Алкоголдук тесттен кийинки CBR процедурасы: чаралар жана даттануу

After a positive alcohol test, the Central Office for Motor Vehicle Driver Testing (Centraal Bureau Rijvaardigheidsbewijzen, CBR) starts its own administrative procedure to assess whether you are still fit to drive. That procedure runs separately from any criminal case and can lead to a course, an investigation into your fitness to drive, suspension of your licence or a declaration that your licence is invalid. You can object to each CBR decision within six weeks, and after that you can appeal to the administrative court, again within six weeks.

In this article we follow the administrative track from the police notification to the final decision, and we show where you still have room to defend yourself. We do not cover the criminal case brought by the Public Prosecution Service (Openbaar Ministerie) or the seizure of your licence at the roadside. Those topics are covered in our articles on алкоголь жана айдоочулук күбөлүгүңүз жана айдоочулук күбөлүгүңүздү тартып алуу боюнча даттануу.

Is the CBR procedure separate from the criminal case?

Yes. One alcohol test can start two procedures at the same time, and neither waits for the other. The Public Prosecution Service decides whether to prosecute you for driving under the influence under article 8 of the Road Traffic Act 1994 (Wegenverkeerswet 1994, WVW 1994). The criminal court can then impose a fine, a community service order or a disqualification from driving. The CBR has a different task. It is an administrative body responsible for road safety, and it only asks whether you still meet the requirements of driving ability and fitness to drive. Whether you are guilty is not its question.

This separation has practical consequences that people often do not expect. An acquittal in the criminal case does not undo a CBR measure. A decision not to prosecute does not give you your licence back. And the fact that you have already paid a fine is no argument before the CBR. It is also not double punishment in a legal sense, because an administrative measure that protects road safety is not a criminal penalty. The two tracks have different rules of evidence and different deadlines. That is why you need to respond to each of them separately.

On which rules does the CBR base its powers?

The CBR derives its powers from the Road Traffic Act 1994 and from the Regulation on measures for driving ability and fitness 2011 (Regeling maatregelen rijvaardigheid en geschiktheid 2011). That regulation links alcohol readings to specific measures. Four provisions of the Act form the backbone of the procedure.

• 1994-жылдагы Дүйнөлүк Согуштук Келишимдин 130-беренеси – the police notify the CBR when facts or circumstances suggest that you no longer meet the requirements of driving ability or fitness. You may be required to hand in your driving licence.
• 1994-жылдагы Дүйнөлүк Согуштук Келишимдин 131-беренеси – based on that notification, the CBR imposes an educational measure or orders an investigation into your driving ability or fitness. It can suspend the validity of your licence while the procedure runs.
• 1994-жылдагы Дүйнөлүк Согуштук Келишимдин 132-беренеси – you must cooperate with the measure imposed and pay its costs. If you do not, your licence is declared invalid.
• 1994-жылдагы Дүйнөлүк Согуштук Келишимдин 134-беренеси – after the investigation, the CBR takes a decision. It must declare your licence invalid if you do not meet the fitness requirements.

Article 164 WVW 1994 sits next to this framework. It allows the police to demand that you hand over your licence at the roadside when a disqualification from driving is a serious possibility. That seizure belongs to the criminal track, even though the same incident also leads to the notification to the CBR.

What are the steps from police notification to CBR decision?

The procedure always follows the same sequence: notification, assessment, measure, execution and decision. Knowing where you are in that sequence tells you what you can still do, because each stage has its own deadline and its own decision that you can challenge.

Step 1: when do the police notify the CBR?

The police notify the CBR after a breath or blood test above the legal limit. They draw up an official report and send a notification under article 130 WVW 1994. The legal limit is 0.5 per mille, or 220 microgrammes of alcohol per litre of exhaled air. For novice drivers the limit is 0.2 per mille, or 88 microgrammes. You are a novice driver during the first five years after obtaining your licence, or during the first seven years if you obtained it at seventeen. The notification is an administrative step. The police send it whether or not the Public Prosecution Service decides to prosecute.

Step 2: how does the CBR assess the notification?

The CBR assesses, based on the official report, whether there is a justified suspicion that you are not fit or not able to drive safely. At this stage it does not investigate the facts itself and it does not hear you first. The result is a written decision stating which measure it imposes. That decision is the moment from which your six-week objection period runs.

Step 3: what measure follows, and is your licence suspended?

Under article 131 WVW 1994 the CBR either imposes an educational measure or orders an investigation. If it orders an investigation into your fitness, it normally also suspends your licence with immediate effect. From the moment the decision reaches you, you may not drive. Driving during a suspension is a separate criminal offence with its own consequences.

Step 4: what do you have to do to carry out the measure?

You must register within the period stated in the decision, attend the appointments and pay the costs. The CBR sets those costs, and you pay them in advance. An investigation into fitness consists of an interview with a psychiatrist and a medical examination, including blood tests that can show longer-term alcohol use. If you ignore an invitation, the CBR treats that as a refusal to cooperate.

Step 5: what does the CBR decide after the investigation?

Article 134 WVW 1994 requires the CBR to decide as soon as possible after the investigation. If the report concludes that you do not meet the fitness requirements, for example because alcohol abuse or dependence is diagnosed, the CBR must declare your licence invalid. The CBR has no discretion at that point, because the obligation follows directly from the Act. If you do meet the requirements, the suspension ends and your licence remains valid.

Which measure follows from which alcohol reading?

The measure depends on your alcohol reading and on whether you are a novice driver. The Regulation on measures for driving ability and fitness 2011 sets these thresholds. They are not the same as the thresholds the criminal court uses for sentencing, which is a common source of confusion.

• Алкоголь жана жол кыймылы боюнча жеңил билим берүү чарасы (LEMA) – for an experienced driver with a reading from 350 microgrammes per litre (0.8 per mille) up to 435 microgrammes. For a novice driver from 220 microgrammes (0.5 per mille) up to 350 microgrammes.
• Алкоголь жана жол кыймылы боюнча билим берүү чарасы (EMA) – for an experienced driver with a reading from 435 microgrammes per litre (1.0 per mille) up to 785 microgrammes. For a novice driver from 350 microgrammes (0.8 per mille) up to 570 microgrammes. Refusing the breath test also leads to an EMA.
• Айдоочулукка жарамдуулукту изилдөө – for an experienced driver from 785 microgrammes per litre (1.8 per mille). For a novice driver from 570 microgrammes (1.3 per mille). Repeated incidents within a certain period, or alcohol combined with other circumstances, can also lead to an investigation.

An educational measure is a course, not a punishment. Once you complete it, the matter ends. If you do not attend, it does not end. An investigation is the heavier route, because it can lead to your licence being declared invalid. The CBR sets and publishes the fees for both, and you pay them yourself.

What happens if you do not cooperate?

Then the CBR declares your licence invalid, without assessing whether you are actually fit to drive. Article 132 WVW 1994 obliges you to cooperate with the measure and to pay its costs. If you do not register in time, do not show up, do not pay or frustrate the investigation, the licence is declared invalid. This outcome is easy to avoid. It typically happens when a deadline is missed, for example because a letter went to an old address or was put aside while the criminal case was running.

A declaration of invalidity is a separate decision, and you can object to it. The only question then is whether the CBR was entitled to conclude that you did not cooperate. Arguing afterwards that you were in fact fit to drive will not help. If something genuinely prevented you from attending, such as a documented illness or an invitation that never reached you, tell the CBR in writing before the deadline expires, not afterwards.

How do you challenge a CBR decision?

You first lodge an objection with the CBR, then appeal to the district court and, if necessary, to the Council of State. Every CBR decision is an administrative decision under the General Administrative Law Act (Algemene wet bestuursrecht, Awb), so the ordinary administrative remedies apply. The deadlines are strict. An objection or appeal lodged one day late is declared inadmissible, unless the delay is excusable.

How do you object to the CBR?

You send a written notice of objection to the CBR within six weeks, starting the day after the decision was sent, under article 6:7 Awb read with article 7:1 Awb. State which decision you challenge, why it is wrong and what you want instead. If you cannot yet explain your grounds, lodge a provisional objection within the deadline and ask for time to complete it. You have the right to be heard before the CBR decides on your objection. Under article 7:4 Awb you may inspect the file, including the official report, at least one week before the hearing.

Grounds that carry weight are concrete. Examples are: the reading was recorded incorrectly, the measuring device was not properly calibrated, the notification concerns someone else, the CBR applied the wrong measure to the reading, the investigation did not follow the prescribed protocol, or the psychiatrist’s report contradicts itself. The CBR reconsiders the whole case, but it remains bound by the same mandatory rules.

When can you appeal to the district court?

If the CBR rejects your objection, you can appeal to the administrative law section of the district court within six weeks, under article 8:1 Awb. You pay a court fee, which is set by law each year. The court checks whether the facts were properly established, whether the right rules were applied, whether the decision is properly reasoned and whether the CBR followed the procedural safeguards. The court does not put its own judgement on your fitness in place of that of the medical experts. A defence that only disagrees with the diagnosis therefore rarely succeeds.

Can you appeal further to the Council of State?

Yes. Both you and the CBR can appeal against the judgment of the district court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State), within six weeks. This is the highest administrative court for these cases. Its case law determines how the CBR applies the Regulation in practice.

Can you keep driving while the procedure runs?

Not automatically. An objection or appeal does not suspend the CBR decision, so a suspension or invalidation stays in force. Under article 8:81 Awb you can ask the interim relief judge (voorzieningenrechter) to suspend the decision, provided an objection or appeal is pending. You must show an urgent interest, and the judge makes a provisional assessment of whether your objection or appeal is likely to succeed. In alcohol cases that second hurdle is usually the problem, because the rules leave the CBR very little discretion. An application stands a realistic chance mainly where there is a clear procedural error.

Can you rely on your personal interests?

Only to a very limited extent. Article 3:4 paragraph 2 Awb provides that the adverse consequences of a decision may not be disproportionate to its purpose, which here is road safety. In this field the legislator has largely made that assessment in advance, by prescribing which measure follows from which reading. The CBR therefore has little room left. The administrative court only intervenes where applying the rule leads to consequences that the legislator cannot have intended, in a situation it did not foresee. Needing your licence for work, financial hardship, care responsibilities or poor public transport are, in the settled case law, not enough on their own.

Can you claim compensation for an unlawful decision?

Yes, if a CBR decision is annulled because it was unlawful. You first submit your claim to the CBR. If the CBR rejects it, you can ask the administrative court to award damages under the compensation rules of the Awb. Four conditions apply: the decision was unlawful, you suffered actual loss, there is a causal link between the two, and the loss can be attributed to the CBR. Loss of income can in principle be recovered, but you must document it carefully, and a successful claim is far from guaranteed.

How do you challenge the official police report?

You need concrete, verifiable evidence; a denial is not enough. In the administrative procedure the CBR may in principle rely on the accuracy of an official report drawn up by an officer under oath, as far as it records the officer’s own observations. To contradict it, you must produce material that raises genuine doubt about its accuracy, and the burden of doing so rests on you. This principle of административдик укук is why the file, rather than your account of events, is decisive. Useful evidence includes:

• Дем анализдөөчү түзүлүш боюнча документтер, атап айтканда, анын бекитилиши жана акыркы калибрлөө күнү.
• Өлчөө жазуусунун өзү, анын ичинде сыноодон мурун байкалган күтүү убактысы жана экинчи өлчөө жүргүзүлгөнбү же жокпу.
• A medical statement offering another explanation for the reading, such as a condition or medication that affects it.
• Camera images, audio recordings or witness statements that describe the events differently.
• An expert report on measurement errors or on the interpretation of the blood values used in the fitness investigation.

Requesting the file early is therefore the most useful single step you can take. Article 7:4 Awb gives you access to the documents in the objection procedure. Article 15 of the General Data Protection Regulation (GDPR) gives you the right to see the personal data the CBR holds about you. General complaints about how the officer behaved, without supporting documents, almost never succeed.

How do you get your driving licence back?

An invalid licence is not a lifelong ban, but you have to start again. If your licence was declared invalid because you did not cooperate, you can apply for a new licence once the reasons for the invalidation no longer stand in the way. The CBR will normally still require you to complete the investigation. If your licence was declared invalid on fitness grounds after a diagnosis of alcohol abuse or dependence, the Regulation on fitness requirements 2000 (Regeling eisen geschiktheid 2000) requires you to show a period without problematic alcohol use before you can be found fit again. In practice that means at least a year, supported by medical evidence, followed by a new fitness assessment.

Two more points are easy to overlook. First, you pay the costs of the new investigation, the health declaration (Gezondheidsverklaring) and the new licence yourself. Second, quite apart from the CBR track, a licence can become invalid by operation of law under the repeat-offender scheme in article 123b WVW 1994. That scheme concerns drivers who are convicted more than once within five years for serious traffic offences, such as driving with a high alcohol reading. It is a criminal-law consequence that the CBR does not decide on.

What should you do after receiving a CBR decision?

Start from the date on the letter, not the date you opened it. Note the six-week deadline in your diary straight away, and lodge a provisional objection if you need more time to collect evidence. Register for the measure and pay within the period stated, even if you plan to object. If you do not cooperate, your licence becomes invalid regardless of how strong your objection is. Ask for the file at once, and check the reading, the device data and the time of the test against the official report.

Keep the two tracks apart in your own mind as well. What you say in the criminal case ends up in the file and can be used in the administrative procedure. Above all, do not drive while your licence is suspended. A single police check can end any prospect of a good outcome and adds a criminal offence to your file.

We can help you at every stage of the CBR procedure. We review the notification and the measure imposed, request and analyse the file, lodge objections and appeals with the CBR, the district court and the Council of State, apply for interim relief, and advise you on the route back to a valid licence. If you have received a letter from the CBR after an alcohol test, the first priority is to secure the deadline.

Кыскача

• The CBR procedure is an administrative track that runs separately from the criminal case; the outcome of one does not decide the other.
• Your alcohol reading and whether you are a novice driver determine the measure: LEMA, EMA or an investigation into fitness to drive.
• If you do not register, attend or pay in time, the CBR declares your licence invalid without looking at your actual fitness.
• You can object within six weeks and then appeal to the district court and the Council of State, each within six weeks; an objection does not suspend the decision.
• Concrete evidence from the file, such as device data and the measurement record, carries far more weight than a denial.

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