“Your documents,” the inspector demanded. Unsuspecting Alexander handed out a wallet, where together lay a passport, rights and documents for the car. The inspector, without saying a word, put the documents in his pocket and invited Alexander to go to the post. To the question: “Why? What happened?”Stated that“you are drunk and will go for examination now.”
A skirmish began, in which the second inspector and Alexander's friends intervened. Ignoring the objections of the young people, F. was pushed into the car by force and taken to the traffic police post. There he was again told that he was driving while intoxicated, so they will now send him for examination. Alexander objected: yes, he sat in the car and drank beer with friends, but did not drive it!
As a result, they compiled a protocol on F.'s refusal of a medical examination, did not return his driver’s license and released him. A month later, a summons came to the magistrate's court: F. was summoned to consider the case of an administrative offense under Article 12.26 of the Code of Administrative Offenses of the Russian Federation (“Failure to comply with the requirement to undergo a medical examination for intoxication”).
Without waiting for the court hearing, Alexander came to us. After listening to his story, we undertook to help the young man. Formally, it was not worth a damn; In recent years I have won several of these. Responsibility for the refusal of the survey threatened with a fine of 1, 000–2, 000 rubles or deprivation of the right to manage for a period of one year.
Only a requirement to go to the doctor should be legal. All the reasons for this are provided for in Article 27.12 of the Administrative Code of the Russian Federation and Order of the Ministry of Health of the Russian Federation of July 14, 2003 No. 308 “On medical examination for intoxication”. What are they talking about? The inspector has the right to invite you to doctors if there is "the smell of alcohol from the mouth, instability of the posture, speech disturbance, pronounced trembling of the fingers, a sharp change in the color of the skin of the face, behavior that does not match the situation, the presence of alcohol in the exhaled air."
Alexander really drank beer and did not deny it. And therefore, “sufficient grounds” were quite obvious, however, with one “but”: he did not go anywhere.
Whereas the requirement to undergo a medical examination under Article 27.12, to which the driver is required to comply, can only be applied to persons driving a vehicle. If he refuses - he can be attracted under article 12.26. In our case (F. did not drive the car), there was no need to talk about any evasion from the survey. Moreover, even if we assume that Alexander still drove the car, this must be proved. According to the principle of the presumption of innocence, all fatal doubts in the case must be interpreted in favor of the person held accountable. That is, if there is no evidence that the person was driving, the court must accept the point of view of the driver.
At the hearing in the magistrate's court of Zhulebino district, the first to question the traffic police. And I immediately asked them a question: did any of them see how Alexander was moving in his car? They answered with one voice: they didn’t see anything when they arrived, the car stood still. On the radio, the traffic police on duty ordered them to check the information. A “signal” from some residents came to him on “02”: a car with a drunk driver driving drives around the yards, while the callers saw the police not only the color, but also the make of the car! But I couldn’t make out the driver … I didn’t ask any other questions - there was no legal evidence of Alexander’s guilt. The witness from our side told how everything was in reality.
I drew the court’s attention to the fact that there was no evidence in the case that Alexander was driving a car. There was no information either about whether there really was someone’s appeal about the car with a drunk driver while driving, and what exactly these people reported by phone “02” (where, by the way, all conversations should be recorded and stored for a certain time). And if so, then the requirement for a medical examination in accordance with article 27.12 is illegal, and Alexander was not obliged to obey him. Therefore, it must be justified.
Judge V.N. Kurgunov pondered his order for nearly two hours. The decision was so unambiguous, so unexpected: Alexander is guilty! Moreover, for F., who had never hitherto been brought to administrative and criminal liability, was chosen … the maximum possible sentence - deprivation of the right to control for a period of one year! The judge’s motivation is as follows: since Alexander refused to be examined, it means he’s to blame. The question of whether he was driving a car did not understand the resolution at all. The judge simply stated: “it was established that the requirements of the police officers to F. about the passage of a medical examination were legal, however, he refused the examination, thereby committing an administrative offense under Article. 12.26 Administrative Code of the Russian Federation."
The court did not recall the presumption of innocence, but applied the principle of “presumption of guilt” when a person is considered guilty until proven otherwise. And, of course, it was not at all clear why the court deprived Alexander of the right to rule. In accordance with article 4.1 of the Code of Administrative Offenses of the Russian Federation, when making a decision on bringing to administrative responsibility, it is necessary to take into account “the nature of the committed administrative offense, the identity of the perpetrator, his property status, circumstances mitigating administrative responsibility”. We also note that article 3.8 of the Code of Administrative Offenses of the Russian Federation establishes that the deprivation of special rights is possible only "for a gross or systematic violation of the order." No evidence of F.'s “recidivistic" past is known to me or the court; but it was known that Alexander had a six-month-old child, for whom, by the way, he had to regularly go for baby food, and take him to the clinic, etc. Without a car, all this is quite difficult. But you can’t get emotions to work …
We had no choice but to appeal the court order. Unfortunately, the process is long and so far the decision on the complaint has not yet been reached.