What are the circumstances of the discretionary sentencing for the crime of dangerous driving?

On the issue of how to apply the general provisions of the Criminal Law to give lenient punishment.

During the drafting of the Opinions, all departments agreed that the criminal policy of blending leniency and severity, as a basic criminal policy, should also be applied to criminal cases of driving a motor vehicle while intoxicated, but there has always been controversy over how to implement the criminal policy of blending leniency and severity in such cases, especially how to embody lenient punishment. This is the main reason why the Opinions do not provide for this issue for the time being. We believe that the crime of dangerous driving is the only misdemeanor in the Criminal Law that only stipulates short-term detention as the main punishment, and although the statutory punishment for this crime is light, the application of its punishment should also adhere to the basic principle of proportionality of crime and punishment, and embody the principle of "light punishment for minor crimes".

In situations where the circumstances of driving a motor vehicle while intoxicated are relatively minor, the circumstances are minor, or the circumstances are significantly minor, the provisions of the General Provisions of the Criminal Law may be applied, and a suspended sentence may be announced, criminal punishment waived, or not handled as a crime in accordance with law. For example, where the defendant does not have the circumstances for a heavier punishment as provided for in article 2 of the Opinions, a suspended sentence may be announced in accordance with law on the basis of article 72 of the Criminal Law. Although defendants with aggravating circumstances provided for in article 2 of the "Opinions" are not completely unable to apply suspended sentences, but when they are applied, they must be strictly controlled in accordance with law.

For another example, where there are no aggravating circumstances provided for in article 2 of the "Opinions", and the blood alcohol content just exceeds 80 mg 100 ml, and there are statutory lenient punishment circumstances such as voluntary surrender and meritorious service, or there are discretionary lenient punishment circumstances such as automatic stopping of driving or short-distance driving, or there are reasonable reasons such as drunk driving for the purpose of treating patients (except for emergency avoidance), it may be found that the circumstances of driving a motor vehicle while intoxicated are minor or significantly minor, in accordance with the provisions of articles 37 and 13 of the Criminal Law. Exemption from criminal punishment or non-treatment as a crime. Of course, exemption from criminal punishment and omission should be handled in very small cases, which is consistent with the overall situation of drunk driving crimes.

According to Article 133-1 of the Criminal Law: Whoever drives a motor vehicle on the road to chase and race, and the circumstances are heinous, or drives a motor vehicle while intoxicated on the road, shall be sentenced to criminal detention and a fine. Where conduct in the preceding paragraph simultaneously constitutes another crime, follow the provisions for the heavier punishment at trial and sentencing.

Legal Analysis: For the sentencing circumstances of the crime of drunk driving and dangerous driving, if there are any of the following circumstances, a lighter punishment may be given as appropriate: (1) the previous driving record is good and there is no violation record; (2) The driving behavior occurs on a rural road, public parking lot or other road section or time period with a small traffic flow; (3) The driving distance is short, such as driving a vehicle that has just started and parking in a public parking lot; (4) Stop driving in time after discovering that you cannot drive safely; (5) Actively compensate for losses.

Legal basis: Article 133 of the Criminal Law of the People's Republic of China Whoever violates the regulations on the management of transportation in the air and mountain oak pass, resulting in a major accident, causing serious injury or death to a person, or causing major losses to public or private property, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; Where a person escapes after causing a traffic accident or has other especially heinous circumstances, a sentence of between three and seven years imprisonment is to be given; Whoever causes death as a result of escape shall be sentenced to fixed-term imprisonment of not less than seven years.

Article 133-1 Anyone who drives a motor vehicle on a road in any of the following circumstances shall be sentenced to short-term detention and a concurrent fine:

1) Chasing and racing, where the circumstances are heinous;

2) Driving a motor vehicle while intoxicated;

C) engaged in school bus business or passenger transport, seriously exceeding the rated occupant capacity, or seriously exceeding the speed limit;

4) Transporting hazardous chemicals in violation of the regulations on the safety management of hazardous chemicals, endangering public safety.

Where the owner or manager of a motor vehicle bears direct responsibility for the conduct in items (3) or (4) of the preceding paragraph, punishment is to be given in accordance with the provisions of the preceding paragraph.

Where conduct in the preceding two paragraphs is committed at the same time, and other crimes are constituted at the same time, it is to be convicted and punished in accordance with the provisions for the heavier punishment.

Article 133-2 Whoever uses violence against the driver of a moving public transport vehicle or rushes control of the driving control device, interfering with the normal operation of the public transport and endangering public safety, is to be sentenced to up to one year imprisonment, short-term detention or controlled release, and/or a fine.

Where the drivers provided for in the preceding paragraph leave their posts without authorization, beat up or assault others on the public transportation they are driving, endangering public safety, they are to be punished in accordance with the provisions of the preceding paragraph.

Where conduct in the preceding two paragraphs simultaneously constitutes other crimes, follow the provisions for the heavier punishment at trial and sentencing.