The Legislative Yuan on Friday last week passed an amendment to Article 185-3 of the Criminal Code allowing for tougher penalties for drunk driving resulting in another’s death or serious physical injury, which might meet public expectations, but might not be constitutional.
The article stipulates a penalty of one to seven years in prison for causing serious physical injury while driving drunk and three to 10 years for causing death.
This section of the article was not changed, but a third item was added: Anyone convicted of driving under the influence of alcohol or is given a suspended sentence for the offense who drives drunk within five years of the conviction and causes serious physical injury would be imprisoned for three to 10 years, while causing death would result in a jail term of five years to life.
This addition puts the article in line with the stipulated penalty for causing death, injury or serious physical injury to another in Article 277 of the Criminal Code.
The five-year period was clearly influenced by Article 47, which states that the punishment for a repeat offender shall be increased by up to half of the principal punishment.
However, according to the Council of Grand Justices’ Constitutional Interpretation No. 775 issued in February, increasing penalties without considering the facts of the situation and only determining the severity of an offense based on the sentence does not comply with the principle of penalty equivalence, which was deemed unconstitutional and legislators were given two years to amend Article 47.
Following the same legislative approach and increasing the penalty for repeat offenders by adding the third item to Article 185-3 is likely to be challenged the moment it takes effect as a breach to the Constitution.
To avoid a situation in which the unconstitutional first paragraph of Article 47 results in unequal punishment before it has been amended, interpretation No. 775 says that judges are allowed to decide on a case-by-case basis whether the penalty for a repeat offender should be increased.
This means that, even if the penalty for repeat offenders causing death or serious physical injury is increased, a judge can follow the spirit of the constitutional interpretation, as well as Article 59 of the Criminal Code, and reduce the sentence to below the minimum penalty.
Simply legislating harsher penalties does not mean that a judge will issue a harsh sentence.
Increasing the penalty so significantly is likely to boost the number of people refusing to take a breath alcohol test, especially as there is no penalty in the Criminal Code for refusing one.
In situations not involving an accident, police must obtain prosecutorial permission in accordance with the Code of Criminal Procedure (刑事訴訟法) to force a driver to submit a blood sample. If the driver refuses, the police can only issue a NT$180,000 fine based on Article 35 of the Road Traffic Management and Penalty Act (道路交通管理處罰條例). This is a giant loophole in a law that issues heavy penalties.
Each time legislation on drunk driving is amended, the penalties are increased, raising the risk that penalties would become unequal. More importantly, without more effective enforcement and stricter sentencing, simply increasing the penalties on paper would only have a limited deterrent effect.
Wu Ching-chin is an associate professor in Aletheia University’s Department of Law and director of the university’s Criminal Law Research Center.
Translated by Perry Svensson
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