19.09.2024

Some aspects concerning the amendments to the Penal Code in the area of offenses against traffic safety on public roads

In this article, we will briefly analyze the new criminal provisions provided by Law no. 172/2024 for the amendment and completion of some normative acts in the field of prevention and combating illicit trafficking and consumption of drugs and other substances likely to have psychoactive effects[1]. We are considering offenses against safety on public roads and the corresponding sanctions. We will therefore focus in particular on the rules contained in Article III of the abovementioned legislative act.

The first major amendment concerns the additional penalties applicable to individuals, provided for by Article 66 of the Criminal Code[2].

Complementary punishments are those criminal sanctions that are intended to supplement the main punishment (imprisonment or criminal fine) already established and can be imposed only after the main punishment, either when the law provides for its mandatory application or when the court finds that such a punishment is necessary[3]. In the same context, it should be noted that complementary punishments can also be imposed in the case of a suspended sentence.

Prior to the entry into force of Law no. 172/2024, the additional penalty of disqualification from exercising certain rights provided for in lit. a) - o) para. (1) of Article 66 of the Criminal Code could be ordered for a period from 1 to 5 years. Currently, with regard to the right to drive certain categories of vehicles established by the court (the right provided for by Art. 66 para. (1)(i)), the period for which it can be ordered will be between 1 and 10 years.

With this amendment, we note the reaction of the criminal legislator to the increase in the number of offenses against traffic safety on public roads and the recent events caused by drivers who have caused accidents resulting in the death of persons due to the consumption of alcohol or psychoactive substances.

The next two amendments provided for by Law no. 172/2024 concern the offenses of Driving a vehicle without a driving license and Driving a vehicle under the influence of alcohol or other substances (art. 335[4] and 336[5] Criminal Code).

We note that the possibility for the court to apply the penalty of a criminal fine has been removed, as well as the obligation to apply the additional penalty of disqualification from exercising certain rights in the event of committing the offense provided for in Article 336 Criminal Code[6], regardless of whether the act is the one provided for in para. (1) or para. (2) of this text.

The last change we would like to point out is that it will now no longer be possible to order "deferment of sentence " as a form of judicial individualization of the sentence both in the case of the commission of the offence under Article 335 of the Criminal Code and in the case of the commission of the offence under Article 336 of the Criminal Code.

With this last change, the Romanian legislature sought to abolish the practice of the courts, particularly the lower courts, of allowing the judge to defer the imposition of the penalty where the subject of the case is the commission of one of the two offenses. The courts will continue to be able to impose a suspended custodial sentence, accompanied, of course, by the additional penalty of disqualification from exercising certain rights, where the offense is driving a vehicle under the influence of alcohol or other psychoactive substances.

In the absence of other rules on the judicial individualization of the penalty, we wonder whether the courts can still punish these two offences by a judgment of acquittal. This sanction is, moreover, less severe than deferment of sentence.

Since deferment of enforcement of the penalty may be ordered even in the case of a person who has previously been sentenced to a criminal fine or to a deferment of enforcement. In the last two hypotheses, we exclude situations in which the conditions for annulment of the initial waiver or annulment or revocation of the initial deferment are met, whereas waiver of the imposition of the penalty requires that the offender has not previously been convicted.

While it is true that waivers are rare in the case of these offenses, they are not non-existent: "On the basis of Article 396 para. (3) C. proc. pen. in relation to art. 80 C. pen. waives the application of the penalty to the defendant Z.A., .... , in relation to the commission of the offense of "driving a vehicle under the influence of psychoactive substances", provided for by art. 336 para. 2 of the Criminal Code (act of 10.07.2019). 1 C.pen. apply a warning to the defendant Z.A." (Bucharest 2nd District Court, Judgment of 27.05.2024 final by non-appeal)

In conclusion, from the above, we note the lack of consistency of the legislator with regard to this form of judicial individualization of punishment in the case of the commission of the offenses under Articles 335 and 336 of the Criminal Code. However, in the absence of an express regulation and on the basis of general principles of law and the Latin adage "Ubi lex non distinguit, nec nos distinguere debemus", we interpret the situation in the sense that the courts will continue to be able to waive the application of the penalty as a form of individualization of the punishment for these two offences. This is, of course, provided that both the conditions laid down by law with regard to the person of the offender and the conditions laid down by law with regard to the punishment of the case are met.

An article by Mihail Tofan - Junior Lawyer - mtofan@stoica-asociatii.ro - STOICA & ASSOCIATES.

[1] Published in the Official Gazette of Romania, Part I, No 510 of May 31, 2024.

[2] " a)the right to be elected to public authorities or to any other public office; b) the right to hold an office involving the exercise of state authority; c) the right of a foreigner to be present in the territory of Romania; d) the right to elect;e) parental rights; f) the right to be a guardian or curator; g) the right to hold office, to exercise a profession or trade or to carry out the activity used to commit the offense; h) the right to own, carry and use any category of weapons;i) the right to drive certain categories of vehicles established by the court; j) the right to leave the territory of Romania k) the right to occupy a managerial position in a legal person governed by public law;l) the right to be present in certain localities determined by the court; m) the right to be present in certain places or at certain sporting, cultural or other public gatherings, determined by the court; (n) the right to communicate with or approach the victim or members of the victim's family, persons with whom he or she has committed the crime or other persons determined by the court; (o) the right to approach the victim's home, workplace, school or other places where the victim carries out social activities, under the conditions determined by the court. "

[3] See F. Streteanu, D. Nițu, Criminal Law. General Part, Vol. II, Ed. Universul Juridic, Bucharest, 2018, p. 288.

[4] Article 335 - Driving a vehicle without a driving license

(1) The driving on public roads of a motor vehicle, a tram or an agricultural or forestry tractor by a person who does not possess a driving license shall be punishable by imprisonment from one to five years.

(2) The driving on public roads of a vehicle for which the law stipulates the obligation to hold a driving license by a person whose driving license is not appropriate for the category to which the vehicle belongs or whose license has been withdrawn or annulled or whose right to drive has been suspended or who is not entitled to drive motor vehicles, trams or agricultural or forestry tractors in Romania shall be punished with imprisonment from 6 months to 3 years or with a fine.

(3) A person who entrusts a vehicle for which the law stipulates the obligation to hold a driving license for driving on public roads to a person whom he/she knows to be in one of the situations provided for in para. (1) or para. (2) or under the influence of alcohol or of psychoactive substances.

[ Article 336 - Driving a vehicle under the influence of alcohol or of other substances

(1) The driving on public roads of a vehicle for which the law provides for a driving license by a person with an alcoholic alcohol content exceeding 0.80 g/l pure alcohol in the blood shall be punishable by imprisonment of 1 to 5 years and disqualification from exercising certain rights.

(2) A person under the influence of psychoactive substances who drives a vehicle for which a driving license is required by law shall also be liable to the same punishment.

(3) If a person who is in one of the situations referred to in para. (1) and (2) is engaged in the public transportation of persons, transportation of dangerous substances or products or is in the process of practical training of persons for obtaining a driving license or during the practical tests of the driving license examination, the punishment shall be imprisonment for a term of 2 to 7 years and disqualification from exercising certain rights.

[6] Driving a vehicle under the influence of alcohol or other substances.

[7] See F. Streteanu, D. Nițu, op.cit., p. 491.