1. Facts of the case
The offender is the owner of the vehicle with which the offence was committed. He gave the key to his son so that he could take him to a pub where he drank alcohol with friends. The son then met his friends and also drank alcohol.
In the early hours of the morning, after a call, the son picked up the co-driver from the pub, where the offender got into the co-driver's seat. The son smelled of alcohol at that time, the punished did not ask. A short time later, the son was stopped by the police during a traffic control. At the time of the offence, the son had a blood alcohol level of 1.48 per mille and smelled of alcohol.
2. Legal assessment of the VwGH
In its decision, the Administrative Court (VwGH) confirmed the previous decision of the Vienna Administrative Court (VGW-031/097/9670/2022-8).
According to the Administrative Court, at the time of the police stop, the offence of contributing to the offence was possible, as the offence (driving under the influence of alcohol) had not yet been completed. By leaving his car to the police, the passenger accepted the realisation of the offence, namely that his son was driving under the influence of alcohol. He also did nothing else to prevent his son, who was noticeably intoxicated, from driving. Thus, the co-driver was causally responsible for the son's behaviour, as he facilitated the offence by physically leaving his car to him.
According to the Administrative Court, someone who intentionally causes another to commit or facilitates the commission of an administrative offence is subject to the same penalty as the direct perpetrator, even if the direct perpetrator is not liable to prosecution.
According to a ruling of the Administrative Court of 1974 (0753/73), intent is required for aiding and abetting an administrative offence; contingent intent is sufficient. Therefore, it has to be proven that the person who left the car in the driver's care was allowed to drive the vehicle despite reasonable doubts about the driver's ability to drive due to the influence of alcohol.
In the opinion of the Administrative Court, it is essential whether there was sufficient factual basis to assume that the perpetrator of the offence already considered it possible that the immediate perpetrator had an alcoholic state that impaired his driving ability due to alcohol consumption when he started driving. This is the case, for example, if the direct perpetrator, as in the facts of the case, shows severe alcoholisation characteristics when stopped shortly after the start of the journey. Furthermore, the contributing offender must have had the right to dispose of the vehicle and must have let the direct offender drive it.
3. Conclusion
In the case of driving with an intoxicated driver, the passenger can also be punished if he or she intentionally (conditional intent is sufficient) enabled the intoxicated driver to drive his or her own vehicle. Conditional intent is already present if the passenger was aware that the driver's ability to drive was impaired due to alcohol.