Regranting of Drivers Licences in Germany: Individual Differentiation vs Formalism

Transcription

1 Regranting of Drivers Licences in Germany: Individual Differentiation vs Formalism Nickel W-R*, Berghaus G**, Friedel B*** * Medical-Psychological Institute TÜV Hannover/Sachsen-Anhalt, Am TÜV 1, Hannover, Germany ** Institute for Forensic Medicine University at Cologne, Melatengürtel 60, Köln, Germany *** Federal Highway Research Institute, Brüderstraße 53, Bergisch Gladbach, Germany ABSTRACT The goal of this presentation is to report on the procedures and practices of regranting of drivers licences in Germany. A driving licence can be revoked either in accordance with penal code provisions or else in accordance with certain provisions of the administrative law. Before regranting the licence the administrative authority is obliged to investigate the case if there are doubts about the fitness to drive. If the authority is not able to make a decision a medical-psychological examination can be requested (for example in all cases with DWI offences of a BAC of.20 or higher). This procedure allows very detailed differentiation concerning the problems of the individual driver. The experiences will be reported differentiated according to medical and psychological aspects. GENERAL PROCEDURE WITH REGARD TO ALCOHOL, MEDICINES AND ILLICIT DRUGS According to the Road Traffic Admission Regulations (Stassenverkehrszulassungsordnung, StVZO) as part of the administrative law in Germany anybody who has proved to be able to drive a motor vehicle (by driving examination) and is now known to be physically and/or mentally unfit or disabled or being of insufficient personality (serious offences against the law) will receive a driving licence. In case of mental, physical or character unfitness the applicant has to prove to be fit to drive by medical and psychological assessment. A driving licence can be revoked either in accordance with penal code provisions or else in accordance with certain provisions of the administrative law. Penal Code and Administrative Law According to the penal code the disqualification of a driving licence presupposes that the person concerned is unfit to drive. The penal code ( 315, 316 StGB) does not allow driving under the influence of alcohol or other drugs which are able to impair driver fitness. In such cases, the person s ineptitude manifests for the judge the illegal act committed. The Federal Court of Justice (Bundesgerichtshof, BGH) has fixed the blood alcohol limit to 286

2 0,11%: motor vehicle drivers are absolutely unfit to drive at a BAC of 0,11% and over. If BACs are lower but.03% or higher, additional evidence has to be provided to demonstrate that the driver is unfit to drive. With respect to illicit drugs or medicines there is no legal limit. It always has to be shown that the illicit drug or the medicine has caused an improper driving. As a rule, a fine is imposed in cases of drunken driving or unfit driving after the consumption of illegal drugs or medicine. In cases involving serious bodily injuries a period of imprisonment may be provided. Pursuant to section 69 (a) of the Criminal Code, the court must fix a period of time during which no new driving licence may be issued (ban between six months and five years). In general, for first offenders, this period is nine months and for second offenders, it is 18 months. In 1973, the critical limit of 0.08% was introduced as an offence which by statutory definition carries a fine up to DM ( 24a Road Traffic Act). A first offence results in a fine of 500 DM plus a one month licence suspension, a second offence results in a fine of DM plus a three month licence suspension and for the third offence, secures a fine of DM plus a three month licence suspension. Concerning illicit drugs and medicines there exist no limit like the.08%-law. According to the Road Traffic Act, the administrative authority has the general power to disqualify a driving licence irrespective of whether a punishable offence was committed or not. If there are doubts about the fitness to drive the administrative authority is obliged to investigate the case. These doubts always emerge in cases of suspicion of dependence on alcohol, medicines or illicit drugs. If the authority is not able to make a decision a medicalpsychological examination can be requested. Medical-Psychological Testing As for alcohol for example all drivers who have driven under the influence of a BAC of.20% or higher and -depending on rules of the federal state- drivers who have driven under the influence of a BAC of.16% or higher without having demonstrated symptoms of being heavily impaired by alcohol and drivers who have committed two or more drink-driving offences within a period of ten years - regardless of their BAC - will be submitted to medical-psychological testing. The target of medical and psychological testing is to determine whether the driver is alcohol-addictive, heavily drinking without being dependent and whether the individual probability of recidivism exceeds the average rate of recidivism in the general driving population. A set of criteria has been developed in order to enable homogeneous assessment of the individual probability of relapse (Nickel, 1990). Medical-psychological assessment usually results in one of three difference answers according to the question of the licence authority: a driver can be judged 1. fit to drive without further measures to be taken, 2. unfit to driver and, 3. unfit to drive but eligible to restore the driving ability by participation in a drinkdriving treatment course 287

3 A set of hypotheses on the driver s most probable drinking problems is based on the previous history of drinking and driving as it is reported in the administrative record. These hypotheses have to be rejected by the collected data in order to give evidence to the administration that the driver has come to a complete return in attitude and behavior, a prerequisite which was ruled by administrative courts. Physicians and psychologists collect the relevant data independently and discuss them in order to come to a common diagnosis. The medical data are the previous history of the driver s medical problems, his present medical status and data on the condition of the liver including parameters such as GGT. According to Nickel (1992) nearly 60% of all DUI-drivers assessed will not get their privilege restored by administration. About a third of those drivers participate in rehabilitation programs because assessment has given evidence to the possibility of short term behavior change. According to Winkler (1992) over drivers take part in rehabilitation courses annually. The results of medical-psychological assessment are submitted to the driver, who presents them to the licence administration. The licensing administration decides whether the presented results are sufficiently convincing to make them the basis for their decision on issuing or reissuing the licence. If the driver accepts the decision, he will either receive a licence or he can apply for participating in one of the evaluated treatment programs (Nickel et al., 1985, 1987) or must refrain from driving until he has taken measures to restore his driving ability; this again would have to be assessed in another medical-psychological examination. Drivers can oppose to the administrative decision and appeal to the administrative courts which will evaluate this decision critically. MEDICAL-PSYCHOLOGICAL ASPECTS Medical Aspects The evaluation of medical aspects of fitness to drive is done in the Federal Republic of Germany in accordance with the booklet Krankheit und Kraftverkehr (Disease and Road Traffic). This expert s opinion is published by an advisory board for traffic medicine belonging to the Department of Traffic and to the Department of Health of the Federal Government. The booklet is updated regularly according to the scientific progress in medicine, in particular in diagnostics and therapy. The fourth edition was published in 1992, the next edition is prepared and is now under discussion of the above mentioned advisory board. In the next edition the annex III of the Council Directive (EEC) on driving licence will be integrated. This annex is directed to minimum standards of physical and mental fitness for driving a motor vehicle. The examination of the medical aspects of fitness to drive is done according to special rules published by the Department of Transport in According to these rules the examination is addressed to specific questions of the administrative authorities. The aim of the examination is the classification of concrete doubts. The booklet Disease and Road Traffic summarizes the medical knowledge in different guiding principles. The course of the disease, the therapy, the compliance of the patient, the aetiology and pathogenesis are important aspects for the medical examination. In the booklet among other things the examination of the diseases of the brain, spinal cord, 288

4 mental illness, personality and behavior disorders, vision, kidney diseases, diabetes, epilepsy and locomotor disabilities is outlined. In order to illustrate the contents of the booklet the guiding principles are described for addiction and intoxication: Driving licences shall not be issued or renewed for applicants or drivers who are dependent on illicit drugs. This also applies for those who are dependent on psychotropic drugs or who regularly use psychotropic substances, which can hamper the ability to drive safely. Concerning tranquillisers it has to be differentiated between misuse with the danger of addiction and the regular use even in small quantities. Even this regular use - for instance in the evening - can lead to the phenomenon of low dose dependence. The administrative authority can only reissue a driving licence, if it is assured that the reasons relevant for the disqualification of the driving licence no longer exist. This means on average a proven period of at least one year of abstinence after the end of the detoxification therapy. For the evaluation of a drug free status specimen of hair can also be considered. Heroin addicts who are under therapy of methadone are in general unfit to drive too. Only in very seldom cases it may be possible to come to a positive examination, i.e. therapy with methadone more than one year, no other use of psychotropic substances (incl. alcohol), good compliance and social rehabilitation and no personality disorder. Psychological Criteria and Assessment with Regard to Alcohol Psychological and psychosocial criteria for the assessment of drink drive offenders have been developed since medical-psychological examination was first introduced in Germany in The original goal of assessment was the differentiation of drivers who would most probably not recidivate from those whose likelihood of drinking and driving was extremely high. In the 1980 s a shift from mere assessment and differentiation occurred towards rehabilitation efforts thereby offering a larger range of tools for reestablishing driving licences and mobility of the driver. There has been an evaluation of the criteria known to contribute to recidivism and developed from psychological knowledge. The evaluation which began in 1986, has produced evidence for the validity of criteria as well as the prognostic power of assessment. It was demonstrated that medical-psychological assessment has a special preventive effect cutting down 50% of expected recidivism, traffic accidents and fatalities. In addition, the evaluation showed that measures of driver improvement, which had originally been evaluated in the late 70 s and early 80 s (Winkler, Jacobshagen, Nickel 1988) combine to be effective. The study carried out to examine the effectiveness of medical - psychological assessment proved - at least partially - to be an evaluation of the German administrative system of regranting licences. This is due to the fact that regranting of licences is closely linked to medical-psychological assessment. The majority of licence withdrawals is a legal consequence of driving under the influence of alcohol and/or other drugs. The second largest proportion of licence withdrawals is represented by drivers with non-dui offences (e.g. speeding) who accumulated 18 or more penalty points within a period of 2 years. 289

5 Regranting of licences in these cases is dependent on the outcome of medical-psychological assessment. Therefore assessment and rehabilitation have become part of the German system of regranting of licences. The psychological data are: previous history on drinking and drinking and driving, the social and educational background, occupational status, the type of strategy developed in order to separate drinking from driving or to reduce overall alcohol consumption. Furthermore, psychomotor performance is examined in order to answer the administration s question on whether the driver has developed serious impairment by excessive drinking. Criteria development from factors known to contribute to recidivism has been a constant task of medical-psychological research; criteria as well as the quality of diagnostic as well as treatment outcome have been under evaluation since The results show the superiority of medical-psychological assessment with respect to predicting future drink driving behavior; the best predictive power was found in a combination of medical, psychological and psychophysiological factors (e.g. overall alcohol consumption, BAC at the time of being apprehended, psychosocial factors, number of previous convictions, establishment and training of individual prevention strategies). CONCLUSION According to the mind of the public at large the procedure of regranting driver s licences in Germany has proved. Even it is, for reasons of methodology, difficult to express the advantage and efficiency in concrete figures the individual differentiation should be preferred to formalism. REFERENCES B. Friedel: Driver improvement programs in the Federal Republic of Germany. In: Effective strategies to combat drinking and driving. Alberta, March 1990 de Gier, J.J: Driving Licences and known use of licit or illicit drugs. Institute for Human Psychopharmacology, 1993 G. Kroj: Programs to improve driving behaviour in the Federal Republic of Germany. JTM Vol. 17, Nr. 1, 1989 G. Kroj: Rehabilitation of drunken drivers the Federal Republic of Germany. In: Alcohol, drugs and Traffic Safety - T92, (Eds.: Utzelmann/Berghaus/Kroj), Bd. 1, pp Verlag TÜV Rheinland, 1993 H. Lewrenz, B. Friedel (Bearbeiter); Gutachten Krankheit und Kraftverkehr.Heft 71, Schriftenreihe des Bundesministeriums für Verkehr, 1992 W.R. Nickel: Beurteilunskriterien - Wege zu Transparenz und Vereinheitlichtung. In: Nickel, W.-R., Utzelmann, H.J. und H. Weigelt (eds.): 1, bundesweites Kolloquium der Verkehrspsychologen amtlich anerkannter Medizinisch-Psychologischer Untersuchungsstellen. Mensch-Fahrzeug-Umwelt, Bd. 26, Verlag TÜV Rheinland,

6 W.-R. Nickel: Licensing and medical-psychological assessment in Germany. In: Alcohol, Drugs and Traffic Safety - T92, (Eds.: Utzelmann/Berghaus/Kroj), Bd. 1, pp Verlag TÜV Rheinland, 1993 W.-R. Nickel, W. Jacobshagen, W. Winkler: Die Wirksamkeit von Kursen für wiederholt alkoholauffällige Kraftfahrer. Zeitschrift für Verkehrssicherheit, 31, 67-74, 1985 W.-R. Nickel, W. Jacobshagen, W. Winkler: Evaluation of the effectiveness of treatment programs for DUI recidivists in the FRG in: P.C.Noordzij and R. Roszbach (eds.) Alcohol, Drugs and traffic safety - T 86, Elsevier Science Publishers B.V., , 1987 Straßenverkehrsrecht 24. Auflage Beck-Texte im dtv, März 1987 W. Winkler: The rehabilitation of drunken drivers in Europe. In: Alcohol, Drugs and Traffic Safety - T92, (Eds.: Utzelmann/Berghaus/Kroj), Bd. 1, pp Verlag TÜV Rheinland, W. Winkler, W. Jacobshagen, W.-R. Nickel: Wirksamkcit von Kursen für wiederholt alkoholauffällige Kraftfahrer. Unfall- und Sicherheitsforschung Straßenverkehr, Heft 64, Bergisch Gladbach, 1988 W. Winkler, W. Jacobshagen, W.-R. Nickel: Wirksamkeit von Kursen für wiederholt alkoholauffällige Kraftfahrer. Forschunbsberichte der Bundesanstalt für Straßenwesen, Bergisch Gladbach, Heft 224,

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