If, during a check by means of a breath analysis or blood test, it appears, or in the absence of such a test, there is a serious suspicion, that more alcohol than permitted has been drunk, the investigating officer will first draw up an official report of the offence. If it is not possible to establish that an offence has been committed, the investigating officer will draw up a report of what he has done or found during the investigation. As the driver of a motor vehicle, you are then obliged to surrender your driving licence to the investigating officer (Article 164, paragraph 1 of the Road Traffic Act). He may also confiscate it if investigation shows or there is a serious suspicion that the alcohol content of the breath is more than 570 micrograms of alcohol per litre of exhaled air or more than 1.3 milligrams of alcohol per millilitre of blood. Novice drivers may already do so when the alcohol level is higher than 350 micrograms alcohol per litre exhaled air or higher than 0,8 milligrams alcohol per millilitre blood.
The driving licence can therefore only be confiscated from drivers of motor vehicles and not from cyclists! He will then immediately forward the official report and the confiscated driving licence to the public prosecutor. The public prosecutor then decides whether to prosecute the suspect. (Sections 152 and 156 of the Dutch Code of Criminal Procedure) The public prosecutor can retain your confiscated driving licence until the moment that the penalty order has become irrevocable, the court order has become final, or, if the driving licence has been withdrawn unconditionally, until the moment that the withdrawal has expired. Within 10 days after the collection he must make use of this power, otherwise it must be returned to you immediately.
In addition, the police can impose an administrative fine for some offences under the Road Traffic Act. If you have been given an administrative fine or have received a notification that it is intended to give you an administrative fine, you can no longer be prosecuted for the offence or the crime you committed. According to the una via principle, such a fine or notification can be regarded as a decision that you will not be prosecuted further for that offence (Article 243 paragraph 2 of the Dutch Code of Criminal Procedure). Conversely, an administrative fine cannot be imposed on you for a fact for which a criminal prosecution has been instituted and the court hearing has begun, or for which a penalty decision has been issued (Article 5:44 of the General Administrative Law Act).
According to the una via principle, an administrative and a criminal sanction cannot be imposed simultaneously for the same offence. These rules only apply when there is a 'criminal charge' as referred to in Article 6 of the European Convention on Human Rights. If the first proceedings concern a criminal charge, a second prosecution is excluded. (See, for example: Supreme Court 16 February 2016, ECLI:NL:HR:2016:237)
The offences related to drink-driving for which the police can impose an administrative fine are the following. For driving under the influence of alcohol and dangerous driving under the influence without causing injury to persons or property, the police can impose an administrative fine. The police use the same guidelines as the OM for the amount of the fine. You can read these Here find.
If it is proven that the driver has drunk too much, a prison sentence of up to three months or a fine of up to €8300 may be imposed (for offences committed before 1 January 2018, the maximum is €6700) (Article 176, paragraph 4 of the WVW).
The person can also be disqualified from driving for a maximum of 5 years (Article 179 paragraph 1 of the Dutch Road Traffic Act). This is in fact an additional penalty which can be imposed in addition to the main penalty (in this case a prison sentence or a fine).
If a person is convicted for an act as described in article 179 paragraph 1 of the Dutch Road Traffic Act, which includes driving under the influence of more alcohol than allowed, and he has been convicted before for one of these acts, he has been disqualified from driving and this new conviction takes place within five years after the end of the period of the previous driving disqualification, a driving disqualification of maximum ten years can be imposed on him (art. 179 paragraph 4 of the Dutch Road Traffic Act).
So if you have previously had a driving disqualification because of one of the behaviours listed in section 179 (4) WVW and you are now caught behind the wheel with too much alcohol on you, the maximum period in which you can lose your driving licence is doubled.
As a driver of a vehicle you must also refrain from dangerous behaviour. If you engage in dangerous behavior on the road and you have one sip of alcohol too many then you have committed both an offense and a crime. In that case you may be given a higher penalty. You may then be sentenced to a maximum of three months' imprisonment or a fine of up to €8300 and a maximum of two months' imprisonment (article 62 of the Criminal Code). This also applies to cyclists. In addition, drivers of motor vehicles may also be subject to a driving disqualification. This is an additional punishment that in this case can be imposed next to the main punishments of imprisonment and detention. The duration of the driving disqualification depends on the duration of the prison sentence. Based on the maximum duration of 5 months (3 months imprisonment and 2 months imprisonment) the driving disqualification will have a minimum duration of 2,5 years and a maximum duration of 5,5 years. In the case that only a fine is imposed as main penalty, the driving disqualification will be at least 2 years and at most 5 years (art. 60 of the Criminal Code).
If, as a driver of a vehicle, you not only drink too much, but you also cause an accident in which another road user dies or suffers physical injury, a more severe penalty applies. The fact that your alcohol level was too high while you caused the accident is an aggravating circumstance. Another circumstance that will increase the penalty is the fact that you refused to cooperate with an alcohol test.
If the accident resulted in death you can be sentenced to a term of imprisonment of a maximum of 4.5 years or a fine of a maximum of €20,750. If physical injury was caused by the accident you can be sentenced to a term of imprisonment of a maximum of 2 years and 3 months or a fine of a maximum of €20,750. This also applies to cyclists. Furthermore, in this situation a driving disqualification can be imposed on drivers of motor vehicles. Here too the duration of the driving disqualification depends on the (duration of the) principal penalty imposed. Based on the maximum duration of the prison sentence, the driving disqualification will have a minimum duration of 4 years and 3 months and a maximum duration of 7 years and 3 months. In case of a fine as main penalty, the driving disqualification will last for at least 2 years and at most 5 years.
If you cause an accident with the above consequences, the fact that you have refused to cooperate with an alcohol test will also be regarded as an aggravating circumstance! This concerns the breath analysis that can only be performed on a suspect. So if they could not determine your alcohol level because you refused, the prison sentence will be increased by half.
If you are convicted as a cyclist, you cannot be denied the right to drive. It should also be noted that if your driving licence has been confiscated, the duration of the confiscation will be deducted from the duration of the driving disqualification.
The fact that you have drunk alcohol also plays a part in determining whether you are at fault for an accident resulting in death or physical injury (as referred to in article 6 of the Dutch Road Traffic Act). The fact that alcohol was involved can contribute to the assessment that you are at fault. However, all the circumstances of the case must be taken into account in the assessment and the fact that alcohol was consumed is one of them.
In addition, in order to (may) bring danger on the road or to (may) hinder other road users, some actual action is required that indicates this. The mere fact that someone has drunk alcohol does not constitute dangerous behaviour. The fact that someone has drunk alcohol is therefore punishable separately, because it is an act that carries great risks. In the question whether there is or can be dangerous behaviour, the specific actual driving behaviour should be taken into account, not just the fact that alcohol is involved.
Refusing to cooperate with the alcohol check has far-reaching consequences. According to the law, a maximum prison sentence of 3 months or a fine of up to €8300 can be imposed in combination with a driving disqualification of up to 5 years. In practice the refusal is equated with an alcohol level on scale 9. That is an alcohol level of 866 to 945 micrograms per litre of exhaled air. For a car driver or a motorcyclist this would amount to a fine of 1,000 euros and a suspended driving disqualification of 9 months.
Refusing to cooperate with an order given by an investigating officer is also a separate criminal offence, unless the officer was not authorised to give the order. Refusing to comply with an order to cooperate in a provisional breath test is therefore also a punishable offence. Refusing to comply with an official order is punishable by a maximum prison sentence of three months or a fine of a maximum of €4,150.
If the Public Prosecutor believes that you should be prosecuted, there are two possibilities. The OM can issue a summons to take you to court or the OM can issue a penalty order. A penalty order means that the OM handles the case itself and can impose penalties and measures. Which punishments and measures it can impose and the maximum are stipulated in the law. For example, with respect to situations involving alcohol in traffic, the OM can only impose a fine and a driving disqualification for a maximum of six months. It cannot, therefore, impose a prison sentence.
It is true that the prosecutor has guidelines for the height and severity of the penalty. This depends on the alcohol content. In addition, a distinction is made between novice drivers and non- novice drivers. Here you can find the guidelines. Therefore, the maximum penalties will only be imposed in exceptional cases.
The judiciary has also made agreements concerning the application of penalties to offences under article 6 and article 8 of the Road Traffic Act, respectively, driving causing an accident resulting in serious injury or death, and driving under the influence of alcohol. For these offences, there are guidelines on the basis of which the courts determine the punishment. These guidelines can be found under the following link on pages 12 to 14: https://www.rechtspraak.nl/SiteCollectionDocuments/Orientatiepunten-en-afspraken-LOVS.pdf
The diagram shows the guidelines for first-time offenders. If we compare the guidelines of the Public Prosecutor's Office with those of the judiciary in terms of sentencing, we see that the Public Prosecutor's Office applies a stricter sentence than the judiciary. In this case, complaining is rewarded, which is why it is always wise to consult a lawyer. Law & More will be happy to help you with this.
The CBR can also impose various measures on drivers of motor vehicles in connection with drink-driving. There are four different types of measures which are particularly important: the light educational measure alcohol and traffic, the educational measure alcohol and traffic, suspension of the validity of the driving licence, and invalidation of the driving licence.
Since 2016 the alcolock programme may no longer be imposed. Before that time, the alcolock programme was still considered a lighter measure. The alternative was the loss of the driving licence for 5 years. Now that the alcolock programme has been abolished, the...
When are you eligible for which measure?
|A breath alcohol level of (in micrograms per litre of exhaled air)||A blood alcohol level of (in promille)|
|Light educational measure||350 to 435||0.8 % to 1.0 %|
|Educational measure||435 to 785||1.0 % to 1.8 %|
|Suspension of validity of driving licences of drivers of motor vehicles||785 or greater||1.8 % or greater|
|A breath alcohol level of (in micrograms per litre of exhaled air)||A blood alcohol level of (in promille)|
|Light educational measure||220 to 350||0,5 % to 0,8 %|
|Educational measure||350 to 570||0,8 % to 1,3 %|
|Suspension of validity of driving licences of drivers of motor vehicles||570 or higher||1.3 % or greater|