Determinants of prosecuting cases about driving while intoxicated in China: an empirical case law analysis

ABSTRACT

This research examines the factors on whether cases of driving while intoxicated are prosecuted in China by using 21,729 prosecution documents promulgated between 1 May 2017 and 31 December 2021. The results indicate significant regional differences in Prosecutors’ discretion when handling DWI cases. Prosecutors focused heavily on the blood alcohol content, neglecting qualitative factors such as periods of drunk driving and vehicle type. Empirical analysis suggests that aggravating circumstances were given great importance, whereas mitigating circumstances were disregarded. The results show that Chinese prosecutors tended to handle DWI cases severely and were reluctant to use their discretion. Two reform recommendations are given: (1) unifying enforcement standards through judicial interpretation of documents; (2) adjusting litigation procedures to ensure the reasonable exercise of prosecutorial discretion.

KEYWORDS:

• Driving while intoxicated
• pretrial diversion
• non-prosecution
• prosecutorial discretion
• governance of micro-crimes

Acknowledgements

The author would like to thank Prof Minyuan Wang, Prof Min Hu, Prof Haihong Huo, and Dr. Lvye Mou for their insightful comments on several drafts of this article. The author’s thanks also go to two anonymous reviewers for their very helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The Road traffic law of Japan 2022 Art 65.

2 The Criminal Code of Germany 1975 Art 315c, 316, 323a.

3 The Road Traffic Act of British 1991 Art 3.

4 See H Laurence Ross, Richard McCleary and Thomas Epperlein, ‘Deterrence of Drinking and Driving in France: An Evaluation of the Law of July 12, 1978’ (1981) 16 Law & Society Review 345; Ralph W Hingson, Jonathan Howland and Suzette Levenson, ‘Effects of Legislative Reform to Reduce Drunken Driving and Alcohol-Related Traffic Fatalities’ (1988) 103 Public Health Reports 659; H Laurence Ross, ‘British Drink-Driving Policy’ (1988) 83 British Journal of Addiction 863; H Laurence Ross, ‘Decriminalizing Drunk Driving: A Means to Effective Punishment’ (1991) 241 Journal of Applied Behavior Analysis 89; William N Evans, Doreen Neville and John D Graham, ‘General Deterrence of Drunk Driving: Evaluation of Recent American Policies’ (1991) 11 Risk Analysis 279.

5 See Joseph Marutollo, ‘No Second Chances: Leandra’s Law and Mandatory Alcohol Ignition Interlocks for First-Time Drunk Driving Offenders’ (2010) 30 Pace Law Review 1090; Inger Forsberg and Sonja Forward, ‘Rehabilitation of Drunk Drivers and the Smadit Project: Collaboration among the Police Force, the Road Administration and the Social Services’ (2014) 11 US-China Law Review 619.

6 See T Kawamoto, Criminal Policy on Traffic Offence (《交通犯罪对策研究》) (Law Press China, 2021).

7 Ibid, 25.

8 Ibid, 28.

9 See Riyu Cong, On Crimes of Drunk Driving (《醉酒驾驶犯罪研究》) (Law Press China, 2015).

10 See Gerald R Wheeler and Rodney V Hissong, ‘Effects of Criminal Sanctions on Drunk Drivers: Beyond Incarceration’ (1988) 34 Crime & Delinquency 29; Alexander C Wagenaar and others, ‘General Deterrence Effects of U.S. Statutory DUI Fine and Jail Penalties: Long-Term Follow-Up in 32 States’ (2007) 39 Accident Analysis and Prevention 982.

11 See Alan Wayne Jones and Anita Holmgren, ‘Age and Gender Differences in Blood-Alcohol Concentration in Apprehended Drivers in Relation to the Amounts of Alcohol Consumed’ (2009) 188 Forensic Science International 40.

12 See Evans, Neville and Graham (n 4).

13 See Charles B Davison, ‘Drunk Driving Prevention’ (2005) 29 Law Now 63.

14 See Lea L Fields, ‘Pretrial Diversion: A Solution to California's Drunk-Driving Problem’ (1994) 58 Federal Probation 20.

15 See Genlin Liang, ‘After Drunk Driving Was Written into the Criminal Code: A Reflection on the Conviction Problems’ (2014) 1 Legal Sci 63.

16 See ‘One Year Since Drunk Driving Was Made a Criminal Offence, Five Major Problems to be Solved’ (‘醉驾入刑一年，五大难题待解’) People's Daily (《人民日报》) (Beijing, 2 May 2012) 4.

17 The Criminal Law of China 1997 Art 133A stipulates four types of dangerous driving crimes, including (1) Racing a motor vehicle on a road with execrable circumstances; (2) Driving a motor vehicle on a road while intoxicated; (3) Engaging in the school bus business or passenger transport and carrying passengers by loading much more than the fixed number of passengers, or driving the vehicle by seriously exceeding the prescribed speed; (4) Transporting any hazardous chemical in violation of the provisions on the safety administration of hazardous chemicals, which endangers public safety. In practice, 99% of dangerous driving is drunk driving.

18 In China, a person who has received criminal punishment for a deliberate crime may also be subject to the following penalties or restrictions: (1) expulsion from the Communist Party of China; (2) revocation of practicing certificates of lawyers, doctors, teachers, etc.; (3) not to be employed as a civil servant; (4) shall not be conscripted into the army, etc. Relevant provisions such as The Regulation of the Communist Party of China on Disciplinary Actions 2018 Art 32; The Lawyers Law of the People's Republic of China 2017 Art 7; The Law on Doctors of the People's Republic of China 2022 Art 16; The Teachers Law of the People's Republic of China 2009 Art 14; The Civil Servant Law of the People's Republic of China 2018 Art 26; The Regulations on the Recruitment of Soldiers of China 2001 Art 3.

19 ‘Lieyu Zhu, Deputy to the National People's Congress: Why Do I Propose to Abolish the Crime of DWI?’ (‘全国人大代表朱列玉：我为何建议取消醉驾型危险驾驶罪’) (Tencent Network, 3 March 2022) <https://new.qq.com/rain/a/20220303A0AYR700> accessed 4 May 2023.

20 Guangquan Zhou, ‘On the Crime of Dangerous Driving from the Perspective of Criminal Integration’ (‘论刑事一体化视角的危险驾驶罪’) (2022) 1 Political Science and Law (《政治与法律》) 14.

21 Yunbao Liang, ‘A System of Eliminating Criminal Record Should be Established Matching with the Punishment of High-Incidence Micro Crimes’ (‘我国应建立与高发型微罪惩处相配套的前科消灭制度’) (2021) 4 Tribune of Political Science and Law (《政法论坛》) 30.

22 Ning Dun, ‘The Judicial Dilemma of DWI Governance and Its Solution’ (‘醉驾治理的司法困境及其破解之策’) (2021) 4 Studies in Law and Business (《法商研究》) 31.

23 See Wangyuan Xie and Long He, ‘The Discussion of Some Issues in DWI’ (‘醉驾型危险驾驶罪若干问题探究’) (2013) 4 Studies in Law and Business (《法商研究》) 105.

24 See Renwen Liu and Ning Dun, ‘The Effects, Problems and Countermeasures of Drunk Driving Criminalization in the Past Five Years’ (‘醉驾入刑五年来的效果、问题与对策’) (2016) 12 Law Science (《法学》) 148; Zhixiang Wang and Hao Rong, ‘Reflections on the Application of Non-Prosecution System to Drunk Driving Behavior’ (‘对醉驾行为适用不起诉制度的思考’) (2020) 20 People's Prosecution (《人民检察》) 19.

25 See Genlin Liang, ‘Cross-Evaluating the Dangerous Driving Crime by Criminal Policy and Criminal Law Dogmatics’ (‘刑事政策与刑法教义学交互审视下的危险驾驶罪’) (2022) 46 China Law Review (《中国法律评论》) 154.

26 The Road Traffic Safety Law of China 2004 Art 91. (2004年《中华人民共和国道路交通安全法》，第91条).

27 The Supreme People's Court, The Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Traffic Accident Criminal Cases (Judicial Interpretation NO.3, 2000) Art 2. (最高人民法院，《关于审理交通肇事刑事案件具体应用法律若干问题的解释》，第2条).

28 The Supreme People's Court, The Guiding Opinions on Issues Concerning the Application of Law to the Crime of DWI (No. 47, 2009) paras 1. (《最高人民法院，《关于醉酒驾车犯罪法律适用问题指导意见》，第1段).

29 See Dandong Han, ‘What Changes Have Been Brought About by Seven Years of DWI Penalties and Celebrity DWI Fines Revealed’ (‘醉驾入刑七年带来哪些变化,名人酒驾被罚事件曝光’) (Global Network, 11 June 2018) <https://baijiahao.baidu.com/s?id=1602933910634021375&wfr=spider&for=pc> accessed 25 April 2023.

30 ‘Ministry of Public Security: It Is Suggested to Add “Dangerous Driving Motor Vehicle Crime” to Criminal Law’ (‘公安部：建议研究在刑法中增设危险驾驶机动车罪’) (China's National People's Congress, 29 April 2010) <www.npc.gov.cn/zgrdw/huiyi/cwh/1114/2010-04/29/content_1570996.htm> accessed 5 January 2023.

31 See ‘Supreme People's Procuratorate: Drunk Driving Cases Have Sufficient Evidence to Prosecute Uniformly’ (‘最高检:醉驾案件证据充分一律起诉’) (Justice Network, 26 May 2011) <www.jcrb.com/xztpd/2012zt/201208/zfgz/zfgzwy/tsgyq/201209/t20120901_938897.html> accessed 5 January 2023.

32 See Bingzhi Zhao (ed), Understanding and Application of the Amendment to the Criminal Law (VIII) (《刑法修正案（八）理解与适用》) (China Legal Publishing House, 2011).

33 See Yupeng Liu, ‘Drunk Driving Criminalization Has Gained Significant Effect Over the Past Decade, and There is Still a Long Way to Go in Combating Drunk Driving’ (‘醉驾入刑十年成效显著,治理酒驾醉驾任重道远’) People's Public Security News (Beijing, 30 April 2021) 4.

34 The data in 2013 and 2015 were obtained from the work report of the Supreme People’s Court; the data in 2014 and 2016 were projected based on the growth ratio published in the Special Report on Judicial Data: Crime of Dangerous Driving of the Supreme People’s Court.

35 The data were obtained from the work report of the Supreme People’s Court.

36 See Dun (n 22) 32.

37 See Jianping Lu, ‘On the Crime Control Strategy in the Era of Misdemeanors’ (‘轻罪时代的犯罪治理方略’) (2022) 4 Political Science and Law (《政治与法律》) 51.

38 See Liping Hu, ‘The Decriminalization and Non-Prosecution of DWI’ (‘醉驾的入罪与出罪’) (2021) 6 Science of Law (《法律科学》) 97.

39 See Yunyan Wang, ‘Strengthening the Governance of V. Sources to Reduce the Occurrence of Drunk Driving’ Procuratorial Daily (Beijing, 21 February 2023) 7.

40 <www.jufaanli.com/> accessed 25 April 2023.

41 <www.12309.gov.cn/12309/zjxflws/index.shtm> accessed 25 April 2023.

42 The Criminal Procedure Law of China 2018 Art 175 and Art 177. (2018年《中华人民共和国刑事诉讼法》第175条和第177条).

43 The Criminal Procedure Law of China 2018 Art 282–284. (2018年《中华人民共和国刑事诉讼法》第282条至第284条).

44 Opinions of the Supreme People's Procuratorate on Several Issues Concerning the Implementation of the Criminal Procedure Law in the Examination and Arrest and Public Prosecution Work 1997 part 2 Art 1.

45 The applicable conditions for the chi-square test for two-way unordered information of the R × C table, in addition to both categorical variables being unordered and also include a total sample of >40 and a theoretical frequency of >5. If the theoretical frequency is <5, the number must be less than 20% of the total number of cells.

46 Dummy variables, also known as false variables, bogus variables, or nominal variables, are artificially fictitious variables that usually take the value of 0 or 1 to reflect different attributes of a variable. In constructing the regression model, the regression coefficient can be interpreted as the average change in the dependent variable Y caused by each unit change in X, with other independent variables held constant. However, for multi-categorical independent variables, it is too unsatisfactory to use only one regression coefficient to explain the changing relationship between multi-categorical variables and their effects on the dependent variable. Therefore, we usually transform the original multi-categorical variables into dummy variables.

47 According to this equation, the prosecution probability (Y) is obtained by substituting each variable, the range of values is 0 < Y < 1. When Y ≥ 0.5, the case is predicted to be removed from prosecution, and when Y < 0.5, the case is predicted not to be removed from prosecution. Then the predicted values will be compared with the observed values and the prediction efficiency will be calculated.

48 The P-value is the sample observation or the occurrence probability of more extreme results obtained where the original hypothesis is true. If the P-value is small, the occurrence probability of the original hypothesis is low, and if it occurs, there is a reason to reject the original hypothesis according to the principle of small probability. The smaller the P-value, the stronger the reason for rejecting the original hypothesis, and 0.05 is a generic risk probability.

49 According to statistics, at least 13 provinces, including Zhejiang, Hunan, Shanghai, Shandong, Liaoning, Guangdong, Sichuan, Tianjin, Hubei, Jiangsu, Qinghai, Chongqing and Anhui, have their standards for non-prosecution of DWI.

50 Liu and Dun (n 24) 153.

51 Guidelines on the Role of Prosecutors: UN Congress Havana 1990 Art 13.

52 See Liang (n 25) 161.

53 <www.yyx.gov.cn/37584/38154/38157/38160/38173/38175/39912/content_1931347.html> accessed 25 April 2023.

54 <http://xzjkq.jsjc.gov.cn/jianwu/guifan/201712/t20171219_226657.shtml> accessed 25 April 2023.

55 See Liang (n 25) 161; H Laurence Ross and Robert B Voas, ‘The New Philadelphia Story: The Effects of Severe Punishment for Drunk Driving’ (1990) 12 Law & Policy 51.

56 In 1996, China revised its Criminal Procedure Law, transforming the system of immunity from prosecution into a system of non-prosecution, which abolished the procuratorial organs’ power to convict and exempt from punishment.

57 See Shuo Guo, ‘A Reexamination of the Discretionary Non-Prosecution’ (‘酌定不起诉制度的再考查’) (2018) 3 China Legal Science (《中国法学》) 228.

58 See Tongfei Gao, ‘The Shirking Mechanism of Courts and Judges in China’s Criminal Justice System’ (‘我国刑事司法制度中的卸责机制’) (2019) 5 Journal of Zhejiang Gongshang University (《浙江工商大学学报》) 107.

59 See Peng Zhao, ‘Investigation on the Status Quo of Discretionary Non-Prosecution and Its Consummation’ (‘酌定不起诉之现状考察及完善思考’) (2011) 9 Law Science (《法学》) 151.

60 See Yuan Sun, ‘The Concept, Scope and Procedural Space of Discretionary Power of Prosecuting’ (‘起诉裁量权的概念、范围与程序空间’) (2022) 1 Seeking Truth (《求实》) 94.

Additional information

Funding

This funding is provided by Zhejiang University China Law Society [grant number CLS(2022)Y02]; The National Office for Philosophy and Social Sciences of China [grant number 18ZDA137].