1, subjective aspect

The subjective aspect of the crime of dangerous driving is intentional, that is, knowing that drunk driving a motor vehicle on the road or chasing a race on the road will endanger public safety and hoping or letting this happen.

2, the objective aspect

The objective aspect of this crime is drunk driving a motor vehicle on the road or chasing a race on the road, and the circumstances are bad. Therefore, the constitution of this crime requires four conditions to be met at the same time in terms of objective behavior:

(1) Behavior condition: drunk driving a motor vehicle or driving a motor vehicle to chase a race. Here, the legal provisions adopt the way of listing, and only criminalize the behavior of drunk driving a motor vehicle to chase the race. First, let's look at the behavior of drunk driving.

As we all know, drunkenness is divided into physiological drunkenness and pathological drunkenness. Pathological drunkenness belongs to mental illness, while physiological drunkenness does not. According to the degree of drunkenness, physiological drunkenness can be divided into mild drunkenness, moderate drunkenness and high drunkenness.

Among them, although the recognition ability and control ability of mild drunkards and moderate drunkards have been weakened, they have not lost, and they belong to people with full criminal responsibility or limited criminal responsibility; A person who is highly drunk has consciousness disorder and has no ability to identify and control his own behavior, and belongs to a person without criminal responsibility.

Drunkenness in the crime of dangerous driving includes physiological drunkenness and pathological drunkenness. But in the case of pathological drunkenness, it depends on whether the actor knows the physiological characteristics of pathological drunkenness.

If you knowingly drink and drive a motor vehicle after pathological drunkenness, you will still bear criminal responsibility according to the theory of "freedom of cause"; If the actor doesn't know the physiological characteristics of pathological drunkenness, but falls into pathological drunkenness after drinking, and then drives a motor vehicle, according to the principle of "subjective and objective consistency", the behavior that the actor can't control should not be punished.

In addition, in a state of high drunkenness, it depends on the cause of drunkenness-if the actor drinks voluntarily and falls into a state of high drunkenness, he will bear criminal responsibility, otherwise he will not bear criminal responsibility. Look at the behavior of driving a motor vehicle to chase the race. Literally, "chasing and racing" refers to the behavior of driving motor vehicles chasing each other or driving for the purpose of pursuing speed, which is also the "racing" behavior in the popular sense.

Is there a speed limit here? Because since it is a "racing car", there is a motive to pursue who is faster than who, otherwise there is no pursuit. The determination of speed here should consider the space where the motor vehicle travels. When driving in urban areas and highways, the speed conditions for "chasing and racing" are different because of the different road speed limits. The specific code number should be defined according to different situations in different places.

(2) Space conditions: drunk driving a motor vehicle or driving a motor vehicle to chase and race should be carried out on the road. Since this crime is stipulated as one of the contents of Article 133 of the Criminal Law, the "road" here should be consistent with the scope of "road" in the crime of causing traffic accidents.

According to Article 119 of the Road Traffic Safety Law, "road" refers to highways, urban roads and places where social vehicles are allowed to pass, including squares, public parking lots and other places for the public to pass, that is, all places where social vehicles are allowed to pass can be called roads.

(3) Object condition: driving a motor vehicle. According to the provisions of Article 119 of the Road Traffic Safety Law, a motor vehicle refers to a wheeled vehicle that is driven or towed by a power plant, travels on the road for people to ride or transport articles, and carries out special engineering operations, including large cars, small cars, special vehicles, special vehicles, trams, trolleybuses and other motor vehicles.

It should be emphasized that since China's Road Traffic Safety Law stipulates that driving an electric bicycle belongs to a non-motor vehicle, driving an electric bicycle after being drunk or driving an electric bicycle to chase a race does not constitute a dangerous driving crime.

(4) Plot conditions: the plot is bad. The crime of dangerous driving needs "bad circumstances" There is no specific provision in the law for "bad circumstances". However, according to the original intention of legislation, in downtown areas, on expressways, or when there are many people in the car, such as drunk driving or chasing racing, it can be regarded as a bad plot.

The "bad plot" here does not include situations that cause serious injury or death. Because the crime of dangerous driving punishes drunk driving and chasing racing, there is no need for serious consequences. As long as there is drunk driving or chasing racing, it constitutes the crime. If serious consequences are caused, they shall be punished according to the crime of causing traffic accidents or other charges.

3. Object aspect

The Criminal Law Amendment (VIII) stipulates the crime of dangerous driving in the chapter "Crime of endangering public safety", so it is obvious that the object of this crime is public safety, that is, dangerous driving endangers public safety and brings potential danger to public safety belts, that is, unspecified, most people's lives, bodies or property.

The so-called "unspecified" means that the object that a criminal act may infringe upon and the possible result cannot be determined in advance; The so-called "majority" is difficult to express with specific figures. Of course, in judicial practice, the judgment of endangering public safety should be based on the time and space conditions of the act.

If drunk driving or chasing racing is unlikely to endanger public safety, then even if there is drunk driving or chasing racing, it does not constitute this crime. If the behavior only infringes on the life, health or property safety of a specific minority, it does not constitute this crime.

Identification criteria:

Definition of dangerous driving crime, traffic accident crime and crime of endangering public safety by dangerous means

The similarities between the crime of dangerous driving and the crime of causing traffic accidents and endangering public safety by dangerous means: As all three crimes are stipulated in the chapter of endangering public safety, the most important similarity is that the object of infringement is public safety.

The difference between the crime of dangerous driving, the crime of causing traffic accidents and the crime of endangering public safety by dangerous means. This difference is manifested in the following aspects:

First of all, the subjective aspects are different. As mentioned above, the crime of dangerous driving is subjective hope or intention. Traffic accident crime is a typical negligent crime, which can only be subjective negligence. The crime of endangering public safety by dangerous means requires subjective intention, while the crime of endangering public safety by negligence requires subjective negligence.

The second is the difference in behavior. The crime of dangerous driving only includes drunk driving and chasing racing. Traffic accidents include some acts that violate traffic safety management laws and regulations, and the crime of endangering public safety by dangerous means refers to the dangerous acts other than "setting fire, cutting off water, exploding and poisoning". Drunk driving and chasing racing should not be included.

Extended data:

According to the provisions of Article 133 of the Criminal Law of People's Republic of China (PRC), the crime of dangerous driving refers to driving a motor vehicle on the road: chasing a race and the circumstances are bad; Drunk driving a motor vehicle; Engaged in school bus operation or passenger transport, seriously exceeding the passenger quota, or seriously exceeding the prescribed speed; Transporting dangerous chemicals in violation of the provisions on the safety management of dangerous chemicals, endangering public safety.

Sentencing standard:

1, driving a motor vehicle with blood alcohol content above 80 mg/100 ml on the road is a drunk driving motor vehicle, and it is convicted and punished for dangerous driving according to the provisions of the first paragraph of Article 133-1 of the Criminal Law.

The "roads" and "motor vehicles" mentioned in the preceding paragraph shall be governed by the relevant provisions of the Road Traffic Safety Law.

2, drunk driving a motor vehicle, one of the following circumstances, in accordance with the provisions of the first paragraph of Article 133rd of the Criminal Law, a heavier punishment:

(1) Causing a traffic accident and taking full or main responsibility for the accident, or causing the escape after a traffic accident, which does not constitute other crimes;

(2) The blood alcohol content is more than 200mg/100ml;

(3) Driving on expressways and urban expressways;

(four) driving a motor vehicle to carry passengers;

(five) serious overcrowding, overloading or speeding, driving a motor vehicle without driving qualification, using forged or altered motor vehicle license plates and other serious violations of road traffic safety laws;

(6) evading the inspection by the public security organ according to law, or refusing or obstructing the inspection by the public security organ according to law, which does not constitute other crimes;

(7) Having been subjected to administrative punishment or criminal investigation for driving a motor vehicle after drinking;

(eight) other circumstances that can be severely punished.

3, drunk driving a motor vehicle, violence, threats to hinder the public security organs to check according to law, and constitute a crime of nuisance of official duties, in accordance with the provisions of the combined punishment for several crimes.

4. If a defendant who is drunk driving a motor vehicle is sentenced to a fine, the amount of the fine appropriate to the main punishment shall be determined according to the defendant's drunkenness, whether it has caused actual damage and his attitude of pleading guilty and repenting.

5. When the public security organs investigate and deal with criminal suspects who are drunk driving motor vehicles, the seizure process, breath alcohol content detection and blood collection process shall be recorded; If conditions permit, photographs, audio recordings or video recordings shall be taken; If there is a witness, the testimony of the witness shall be collected.

6, blood alcohol content test and expert opinion is the basis for determining whether the suspect is drunk. If a criminal suspect reaches the drunkenness standard stipulated in Article 1 of this opinion through the breath alcohol content test and escapes before blood collection, the breath alcohol content test result can be used as the basis for determining his drunkenness.

If a criminal suspect drinks alcohol before breath alcohol content test or blood drawing in order to avoid legal investigation in the inspection conducted by the public security organ according to law, and his blood alcohol content reaches the drunk standard stipulated in Article 1 of this opinion, he shall be deemed as drunk.

7. To handle criminal cases of drunk driving motor vehicles, we should strictly implement the relevant provisions of the Criminal Procedure Law, effectively protect the litigation rights of criminal suspects and defendants, and conduct timely investigation, prosecution and trial within the statutory time limit.

A criminal suspect or defendant who is drunk driving a motor vehicle may be detained or released on bail pending trial according to the circumstances of the case. For those who meet the conditions of obtaining a guarantor pending trial, but the criminal suspect or defendant cannot provide a guarantor or pay a deposit, they can be placed under residential surveillance. If the circumstances are serious, the criminal suspect or defendant who violates the provisions on obtaining a guarantor pending trial and residential surveillance may be arrested.

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