Comment to article 796. Suspension from driving a vehicle, vessel, including a small vessel, and examination for intoxication  The Code of the Republic of Kazakhstan on Administrative Offences  

     1. Drivers of a vehicle, vessel, including a small vessel, driver, skipper, in respect of whom there are sufficient grounds to believe that they are in a state of intoxication, are subject to suspension from driving a vehicle, vessel, including a small vessel, and an examination for intoxication.

     2. Suspension from driving a vehicle, vessel, including a small one, examination and referral for a medical examination for intoxication are carried out respectively by employees of the internal affairs bodies, military police – when committing offenses by a person driving a vehicle of the national security authorities, the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan and transport control bodies.

     3. Referral for examination for intoxication, examination for intoxication and registration of its results are carried out in accordance with the procedure established by the Government of the Republic of Kazakhstan. If the driver or boatmaster does not agree with the results of the examination, they are sent to a medical institution for a medical examination.

     4. Excluded.

     5. The report on an administrative offense indicates the date, time, place, and grounds for suspension from driving a vehicle, vessel, including a small vessel, for conducting an inspection. A copy of the protocol is handed over to the person against whom the proceedings are being conducted, or to his legal representative.

     6. The certificate of intoxication examination is attached to the relevant protocol.

     comment________________________________________

     Part 1. Such a measure to ensure the proceedings as "Suspension from driving a vehicle, vessel, including a small vessel, and an examination for intoxication" has long been known to the theory of administrative law, although it has undergone a number of fundamental changes.  

     The commented measure to ensure the proceedings in the case is complex and consists of a number of independent, but at the same time related to a single purpose of actions, namely: removal from management and referral of such persons for examination. In particular, it is precisely this understanding of the meaning of the commented measure to ensure the proceedings in the case that is indicated by the content of Part 1 of the commented article.  

     It clearly prescribes that if there are sufficient grounds to believe that the drivers of a vehicle, vessel, including a small vessel, the driver, the skipper are in a state of intoxication, they are subject to:

     - suspension from driving a vehicle, vessel, including a small vessel, and  

     - examination for intoxication.

     Moreover, these actions are consistently interrelated, which is a necessary condition for recognizing such actions of competent persons as legitimate.  

     The second aspect that deserves attention is the presence in this formulation of the evaluation category "if there are sufficient grounds to believe." This formulation is widely used by the legislator in codified acts. So, in particular, the CPC in a number of articles (articles 15, 43, 136, 148, 156, 158, 161 CPC, etc.) also contains similar evaluative constructions and definitions.  

     Only in paragraph 9 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 9, 2012 No. 1 "On the application of measures to ensure proceedings in cases of administrative offenses", sufficient data giving grounds for the application of this security measure is the direct identification by an authorized official of signs of alcohol, narcotic, substance abuse, as well as statements, reports on the use of drivers, boatmasters of alcohol or psychoactive substances, their recognition of the use of these substances.

     In accordance with paragraph 2.1.4. of the Rules of the Road of the Republic of Kazakhstan, approved by Resolution of the Government of the Republic of Kazakhstan dated November 13, 2014 No. 1196, the driver of a vehicle is required to undergo an intoxication examination at the request of an employee of the internal affairs body.

     Part 2. The authorized persons who have the right to be suspended from driving a vehicle, vessel, including a small one, and sent for a medical examination for intoxication are, respectively, employees:  

     - law enforcement agencies;  

     - military police - when committing offenses by a person driving a vehicle of the national security agencies, the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan;

     - transport control authorities.

     Part 3. In accordance with paragraph 4 Resolution of the Government of the Republic of Kazakhstan dated June 4, 2003 No. 528 "On approval of the Rules for referral for an intoxication examination, an intoxication examination and registration of its results", violation by drivers and boatmasters of the established requirements of regulatory legal acts regulating the movement of vehicles, small vessels, and whose actions were suppressed by officials during the implementation of traffic safety supervision, if at the same time they have detected signs of intoxication in drivers, boatmasters, as well as statements, reports about the use of alcohol or psychoactive substances by drivers and boatmasters, and their admission of alcohol or psychoactive substances, are sufficient grounds for sending drivers and boatmasters for an intoxication examination.  

     This is the broadest interpretation of the category of "having sufficient grounds to believe" that a person should be examined for intoxication.  

     For example, according to paragraph 3 of the Decree of the Government of the Russian Federation dated June 26, 2008 No. 475. "On approval of the Rules for examining a person who is driving a vehicle for alcohol intoxication and registration of its results, referral of the specified person for a medical examination for intoxication, medical examination of this person for intoxication and registration of his results and Rules for determining the presence of narcotic drugs or psychotropic substances in the human body during a medical examination for intoxication of a person who is driving a vehicle with "sufficient grounds to believe, that the driver of the vehicle is intoxicated is the presence of one or more of the following signs:

     a) the smell of alcohol from the mouth;

     b) instability of posture;

     c) speech disorder;

     d) a sudden change in the color of the skin of the face;

     e) behavior that does not correspond to the situation.

     At the same time, Part 1 of the commented article does not form, unlike Russian legislation, a decision on finding a person intoxicated based solely on the assumption of a police officer. A mandatory medical examination is required, while Russian law prescribes such a procedure only in cases where a person does not agree with the "conclusions of an employee."

     The examination rules are regulated by the Order of the Minister of Health of the Republic of Kazakhstan dated July 13, 2017 No. 504 "On approval of Instructions for conducting a medical examination to establish the fact of substance use and intoxication."

     Examination in medical organizations to establish the fact of substance use and intoxication is carried out at any time of the day in medical organizations by psychiatrists, narcologists or doctors of specialized specialties, as well as paramedics, nurses (in rural areas with significant distance from medical organizations of primary health and social care facilities that do not have doctors), They have completed advanced training in the issues of conducting narcological examinations in organizations of medical education and science.  

     It should be borne in mind that in addition to sending for an examination by the persons indicated above in the text, it is allowed to conduct an examination at the personal request of citizens without an official referral. In this case, the person being examined submits an identity document and a written statement detailing the reason for his request for a medical examination. The results are documented by an appropriate medical examination certificate, which is issued to the citizen, and can also be issued (sent) upon an official written request from interested organizations.

     The main basis of the medical opinion on the issue of the condition associated with the use of a psychoactive substance is the data of a clinical examination. If the doctor doubts the clinical picture of intoxication or the examinee does not agree with the conclusion of the examination, the examinee is examined for exhaled air and biological media (urine, blood, saliva).  

     If it is not possible to conduct an examination in full due to the prevailing circumstances (due to the severity of the condition of the person being examined, refusal of the examination, etc.), the conclusion of the medical examination indicates the reasons why a particular study was not performed. The nature and sequence of biological samples is determined by the doctor (paramedic), depending on the characteristics of the clinical condition of the subject.

In case of repeated medical examination to establish the fact of using a psychoactive substance and intoxication, the examination is carried out in full and in accordance with the procedure described above, but no later than 2 hours after the initial examination.  

     When conducting a repeated medical examination, biological media (urine, blood, saliva) should be taken for laboratory examination and conclusion.

     Despite the fact that part 4 of this article is excluded by the Law of the Republic of Kazakhstan dated December 30, 2019 No. 300-VI SAM "On Amendments and additions to the Code of the Republic of Kazakhstan on Administrative Offenses", make a note in the protocol on an administrative offense on suspension from driving a vehicle, vessel, including a small vessel, for inspection despite the state of intoxication, along with other prescriptions of the law, it still seems appropriate.  

     Part 5. The protocol on an administrative offense, among other things, also specifies the date, time, place, and grounds for suspension from driving a vehicle, vessel, including a small vessel, for conducting an inspection.  

     A copy of the protocol is handed over to the person against whom the proceedings are being conducted, or to his legal representative.

     Part 6. Medical examination is mandatory in the form of a medical examination report, which is attached to the relevant protocol.

     The conclusion should clearly describe the condition of the person being examined at the time of the examination.  

     Doctor (paramedic) when drawing up a conclusion, based on available clinical and (if necessary) laboratory data, one of the following conditions should be established::  

     1) sober;  

     2) the fact of using (any) psychoactive substance has been established, no signs of intoxication have been identified;  

     3) alcohol intoxication by degrees (mild, moderate, severe);  

     4) a state of intoxication (narcotic, substance abuse) caused by the use of other psychoactive substances (drugs - opioids, cannabinoids, cocaine, sedatives, hypnotics, psychostimulants, hallucinogens, volatile solvents), with laboratory confirmation.

     The conclusion of the repeated medical examination, as in the case of the first examination, is issued to the official who delivered the person being examined, or is sent at the request of the authorities concerned. The decision on the legality and validity of the repeated conclusion (in case of a discrepancy with the primary one) can only be considered by the chief specialist, a psychiatrist-narcologist of a district, city, regional, republican narcological organization on the basis of a personal statement from the person being examined or an interested organization.

     A person against whom measures have been taken to ensure the proceedings in an administrative offense case may appeal these actions in accordance with Chapter 44 of the Administrative Code. However, this does not release a person from the obligation to fulfill the requirement of an official. Accordingly, the latter have no right to force persons to refuse to undergo a medical examination. A person who is suspended from driving a vehicle, vessel, including a small vessel, has the right to give his explanations on the application of the specified security measure in the protocol on an administrative offense.

     If a driver or boatmaster evades an examination, a note about this is made in the protocol on an administrative offense, the act of examination drawn up at the place of commission of an administrative offense (paragraph 14 of the Rules for sending for an examination for intoxication, an examination for intoxication and registration of its results, approved by Resolution of the Government of the Republic of Kazakhstan dated June 4, 2003 No. 528)..

     In addition, evasion (refusal) of a person driving a vehicle from undergoing a medical examination entails liability in accordance with the legislation of the Republic of Kazakhstan.  

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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