More Than 100 Prom Alcohol Impairs Ability To Drive Safely
12th Criminal Chamber of the Court of Cassation
Principal Number: 2019/10106
Decision Number: 2021/3042
“Case Law Text”
Court :Criminal Court of First Instance
Crime : Negligent injury
Sentence : Conviction according to Articles 89/4, 22/3, 62/1, 50/1-a, 52/1-4, 53/6 of the TPC
The judgment on the conviction of the defendant for the offense of negligent injury was appealed by the defendant, and the file was examined and the necessity was considered:
According to the trial, the evidence collected and shown in the decision, the court’s opinion and discretion formed in accordance with the results of the prosecution, and the scope of the file examined, the defendant’s objections to the appeal that are not based on a reason are rejected, but;
At around 20:45 on the day of the incident, the defendant drove a vehicle under the direction and control of the defendant with 0.80 promil alcohol in a residential area, 7. 40 meters wide two-way asphalt paved road at night time, when he came to the scene of the incident, he entered the opposite direction lane and hit the motorcycle driven and managed by the participant … who was driving in his own driving lane in a regular way, as a result, the participant driver … could not be eliminated by simple medical intervention, and the passenger …. In the case where the court accepted and determined that the defendant was completely at fault for the accident; according to the opinions of the Forensic Medicine Institution based on scientific data and the established practices of our Chamber, it is accepted that the provisions of conscious negligence should be applied since the amount of alcohol more than 100 promil will eliminate the ability to drive safely, and in the concrete case, considering that the defendant was determined to be 0.80 promil alcoholic at the time of the accident, it should be accepted that the alcohol rate decreases by 0.15 promil on average every hour, although it varies from person to person according to Forensic Medicine practices. 15 promil per hour, since there is a time difference of twelve minutes between the time of the breathalyzer measurement of the defendant and the time of the accident in the accident report, the rate of alcohol detected in the defendant did not exceed 100 promil, and contrary to the defense of the defendant, Considering that there is no credible evidence reflected in the file that he drove despite the fact that he could not drive safely with the effect of the alcohol he had taken, it is understood that the conditions of conscious negligence did not occur, and it is understood that the act was committed with conscious negligence, and the defendant was sentenced in writing by applying Article 22/3 of the Turkish Penal Code No. 5237. Article 22/3 of the Turkish Penal Code No. 5237 was applied to the defendant and a written judgment was established,
According to the acceptance and application;
Although it is stated in Article 50/4 of the TCC that “the imprisonment sentence imposed for negligent crimes, even if it is a long term, can be converted into a judicial fine in the presence of other conditions, but this provision shall not be applied in case of conscious negligence”, not considering that the long-term imprisonment sentence imposed on the defendant, who was accepted by the court that he acted with conscious negligence in the incident, cannot be converted into a judicial fine,
Since it is contrary to the law and the defendant’s appellate objections are deemed appropriate in this respect, it was decided unanimously on 24/03/2021, in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is still in force pursuant to Article 8 of the Law No. 5320 for these reasons, and to reserve the acquired right of the defendant in terms of the amount of the penalty in accordance with Article 326/last of the same Law.
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