With Decision No. 52 under n.d. No. 435/2022. The Second Criminal Division of the Supreme Court of Cassation (SC) amends Decision No. 109 of 12.04.2022. according to vnohd No. 885/2021 of the Sofia Court of Appeal (SAC), reducing the amount of the sentence imposed on the defendant Tsvetko Ts. for a crime committed under Art. 343b, para. 1 of the Criminal Code, the penalty of deprivation of the right to drive a motor vehicle for two years for one year and six months and upholds the decision in its remaining part.
The case was initiated on a cassation appeal of the defendant Tsvetko Ts. against the decision of the Sofia Court of Appeals, which confirmed the verdict of the Sofia City Court under n.o.h.d. No. 820/2020. With it, the defendant was found guilty of committing a crime under Art. 343b, para. 1 st. Art. 54 of the Criminal Code (driving a motor vehicle with a blood alcohol concentration of over 1.2 per mille), for which he was sentenced to “imprisonment” for a term of 1 year and 6 months, suspended with a probationary term of 3 years, “a fine “in the amount of BGN 1,000 and “deprivation of the right to drive a motor vehicle” for a period of 2 years.
The Supreme Court of Cassation accepts the appeal as admissible and partially justified. In its law-enforcement activity, the appellate court did not admit the procedural violations claimed by the plaintiff, which limited his rights or those of his subordinates, or led to incorrect application of the substantive law. Before all court panels, the defense focused on the defendant’s alleged use of water for oral hygiene immediately before the inspection. In the appointed expertise, it is undoubtedly established that, when checked with the technical device before rinsing the oral cavity with water for oral hygiene in a concentrated state, its readings are for the presence of 0.00 ppm of alcohol. It was explained by the expert that the technical device is factory-calibrated to distinguish alcohol present in the oral cavity at the moment when it is in it, from alcohol in exhaled air. In a situation where he remained only in the oral cavity, the reading would always be “alcohol in the mouth” and this result is not taken into account in the assessment of the proportionality of the act. Precisely because of the specifics of the action of this technical means, the experts and the court, respectively, are categorical in their conclusions that the established presence of 1.53 ppm of alcohol in the exhaled air of Tsvetko Ts. is also present in the lungs and is not the result of an immediately preceding checking the use of water for oral hygiene, because the minimum butanol contained in it (not ethanol) – 0.5% of the contents of the entire package, is practically absorbed by the oral mucosa.
The judicial panel of the Supreme Court finds no reason to revise the position of the supervised court regarding the amount of the imprisonment and fine imposed on the defendant, which were measured after assessing the correlation between mitigating and aggravating circumstances of the defendant. The cassation panel, however, considers that the objectives of the punishment could be achieved with a shorter two-year term of disqualification from driving a motor vehicle than that determined by the previous court panels. In the specific case, the defendant is administratively deprived (Art. 171, item 1, b. “b” of the Civil Code) from 21.10.2019 until the issue of his responsibility is resolved, but for no more than 18 months. After the expiration of this term, Tsvetkov’s driving license was returned, and he still drives the vehicle at the present time. However, since the renewal of this opportunity and until now, there is no evidence that he has violated traffic rules, including driving after consuming alcohol. This indicates a positive change in the defendant towards complying with the legal prohibitions and motivates the court to accept that the temporary withdrawal of his license for legal administration, the term of which has been deducted on the basis of Art. 59, para. 4 of the Criminal Code from the term of the penalty under Art. 343 of the Criminal Code, has had its re-educational impact, the court decision says. A logical consequence of this perception is a change in the term of deprivation of the right to drive a motor vehicle for Tsvetko Ts. from two years to one year and six months, corresponding to the time during which he was deprived of this right. administratively.