Can my license be revoked without a medical examination?

Deprivation of rights for refusal of medical examination

The content of the article

Deprivation of a driver's license - confiscation of a driver's license (including a temporary permit), loss of the right to drive a vehicle. Punishment in the form of deprivation of the right to drive is imposed by a judge and formalized in the form of a resolution.

Important! A decision on deprivation of the right to drive a vehicle is made only by a court, but is subject to execution by officials of internal affairs bodies.

One of the grounds for confiscation of a driver’s license is refusal of a medical examination. Let's take a closer look at situations in which deprivation is inevitable, and how to preserve rights in such a situation.

In what cases are they sent for a medical examination?

Medical examination is a set of medical procedures that determines the state of health of a citizen, confirms the presence/absence of any influence on the body of any factors, incl. alcohol, drug, toxic intoxication.

The administrative regulations of the Ministry of Internal Affairs of the Russian Federation as of 2017 provide for the following grounds for sending a person for a medical examination:

• the driver refuses to undergo an alcohol intoxication test in the presence of officials of the Ministry of Internal Affairs of the Russian Federation;
• the driver does not agree with the results of the examination/the result of the examination is negative, there are sufficient grounds to believe that the driver is intoxicated (for example, the smell of alcohol, impaired speech, unnatural behavior, posture, skin color, instability);
• the driver violated traffic rules, there is a victim, harm was caused to health;
• the driver is suspected of committing a crime in the field of road safety and vehicle operation.

Procedure for referral for medical examination

1. Immediately after there are grounds to suspect alcohol intoxication.
2. In the presence of witnesses.
3. The authorized person draws up a protocol on referral for a medical examination.
4. The fact of consent/refusal to pass is recorded in the protocol.
5. If the driver agrees, he will be escorted to a medical facility.

Refusing to undergo examination at a medical institution, the motorist wonders whether his license (driver’s license) will be taken away and for how long.

Can my license be revoked without a medical certificate?

The Code of Administrative Offenses of the Russian Federation clearly provides for the deprivation of a driver's license in case of refusal to undergo a medical examination. In 2017, failure by the driver to comply with the request of an authorized person to undergo a medical examination for intoxication entails the imposition of an administrative fine with the suspension of the right to drive vehicles for a period of 1.5 years.

Failure to comply with this requirement of an authorized person also applies to citizens who do not have the right to drive vehicles. Article 12.26 of the Code of Administrative Offenses of the Russian Federation determines the amount of the administrative fine and provides for administrative arrest.

When is a driver's license revoked for refusing to take a medical examination?

Based on the results of reviewing the protocol, the judge makes a decision on deprivation of the right to use the vehicle. The appointed period of suspension of the right is counted from the date the resolution enters into legal force. In 2017, the driver's license must be returned to the State Traffic Inspectorate unit within three days.

Important! A motorist faces confiscation of his driving license for refusing to undergo a medical examination; the driver has the right to refuse the examination, which is carried out by traffic police officers on the spot. The law does not provide for the withdrawal of rights for refusing a simple examination.

How to avoid deprivation of rights for refusing a medical examination?

A driver’s license is not always taken away for refusing a medical examination. The driver will not lose the right to drive his car if the court, based on the results of consideration of the materials, makes a decision to terminate the case of an administrative offense. The law provides for a limited number of grounds for termination of an administrative case:

• When drawing up documents by authorized traffic police officers, significant violations were made that do not allow the protocol to be considered as admissible evidence of an offense
• in case of emergency, provided for in Art. 2.7. Code of Administrative Offenses of the Russian Federation.

The Code of Administrative Offenses of the Russian Federation provides for the possibility of a prosecutor filing a protest in the interests of the driver against a decision that has not entered into legal force. Based on the results of the inspection, the prosecutor may discover a discrepancy between the protocol and procedural measures and the norms of the law. Within 10 days, a reasoned protest is submitted to the court decision on deprivation of rights. Based on the results of the consideration of the protest, the chances of termination of the administrative proceedings increase. In cases not provided for by law, appealing the deprivation of rights for refusing a medical examination will not bring a positive result.

Registration after deprivation of rights

Accounting in medical units is a set of procedures for monitoring patients with chronic diseases. Provides regular systematic visits to the attending physician, monitoring the dynamics of the disease state.

Important! If your driver's license is revoked for refusing a medical examination, you do not need to be forced to register with a drug treatment clinic.

Instructions on the procedure for dispensary registration of patients (chronic alcoholism, drug addiction, substance abuse) determine the essential conditions for registering persons with medical institutions with a diagnosis of:

• chronic alcoholism;
• addiction;
• substance abuse.

The only exceptions are persons who anonymously applied for treatment in offices (departments) and self-supporting drug treatment outpatient clinics.

Appealing the revocation of a driver's license

The Code of Administrative Offenses of the Russian Federation has established a unified procedure for appealing decisions in cases of administrative offenses - a decision made by a judge is appealed to a higher court. Based on the results of the consideration, the court makes a reasoned decision to satisfy the complaint/refuse to satisfy it.

Based on the results of consideration of the complaint, the court:

• leaves the resolution unchanged - rights are withdrawn;
• changes the decision without worsening the position of the guilty person - for example, the judge can reduce the period of deprivation of rights;
• cancels the decision, terminates the proceedings - the rights are returned;
• cancels the decision, sends it for a new consideration/consideration according to jurisdiction - the rights are returned until a new decision is made.

The procedure for filing a complaint against a decision on deprivation of rights

At the discretion of the applicant, a complaint in connection with the deprivation of a driver's license due to refusal to undergo a medical examination is submitted:

• to the court that issued the appealed decision. The court independently forwards the case materials to a higher authority;
• to a higher court.

The offender, the victim, legal representatives, and defense attorneys have the right to appeal the decision within 10 days as a general rule.

The judge’s decision on a complaint against a decision on deprivation of rights for refusing a medical examination is subject to appeal to a higher court - the regional court of a constituent entity of the Russian Federation. In this case, the complaint contains signs of an appeal. A decision on the complaint is made within two months from the date of filing.

In the first quarter of 2017, the procedure for confiscating a driver's license for refusing to undergo a medical examination has not undergone significant changes. Deprivation of rights in this case is an established practice of courts applying the norms of the Code of Administrative Offenses of the Russian Federation. However, options on how to retain a driver’s license cannot be ruled out: refusal to undergo an examination by authorized employees does not entail deprivation, procedural violations were committed, or there was an emergency.

The case of a person committing an administrative offense requires careful consideration of all legal aspects, which will allow the citizen to avoid imposing an illegal punishment. In the event of a decision on deprivation of rights, it is necessary to give a legal assessment of all procedural documents and court actions, and to exercise all rights to appeal. Competent and timely legal assistance in matters of administrative offenses, which our lawyers can provide, is a necessary basis for guaranteeing the driver’s rights.

ATTENTION! Due to recent changes in legislation, the information in this article may be out of date! Our lawyer will advise you free of charge.

There was no examination

Question: it happened like this: a traffic police officer stopped me and accused me of driving under the influence of drugs without passing a test. I didn't agree with this. Then they started to separate, and my mother was sitting in my car, whom I was urgently taking to the hospital, and my uncle was also sitting. In the end, I had to agree for them to let me go, but there was no examination. I signed the protocol and agreed, only to be released and the steering wheel handed over to my uncle. I am a professional driver and I would not like to lose my license because I will be left without work. What threatens me and do I have the right to appeal against all this so as not to be deprived of my rights?

Answer: Good afternoon! Unfortunately, it is completely unclear from your question what exactly you agreed with. If you agreed that you were driving a car while under the influence of drugs, then this admission has no procedural significance without a medical examination. However, as well as admitting to driving while intoxicated without an examination. There is a certain procedural procedure for holding a driver accountable for driving while intoxicated, and in this order, conducting an examination—medical or on-site examination—is of great importance. If you “admitted” to refusing to comply with the lawful demands of police officers to undergo a medical examination, or more precisely, you refused to go to a medical facility, then this is worse, since the refusal itself forms a separate administrative offense. In this case, it is necessary to check the legality of the requirements for undergoing an examination, compliance with the procedural procedure for sending for a medical examination for intoxication. One of the mandatory conditions for the legality of the inspector’s demand is the existence of grounds for conducting a medical examination. The inspector's suspicion that you are intoxicated is not such a basis. The reason may be your refusal to undergo an on-site examination or disagreement with its result. If, as you indicate, there was no on-site inspection, then you need to clarify whether it was not due to the fact that the inspector did not offer, or because you refused? The first option makes the entire procedure illegal.

The driver was not deprived of his license for refusing a medical examination: legal precedent

These are the cases in which a driver cannot be deprived of his license for refusing to undergo a medical examination.

We all know that in current legislation there is a de jure presumption of innocence. But it’s no secret that, for example, Chapter 12 of the Administrative Code, which applies to all drivers, has long been discredited due to the fact that de facto in this chapter there is a presumption of guilt for drivers, which is why instead of The driver’s guilt was proven by the traffic police and the court; drivers have to prove their innocence. Moreover, very often it is very difficult to do this, even with obvious violations on the part of the owners of striped rods and ships.

We all know that traffic police officers have long come up with 1001 ways to bring a driver to administrative responsibility, taking advantage of the legal illiteracy of drivers. Here, for example, is one of the favorite tricks of brave traffic police officers, related to the medical examination of drivers for intoxication.

And there are thousands of such cases throughout the country. Unfortunately, most drivers take a passive position, preferring not to defend their rights, illegally depriving them of their driver's license.

But there are drivers for whom the law, on the contrary, helps them to remain with their license, even if the driver was drunk while driving and refused to undergo a medical examination. How can this be? It turns out it can. It’s all about the statute of limitations for bringing to administrative responsibility and the presence of a violation of the law affecting the driver’s rights. Here is one example from judicial practice of how a driver managed to avoid administrative liability for refusing a medical examination.

A certain Yu.A. Kuznetsov, who was driving a BMW 520, was stopped at night by traffic police officers in the Irkutsk region to check documents. During the check, the driver was found to have signs of intoxication: the smell of alcohol on his breath and a sudden change in the skin of his face. The driver was asked to undergo a medical examination, which he refused, violating clause 2.3.2 of the Traffic Regulations of the Russian Federation, upon which traffic police officers drew up an administrative protocol in accordance with Part 1 of Article 12.26 of the Code of Administrative Offenses of the Russian Federation, and the case materials were sent to the magistrate's court.

The magistrate court, having considered the administrative case, fined Kuznetsov 30,000 rubles and deprived him of his driver’s license for 1 year and 6 months. The driver, disagreeing with the decision, challenged it in the district court, which eventually overturned the magistrate's court ruling, releasing the driver from liability. Here's how the court ruled:

In his complaint, Kuznetsov stated that he was not properly notified of the time and place of the hearing of the case in the magistrate's court, which resulted in a violation of his constitutional right to defense.

The judge of the district court of the Irkutsk region, having checked taking into account the requirements of Part 3 of Art. 30.6 of the Code of the Russian Federation on Administrative Offences, materials of the case regarding an administrative offense, having read the arguments set out in the complaint, having heard the defense lawyer Yu.A. Kuznetsov. – Kesel A.K., comes to the conclusion that there are grounds to satisfy the complaint, based on the following.

By virtue of Part 1 of Art. 1.6 of the Code of the Russian Federation on Administrative Offenses, a person brought to administrative responsibility cannot be subjected to administrative punishment and measures to ensure proceedings in a case of an administrative offense other than on the grounds and in the manner established by law.

According to the judge, according to Part 1 of Article 24.1 of the Code of Administrative Offenses of the Russian Federation, the task of proceedings for administrative offenses is a comprehensive, complete, objective and timely clarification of the circumstances of the case, as well as its resolution in accordance with the current legislation. The magistrate's court did not comply with the requirement of this rule of law.

Thus, according to Part 2 of Article 25.1 of the Code of Administrative Offenses of the Russian Federation, a case of an administrative violation is considered with the participation of a person against whom proceedings are being conducted for an administrative violation.

The case may be considered in the absence of the specified person in accordance with Part 3 of Article 28.6 of the Code of Administrative Offenses of the Russian Federation or if the court has information that the person was duly notified of the place and time of consideration of the administrative case. The court also has the right to consider the case without a participant if a corresponding request has been received from him.

In Kuznetsov’s case, the Irkutsk court found that there was no data on proper notification of the driver about the consideration of the case in the magistrate’s court.

Thus, it was established that the judicial notice of the magistrate’s court setting the time and place for the hearing of the case was sent to the address indicated in the procedural documents drawn up by the traffic police officer in relation to Kuznetsov, which was returned to the magistrate’s court with the mark “No such street.”

At the same time, despite the fact that this address of the driver was incorrectly indicated in the documents drawn up by the traffic police officer, the case file contained a transaction card with Kuznetsov’s driver’s license, which indicated the address of his permanent place of registration, which coincides with the driver’s place of residence. But the magistrate’s court did not send a notice to this address about the time and place of the hearing of the case, violating the driver’s rights.

The magistrate’s court also sent Kuznetsov an SMS notification about the time and place of the hearing of the administrative violation case, which was not delivered to the subscriber. The judge did not send a repeated SMS notification to the phone (clause 8.3 of the Order of the Judicial Department at the Supreme Court of the Russian Federation dated December 25, 2013 No. 257 “On approval of the Regulations for organizing notification of participants in legal proceedings via SMS messages”). Accordingly, according to the law, such an SMS notification, in the opinion of the district court, cannot be recognized as proper.

Taking all this into account, the district court overturned the magistrate’s ruling against Kuznetsov due to the fact that he was not properly notified of the time and place of consideration of the administrative case under Part 1 of Article 12.26 of the Code of Administrative Offenses of the Russian Federation, which did not allow the magistrate to comprehensively, fully and objectively consider case.

Also, when deciding to cancel the decision against the driver who filed the complaint, the court takes into account that at the time of consideration of the complaint, the statute of limitations for bringing to administrative responsibility had expired. As a result, the question of the driver’s guilt, provided for in Part 1 of Article 12.26 of the Code of Administrative Offenses of the Russian Federation, cannot be the subject of discussion. Thus, the administrative case was terminated due to the expiration of the statute of limitations for bringing to administrative responsibility.

Traffic police rules: how not to lose your license for refusing a medical examination

Lawyer Evgeny Shmelev says:

Where it all began

“In 2016, I handled the case of a young man who they wanted to prosecute under Part 1 of Art. 12.26 of the Code of Administrative Offenses of the Russian Federation - “Failure by the driver of a vehicle to comply with the legal requirement of an authorized official to undergo a medical examination for intoxication” (provides for a fine of 30 thousand rubles and deprivation of a driver’s license for a period of one and a half to two years. - Note ZR ).

Then, in simple terms, the divorce begins. The traffic police inspector asks Igor if he will go for a medical examination to the hospital (looking ahead, I will say that this alone is a direct violation of the procedure). Naturally, Igor had no desire to spend an hour or two with doctors, because he needed to deliver the goods to the points on time. Then the police officer “met the driver halfway” and advised him not to go to the hospital - he would be registered there. It is easier to sign a refusal to undergo a medical examination. I often come across this and don’t know why inspectors say this to drivers - apparently, in this way they put additional psychological pressure on people. Needless to say, the entire dialogue took place without witnesses.

Receive - sign and... sign again

Not understanding what this meant for him, my client agreed to sign a waiver to undergo a medical examination. The inspector drew up a report on the referral for a medical examination, in which Igor signed. Meanwhile, the second officer finds two witnesses and says: “Here is the driver, so-and-so, here is his GAZelle. He refuses to go to the hospital to undergo a medical examination for intoxication.” And my client sits and is silent. Subsequently, the witnesses confirmed that no one in their presence suggested that the driver be tested using a breathalyzer (read about how to do this correctly here). The inspectors simply told the witnesses everything about the “violator” himself and let them sign a protocol on sending them for a medical examination, after which they released them. Then one of the inspectors gave my principal blank forms of protocols on suspension from driving a vehicle and on an administrative offense, which Igor needed to sign in the places marked with checkmarks (another common technique of traffic police officers). Igor signed and calmly went on to deliver the goods.

The story doesn't end there. According to the witnesses, about an hour after all the events, the same traffic police inspectors come to their home and explain that they still need to sign the protocol on the driver’s removal from driving the vehicle. Honestly, it’s even a pity that at that time the federal law of April 17, 2017 No. 71-FZ “On Amendments to Article 303 of the Criminal Code of the Russian Federation” was not yet in force, providing for criminal liability of officials authorized to draw up protocols on administrative offenses for falsification evidence in a case of administrative offenses. I will say as a former investigator that formally this composition is seen here.

Debriefing

Now let's take a look at what gross violations we are talking about. After the inspectors stopped Igor and suspected that he was intoxicated, the first thing they had to do in the presence of two witnesses (or using video recording) was to remove him from driving the vehicle, and draw up an appropriate protocol. In our case, the inspector did not suspend Igor in accordance with the procedure established by the Code of Administrative Offenses of the Russian Federation; he did not draw up a protocol on this in the presence of two witnesses or using a video recording. In this regard, any further procedural actions against the driver are illegal.

Next, the inspector should offer to test for alcohol intoxication on the spot using a breathalyzer. The procedure can take place either in front of witnesses or be recorded on video. However, one does not exclude the other. According to the rules, only after these two stages does the police officer invite the driver to go to the nearest hospital for a medical examination.

As a result, it turns out that there may be three grounds for drawing up a protocol on referral for a medical examination:

• the driver refused to be tested for alcohol intoxication on the spot (but!: if he was not offered to do this, then the police do not have the right to send him to the hospital);
• the driver does not agree with the results given by the breathalyzer;
• the device showed that the driver is sober, but the inspector still has doubts about this.

Will we meet in court?

We also subpoenaed and questioned as a witness the head of the bakery where Igor worked. He said that before each shift he himself examines his employees - measures their blood pressure and makes them breathe into a portable breathalyzer. An important caveat: there was no documentary evidence of this, but the magistrate took into account the arguments of Igor’s boss, since this is still his enterprise and it is not in his interests for employees to deliver products around the area while drunk. In itself, the fact that the boss conducts a secret inspection of his subordinates does not give anything. But in light of the overall picture, when there are clear violations on the part of the inspectors, it worked. By the way, curiously, the traffic police officers themselves never came to the trial, although they were called repeatedly.

Rare case

The testimony of witnesses also played an important role. As a lawyer, I have the right to interview witnesses with their consent. However, in my practice, such protocols were accepted for the first time as evidence in a case. As a rule, judges take the position that the lawyer is an interested party and therefore does not ask “inconvenient” questions. This happened, again, due to the fact that there was no video recording from the place of registration, the inspectors did not appear in court. Gradually, all the evidence came together like a puzzle.

As a result, the judge found our arguments convincing and recognized the protocols on the removal from driving the vehicle and on sending my client for a medical examination as unacceptable evidence. The proceedings against Igor were terminated due to the lack of an administrative offense. The described case can be considered a clear example of the effect of the presumption of innocence, when all irremovable doubts are interpreted by the court in favor of the person involved. Unfortunately, when considering cases, many Russian judges do not resort to this principle, despite its fundamental nature.”

Revocation of a driver's license without a medical certificate

Good afternoon. Traffic police officers issued a report stating that the driver was driving the vehicle while intoxicated. The driver wrote in the protocol about his disagreement with this fact. On honey He was not taken for examination. Please tell me, is there a chance that he won’t be deprived of his driver’s license?

Traffic police officers issued a report stating that the driver was driving the vehicle while intoxicated.
The driver wrote in the protocol about his disagreement with this fact. On honey He was not taken for examination. Please tell me, is there a chance that he won’t be deprived of his driver’s license? Catherine

here it is necessary to look and evaluate the documents and, based on them, draw conclusions about the chances.

If there are mistakes, then anything is possible

This is not enough. All protocols needed

This is all that was handed out.

How did they testify (record) the fact of alcohol intoxication?

The examination was carried out using a breathalyzer

If all documents for the tester are in order and the protocol is drawn up correctly, then deprivation

Good afternoon It would be ideal to see the protocol itself. The next question is - on what basis was a person found to be driving a vehicle while intoxicated? Did he refuse to go for a medical examination or what?

I attached the protocol, but it is almost unreadable.

Consider that the person has been deprived of his rights. The Supreme Court of the Russian Federation in this case interprets the situation as follows - each party is obliged to prove the fact to which it refers. The traffic police inspectors have proof - a protocol where everything is recorded. You have nothing.

Thank you anyway.

My pleasure. In such situations, if the issue is controversial and the person is confident in his innocence, then it is necessary to immediately go to an independent expert examination. But again, this is not a 100% salvation; sometimes the court still takes the side of the traffic police until the Supreme Court of the Russian Federation upholds the verdict. Good luck on the roads.

Hire a competent lawyer at your place of residence who will be able to study all the materials in the case of an Administrative Offense before the trial regarding the deprivation of a driver’s license. When reviewing the case materials, other details may become clear that may significantly affect the final court decision. Therefore, try to find a lawyer specializing in such cases here (for example Oleg) or in your city.

There is reason to argue. The protocol is really hard to read, but according to the examination rules, in case of disagreement with the breathalyzer readings, there must be a referral to a narcologist. If it (the direction) was not refused, there is a reason to argue.

Is not a fact. If disagreement was expressed in the protocol with the breathalyzer readings, a referral for a medical examination should follow. If you refuse a medical examination - then the protocol is already 12.26 - and there are really no options.

Honey. no examination was offered. Therefore there is no other protocol. Can you tell me what should be done in this situation to avoid deprivation?

Decree of the Government of the Russian Federation dated June 26, 2008 N 475 (as amended on September 10, 2016) “On approval of the Rules for examining a person who drives a vehicle for alcohol intoxication and

III. Referral for medical examination

for intoxication
10. The driver of a vehicle is subject to a referral for a medical examination for intoxication:
a) if he refuses to undergo an examination for intoxication;
b) in case of disagreement with the results of the examination for alcohol intoxication;
c) if there are sufficient grounds to believe that the driver of the vehicle is intoxicated, and the test result for alcohol intoxication is negative.

That is, if the driver does not agree with the results of the traffic police examination, he is sent for a medical examination (these are different procedures)

If it was not directed, then the fact of intoxication itself has not been established. You need to draw up a detailed petition to the court to terminate the administrative proceedings.