CS will come to the aid of patients on wheels – Newspaper Kommersant No. 181 (7382) of 09/30/2022

The Constitutional Court will check the norms of the Code of Administrative Offenses regulating the punishment of drunk drivers. “We consider the current situation unfair and unconstitutional,” says the request to the Constitutional Court of the Salekhard City Court in connection with the case of Vasily Shevelev, who was deprived of his rights because of an epilepsy drug found in his body. In this and similar cases, the authors of the request point out, it is impossible to make an unequivocal decision on punishment: the Code of Administrative Offenses is written inaccurately, allows for “excessively free interpretations”, in addition, there are no threshold concentrations for drugs in the legislation, as in the case of alcohol. The traffic police have been talking about the development of rules for regulating this area for a long time.

The Constitutional Court accepted for consideration the request of the Salekhard City Court (YaNAO) to verify the constitutionality of Art. 12.8 of the Code of Administrative Offenses. The reason for the request was the case of Vasily Shevelev from Salekhard. On August 8, 2021, the traffic police officer, having stopped the car driven by Mr. Shevelev, sent him for a medical examination. In the case file sent to court, it was stated that the driver was driving a car in a state of intoxication caused by the use of gabapentin. Guided by Art. 12.8, which contains a ban on the use of “psychotropic drugs and other intoxicating substances”, the court deprived Mr. Shevelev of his rights for a year and a half and imposed a fine of 30 thousand rubles. Note that gabapentin is a drug against epilepsy, which does not apply to narcotic and potent substances. It is also known about cases of its use by drug addicts.

In court, the driver explained that he was suffering from back pain and heart disease, in connection with which he took Nise and nitroglycerin, but he could not explain the presence of gabapentin. Instructions for the drug recommends not to drive. The Salekhard City Court, where Vitaly Shevelev appealed the decision, drew attention to the fact that in the footnote to Art. 12.8 of the Code of Administrative Offenses contains a ban on the use of alcohol, drugs, “psychotropic or other intoxicating” substances, but the sanction for drugs in the body is not provided. Due to the identified contradiction, the proceedings were terminated, a request was sent to the Constitutional Court.

“Judicial practice in this area follows the path of an expanded interpretation of the law and an increase in the number of cases falling under the disposition of Art. 12.8,” says the request of the Salekhard City Court. “We consider the current situation unfair and unconstitutional.” The judicial body notes that there is no official list of drugs that cause intoxication, as a result, it is difficult for a citizen to “plan his behavior” (choose drugs, their dosage) and assess the risks of “adverse consequences” in the form of deprivation of rights. Police officers and doctors, in turn, are endowed with “excessive freedom of interpretation” of the legislation, which creates a threat of violating the constitutional rule of equality of all before the law.

Discussions about the admissibility of punishing drivers who take medications have been going on for more than a year, as Kommersant has repeatedly talked about. The practice of using over-the-counter drugs for the purpose of intoxication does exist. In April 2022, the Scientific Center for Road Safety (NTS BDD) of the Ministry of Internal Affairs issued instructions for inspectors, which described how to understand by behavior and external signs which drug the driver used “for non-medical purposes”. On the other hand, there are citizens who constantly take Corvalol, Valocordin and other drugs prescribed by a doctor, who also risk being left without rights. A compromise solution to the problem has not yet been found. In June 2022, for example, one of the metropolitan magistrates revoked the driver’s license after taking the Reslip sleeping pill containing doxylamine (it was found in the urine), the motorist stated that he took it because of nerve problems. Another Moscow motorist was punished last year for using salbutamol and broncholithin. In court, he explained that he suffers from asthma.

“Judicial practice often recognizes a driver as drunk only on the basis of the fact of using drugs,” lawyer Sergei Radko draws attention. “Moreover, these can be antidepressants – phenazepam, amitriptyline, donormil – or even the usual antipyretics or painkillers freely dispensed in pharmacies: ” TeraFlu”, “Coldact Flu Plus”, “Fervex”, “Rinza”, “AnviMax”, “Coldrex”. Often, the expert added, the courts are guided by “dubious and ambiguous” clinical signs of intoxication, which are indicated by the traffic police in the protocols, as well as the restriction on driving a car mentioned in the instructions for medicines.

The imperfection of the legislation has long been paid attention to by the police. In 2021, employees of the National Traffic Safety Inspectorate of the Ministry of Internal Affairs published a scientific article that discussed the need to amend the Code of Administrative Offenses. By analogy with alcohol, it was proposed to fix threshold values ​​for drugs and other psychoactive substances, as well as introduce labeling of drugs that have a negative impact on driving. All this can be regulated in the new Code of Administrative Offenses, on which the Ministry of Justice has been working for several years, the center believes. In the instructions for the drugs, it is necessary to prescribe the time for removing them from the body, lawyer Lev Voropaev adds, so that drivers understand when they can drive.

In 2021, a citizen addressed the Constitutional Court with a similar request, in whose blood phenobarbital was found, depriving him of his rights. Then the court did not even accept the complaint. Perhaps, Lev Voropaev suggests, the appeal of the Salekhard City Court has more weight than the appeal of a citizen, which is why it was accepted for consideration.

Recognizing this or that legislative gap, the Constitutional Court in its decision may oblige the State Duma to change the legislation. Sometimes courts are given instructions on how to proceed until amendments are made. So, suggests Serhiy Radko, the Constitutional Court may temporarily prohibit the punishment of citizens upon discovery of drugs.

Ivan Buranov