Does every drink-driver have to be put in prison?

PUBLISHED : Monday, 23 May, 2011, 12:00am
UPDATED : Monday, 23 May, 2011, 12:00am


Following conflicting messages from authorities, debate is raging over a law change that has made drink-driving a criminal offence on the mainland since the start of this month.

Legal experts are now chiming in, calling on the country's highest legislative body, the National People's Congress Standing Committee, to issue a clarification.

The debate highlights an increasingly frequent situation where authorities rush to introduce a new law in response to public sentiment, only to encounter problems over its implementation.

Since the new law - introduced during the latest round of amendments to the country's Criminal Code - went into effect on May 1, authorities have cracked down on drink-driving all over the country, with one driver after another sentenced to at least two months' jail.

Within half a month, police handled 2,038 cases of drink-driving, with prosecutions already in 646 cases, according to figures released on Tuesday.

While many people applauded high-profile convictions, some are questioning whether it is realistic to imprison every driver found with a blood-alcohol level above 80mg/ 100ml, and others worry that the current crackdown is only for show and a short-lived effort.

Drink-driving has been an emotional topic on the mainland in recent years. Several high-profile car crashes involving drunken drivers angered the public and prompted calls for heavier punishments.

Previously, when no accident occurred, drink-driving was considered only an administrative offence, resulting in up to a 15-day detention. And even if someone died in an accident, the driver would, in principle, be subject to a maximum of seven years in prison under a 'traffic accident' charge, or 15 years if the driver hit-and-ran. Now, as part of a new criminal charge called 'dangerous driving,' anyone who drives while drunk can be fined and get up to six months in jail, regardless of whether an accident took place.

The deputy chief of the Supreme People's Court, Zhang Jun, said last week that drink-driving should not automatically lead to criminal punishment. But the public, fearing that the law leaves room for discretion when dealing with a drink-driving official or someone with strong connections, has spoken out to the point that the Ministry of Public Security said that all drink-driving cases would be criminally investigated.

Even the legal community is split on how to interpret the new charge. Sichuan lawyer Shi Jie, a Chinese People's Political Consultative Conference delegate and one of the first to call for the new 'dangerous driving' offence, said the current debate over what constituted the crime of drink-driving had taken place during the legislating stage.

'People are now worried that if drink-driving is not automatically a crime, there will be room for abuse in favour of the powerful, Shi said. 'This is a worry over judicial justice. The law itself is clear enough.'

However, as there now appeared to be conflicting messages from the courts and police, the legislative body should issue a clarification, he said.

In response to practical concerns, such as whether there will be enough room in prisons to handle the increase in arrests, Shi said this required a more fundamental amendment to the country's criminal law - namely the introduction of a wider variety of criminal punishment, such as social service orders.

Beijing lawyer Xuan Dong said the current debate arose from over-simplified legislation. 'What the public was upset about was not the act of drink-driving itself, but a lack of severe punishment when a serious accident happened,' Xuan said. 'The current charge has not resolved this problem.'

Indeed, the drink-driving charge allows a maximum imprisonment of just six months, which means that if there is a serious accident the court will still have to turn to the current 'traffic accident' charge, or the more vague charge of 'using dangerous methods to endanger public safety'.

While this latter charge allows the death penalty, legal experts such as Shi and Xuan argue that this is not an appropriate charge to be used for drink-driving cases, since it requires an intention to harm or kill.

'The simple wording of the charge has created the current difficulties for implementation, so only the National People's Congress can offer an explanation now,' Xuan said. 'Mainland authorities like to do things campaign-style, especially when it follows popular sentiment. They must try to remain rational.'