the Republic

of Kazakhstan), persons responsible for the operation

of a vehicle (the Criminal Code of the Republic of

Uzbekistan). It should be pointed out that the use of

such rules is very reasonable. The fight against drunk

driving should be carried out not only in the

framework of the influence on the persons directly

driving the transport, but also measures are needed to

influence the persons who create the conditions for

such behavior. When criminalizing such crimes,

legislators, as it were, warn directly a dangerous form

of behavior - driving in a state of intoxication.

The classic approach to the use of the sign of

"intoxication" in the legislation of the CIS countries

is to consolidate it as an aggravating circumstance in

comparison with the main corpus delicti of a transport

crime. This approach is used in the Criminal Codes of

the Russian Federation, the Republic of Tajikistan

and other codes.

Modern studies illustrate the detrimental effect of

alcohol intoxication on the spatial distribution of

visual attention (Do Canto-Pereira, De PA David.,

Machado-Pinheiro, Ranvaud, 2007), its effect on the

impairment of control of body movements (Modig,

Fransson, Magnusson, Patel, 2012) At the same time,

various psychoactive substances (both legal and

illegal) can negatively affect driving efficiency and

increase the likelihood of a road traffic accident.

4 CONCLUSIONS

To sum up the results of this study, it should be said

that all the criminal laws of the CIS countries use the

sign of "intoxication" in crimes related to transport.

However, the scale of the use of this feature is

different in all codes. Some legislators try to include

the sign of "intoxication" in the vast majority of rules

related to transport management (the Criminal Code

of the Republic of Kazakhstan), and in some laws this

sign is used only in one norm (the Criminal Code of

the Republic of Uzbekistan).

The analysis of the criminal laws’ texts of the CIS

countries made it possible to identify the most

common variants of the use of the sign “intoxication”.

It is very often used as a criminogenic feature. In turn,

the rather long period of the sovereign development

of the CIS countries determined the differences in the

regulation of transport crimes, including the sign of

intoxication. So, driving in a state of intoxication can

be considered a crime if such behavior is repeated

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(Criminal Code of the Russian Federation), provided

that a person is deprived of the right to drive transport

and drives it in a state of intoxication (Criminal Code

of the Republic of Kazakhstan), when driving in a

state of intoxication of a certain degree and character

(Criminal Code of the Republic of Moldova).

In the course of the study, it was revealed that a

number of criminal laws of the CIS countries

criminalized the transfer of a vehicle (transfer of

control of transport) to a person in a state of

intoxication. In such compositions, special subjects

are often indicated. We believe that the use of such

norms is very justified in view of the fact that the fight

against drunk driving should be carried out not only

within the framework of influencing the persons

directly driving the transport, but also measures are

needed to influence the persons who create the

conditions for such behavior. Based on the fact that it

is not always possible to determine whether a person

is intoxicated, such norms should be described in

detail, pointing out the subjective signs of a crime.

In the considered group of countries, intoxication

is often encountered in the material composition of

transport crimes. Sometimes the sign of the subject's

intoxication is used as an aggravating circumstance in

comparison with the main corpus delicti of a transport

crime, and sometimes it is used as an independent

corpus delicti.

REFERENCES

Ballin, JC., 1986. Alcohol and the driver. In Jama-journal

of the American medical association.

Bezugly, S.N., Bazarov, R.A., Kostennikova, E.I.,

Lesnikov, G. Yu., Mironuk, I.V., 2020. Committing a

Crime while Intoxicated: The Basis of Liability and

Legal Regulation. In International Journal of

Criminology and Sociology.

Burtsev, A.A., 2018. Comprehensive prevention issues of

impaired driving: organizational, legal, medical and

socio-psychological aspects. In Social Psychology and

Society.

Chan, YS., Chen, CS., Huang, L., Peng, YI., 2017. Sanction

changes and drunk-driving injuries/deaths in Taiwan. In

Accident Analysis & Prevention.

Conway, F.N., Sokolovsky, A., White, H.R., Jackson,

K.M., 2020. Simultaneous Alcohol and Marijuana Use:

A Brief Measure of Motives. In Journal of Studies on

Alcohol and Drugs.

Do Canto-Pereira, L.H., De, P.A., David I., Machado-

Pinheiro W., Ranvaud R.D., 2007. Effects of acute

alcohol intoxication on visuospatial attention. In Hum

Exp Toxicol.

Fei, G., Li, X., Sun, Q., Qian, Y., Stallones, L., Xiang, H.,

Zhang, X., 2020. Effectiveness of implementing the

criminal administrative punishment law of drunk

driving in China: An interrupted time series analysis,

2004-2017. In Accident Analysis & Prevention.

Korobeev, A.I., Chuchaev, A.I., 2018. The Definition of

Intoxication is Recognized Unconstitutional. In Lex

Russica.

Larkin, Jr. P.J., DuPont, R., Madras, K.B., 2018. The Need

to Treat Driving Under the Influence of Drugs as

Seriously as Driving Under the Influence of Alcohol.

https://ssrn.com.

Liebenberg, J., Du Toit-prinsloo, L., Saayman, G.,

Steenkamp, V., 2019. Drugged driving in South Africa:

An urgent need for review and reform. In SA crime

q.(online).

Liu, L., Chui, W.H., Deng, Y., 2021. Driving after alcohol

consumption: A qualitative analysis among Chinese

male drunk drivers. In International Journal of Drug

Policy.

Modig, F., Fransson, PA., Magnusson, M., Patel, M., 2012.

Blood alcohol concentration at 0.06 and 0.10% causes

a complex multifaceted deterioration of body

movement control. In Alcohol.

Stelter, R.L., Kupersmidt, J.B., Brodar, K. 2019. The

Prevention of Drugged Driving: Needs, Barriers, and

Self-Efficacy of Prevention Professionals. In Primary

Prevent. https://rg.ru.

Wintemute, G.J., Wright, M.A., Castillo-Carniglia, A.,

2018. Firearms, alcohol and crime: convictions for

driving under the influence (DUI) and other alcohol-

related crimes and risk for future criminal activity

among authorised purchasers of handguns. In Injury

Prevention.

Xiao, W., Ning, P., Schwebel, D.C., Hu, G., 2017.

Evaluating the Effectiveness of Implementing a More

Severe Drunk-Driving Law in China: Findings from

Two Open Access Data Sources.

In. J. Environ. Res.

Public Health.

Yelizarova, A.D., Sharipova, A.R., 2020. Problems of

Enforcement of Statistical Provisions 264.1 of the

Criminal Code of the Russian Federation. In Law and

law.

Criminal Liability of Persons Committing Transport Crimes in a State of Intoxication: A Comparative Legal Study

227