Commentary on Article 345-1. Violation of Traffic Rules or the Rules for the Operation of Vehicles by Persons Driving Vehicles While Under the Influence of Alcohol, Narcotic Drugs and (or) Toxic Substances of the Criminal Code of the Republic of Kazakhstan
1. Violation by a person driving a car, trolleybus, tram or another motor vehicle of traffic rules or the rules for the operation of vehicles while under the influence of alcohol, narcotic drugs and (or) toxic substances, resulting in the negligent infliction of moderate bodily harm to a person, —
shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to four hundred hours, or restriction of liberty for a period of up to one year, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of ten years.
2. The same act, resulting in the negligent infliction of grievous bodily harm to a person, —
shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of ten years.
3. The act provided for in Part One of this Article, resulting in the negligent death of a person, —
shall be punishable by restriction of liberty for a period of up to seven years or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of ten years.
4. The act provided for in Part One of this Article, resulting in the negligent death of two or more persons, —
shall be punishable by imprisonment for a period of seven to ten years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.
Note. The persons referred to in this Article do not include persons who have been deprived of the right to drive vehicles.
The public danger of the crime provided for in Article 345-1 of the Criminal Code lies in the fact that driving a car while intoxicated is the cause of most major road accidents, in which innocent people frequently die or suffer injuries. Driving under the influence is a danger not only to the person behind the wheel but, first and foremost, to others. Every year, more than 30,000 cases of drivers being found behind the wheel while intoxicated are detected in Kazakhstan.
The object of the crime under consideration is the public relations aimed at ensuring compliance with the established rules in the field of road traffic safety or the safety of vehicle operation. The additional object is public relations guaranteeing the protection of citizens' life and health and the preservation of property.
Similar to Article 345 of the Criminal Code, the subject matter of the crime under consideration is a car, trolleybus, tram or other motor vehicle powered by an engine.
The objective aspect of the crime provided for in Article 345-1 of the Criminal Code consists in the violation by a person driving a car, trolleybus, tram or another motor vehicle of traffic rules or the rules for the operation of vehicles while under the influence of alcohol, narcotic drugs and (or) toxic substances, resulting in the negligent infliction of moderate bodily harm to a person.
Paragraph 1-1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Criminal Legislation in Cases Involving Crimes Related to Violations of Traffic Rules and the Operation of Vehicles” also emphasizes that the fact that a person was under the influence of alcohol, narcotic drugs and (or) toxic substances at the time of committing a criminal offence is an obligatory element of the acts provided for in Article 345-1 of the Criminal Code.
The disposition of Article 345-1 of the Criminal Code is of a blanket nature and refers to other regulatory legal acts. Thus, in order to establish a violation of traffic rules or the rules for the operation of vehicles, it is necessary to refer to the relevant regulatory legal acts specified in the commentary to Article 345 of the Criminal Code.
According to the Traffic Rules, a driver is prohibited from:
— driving a vehicle while under the influence of alcohol, narcotic drugs and (or) toxic substances; under the influence of medicinal products that impair reaction and attention; or in an ill or fatigued condition that endangers road traffic safety;
— consuming alcoholic beverages, narcotic drugs or psychotropic substances after a road traffic accident in which the driver was involved, or after the vehicle has been stopped at the request of an employee of the internal affairs bodies, until an authorized official conducts an examination to establish the state of intoxication or until an authorized official decides to exempt the person from undergoing such examination.
In accordance with subparagraph 2) of paragraph 2 of Chapter 1 of the Rules for Conducting Medical Examination to Establish the Fact of Consumption of a Psychoactive Substance and the State of Intoxication, approved by Order of the Minister of Healthcare of the Republic of Kazakhstan dated November 25, 2020, the state of intoxication is a condition arising as a result of acute intoxication caused by psychoactive substances and characterized by a combination of mental, behavioural, autonomic and somatoneurological disorders.
According to subparagraph 4) of paragraph 1 of Section 2, “General Duties of Drivers,” of the Traffic Rules, the driver of a motor vehicle is required, at the request of an employee of the internal affairs bodies, to undergo an examination for intoxication.
In accordance with Part 3 of Article 796 of the Administrative Offences Code of the Republic of Kazakhstan, if the driver disagrees with the examination results, the driver shall be referred to a medical institution for a medical examination.
In order to establish the fact of consumption of a psychoactive substance and the state of intoxication, employees of the internal affairs bodies refer and (or) deliver persons who are subject to liability for consuming psychoactive substances while driving vehicles in a state of intoxication to state medical organizations for a medical examination (Chapter 2 of the above-mentioned Rules).
Foreign nationals permanently residing or temporarily staying in the territory of the Republic of Kazakhstan, as well as stateless persons who are in a state of intoxication and are driving a vehicle, are also subject to medical examination.
Medical examination of minor citizens of the Republic of Kazakhstan shall be conducted in the presence of their parents or legal representatives (parents, adoptive parents, guardians, custodians, foster carers, foster parents, and other persons replacing them who, in accordance with the legislation of the Republic of Kazakhstan, provide care, education and upbringing of the child and protect the child's rights and interests).
Persons enjoying diplomatic immunity shall not be subject to medical examination without their consent.
The official who referred and (or) delivered the person to be examined shall take measures to establish that person's identity (if it is impossible to establish the person's identity, photographing of the person being examined is permitted).
Medical examination, on the basis of a referral for a medical examination to establish the fact of consumption of a psychoactive substance and the state of intoxication, shall be conducted at medical organizations at any time of the day by psychiatrists-narcologists or physicians of relevant specialties, as well as by paramedics and nurses (in rural areas, where primary healthcare facilities without physicians on staff are located at a considerable distance from medical organizations), who have undergone advanced training in conducting narcological examinations at medical education and science organizations.
When conducting a medical examination to establish the fact of alcohol consumption and the state of alcohol intoxication, a quantitative analysis of the exhaled air for alcohol is carried out.
Testing of exhaled air for the presence of alcohol is carried out using measuring instruments officially registered and used in the Republic of Kazakhstan.
The assessment of indicators obtained from blood testing for the presence of alcohol is carried out in accordance with the standardized ratio between the quantitative alcohol content in the blood and the assessment of the clinical condition of the person being examined, pursuant to the Appendix to the Rules for Conducting Medical Examination to Establish the Fact of Consumption of a Psychoactive Substance and the State of Intoxication.
Thus, an alcohol content in the blood ranging from 0.5 to 1.5 per mille is considered mild intoxication; from 1.5 to 2.5 per mille — moderate intoxication; from 2.5 to 3.0 per mille — severe intoxication; and from 3.0 to 5.0 per mille — severe alcohol poisoning.
Therefore, if the alcohol content in the blood is below 0.5 per mille, the person is considered sober. Any amount below 0.5 per mille in the blood of the person being tested may constitute endogenous alcohol, which is produced in the human body as a result of internal chemical reactions, or fixed alcohol, the presence of which is associated with the consumption of alcohol-containing medicines. Consequently, a person taking medicinal products is obliged to carefully read the instructions for the medicinal product before getting behind the wheel of a vehicle.
A breathalyzer may also indicate an alcohol content below 0.5 per mille in the blood of the person being tested if the surrounding air contains significant concentrations of acetone vapours, gasoline, exhaust gases and other volatile substances, including cigarette smoke.
If conducting the examination in full is not possible due to the circumstances (because of the severity of the somatoneurological condition of the person being examined or the person's refusal to undergo the examination), the medical examination report shall specify the reasons why conducting the examination is not possible.
Laboratory testing or rapid testing of biological samples (blood or urine in cases of suspected alcohol intoxication, and urine in cases of suspected narcotic or toxic substance intoxication) is necessary in the following cases:
— when a full examination cannot be conducted due to the severity of the condition of the person being examined;
— when the physician has doubts regarding the comprehensive assessment of the state of intoxication (mental, behavioural, autonomic and somatoneurological disorders);
— if the person being examined disagrees with the findings of the examination report;
— in cases of repeated examination;
— when the fact of consumption of a psychoactive substance has been established but there are no signs of intoxication (mental, behavioural, autonomic and somatoneurological disorders);
— in the event of a road traffic accident or the commission of an offence involving injured persons;
— if more than 3 hours have elapsed since the road traffic accident or offence without injured persons occurred.
A violation by a person driving a car, trolleybus, tram or another motor vehicle of traffic rules or the rules for the operation of vehicles while under the influence of alcohol, narcotic drugs and (or) toxic substances, resulting in the negligent infliction of moderate bodily harm to a person, may take the form of either an action (for example, driving a vehicle while intoxicated, exceeding the established speed limit, etc.) or an omission (for example, disobeying traffic light signals or the gestures of a traffic controller). An obligatory condition for holding a person criminally liable under Article 345-1 of the Criminal Code is the occurrence of socially dangerous consequences and the establishment of a causal link between the violation of traffic rules or the rules for the operation of a vehicle and the consequences that have occurred.
In Part 1 of Article 345-1 of the Criminal Code, the legislator has provided for the infliction of moderate bodily harm through negligence as the socially dangerous consequence of a violation of traffic rules or the rules for the operation of vehicles by a person driving a vehicle while under the influence of alcohol, narcotic drugs and (or) toxic substances; in Part 2 of the Article under consideration — the infliction of grievous bodily harm through negligence; in Part 3 — the death of a person through negligence; and in Part 4 — the death of two or more persons through negligence.
Socially dangerous consequences in the form of bodily harm or death are examined in the analysis of Article 345 of the Criminal Code.
By its legal structure, the corpus delicti is material. Accordingly, the act is considered completed from the moment the socially dangerous consequences occur.
The subjective aspect of the crime under consideration, in relation to the act itself, namely the violation by a person driving a vehicle while under the influence of alcohol, narcotic drugs and (or) toxic substances of traffic rules or the rules for the operation of vehicles, is characterized in the same manner as under Article 345 of the Criminal Code, discussed above.
Thus, the mental attitude towards the very fact of violating traffic rules or the rules for the operation of vehicles by a person in a state of alcohol, narcotic and (or) toxic substance intoxication may be characterized by either negligence or an intentional form of guilt, in particular indirect intent. With regard to the consequences, the offence under consideration is characterized by guilt in the form of negligence, since the legislator has expressly indicated this in the disposition of the Article.
Overall, the subjective aspect of the act under consideration is characterized by negligence.
The subject of the crime under consideration is a natural person who has attained the age of 16 and who, while under the influence of alcohol, narcotic drugs and (or) toxic substances, drives a car, trolleybus, tram or another motor vehicle, or operates a vehicle.
Such a person includes not only a person who is intoxicated and has passed the examinations required to obtain the right to drive or operate a vehicle and received the relevant certificate, but also any other intoxicated person who drives a vehicle without having the right to drive or operate the relevant vehicle, as well as a person who, while intoxicated, provides driving instruction in a training vehicle equipped with dual controls.
The actions of a person who has violated traffic rules or the rules for the operation of vehicles, has been deprived of the right to drive a vehicle and is in a state of intoxication shall be classified under Article 346 of the Criminal Code.
The acts provided for in Parts 1 and 2 of Article 345-1 of the Criminal Code are classified as minor crimes.
The acts provided for in Parts 3 and 4 of Article 345-1 of the Criminal Code are classified as crimes of medium gravity.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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