Commentary on Article 346 of the Criminal Code of the Republic of Kazakhstan Driving a vehicle by a person deprived of the right to drive vehicles while under the influence of alcohol, drugs and (or) toxic substances, as well as transferring control of a vehicle to such a person or permitting such a person to drive a vehicle

1. Driving a vehicle by a person deprived of the right to drive vehicles and being under the influence of alcohol, drugs and (or) toxic substances, or transferring control of a vehicle to such a person, as well as permitting such a person to drive a vehicle by an official or the owner or holder of the vehicle —

shall be punishable by a fine in an amount of up to five 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 five years, or imprisonment for the same period, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

2. The acts provided for in part one of this Article, which through negligence resulted in damage to vehicles, cargo, road and other structures or other property, as well as the infliction of minor harm to human health, —

shall be punishable by imprisonment for a period of four to six years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

3. The same acts resulting through negligence in the infliction of moderate harm to human health, —

shall be punishable by imprisonment for a period of five to seven years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

4. The acts provided for in part one of this Article, which through negligence resulted in the infliction of serious harm to human health, —

shall be punishable by imprisonment for a period of six to eight years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

5. The acts provided for in part one of this Article, which through negligence resulted in the death of a person, —

shall be punishable by imprisonment for a period of seven to nine years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

6. The acts provided for in part one of this Article, which through negligence resulted in the death of two or more persons, —

shall be punishable by imprisonment for a period of eight to ten years, with lifelong deprivation of the right to hold certain positions or engage in certain activities.

The public danger of the crime provided for in the commented Article is обусловлена by the fact that drivers under the influence of intoxicating substances endanger their own lives and the lives of citizens. Moreover, drivers who have already lost the right to drive vehicles but nevertheless continue to get behind the wheel while intoxicated pose a double threat to society.

The object of the crime under consideration is public relations in the sphere of traffic safety or the safe operation of vehicles. The additional object is public relations guaranteeing the protection of citizens' lives and health and the preservation of property.

The subject matter of the crime is vehicles.

The objective side of the crime under consideration consists in driving a vehicle by a person deprived of the right to drive vehicles and being under the influence of alcohol, drugs and (or) toxic substances, or transferring control of a vehicle to such a person, as well as permitting such a person to drive a vehicle, where such permission is given by an official or the owner or holder of the vehicle.

Driving a vehicle means the performance by a driver (or another person) located inside a vehicle of actions involving its controls and instruments, as a result of which the vehicle begins moving from a parking or stopping place, regardless of the distance travelled. Consequently, the act of driving a vehicle begins directly from the moment the vehicle starts moving.

Preparatory actions, such as opening the doors of the passenger compartment (cab), switching on the ignition, starting the engine, checking the lighting, as well as manually moving a vehicle, being inside the cab of a stationary vehicle, or performing any work directly near the vehicle (refuelling, carrying out repairs, etc.), do not constitute driving a vehicle.

According to paragraph 2 of clause 1-1 of the Regulatory Resolution of the Supreme Court “On the Practice of Applying Criminal Legislation in Cases Involving Crimes Related to Violations of Traffic Rules and the Operation of Vehicles”: “For the qualification of an act under the relevant part of Article 346 of the Criminal Code, the presence of two circumstances must be established: 1) the person was under the influence of alcohol, drugs and (or) toxic substances at the time of committing the criminal offence; 2) the fact that the person had been deprived of the right to drive a vehicle prior to committing the act. The presence of only one of the above circumstances excludes the qualification of the act under Article 346 of the Criminal Code.”

According to Article 75 of the Law of the Republic of Kazakhstan dated April 17, 2014, “On Road Traffic”, the grounds for termination of the right to drive vehicles are:

expiry of the established validity period of the driver's licence;

deterioration of the driver's health that prevents the safe operation of vehicles, confirmed by a medical opinion. Early referral of a driver of a motor vehicle for a repeat medical examination is also grounds for suspension of the right to drive a vehicle;

failure to pass the examination to verify knowledge of traffic rules within two months from the date of receipt of the decision referring the driver for verification of knowledge of traffic rules;

deprivation of the right to drive vehicles.

Deprivation of the right to drive a vehicle may occur as a result of either administrative or criminal proceedings.

A person may be deprived of their driver's licence only by a court decision and only if the Article providing for criminal liability for the offence for which the offender is being prosecuted includes deprivation of the right to drive a vehicle as a form of punishment. Deprivation of the right to drive a vehicle may be imposed as either a principal or an additional punishment.

It is necessary to distinguish deprivation of the right to drive a vehicle from the seizure of documents granting the right to drive a vehicle. Seizure is applied only in cases where one of the possible sanctions for the committed offence provides for deprivation of the driver's licence. Seizure is not a punishment and is carried out before a court decision (ruling) is issued in relation to the committed offence.

A temporary licence is issued in place of the seized driver's licence until the court proceedings are completed. In all other cases, the rights must be returned immediately after the drawing up of the administrative protocol (Part 8 of Article 795 of the Code of Administrative Offences of the Republic of Kazakhstan).

The period of deprivation of driving rights begins to be calculated from the moment the driver's licence is surrendered. If the driver somehow retains the licence (obstructs its seizure), this merely postpones the commencement of the deprivation period.

Deprivation of the right to drive a vehicle is imposed in respect of administrative offences provided for in Part 4 of Article 590; Part 3 of Article 596; Part 2 of Article 606; Part 2 of Article 607; Parts 1, 3, 3-1 and 3-2 of Article 608; Parts 1 and 2 of Article 610; and Parts 3, 4 and 5 of Article 613 of the Code of Administrative Offences of the Republic of Kazakhstan.

Deprivation of the right to drive a vehicle is imposed in respect of criminal offences provided for in Articles 344, 345, 345-1, 346 and 347 of the Criminal Code.

According to administrative legislation, a repeated offence is considered to be an offence committed within one year after the end of the previous period of deprivation of the right to drive a vehicle. For example, if a driver has already been deprived of the right to drive a vehicle for eight years for failing to comply with an inspector's demand to undergo a medical examination, and, while driving without a licence, commits a similar offence in the third month, this act will not be considered repeated and will not fall under Article 613 of the Code of Administrative Offences. In this case, the driver is considered to have been deprived of the right to drive a vehicle, and an act of this nature should be classified under Article 346 of the Criminal Code.

The next mandatory condition for bringing a person to criminal liability under the Article under consideration is the driving of a vehicle by a person who is under the influence of alcohol, drugs and (or) toxic substances.

According to subparagraph 7) of paragraph 4 of Article 54 of the Law of the Republic of Kazakhstan dated April 17, 2014, “On Road Traffic”, a driver is prohibited from: transferring control of a vehicle to persons who are under the influence of intoxicating substances, under the influence of medicinal products that impair reaction and attention, or in a sick or fatigued condition.

The transfer of control of a vehicle means the voluntary transfer by a driver of the right to drive a vehicle to another driver, who then sets the vehicle in motion and operates it. At the same time, the person transferring control must know (or must assume) that the person to whom control of the vehicle is being transferred is under the influence of intoxicating substances.

G., while intoxicated, transferred control of his motorcycle to D., who had consumed alcoholic beverages together with G. At a bend in the road, D. violated traffic safety rules, lost control of the motorcycle, and it overturned, injuring pedestrian K., who sustained a serious injury. In this case, G. transferred control of the vehicle to D. at the latter's request, which constitutes one of the forms of unlawful admission to driving. Consequently, G. will also be held liable, together with D., for transferring control of the vehicle.

When investigating criminal cases in this category, it is necessary to establish for what purpose and under what circumstances the vehicle was transferred to another person. If it was transferred by an official, owner or holder to a person under the influence of intoxicating substances for a purpose other than driving (for example, for safekeeping by a person who is intoxicated, but who independently takes the vehicle out onto the road), the liability of such persons under Article 346 of the Criminal Code is excluded.

According to paragraph 2 of Article 48 of the Law of the Republic of Kazakhstan “On Road Traffic”, officials and other persons responsible for the technical condition and operation of vehicles are prohibited from: permitting drivers who are under the influence of intoxicating substances (alcohol, drugs and (or) toxic substances); under the influence of medicinal products that impair reaction and attention; or in a sick or fatigued condition that threatens road traffic safety, to drive vehicles.

Admission of a person under the influence of alcohol, drugs or toxic substances to driving a vehicle means unlawful actions (inaction) by officials, the owner or holder of the vehicle, expressed in any form (oral, written or tacit consent), associated with the complete transfer of control of the vehicle to a person under the influence of intoxicating substances (alcohol, drugs or toxic substances). At the same time, the fact that the driver is intoxicated must be obvious to the officials, owner or holder of the vehicle (for example, the head of a motor transport depot sees that a bus driver is intoxicated but nevertheless releases the driver onto the route).

In such cases, the person guilty of transferring control of the vehicle or admitting the person to driving, as well as the person who actually drove the vehicle while intoxicated, shall be held liable under Part 1 of Article 346 of the Criminal Code.

The actions of officials, owners or holders who, in violation of the applicable rules, permit persons subordinate to them in the course of their duties to drive vehicles are qualified in a similar manner, except in cases where such persons have been removed from driving or disposing of the vehicle by an official acting in the performance of official duties (an immediate superior, a road police officer, etc.).

In the aforementioned Regulatory Resolution, the Supreme Court also notes that the admission by an official, owner or holder of a vehicle of a person deprived of the right to drive vehicles and under the influence of alcohol, drugs and (or) toxic substances to driving a vehicle entails liability under Article 346 of the Criminal Code.

The actions of an official, owner or holder of a vehicle in permitting a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category to operate a vehicle, if this act through negligence results in the infliction of moderate or serious harm to health or the death of one or more persons, are subject to qualification under the relevant part of Article 349 of the Criminal Code.

In relation to the criminal offence under consideration, the functions of an official are performed by heads of motor transport enterprises and garages, their deputies, chief engineers, chief mechanics, etc.

A person who drives a vehicle in the performance of their official or employment duties, including on the basis of an employment or civil-law contract with the owner or another holder of the vehicle, or on the basis of their expression of will without executing a written transaction, is not considered the holder of the vehicle.

According to subparagraph 8) of Article 1 of the Law of the Republic of Kazakhstan dated July 1, 2003, “On Compulsory Civil Liability Insurance of Owners of Vehicles”, the holder of a vehicle is a natural or legal person who possesses a vehicle under the right of ownership, the right of economic management or the right of operational management, or on any other lawful basis (a property lease agreement, pursuant to an order of a competent authority transferring the vehicle, etc.).

Thus, the holder of a vehicle is either the owner of the vehicle or a person possessing it on the basis of a power of attorney, lease agreement or other grounds specified above.

The corpus delicti of the crime provided for in Part 1 of Article 346 of the Criminal Code is formal in structure. Therefore, the occurrence of any negative consequences is not required in order to bring a person to criminal liability. It is sufficient to establish the mere fact of driving a vehicle by a person deprived of the right to drive vehicles and under the influence of alcohol, drugs and (or) toxic substances; or transferring control of a vehicle to such a person; or permitting such a person to drive a vehicle by an official or the owner or holder of the vehicle.

The Supreme Court adheres to a similar position. In paragraph 2 of clause 1 of the aforementioned Regulatory Resolution, it states that the occurrence of any consequences is not required to bring a person to criminal liability under Part 1 of Article 346 of the Criminal Code.

The elements of the crimes provided for in Parts 2, 3, 4, 5 and 6 of Article 346 of the Criminal Code are material in structure. Accordingly, the objective side of these acts includes three mandatory elements. Firstly, this is a socially dangerous act consisting in driving a vehicle by a person deprived of the right to drive vehicles and under the influence of alcohol, drugs and (or) toxic substances, or transferring control of a vehicle to such a person, or permitting such a person to drive a vehicle by an official or the owner or holder of the vehicle; secondly, socially dangerous consequences expressed in causing harm to human life and health, damage to vehicles, cargo, road and other structures or other property; and, thirdly, a causal link between the violations and the consequences specified in the law. Accordingly, the acts are considered completed from the moment the socially dangerous consequences occur.

As socially dangerous consequences, the legislator has provided in Part 2 of Article 346 of the Criminal Code for damage to vehicles, cargo, road and other structures or other property, as well as the negligent infliction of minor harm to human health; in Part 3 — the negligent infliction of moderate harm to human health; in Part 4 — the negligent infliction of serious harm to human health; in Part 5 — causing death through negligence; and in Part 6 — causing the death of two or more persons through negligence.

The concepts of serious, moderate and minor harm to health are defined in subparagraphs 11), 12) and 13) of Article 3 of the Criminal Code.

Issues related to determining the amount of damage caused to a damaged vehicle are resolved in accordance with the Resolution of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016, “On Approval of the Rules for Determining the Amount of Damage Caused to a Vehicle”. Thus, the amount of damage caused to a vehicle is determined on the basis of the calculation of the cost of restoring the damaged vehicle, less the depreciation (wear and tear) of the vehicle as of the date of occurrence of the insured event.

The cost of restoring a damaged vehicle is calculated on the basis of market prices applicable on the date of occurrence of the insured event.

When calculating the amount of damage caused to a vehicle, damage that existed before the occurrence of the insurance event under consideration is not taken into account.

In the event of the total destruction of a vehicle, the amount of damage is determined on the basis of its market value as of the date of occurrence of the insured event. A vehicle is considered destroyed if its restoration is technically impossible or economically impractical. Restoration of a vehicle is considered economically impractical if the expected restoration costs exceed 80 (eighty) percent of its market value as of the date of occurrence of the insured event.

Road structures include structures that constitute structural elements of a road: artificial structures (bridges, overpasses, flyovers, pipes, tunnels, etc.), protective structures (snow-protection forest plantations, snow fences, noise-protection devices, devices designed to protect roads from snow avalanches and landslides, etc.), road improvement elements (stopping and boarding areas and passenger shelters), rest areas, special areas for stopping or parking vehicles, etc.

The subjective side of the crime provided for in Part 1 of Article 346 of the Criminal Code is characterized by an intentional form of guilt, since the guilty person is aware that they do not have the right to drive a vehicle but, while under the influence of intoxicating substances, gets behind the wheel and wishes to do so. Officials, the owner or holder of the vehicle are aware that the driver is intoxicated but nevertheless wish to transfer control of the vehicle to such a person or permit such a person to drive the vehicle. The commission of the act under consideration is also possible in the form of indirect intent, where the guilty persons knowingly allow control of the vehicle to be transferred to a person under the influence of intoxicating substances.

The acts provided for in Parts 2, 3, 4, 5 and 6 of Article 346 of the Criminal Code are characterized by dual forms of guilt (Article 22 of the Criminal Code), meaning that an intentional form of guilt is established in relation to the very act of driving a vehicle, transferring control of a vehicle or permitting a person to drive a vehicle, while a negligent form of guilt applies in relation to the more serious socially dangerous consequences.

Motive and purpose, in relation to the corpus delicti under consideration, are optional elements of the subjective side and, accordingly, do not affect the legal qualification. Motives may vary and must be taken into account when imposing punishment.

The subject of the crime under consideration is a sane natural person who has reached the age of 16:

a) persons deprived of the right to drive vehicles who drove a vehicle while under the influence of alcohol, drugs and (or) toxic substances;

b) officials — owners or holders of vehicles.

Driving a vehicle by a person deprived of the right to drive vehicles and under the influence of alcohol, drugs and (or) toxic substances, which results in the harmful consequences specified in the provision, should be distinguished from a violation of traffic rules or vehicle operation rules by a person driving a vehicle, which results in similar harmful consequences (Article 345 of the Criminal Code).

Driving a vehicle while under the influence of intoxicating substances by a person deprived of the right to drive vehicles is a type of violation of vehicle operation rules that has been specifically выделен into a separate Article of the Criminal Code. Therefore, a violation of traffic rules or vehicle operation rules by a driver who was previously deprived of the right to drive vehicles, committed while intoxicated, is qualified under Article 346 of the Criminal Code if harmful consequences occur.

Cases of driving a vehicle while intoxicated by a person who has not previously been deprived of the right to drive vehicles, resulting in harmful consequences, entail liability under the relevant part of Article 345-1 of the Criminal Code.

The act provided for in Part 1 of Article 346 of the Criminal Code belongs to the category of crimes of medium gravity.

The acts provided for in Parts 2, 3, 4, 5 and 6 of Article 346 of the Criminal Code belong to the category of serious crimes.

**Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan 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 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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