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Does Switzerland (the canton X) can take action against me if I am judged in another country (Country Y) following a breathalyzer test above 2.0 per thousand?
Dear Mr. A,
In response to your request for information, I can answer as follows:
A/ Factual situation
Would you like to know if Switzerland, specifically the Canton of X, can take action against you if you are judged in another country (Country Y) following a blood alcohol test while driving over 2 ‰?
You state that you were tested in Y Country on November 5, 2019 with 1.19 mg of alcohol per liter of exhaled air while driving your vehicle. Your driver’s license was issued by Switzerland and you are domiciled in that country.
B/ Legal analysis
Art. 16cbis para. 1 SVG (SR 741.01) provides that after an offence committed abroad, the learner’s permit or driver’s license is withdrawn under the following conditions: a driving ban has been imposed abroad (lit. a) and the offence committed is qualified as moderately serious or serious (lit. b). Para. 2 specifies that the effects on the person concerned of the driving ban imposed abroad will be taken into account to a reasonable extent when determining the duration of the driving ban, and that the minimum duration of the ban may be reduced. For persons who are not listed in the register of administrative measures (art. 104b LCR), the duration of the ban may not exceed that imposed abroad (TF decision 1C_375/2015 of March 15, 2016, recital 3.1.2).
This provision makes up for the lack of a legal basis – noted in ATF 133 II 331 – for a practice that has long been accepted, including by the Federal Court (Message of the Federal Council on the amendment of the Federal Road Traffic Act, FF 2007 7170, ch. 1.3), concerning the withdrawal of a driver’s license after an offence committed abroad (ATF 141 II 256, consid. 2.1).
Thus, it can be retained that a withdrawal of the driving license in Switzerland because of an offence committed abroad is imposed under three conditions (Cédric Jean Mizel, Droit et pratique illustrée du retrait du permis de conduire, Berne 2015, p. 657):
- The alleged road behaviour must be reprehensible in the country of the offence;
- An enforceable driving ban of a certain duration must have been pronounced in the country of the offence (Art. 16cbis para. 1 lit. a SVG);
- The offence committed must correspond to an offence qualified as moderately serious or serious within the meaning of art. 16b or 16c SVG (art. 16cbis para. 1 lit. b SVG).
The foreign decision must be enforceable in order for a license withdrawal measure to be pronounced in Switzerland (TF decision 1C_255/2016 of October 14, 2016, recital 4.1; TF decision 1C_22/2015 of March 19, 2015, recital 2).
Under Art. 16c para. 1 lit. b SVG, a person commits a serious offence if he or she drives a motor vehicle while under the influence of alcohol and has a qualified level of alcohol in his or her breath or blood (art. 55 para. 6 SVG). Art. 55 al. 6 lit. a and b LCR states that the Federal Assembly shall set out in an ordinance the level of alcohol in the breath and the level of alcohol in the blood at which drivers are deemed to be unable to drive within the meaning of this Act (state of drunkenness), irrespective of any other evidence and of the individual’s degree of tolerance to alcohol (lit. (a) and the qualified level of alcohol in the breath and blood (lit. b).
The Ordinance of the Federal Assembly of June 15, 2012, concerning the permissible alcohol limits in road traffic provides in its Art. 2 lit. a and b that the following are considered qualified: a blood alcohol level of 0.8 grams per thousand or more (lit. (a); a breath alcohol level of 0.4 milligrams or more per liter of exhaled air (lit. b).
In your situation, in view of the information you have provided, it appears that the Swiss authorities could order the withdrawal of your driving license, if Country Y were to issue an enforceable decision prohibiting you from driving on its territory.
However, in order to do so, it is necessary that the decision of Country X be transmitted to the Swiss authorities.
As it stands, with the information we have at our disposal, the offence committed corresponds to a serious offence within the meaning of Art. 16c CSF.
Therefore, we confirm that it would be possible that a measure could be pronounced against you by the Service des automobiles et de la navigation (SAN), at a later date, provided that a decision of Country Y is enforceable against you and that the Swiss authorities are notified of the said decision.
Therefore, we are obviously at your disposal to discuss and develop the above in person – by telephone or in an interview – which we feel would be useful in view of the situation you are describing, as well as to discuss with you the strategy to be adopted to preserve your rights and safety.
My 15 year old son was interviewed yesterday by the Canton Police for having received and sent pornographic images and he admitted the facts. Would it be possible to avoid a criminal record?
Dear Mrs. B,
A/ State of facts
Criminal proceedings have been initiated against your son, aged fifteen, for pornography under art. 197 al. 1 and 3 CP. He has admitted the charges against him and you are now waiting to hear what happens next.
You ask how to avoid a criminal record entry, since this would make it difficult for your son to acquire Swiss nationality.
B/ Summary analysis of the legal situation
According to Art. 366 al. 3 CP, a judgment concerning a minor who has committed a crime or a misdemeanour (which seems to be the case here) will be entered in the criminal record if a sentence or one of the following measures is pronounced
- A custodial sentence,
- An investment,
- Outpatient treatment,
- An activity ban, contract ban or geographic ban. In this regard, a judgment for a minor who has committed a contravention will also be entered in the criminal record if these same measures are pronounced.
However, it should be pointed out that the competent authority has, under juvenile criminal law, a wide discretionary power as to the sentence or measure to be imposed. In fact, in addition to the above-mentioned penalties and measures, juvenile criminal law also includes other sanctions such as reprimand (22 DPMin), fine (23 DPMin) or personal service (24 DPMin). These sanctions do not result in an entry in the criminal record.
Whether or not the conviction will appear on your daughter’s criminal record will depend on the type of sentence that is handed down.
C/ Our recommendation
On the basis of the above and the information in our possession, we recommend that, at the Juvenile Court stage, you mount the most effective defence possible in order to protect your daughter’s interests and to ensure that the sanction imposed on her is not one of the sanctions referred to in Art. 366 para. 3 of the Swiss Criminal Code, resulting in an entry in the criminal record. This seems feasible to us, since alternative measures to those mentioned above can be considered even when the competent authority applies Art. 197 c. 1 and 3 CP.
In this regard, we understand that your son is 15 years old today. How old was he when he committed the acts he is accused of? The answer to your question is likely to have a significant impact on the resolution of this matter and we thank you for responding at your earliest convenience.
It goes without saying that we are at your disposal to discuss the above in person. Finally, we would like to remind you that this legal advice is based on the information you have provided to us. Please accept, dear Madam, the assurance of our devoted feelings.
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