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Liability for "medicinal intoxication"

The Russian Government has submitted to the State Duma a bill proposing to penalize drivers for "medicinal intoxication". Liability for "drug intoxication" will be the same as for alcohol or drug intoxication.

The concept of "medicinal intoxication" is, so to speak, simple. It will be considered an offense to drive under the influence of medications that do not contain ethyl alcohol or narcotic substances, but affect human reactions

The list of medicines, which people will be forbidden to drink before driving, will be approved by the resolution of the Government of the Russian Federation. It may include anesthetics, antiepileptic drugs, sleeping pills and sedatives.

It is promised that the order of medical examination for intoxication will also be supplemented with a corresponding section, which will regulate the procedure for establishing the fact of the use of drugs that impair a person's reaction.

What i is interesting here is that the question of a person's intent to commit an offense: in case a person is in a state of alcoholic or drug intoxication, he, understanding his state and the degree of danger of his actions, consciously gets behind the wheel. In the case of taking medication, a person may not even notice that his reaction is disturbed and may not suspect the influence of medication on driving.

It should also be noted that medicines usually have an individual effect on the psychophysical functions of a person: even if the instructions indicate that the drug can affect driving, such an effect is not unconditional, unlike, for example, the result of taking alcohol, narcotic or psychotropic substances. The possibility of influence on driving is mentioned in the instructions of many medicines sold in pharmacies.

How the legislator will select the medicines that affect the reaction of drivers, whether they will be medicines sold exclusively by prescription, or also medicines that can be purchased freely - is not known.

In fact, now the conclusion is the same: every driver who uses any medication should familiarize himself with the decree of the Government of the Russian Federation, which will approve the list of drugs, using which it is impossible to drive.

The Constitutional Court of the Russian Federation has pointed out the necessity to make appropriate changes to the current legislation, which means that amendments to the CAO RF are inevitable.

The essence of the case, on which the Constitutional Court of the Russian Federation expressed its opinion, was as follows.

Citizen "N", driving a car at night, drove onto a high curb and got stuck on it because the wheels lost traction.

According to eyewitnesses, the driver behaved inadequately in response to their offer to help, in connection with which they called traffic police officers.

The traffic police officers considered the driver to be intoxicated and sent him for medical examination.

The doctor did not detect any clinical signs of intoxication in the driver. But according to the results of chemical-toxicological examination in the driver's body were found medical drugs gabapentin and nimesulide, which have an individual effect on the psychophysical functions of a person and can cause impairment of consciousness and coordination of movements. These drugs are prescribed in the treatment of epilepsy.

The driver claimed that he was not drunk, he was aware of his actions, and because of fatigue he mistook reverse for forward.

According to the Procedure for medical examination for intoxication, in cases of detection in the sample of biological object of substances, including drugs that cause impairment of physical and mental functions, but do not contain ethyl alcohol, narcotic or psychotropic substances, the medical conclusion is not issued, but the Act of examination shall indicate the names and concentration of drugs.

If there is information that the examinee takes medicines for medical use as prescribed by a doctor, including those confirmed by an extract from medical documentation submitted by the examinee (his/her representative), the said information, including the source of their receipt, shall be entered into the Act of medical examination for intoxication (alcoholic, narcotic or other toxic).

The inclusion of the specified information in the act of examination was the reason for drawing up by the traffic police officer of a protocol on administrative offense in connection with driving a car in a state of intoxication. This report subsequently gave rise to a dispute between the courts as to whether or not the driver should be held liable for driving while intoxicated.

The defense position was that neither ethyl alcohol, narcotic drugs nor psychotropic substances were found in the driver's body, and the use of the drugs gabapentin and nimesulide was not prohibited.

The case was considered by a justice of the peace, who recognized the examination report as inadmissible evidence, the decision was appealed by the traffic police to the court of appeal, which sent the case for a new hearing before a justice of the peace. The justice of the peace issued a ruling on finding the driver liable, which was appealed by the driver again to the appeal instance.

Then the presiding judge of the appeal instance requested clarifications from the Constitutional Court of the Russian Federation.

The Constitutional Court noted that, although driving a vehicle under the influence of such drugs is an unlawful act directly prohibited by the traffic rules of the Russian Federation, it does not form the corpus delicti of an administrative offense.

According to the RF Constitutional Court, the courts, applying to persons taking medications affecting attention and reaction, article 12.8, part 3 of article 12.27 of the CAO RF (providing responsibility for driving under the influence of alcohol or drugs) actually incorrectly apply the law, such decision should be reversed.

The Constitutional Court of the RF has clearly determined that until the necessary amendments to the legislation are made, driving a vehicle by a person who has consumed medicines that do not contain ethyl alcohol, narcotic drugs and psychotropic substances cannot serve as a basis for incurring liability under Article 12.8 and Part 3 of Article 12.27 of the CAO RF.

*Ruling of the Constitutional Court of the Russian Federation of 24.11.2022 N 51-P "On the case of verification of the constitutionality of the note to Article 12.8 of the Code of the Russian Federation on Administrative Offenses in connection with the request of the Salekhard City Court of the Yamalo-Nenets Autonomous Okrug".