Commentary on Article 608 of the Code of Administrative Offences of the Republic of Kazakhstan. Driving a Vehicle by a Driver in a State of Alcoholic, Narcotic and/or Toxic Intoxication, as Well as Transferring Control of a Vehicle to a Person in a State of Alcoholic, Narcotic and/or Toxic Intoxication

1. Driving a vehicle by a driver in a state of alcoholic, narcotic and/or toxic intoxication, as well as transferring control of a vehicle to a person in a state of alcoholic, narcotic and/or toxic intoxication—

shall entail deprivation of the right to drive vehicles for a period of three years.

2. The acts provided for in Part One of this Article that result in the creation of an emergency situation—

shall entail deprivation of the right to drive vehicles for a period of four years.

3. The acts provided for in Part One of this Article that result in causing harm to the health of a victim without the elements of a criminally punishable act, or in damage to vehicles, cargo, roads and other structures, or other property—

shall entail deprivation of the right to drive vehicles for a period of five years.

4. The acts provided for in Parts One, Two and Three of this Article, committed repeatedly within one year after the expiry of the period of the administrative penalty—

shall entail administrative arrest for fifteen days and deprivation of the right to drive vehicles for a period of six years.

5. The acts provided for in Part Four of this Article, committed repeatedly within one year after the expiry of the period of the administrative penalty provided for in Part Four of this Article—

shall entail administrative arrest for thirty days and deprivation of the right to drive vehicles for a period of ten years.

6. The acts provided for in Parts One, Two and Three of this Article, committed by persons who do not have the right to drive vehicles—

shall entail administrative arrest for twenty days.

7. The acts provided for in Part Six of this Article, committed repeatedly within one year after the expiry of the period of the administrative penalty provided for in Part Six of this Article—

shall entail administrative arrest for thirty days.

8. The acts provided for in Parts Six and Seven of this Article, committed by persons to whom administrative arrest is not applicable in accordance with Part Two of Article 50 of this Code—

shall entail the imposition of a fine in the amount of two hundred monthly calculation indices.

COMMENTARY

The general object of the offence is public relations in the field of ensuring road traffic safety. The generic object of the offence is public relations arising in connection with drivers' compliance with the obligations established by the Road Traffic Rules.

The objective side of the offence provided for in Part One of this Article is manifested through unlawful acts that violate road traffic safety, namely:

1. driving a vehicle by a driver in a state of alcoholic, narcotic and/or toxic intoxication;
2. transferring control of a vehicle to a person in a state of alcoholic, narcotic and/or toxic intoxication.

Article 54 of the Law of the Republic of Kazakhstan dated 17 April 2014 No. 194 “On Road Traffic” establishes the rights and obligations of the owner of a motor vehicle and of the driver. In accordance with this Article, a driver is prohibited from:

1. driving a vehicle while intoxicated (by alcohol, narcotic substances and/or toxic substances); driving a vehicle under the influence of medicinal products that impair reaction and attention; driving a vehicle while ill or fatigued if this poses a threat to road traffic safety (subparagraph 2) of paragraph 3);
2. transferring control of a vehicle to persons who are intoxicated, under the influence of medicinal products that impair reaction and attention, ill or fatigued (subparagraph 7) of paragraph 3).

Similar prohibitions are also established in paragraphs 2.4.2 and 2.4.7 of the Road Traffic Rules. Paragraph 2.1.4 of the Road Traffic Rules provides for drivers' obligation to undergo an examination to determine their state of intoxication at the request of an employee of the internal affairs bodies.

Prior to 2014, in practice, drivers of vehicles who were intoxicated often resorted to deliberately consuming alcoholic beverages after a road traffic accident but before undergoing a medical examination, in an attempt to evade liability. This made it difficult to prove their guilt. In such cases, it was impossible to prove that the driver had been intoxicated before driving the vehicle.

This issue was resolved by introducing a new prohibition for drivers in paragraph 2.4.11 of the Road Traffic Rules, namely, a prohibition on consuming alcoholic beverages, narcotic or psychotropic substances in the following circumstances:

1. after a road traffic accident in which they were involved;
2. after a vehicle has been stopped at the request of an employee of the internal affairs bodies, until an authorized official conducts an examination to determine the state of intoxication;
3. until an authorized official decides to release the person from undergoing such an examination.

Appendix No. 3 to the Rules for Conducting Medical Examinations, approved by Order No. 504 of the Minister of Healthcare of the Republic of Kazakhstan dated 13 July 2017, establishes the following degrees of intoxication:

the standardized relationship between the quantitative indicator of alcohol content in the blood and the assessment of the clinical condition of the person being examined.

Thus, as can be seen from the table, where the concentration of alcohol and other psychoactive substances in a person's blood is at a low level that does not result in mild intoxication, specifically when the alcohol content in the blood is 0.5%, the elements of the offence provided for in Article 608 of the Code of Administrative Offences, “Driving a Vehicle by a Driver in a State of Alcoholic, Narcotic and/or Toxic Intoxication, as Well as Transferring Control of a Vehicle to a Person in a State of Alcoholic, Narcotic and/or Toxic Intoxication,” are absent.

If the results of the examination do not indicate mild intoxication, such a condition shall not be recognized as intoxication in relation to other administrative offences in which intoxication is an element qualifying the offence or a circumstance aggravating administrative liability.

The objective side of the offence provided for in Part Two of the Article under consideration is characterized by one qualifying element, namely, unlawful acts provided for in Part One of this Article that result in the creation of an emergency situation.

Unfortunately, neither the Law of the Republic of Kazakhstan “On Road Traffic” nor subordinate regulatory legal acts provide a definition of the concept of an “emergency situation.” Therefore, based on the content of Part One of Article 606 of the Code of Administrative Offences, an emergency situation should be understood as the occurrence of the following adverse consequences for other road users as a result of a road user's violation of the Road Traffic Rules:

1. a sharp change in the speed of movement;
2. a sharp change in the direction of movement.

In accordance with subparagraph 15) of Article 1 of the Law of the Republic of Kazakhstan dated 17 April 2014 No. 194 “On Road Traffic,” a road user is a person who directly participates in the road traffic process as a pedestrian, passenger or driver.

It should be noted that the creation of an emergency situation by a driver in a state of alcoholic, narcotic and/or toxic intoxication does not require additional qualification under Article 606 of the Code of Administrative Offences.

The objective side of the offence provided for in Part Three of the Article under consideration is characterized by one qualifying element, namely, unlawful acts provided for in Part One of this Article that result in the following adverse consequences:

1. causing harm to the health of a victim without the elements of a criminally punishable act;
2. damage to vehicles, cargo, roads and other structures, or other property.

The content of the Article makes it possible to conclude that the composition of the administrative offence is material in nature, since, as a result of this offence, the rights of road users to move safely are violated.

The competing legal provision in relation to the Article being commented on is Part Two of Article 346 of the Criminal Code of the Republic of Kazakhstan, where moderate bodily harm is caused to the health of a victim through negligence. Moderate bodily harm means harm to health that is not life-threatening but results in a long-term health disorder (for a period exceeding twenty-one days) or a significant permanent loss of general working capacity amounting to less than one third.

A forensic medical examination shall be appointed to determine the severity of the harm caused to the victim.

When vehicles, cargo, roads and other structures, or other property are damaged, the amount of damage caused is irrelevant for qualifying the offence under Part Three of Article 608 of the Code of Administrative Offences.

Similar explanations are also provided in paragraph 23 of Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 6 October 2017, “On Certain Issues of Application by Courts of the Provisions of the Special Part of the Code of Administrative Offences of the Republic of Kazakhstan.” Where, as a result of a driver's actions, minor harm is caused to the health of a victim and material damage is also caused in the form of damage to vehicles or other property, the guilty person shall be held administratively liable only under Part Two of Article 610 of the Code of Administrative Offences, and, if the driver was intoxicated, under Part Three of Article 608 of the Code of Administrative Offences.

On the basis of Article 59 of the Code of Administrative Offences, where property damage has been caused, the judge hearing the administrative offence case shall, when deciding on the imposition of an administrative penalty, simultaneously recover such damage if there is no dispute regarding its amount. If there is a dispute regarding the amount of property damage caused as a result of an administrative offence, compensation for property damage shall be considered in civil proceedings. In administrative offence cases heard by other authorized bodies (officials), compensation for property damage shall be pursued through civil proceedings if the guilty person refuses to compensate for it voluntarily.

Paragraph 22 of Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 20 April 2018, “On a Court Ruling in an Administrative Offence Case,” explains the procedure for issuing a court ruling in an administrative offence case. Throughout the entire text of the ruling, the judge must specify the exact amount of damage to be recovered.

The objective side of the offence provided for in Part Four of the Article under consideration is characterized by qualifying elements in the form of repeated commission, within one year after the expiry of the period of the administrative penalty, of the acts provided for in Parts One, Two and Three of this Article.

If, after serving an administrative penalty in the form of deprivation of the right to drive a vehicle, a driver has not reacquired a driver's licence in the prescribed manner, that driver must be regarded as a person who does not have the right to drive a vehicle for the purpose of determining administrative or criminal liability for committing homogeneous offences.

If, after the decision on deprivation of the right to drive a vehicle has been enforced, the driver reacquires that right in the manner established by law, then, if the driver commits an offence provided for in Parts One, Two or Three of Article 608 of the Code of Administrative Offences within one year after the expiry of the administrative penalty, the driver shall be held liable under Part Four of Article 608 of the Code of Administrative Offences. If the same offence is committed after one year has elapsed, liability shall be imposed under Part One, Two or Three, respectively.

The objective side of the offence provided for in Part Five of the Article under consideration is characterized by qualifying elements in the form of repeated commission of the acts provided for in Part Four of this Article within one year after the expiry of the administrative penalty provided for in that Part.

The objective side of the offence provided for in Part Six of the Article being commented on is characterized by qualifying elements in the form of commission of the acts provided for in Parts One, Two and Three of this Article by persons who do not have the right to drive vehicles.

Paragraph 24 of Regulatory Resolution No. 7 of the Supreme Court of the Republic of Kazakhstan dated 6 October 2017, “On Certain Issues of Application by Courts of the Provisions of the Special Part of the Code of Administrative Offences of the Republic of Kazakhstan,” explains the specific features of qualifying unlawful acts committed by drivers who do not have the right to drive vehicles.

Drivers who do not have the right to drive vehicles of the relevant category must not be equated with drivers who have no right to drive vehicles at all, except in cases where the relevant provisions expressly refer to both categories of persons (for example, Part Two of Article 612 of the Code of Administrative Offences).

Therefore, where a driver's licence does not authorize the driver to operate vehicles of the relevant category, driving a vehicle while intoxicated by alcohol is to be qualified not under Part Six of Article 608 of the Code of Administrative Offences, but, in the absence of other qualifying elements, under the combination of Part One of Article 608 and Part Two of Article 612 of the Code of Administrative Offences.

The objective side of the offence provided for in Part Seven of the Article under consideration is characterized by qualifying elements in the form of repeated commission of the acts provided for in Part Six of this Article within one year after the expiry of the administrative penalty provided for in Part Six.

Since Parts Six and Seven of the Article under examination provide for administrative arrest as the sole administrative penalty, without an alternative, the offender must, on the basis of Article 797 of the Code of Administrative Offences, be administratively detained until the case is considered by the court, for a period not exceeding twenty-four hours, excluding the time required for sobering up. The purpose of detention is to prevent the guilty person from evading administrative liability.

On 2 November 2018, an administrative case against A. V. Dubrovin under Part 6 of Article 608 of the Code of Administrative Offences of the Republic of Kazakhstan was received by the Specialized Administrative Court of the city of Kostanay. In this regard, pursuant to Part 3 of Article 744 of the Code of Administrative Offences, the presence of the person being held administratively liable is mandatory when hearing an administrative offence case for which an administrative penalty in the form of administrative arrest is provided.

Since the internal affairs bodies did not have the conditions necessary to detain A. V. Dubrovin, as provided for in Part 7 of Article 14 of the Code of Administrative Offences, he was warned of the need to appear in court to be held administratively liable and was released to his home.

Subsequently, A. V. Dubrovin was not residing at his home, was not employed anywhere, and it was impossible to establish his whereabouts by administrative and legal means. Under the legislation in force, it was not possible to place a person who had committed an administrative offence on a wanted list.

Despite the judge issuing several orders for the compulsory appearance of the person, enforcement of those orders was impossible for the reasons stated above.

While considering administrative offence case No. 3928-18-00-3/7193 against A. V. Dubrovin, on 22 November 2018, the judge issued a ruling returning the case to the internal affairs body because police officers were unable to enforce the order requiring A. V. Dubrovin to be brought before the court.

On 5 December 2018, the internal affairs body resubmitted the administrative offence case against A. V. Dubrovin to the court. In the Court Office system, the case was assigned a new number, No. 3928-18-00-2/7790, on 5 December 2018. On the same day, the judge issued a ruling terminating the proceedings in the administrative offence case due to the expiry of the limitation period for bringing A. V. Dubrovin to administrative liability, in accordance with Article 62 of the Code of Administrative Offences.

Parts Four, Five and Seven of the Article being commented on provide for administrative liability for repeated commission of administrative offences and for offences committed repeatedly within one year after the imposition of an administrative penalty.

It should be noted that officials authorized to impose administrative penalties must take the repeated nature of the offender's actions into account solely as a qualifying element, and not as a circumstance aggravating liability for the offence provided for in Article 806 of the Code of Administrative Offences (Part Two of Article 57).

The composition of the offence provided for in Part Eight of the Article under consideration fully corresponds to the composition of the offences provided for in Parts Six and Seven of Article 608 of the Code of Administrative Offences. However, since the sanctions under those Parts do not provide for an alternative to administrative arrest, Part Eight establishes specific rules for holding liable persons to whom administrative arrest does not apply in accordance with Part Two of Article 50 of the Code of Administrative Offences.

Such persons include:

1. pregnant women;
2. women who have children under the age of fourteen;
3. persons under the age of eighteen;
4. persons with disabilities of Groups I and II;
5. women over the age of fifty-eight;
6. men over the age of sixty-three;
7. men who are raising children under the age of fourteen on their own.

In our opinion, the Part of Article 608 of the Code of Administrative Offences under examination should also have specified that administrative arrest does not apply to persons listed in Article 32 of the Code of Administrative Offences, as well as to other persons who enjoy immunity from administrative liability.

The subjects of the administrative offences provided for in all Parts of Article 608 of the Code of Administrative Offences are drivers of vehicles.

The subjective side of all Parts of the Article being commented on is characterized by either intentional or negligent guilt. Negligence may take the form of overconfidence or carelessness. For example, the offender may have believed that they had consumed an insufficient amount of alcohol or other intoxicating substances to cause intoxication, or may have been convinced that they had already sobered up.

Cases concerning administrative offences provided for in the Article being commented on fall within the jurisdiction of judges of specialized district administrative courts and administrative courts equated to them (Part One of Article 684 of the Code of Administrative Offences).

Where administrative offences provided for in Article 608 of the Code of Administrative Offences have been committed, persons authorized to draw up administrative offence protocols are entitled to detain and deliver offenders and to prohibit the use of vehicles. This includes moving vehicles to special areas for temporary storage, parking lots, or areas adjacent to stationary vehicle inspection posts, including by using another vehicle (a tow truck). Such measures remain in effect until the grounds for detention have been eliminated (subparagraph 1) of Part One of Article 797 of the Code of Administrative Offences).

The bodies authorized to initiate proceedings in administrative offence cases under the Article being commented on are:

1. the internal affairs bodies (subparagraph 1) of Part One of Article 804 of the Code of Administrative Offences);
2. the military police bodies of the Armed Forces of the Republic of Kazakhstan—in relation to offences committed by military personnel of the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan, reservists called up for military training, and persons driving vehicles (subparagraph 4) of Part One of Article 804 of the Code of Administrative Offences);
3. the military police bodies of the National Security Committee of the Republic of Kazakhstan—in relation to offences committed by persons driving vehicles belonging to special state bodies (subparagraph 5) of Part One of Article 804 of the Code of Administrative Offences);
4. the military police bodies of the National Guard of the Republic of Kazakhstan—in relation to offences committed by military personnel and reservists called up for military training (subparagraph 6) of Part One of Article 804 of the Code of Administrative Offences).

On the basis of Article 812 of the Code of Administrative Offences, cases concerning offences provided for in all Parts of Article 608 of the Code of Administrative Offences may also be heard at the place where the vehicles are registered or at the place of residence of the person in respect of whom proceedings in the administrative offence case are being conducted.

Cases concerning administrative offences committed by minors, their parents or persons replacing them shall be heard at the place of residence of the person in respect of whom proceedings in the administrative offence case are being conducted.

Scientific and Practical Commentary on the Code of Administrative Offences of the Republic of Kazakhstan (Article by Article)

Team of Authors:

Bachurin Sergey Nikolaevich, Candidate of Legal Sciences, Associate Professor — Chapter 48 (co-authored with E. M. Khakimov);

Gabdualiyev Mereke Trecovich, Candidate of Legal Sciences — Chapters 11, 21, 22 and 23;

Zhusipbekova Ainur Maratovna, Master of Laws — Chapter 13 (co-authored with A. V. Karpekin); Chapters 33 and 39 (co-authored with O. T. Seitjanov);

Karpekin Alexander Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 13 (co-authored with A. M. Zhusipbekova);

Korneychuk Sergey Vasilyevich — Chapter 2; Chapter 6 (co-authored with O. T. Seitjanov and E. M. Khakimov); Chapter 8; Chapter 25 (co-authored with E. M. Khakimov); Articles 457–470, 488, 488-1 and 491–506; Chapters 28, 30 and 52;

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

Kysykova Gulnara Bauyrzhanovna, Candidate of Legal Sciences — Chapter 20;

Omarova Botagoz Akimgereevna — Chapter 17; Chapter 18 (co-authored with B. A. Parmankulova); Chapters 26 and 31; Chapter 32 (co-authored with B. A. Parmankulova);

Parmankulova Bayan Askhanbaevna — Chapter 18 (co-authored with B. A. Omarova); Chapter 19; Chapter 32 (co-authored with B. A. Omarova); Chapter 43 (co-authored with A. S. Tukiev);

Podoprigora Roman Anatolyevich, Doctor of Law, Professor — Chapter 24, Articles 489, 489-1 and 490;

Porokhov Evgeny Viktorovich, Doctor of Law — Chapters 14, 15, 16 and 29; Articles 471–475;

Seitjanov Olzhas Temirzhanovich, Candidate of Legal Sciences, Associate Professor — Chapter 4; Chapter 5 (co-authored with E. M. Khakimov); Chapter 6 (co-authored with S. V. Korneychuk and E. M. Khakimov); Chapters 9 and 10 (co-authored with B. E. Shaimerdenov and V. V. Filin); Chapter 33 (co-authored with A. M. Zhusipbekova); Chapter 36 (co-authored with B. E. Shaimerdenov); Chapter 39 (co-authored with A. M. Zhusipbekova);

Smyshlyaev Alexander Sergeevich, PhD — Chapters 38, 40, 42 and 43-1 (co-authored with A. S. Tukiev); Chapter 44;

Tukiev Aslan Sultanovich, Candidate of Legal Sciences, Associate Professor — Chapters 1, 3 and 35; Chapters 38, 40 and 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 D. A. Shipp); Chapters 45 and 46 (co-authored with D. A. Shipp); Chapter 47;

Filin Vladimir Vladimirovich, Candidate of Legal Sciences, Associate Professor — Chapter 10 (co-authored with O. T. Seitjanov and B. E. Shaimerdenov);

Khakimov Erzhan Maratovich, Master of Laws — Chapter 5 (co-authored with O. T. Seitjanov); Chapter 6 (co-authored with O. T. Seitjanov and S. V. Korneychuk); Chapter 7; Chapter 25 (co-authored with S. V. Korneychuk); Chapters 34 and 41; Chapter 48 (co-authored with S. N. Bachurin); Chapter 53;

Shaimerdenov Bolat Erkenovich, Master of Laws — Chapter 10 (co-authored with O. T. Seitjanov and V. V. Filin); Chapter 12; Articles 476–487 and 507–509; Chapter 36 (co-authored with O. T. Seitjanov); Chapters 37, 50 and 51;

Shipp Denis Alekseevich — Chapters 44-1 and 46 (co-authored with A. S. Tukiev).

Date of amendment of the Act: 01.01.2020

Date of adoption of the Act: 01.01.2020

Place of adoption: 100050000000

Body that adopted the regulatory legal act: 103001000000

Registration number assigned by the rule-making body to the regulatory legal act: 5

Status of the Act: new

Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000

Form of the Act: COMMENTARY / CODE

Legal force: 1900

Language of the Act: Russian

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