On 16 November 2022 The Sejm eventually passed an amendment to the Criminal Code, which will tighten the rules on penalties for drunk drivers. The bill will enter into force after three months after signing the President.
The amendment introduces new conditions for the application of a criminal measure in the form of vehicle forfeiture. Following the amendment, it will be possible to apply a vehicle accident in the event of driving by a person intoxicated or under the flow of an intoxicating agent.
Occupation of the vehicle and its forfeiture to the Treasury
The new legislation assumes that the vehicle will lose its driver, whose blood alcohol levels at the time of driving will be minimal 1.5‰, or if it causes an accident with at least the contents 0.5‰ alcohol in the blood or in the case of a repeat.
It does not matter whether he caused the accident or only drove the vehicle in this condition. If such a driver is detained by police, the vehicle will be temporarily occupied (period to 7 (d) by the police and then the prosecutor will issue a decision to secure the vehicle pending the judgment of the court.
The court will have a mandatory obligation to determine the vehicle's loss to the Treasury.
The legislator predicted three different scenarios in the event of detention of an intoxicated driver:
- loss of the vehicle, if it was the property of the driver,
- the loss of the equivalent value of the vehicle if: (i) the vehicle was not owned or co-owned by the perpetrator; (ii) due to disposal, loss, destruction or significant damage to the vehicle, it is impossible or untargeted to declare the forfeiture,
at least 5,000 PLN for the Fund for Harmful Assistance and Postpenitentiary Assistance, if the offender has been driving a motor vehicle which is not owned or co-owned by him or her, carrying out professional or professional activities involving driving a vehicle to the employer.
The last point raises the most controversy as it is not clear how to interpret the concept of professional or professional activities. In the assessment of the prosecution, its introduction is intended to eliminate cases where an irresponsible employee would lead to the loss of vehicles whose equivalent exceeds any financial capacity of the perpetrator of the type of tram, train, coach, bus, truck.
In the interests of the legislators, each of the above-mentioned options would lead to consequences for the perpetrator, which would have a similar economic burden on the perpetrator. However, it should be noted that intoxicated workers are in a definitely privileged position compared to those who have moved expensive rental vehicles.
Further interpretation controversy emerges on the ground of the situation of people who lease a vehicle or are self-employed who had a vehicle included in their fixed assets. According to the D.A., in the case of people who lease a vehicle, the loss of the equivalent of a car must be ruled out, and in the case of self-employed persons using their own vehicle, its loss must be declared.
Critical Opinion of the Ombudsman
Another controversy is due to the very process of estimating the value of the vehicle, which is to take place without expert support, based on the Minister's order. The value of the vehicle is to be the estimated value, the average of the market for identical vehicles, set at the date of the offence.
A critical assessment of such a solution was adopted by the Ombudsman, who emphasises that such averaging of the market value may violate the principle of equality before the law.
This is due to the fact that vehicle owners often modify them according to their own recognition, which has a positive effect on their value and other vehicle owners commit gross negligence on their vehicles, which significantly reduce their market value.
Author: Maksymilian Kulczycki
The author is a graduate of the Kozminski Academy in the field of Law and Finance and Accounting. From 2022 Associated with Russel Bedford Poland. In 2018 He completed his bar application at the District Bar Council in Warsaw. In 2019 obtained a positive result from the bar exam. His professional interests include the law of commercial companies, in particular mergers and acquisitions, conversions and tax law, in particular corporate income tax.