Violation of traffic rules while intoxicated

The court considered in open court the case of an administrative offense, according to which: B.A.T., of committing an administrative offense under Part 1 of Article 608 of the Administrative Code of the Republic of Kazakhstan, According to the protocol on an administrative offense dated October 04, 2018 for No. 0501568 B.A.T., in violation of paragraph 2.4.2 of the Rules of the Road, while intoxicated intoxicated, he was driving a vehicle – a Lada Priora car with a state license plate U ...AH 102 in the village of Denisovka, Denisovsky district, Kostanay region. At the court hearing, B.A.T. He did not admit guilt in the imputed offense under the circumstances described in the materials of the administrative proceedings. He explained to the court that on August 28, 2018, he drove up to the Tomiris cafe in his Lada Priora car with the state license plate U.. AH 102 at about 03:00 a.m., where he planned to stay overnight. His friend F.V.V. called him on his cell phone and, saying that he was walking from the station to his home, asked him to take him. However, he replied that he was staying at Tomiris and had no intention of going anywhere. Since F.V.V. was on his way, he approached his car and offered to drink the beer he had with him. And since he wasn't going anywhere, he agreed. At that time, police officers A.m.B. and S.S.S. approached him and asked him to get out of the car. Smelling the smell of alcohol, they offered to go for an examination. At first he refused, as he believed that they had no grounds for this, but then he agreed and went. At the same time, he told F.V.V. not to wait for him. After that, he got into the car of the police officers, and policeman S.S.S. drove in his car. According to the results of the examination, he was diagnosed with mild intoxication. At the same time, he asked the doctor what the rules of the examination were, and whether he could undergo a second examination, to which the doctor told him that if he agreed with the result of the examination, then there was nothing more to do. He signed the examination report. After that, the police officers suggested that he get behind the wheel of his car and go to the police department building to draw up a protocol. However, he refused. After that, his car was driven back to the same place where it was taken from, that is, at the Tomiris cafe, where it stood until the next day. At the same time, policeman A.M. told him to remove the registration plates and give them to him, which he did.

In the building of the Denisovsky District police department, police officer A.m.B. drew up an administrative report against him, where in the column "explanations of an individual" he wrote in his own hand that he was not driving a vehicle. They also took away his driver's license. Then they let me go home. However, he was not called to the police or the court. He himself once came to the police station to find out, but they told him that A.m.B. was quitting and that he should wait until he was summoned to court. However, he was not called anywhere until October 04, 2018. It was only on October 04, 2018, that the police department called him and asked him to come. It was on this day that police officer S.M.B. drew up a new protocol on the events that took place on August 28, 2018. He refused to sign this protocol, because earlier, on August 28, 2018, a protocol had already been drawn up against him on this fact. For this reason, he refused to give any explanations, and also refused to sign the protocol on the withdrawal of his driver's license, as his driver's license was also withdrawn on August 28. In connection with his refusal to sign, witnesses were invited to witness his refusal to sign. Moreover, when reviewing the materials of the present case in court, he discovered that his signature was missing from the medical examination report, as well as inaccuracies in the text of the report itself. In this regard, he asks the court to recognize it as inadmissible evidence. He believes that police officers violated his rights, as two protocols were illegally drawn up against him, while a copy of the first protocol was not handed to him. Requests that the proceedings be discontinued. At the hearing, witness F.V.V. was questioned, who testified to the court that on August 28, 2018, at about 03:00 a.m., he was walking home from the station from his birthday. At the same time, he called his friend B.A.T. to pick him up and take him home. But B.A. said that he was near the Tomiris cafe, where he planned to stay overnight. Since it was on his way home, he approached B.A.'s car and invited him to drink beer with him, which he had with him. Azamat agreed, and they started drinking beer. At that time, police officers arrived and asked B.A.T. to get out of the car. After chatting with them for a while, B.A. told him not to wait for him. After that, he left, and B.A. stayed with the police officers. He doesn't know what happened next. He can only add that when police officers approached them, B.A. was not driving the car, but was located near the Tomiris cafe. An employee of the Denisovsky district police department, S.S.S., who was questioned at the hearing, testified to the court that on August 28, 2018, he was part of a patrol group, where M.B. Aliyev was the eldest. Denisovka. At about 03:00 hours, moving along Dorozhnaya Street, they saw a Lada Priora car driving at a fairly high speed, and therefore stopped it. The car was driven by B.A.T., who smelled of alcohol. At the same time, there was no one else in the car except him. He was asked to go for an examination. According to the results of the examination, they took him to the police department building in a patrol car to draw up a protocol, which was done by the senior group member, M.B. Aliev, and he copied the documents. When the car is stopped under the control of B.A.T. Video recording was performed both on the DVR installed in the official car and on the chest video badges. However, currently, due to the short (no more than one month) retention period, the records are automatically deleted. He claims that they stopped the car driven by B.A.T. while driving. At the hearing, an employee of the Denisovsky district police department, S.M.B., who drew up an administrative offense report against B.A.T. On October 04, 2018, the court testified that the leadership of the Denisovsky District police Department had instructed him to draw up this protocol due to the loss of the former employee of the Denisovsky District Police Department, M.B. Aliyev, who had previously drawn up the protocol dated August 28, 2018. At the same time, during the collection of documents, it was established that, in addition to the protocol on an administrative offense, there was no medical examination report. He called B.A.T. to the ROVD building to re-draw up the protocol, who refused to sign the new protocol, arguing that a protocol had already been drawn up against him on the same fact. Due to the fact that there was no medical examination report, a duplicate was issued by the doctor on duty who conducted the examination of B.A.T. On August 28, 2018, as there was no second copy of this examination in the CRH.

Questioned at the hearing, doctor N.S.M. testified to the court that on August 28, 2018, at the beginning of the fourth hour of the morning, employees of the Denisovsky District police Department brought B.A.T. for a medical examination to determine the state of intoxication Based on the results of the examination, based on the clinical picture, as well as the results of the indicator strip "Breathalyzer Factor M" they were issued a report on the condition of B.A.T in mild alcohol intoxication. At the same time, he explained that on October 04, 2018, police officers contacted him to issue a copy of the report dated 08/28/2018. However, it turned out that they did not have such a document, since the copier was in a faulty condition during the examination that day, and therefore he asked the police officer who delivered B.A.T. to make a copy and bring it to the Central Bank. But this was not done, and therefore, when an employee of the Department of Internal Affairs contacted him on 04.10.2018, he wrote out a duplicate of this conclusion from memory, as well as from an entry in the registration log. Having studied the case materials, having listened to the testimony of the person being held administratively liable, and the witnesses, the court comes to the following conclusion. According to paragraph 1 of Article 76 of the Constitution of the Republic of Kazakhstan, judicial power is exercised on behalf of the Republic of Kazakhstan and has as its purpose the protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties of the Republic. Paragraph 1 of article 14 of the UN International Covenant on Civil and Political Rights stipulates that everyone has the right to a fair and public hearing by a competent, independent and impartial court. In accordance with Article 77 of the Constitution of the Republic of Kazakhstan and Article 10 of the Administrative Code of the Republic of Kazakhstan, no one is required to prove their innocence. Any doubts about guilt are interpreted in favor of the person against whom an administrative offense case has been initiated. Doubts arising from the application of legislation on administrative offences should also be resolved in his favor. The same is stated in paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 12 dated December 22, 2016 "On certain issues of the application by courts of the norms of the General Part of the Code of Administrative Offenses of the Republic of Kazakhstan", it is stipulated that when considering cases of administrative offenses, the principle of presumption of innocence enshrined in Article 10 of the Administrative Code of the Republic of Kazakhstan must be strictly observed.  At the same time, according to the provisions of Article 11 of the Administrative Code of the Republic of Kazakhstan, an individual is subject to administrative responsibility only for those offenses for which his guilt has been established. According to the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated December 31, 2014, No. 971, video recording of administrative offenses should be performed, and according to paragraph 14, the retention period for records of administrative offenses and verification measures is 3 years. However, the staff of the Denisovsky District Police Department did not provide evidence that B.A.T. had committed an offense under Part 1 of Article 608 of the Criminal Code of the Russian Federation. Requirements of art . 808 of the Criminal Code on Administrative Offences, it is prescribed to send a protocol on an administrative offence within three days from the date of its compilation for consideration to the court, the body (official) authorized to consider the case of an administrative offence. Due to the violation of these requirements, the protocol dated 08/28/2018, the conclusion of the medical examination from the same date were lost. Moreover, in violation of paragraph 14 Instructions on the use of technical means to record the facts of criminal and administrative offenses and actions of employees of the internal affairs bodies of the Republic of Kazakhstan, approved by the Order of the Minister of Internal Affairs of the Republic of Kazakhstan dated December 31, 2014 No. 971, which prescribes the storage of records from technical means of recording administrative offenses and verification measures for 3 years, recordings from the DVR, which was All official vehicles, as well as video badges of police officers, were destroyed.

 

Whereas, according to paragraph 16 of the Instruction, evidentiary records, if necessary, are sent with the case materials to the court or at the request of the court. At the same time, it was established at the court session that the person against whom the protocol was drawn up on August 28, 2018, was not given a copy of this protocol, and the procedural actions for the withdrawal of the driver's license were not properly executed. State registration plates were also seized without proper registration, as a result of which their fate is currently unknown. In accordance with art . 765 of the Administrative Code of the Republic of Kazakhstan, evidence in an administrative offense case is legally obtained factual data, on the basis of which, in accordance with the procedure established by this Code, the judge ... who is investigating the administrative offense case establishes the presence or absence of an act containing all the signs of an administrative offense, the commission or non-commission of this act by a person in respect of whom proceedings are underway on an administrative offense, the guilt or innocence of this person, as well as other circumstances., important for the proper resolution of the case. At the same time, according to Part 5 of the said article, evidence obtained in violation of the law is recognized as having no legal force and cannot be used as the basis for a decision on the case, as well as used in proving any circumstances in the case, except for the fact of relevant violations and the guilt of the persons who committed them. So, according to P. 20 Rules for conducting a medical examination to establish the fact of using a psychoactive substance and intoxication, approved by the Order of the Minister of Health of the Republic of Kazakhstan dated July 13, 2017 No. 504, the conclusion of the medical examination is drawn up in two copies, certified by the signature of the medical professional and the seal of the medical organization in which the examination was conducted. One copy is given to the person who delivered the examinee, the second copy remains in the medical organization and is kept in archival files for five years. In this case, a duplicate of the medical examination report, drawn up by a doctor "from memory", is attached to the case file as evidence, and therefore the court recognizes this evidence as inadmissible. Thus, the court session established that in the case file the body that drew up the protocol on the administrative offense against B.A.T. did not provide any factual evidence that, from the point of view of relevance, admissibility, reliability, is sufficient to resolve the case. Under the circumstances described, the court considers that the fact of driving B.A.T. a vehicle under the influence of alcohol has not found its objective confirmation, and therefore, on the basis of paragraph 2, Part 1, Article 741 of the Administrative Code of the Republic of Kazakhstan, the proceedings in this administrative case are subject to termination. In connection with the establishment of numerous facts of violations by employees of the Ministry of Internal Affairs of the Denisovsky District Department of Internal Affairs of the current legislation on administrative offenses, as well as violations by doctors of the Denisovskaya District Hospital of the Rules for conducting a medical examination to establish the use of a psychoactive substance in a state of intoxication No. 504 on July 13, 2017, the court considers it necessary to issue a private resolution to the management of the Denisovsky District Department of Internal Affairs and Denisovskaya District Hospital to eliminate the violations legality. Guided by art. art. 741 part 1 paragraph 2, 829-11, 829-14, 829-16 of the Code of the Republic of Kazakhstan on Administrative Offenses, the court I DECIDED to release B.A.T. from administrative responsibility provided for in Part 1 of Article 608 of the Administrative Code of the Republic of Kazakhstan for the absence of an administrative offense. To issue a private court order to the management of the Denisovsky district Department of Internal Affairs of the Kostanay region and the chief physician of the Denisovsky Central district Hospital, in which to inform them of violations of current legislation by employees of the Ministry of Internal Affairs of the Denisovsky District Department of Internal Affairs, as well as doctors of the Denisovsky Central District Hospital.

 

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