In a ruling 6B_1429/2020 The Federal Supreme Court, in its decision published online today, decides whether a driver can be convicted of both driving while intoxicated (Art. 91 para. 2 let. a SVG) and being incapacitated for other reasons (Art. 91 para. 2 let. b SVG).
The defendant had indeed driven in a state of “qualified drunkenness” in view of his blood alcohol level of 0.92 o/oo (art. 91 al. 2 let. a LCR) …
… and was also “unable to drive for other reasons”, in this case an advanced state of fatigue resulting from a lack of sleep for almost 24 hours (art. 91 al. 2 let. b LCR).
Art. 91 para. 2 LCR provides that:
” Anyone who :
a. Operates a motor vehicle while intoxicated and has a qualified blood or breath alcohol level;
b. Operates a motor vehicle whileincapacitated for other reasons.”
The doctrine was divided for a long time on whether, in the presence of a situation involving both qualified intoxication under letter a and inability to drive for other reasons under letter b, one of these letters absorbed the other (imperfect competition) or if both were applicable simultaneously (perfect competition).
The answer to this question is not insignificant, since in the event of a perfect contest the sentence must be increased according to the mechanism provided for in Art. 49 CP.
Based mainly on the position expressed by Prof. Dr. R. H. K. Yvan Jeanneret(Yvan Jeanneret, Les dispositions pénales de la loi sur la circulation routière, 2007, n°140 ad art. 91 LCR), the Federal Court consecrates the option of the perfect contest.
Thus, both letter a and letter b of Art. 91 para. 2 SVG apply jointly and there is no need to choose one over the other.
In essence, the Federal Court held that the cases provided for in art. 91 al. 2 let. a and 91 al. 2 let. b CSF are complementary since an inability to drive can be due to either alcohol or another cause, or even to both alcohol and another cause.
Our High Court thus considers that these provisions do not overlap. The five judges of the Court of Criminal Law note in this respect that the case of Art. 91 al. 2 let. b LCR is defined even by exclusion of the hypothesis provided for in art. 91 al. 2 let. a CRL (“for other reasons”) and that it is therefore not apparent that one provision embraces the other.
In such a case, it is not contrary to federal law to punish more severely the performance of these two behaviors by means of aggravation than in the presence of a single cause of incapacity.
