Top court urges leniency for some who get behind wheel after drinking

By Wang Jingqiong (China Daily)
Updated: 2011-05-18 07:45
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BEIJING - The Supreme People's Court has asked courts nationwide to be cautious and use discretion when sentencing people in drunken-driving cases after the offence was declared a crime in the newly amended Criminal Law and Road Traffic Safety Law on May 1.

In a recent announcement, the top court told lower courts they should be careful when deciding whether to convict drunken drivers because the practice is so common in China.

According to the current law, drivers who have at least 80 milligrams of alcohol per 100 milliliters of blood are considered drunk.

As one of the largest producers of alcohol, China's drinking culture is well entrenched.

In a China Youth Daily survey, 99.6 percent of people surveyed said members of their families and friends had driven while drunk.

Beijing News reported that the Beijing Higher People's Court had also asked lower courts in the capital to report two cases of drunken driving to the higher court so more data can be collected for further research into the sentencing of drunken drivers.

Although the law stipulates "those who drive while drunk should be sentenced to jail terms of between one and six months and also fined," the top court has called for discretion, citing Article 13 of the Criminal Law, which says "offenses that cause very little harm to society shall not be accounted for as crimes".

Yang Wanming, a senior judge from the top court, said earlier in an interview with China Central Television that drunken driving cases "with different details and results" should not all be treated the same and said some drunken drivers might not be held criminally responsible because of Article 13 of the Criminal Law.

Yang also said the top court together with the top prosecuting authority will publish an official guide to be used in the sentencing of drunken drivers, following additional research.

Yang's words echoed those of Zhang Jun, vice-president of the top court, whose comments triggered a heated debate last week. Zhang also cited Article 13 and said not all drunken drivers should be treated as criminals because some cause little harm.

Many commentators said Zhang's opinions differed from the law, which stipulates drunken driving is a crime, regardless of whether the driver causes additional problems.

"Zhang, as a senior judge, is confusing the public and his comments might interfere with the lower courts' sentencing of drunken drivers," said Tang Hongxin, a Beijing lawyer who believes the law should be strictly adhered to.

Other experts, while agreeing there should be some discretion involved in sentencing and in reaching a verdict, asked for a formal explanation from the top court detailing when a driver who is over the legal limit should not be charged and convicted.

"It is understandable that the top court wants to show some leniency toward drunken drivers, who might face a bleak future if they are declared criminals," said Tian Wenchang, another Beijing-based lawyer. "But there should be a strict standard, or else people will have less trust of the law and the courts."

Legal expert Gao Mingxuan told Xinhua News Agency that the amendments to the Criminal Law were discussed last year and some people believed at the time that making all kinds of drunken driving into a criminal offense was "too harsh". Others insisted that such a move was needed to deter people from driving under the influence.

Gao said more specific judicial explanations or guidance should be published to help judges correctly determine drunken-driving cases.

The announcement from the top court also says that many people detained for drunken driving should be granted bail while they are waiting for their case to progress through the legal system.

"Drunken driving, if it does not cause severe damage, is a light offense. It is necessary to ensure the suspects' right to be bailed out from detention, under the condition that they will not avoid investigation and will be ready for a hearing at any time," said Chen Zexian, a consultant for the Beijing Law Society.

China Daily

(China Daily 05/18/2011 page4)