Information about witnesses in the protocol. Protocol without witnesses? Should there be witnesses when drawing up a protocol?

From the text of the question, we can determine that when preparing the case materials, traffic police officers committed a number of gross violations of the current legislation. Thus, it is unacceptable to draw up a protocol of suspension from driving a vehicle, a certificate of examination for alcohol intoxication and a protocol of referral for a medical examination in the absence of two witnesses. The requirement for the presence of witnesses is directly established in Article 27.12 of the Code of Administrative Offenses of the Russian Federation, as well as clauses 4, 11 of the “Rules for examining a person who drives a vehicle for alcohol intoxication and recording its results, sending the said person for a medical examination for intoxication, medical examination of this person for intoxication and registration of its results” (approved by Decree of the Government of the Russian Federation No. 475 of June 26, 2008).

Witnesses and witnesses

Is the presence of witnesses mandatory when drawing up a protocol on an administrative offense? For a comprehensive, complete and objective clarification of the circumstances of the commission of an offense, the presence of witness testimony in a number of cases is extremely necessary; their absence cannot be compensated for by any other evidence. Witnesses especially often appear in cases related to petty hooliganism, petty theft, and violations of the Rules traffic(especially in cases of causing material damage or slight harm to the health of the victim), disobedience to a lawful order of a police officer, and some other cases.

The procedure for attracting witnesses when drawing up administrative protocols

Category: Motorists In this article I want to briefly talk about how to behave and what to write in the protocol on an administrative offense. This may be not only a violation of traffic rules, but also violations in the field of migration legislation and so on.

The first thing you need to remember and do (even if you are under stress) is to sign the protocol and not admit your guilt. In some situations, you can admit guilt - it all depends on your specific case.

Attention

Be sure to fill out the “explanations” column - do not leave a space blank! This section, or more precisely, what you indicate in it, may subsequently become one of the proofs of innocence in court. In the “explanations” you need to correctly and clearly state your vision of the violation without emotions, obscene expressions.

If the inspector committed any violations, be sure to indicate this.

Witnesses were not present when the protocols were drawn up

Putting this phrase gives you the right to Article 1.5 “Presumption of Innocence” and Article 51 of the Constitution of the Russian Federation “No one is obliged to testify against himself...”. It doesn’t matter at all that the violation occurred right “in front of” the inspector.

It is his responsibility to prove, by legal means, that a violation took place. Let him work for a salary from our taxes. Later, in a calm atmosphere, preferably with a defender, you will figure out whether there was a violation at all.
The second mandatory phrase in explanations is: “I require the help of a defense attorney.” Another common example of violation of procedural rules. The inspector tells you that you will invite a lawyer to court later, but here and now it is completely unnecessary.

Administrative protocol - drawing up, do you need to sign it?

• challenging by the person against whom the case has been initiated the existence of an administrative offense and (or) the administrative punishment imposed on him;
• identification of an administrative offense committed by a minor who has reached the age of sixteen;
• identification of an administrative offense that does not entail a warning, committed by a sergeant, sergeant major, soldier, sailor, passing military service by conscription, or as a military cadet educational institution vocational education before concluding a contract for military service with him.

When a determination is made to initiate a case of an administrative offense and conduct an administrative investigation, a protocol on the administrative offense is drawn up at the end of the administrative investigation. Mandatory requirements for the accident protocol In accordance with the provisions of Art.

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Currently, due to the tightening of penalties for some administrative offenses, including deprivation of the right to drive a vehicle, police officers are trying to use such articles for any reason and, most interestingly, for no reason. To make it better clear, let’s analyze this situation in practice: From our practice.

A man passed a “No Entry” sign, and after 100 meters he was stopped by a traffic police officer. Draws up a protocol under Part 4 of Article 12.15 of the Code of Administrative Offenses of the Russian Federation. Driving on the side of the road intended for oncoming traffic in violation of the Traffic Rules entails deprivation of the right to drive vehicles for a period of four to six months. Was the rule of law applied correctly by the policeman? The answer is no.

Protocol on administrative offense of the traffic police

No one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law. Relatives include: spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren.

Info

Familiarization with the protocol on the administrative violation The person in respect of whom the protocol on the administrative offense has been drawn up must be given the opportunity to familiarize himself with it. A person has the right to provide explanations and comments on the contents of the protocol, which are reflected in it or attached to it.

The driver must sign the protocol for familiarization. The protocol on an administrative offense is signed by the employee who compiled it and the person in respect of whom it was drawn up. If the specified person refuses to sign the protocol, a corresponding entry is made in it.

Autodefender forum

Responsibility can be administrative and criminal. We invite you to a series of medico-legal seminars of the Faculty of Medical Law “Autumn-Winter 2018”! The cycle includes three pools of lectures: a medico-legal workshop for dental clinics will take place on November 15–17; On December 5–6, a medico-legal workshop will be held for all medical organizations; On December 8, a one-day training seminar “Production control in medical organization and protection from state sanitary and epidemiological authorities" Initiation of a case of an administrative offense In order to bring an organization, official, individual entrepreneur or citizen to administrative responsibility, a protocol on an administrative offense must be drawn up.

Consultation with a lawyer

Let me emphasize right away that in 90 percent of cases your decisive attitude will scare away the traffic police officers, and no examination for intoxication will be carried out at all. As I already mentioned in the audio tutorials free course“Secrets of communication with the traffic police,” one of the driver’s goals when communicating with a traffic police officer is to prevent the traffic police officer from committing illegal actions against himself.
Protocol on administrative offenses encroaching on the health, sanitary and epidemiological well-being of the population. An administrative offense is usually detected as a result of an inspection. which is one of the forms of state control. Based on the results of the inspection, officials of the state control (supervision) body or municipal control body conducting the inspection draw up an act in the prescribed form.

Article 25.7. witness

This is only a “mistake” by the inspector. But if the inspector filled out the witnesses column, but there was no real presence, demand that they be shown to you. After refusing this, record this fact in the column “explanation of the person...”. But it’s better to call “02.” When an inspector presents “dummy” witnesses, he commits a criminal offense under Art. 292 of the Criminal Code of the Russian Federation “Official forgery”. This article imposes liability for the entry by an official into official documents of knowingly false information in the form of imprisonment for up to two years. If the inspector includes his partner (or two) in the protocol as witnesses, it is imperative to familiarize yourself with the details of their official ID and check them with the protocol. The catch here is this: the inspector fills out the data of the “witnesses” he had prepared long ago, and he tells you that these are the data of my service partners - and by the way, that’s what they are.

Of course, the inspector can be understood: the presence of a legally competent defense lawyer at the scene of the violation means the absence of proposals to “agree” and further headache when writing reports upon request from the prosecutor's office on the merits of your complaints. In this case, the inspector is openly deceiving you. Article 25.5 of the Code of Administrative Offenses “Defender and Representative” gives the right to be present to the defense attorney.

Unfortunately, the law does not regulate the waiting time for your lawyer. If he managed to arrive before you gave the inspector the signed protocol, good.

If not, then in your complaint to the prosecutor’s office, then indicate that the inspector refused to receive legal assistance. The third obligatory phrase in the explanations: “The scheme was not drawn up”, if there was none, or “I do not agree with the scheme”, if the scheme was drawn up. Otherwise, later the diagram may appear with a comment from the traffic police that you refused to sign.
Code of Administrative Offenses of the Russian Federation Failure to comply with the requirements prescribed road signs or marking the roadway, with the exception of cases provided for in other articles of this chapter, shall entail a warning or the imposition of an administrative fine in the amount of one hundred rubles. And there are very, very many similar “mismatches”. Here it is necessary, first of all, to take the traffic rules and carefully look at all the points that are included in the protocol; if suddenly the inspector made a mistake, then find the correct ones.

Then correctly apply the rule of law of the Code of Administrative Offenses of the Russian Federation to the specified paragraph of the traffic rules. As in the example, paragraph 3.1 of the traffic rules corresponds to article 12.16 of the Code of Administrative Offenses of the Russian Federation.

By the way, it is also appropriate to say here that road users can only be punished under the Code of Administrative Offenses, only there liability for violations is spelled out (there is also the Criminal Code of the Russian Federation, but I don’t want anyone to get to it).

Witnesses Before starting a conversation about the role of witnesses in the administrative process, it would not be amiss to define the very concept of “witness”. The Code of the Russian Federation on Administrative Violations1 states the following: A person who may be aware of the circumstances of the case to be established may be called as a witness in a case of an administrative offense.” This means that a witness can be any adult passenger in your car, husband, wife, brother, sister, friend, mother-in-law, etc., if they can testify in a criminal case. Very often, inspectors do not take into account the testimony of passengers, citing the fact that they are interested parties and cannot be witnesses.

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Electronic magazine “ABC of Law”, 11/17/2018 WHAT TO DO WHEN DRAFTING A PROTOCOL FOR VIOLATING TRAFFIC RULES? If you are stopped by a traffic police inspector for a traffic violation and informed that an administrative violation report will be drawn up against you, you need to know the following. 1. You have the right to insist on the presence of a defense lawyer, of which you must inform the inspector (Part.
1 tbsp. 25.1

Attention

Code of Administrative Offenses of the Russian Federation) Help No. 4 I hope that by printing out this help about witnesses, you will always be able to explain to the stubborn inspector who can and should be recorded in the “Witnesses” column of the protocol. So. Who is this witness? Let's turn to the Code of Administrative Offenses Russian Federation(Administrative Code of the Russian Federation): Article 25.6.

Witness 1.

Absence of witnesses in the protocol

However, since the catching of drunk drivers in the first days of the New Year will probably take place on a wide scale, there is a suspicion that traffic police officers will want to deprive the rights of not only really drunk people (with the help of the appropriate traffic police setup), I decided to write this article in which I will touch upon correct order conducting examinations of drivers for alcohol intoxication. Let me emphasize right away that in 90 percent of cases your decisive attitude will scare away the traffic police officers, and no examination for intoxication will be carried out at all.
As I already mentioned in the audio lessons of the free course “Secrets of communicating with the traffic police,” one of the driver’s goals when communicating with a traffic police officer is to prevent the traffic police officer from committing illegal actions against himself. Protocol on administrative offenses encroaching on the health, sanitary and epidemiological well-being of the population.

403 - access denied

We invite you to a series of medico-legal seminars of the Faculty of Medical Law “Autumn-Winter 2018”! The cycle includes three pools of lectures: a medico-legal workshop for dental clinics will take place on November 15–17; On December 5–6, a medico-legal workshop will be held for all medical organizations; On December 8, a one-day training seminar “Production control in a medical organization and protection from state sanitary and epidemiological authorities” will take place. Initiating a case of an administrative offense To bring an organization, official, individual entrepreneur or citizen to administrative responsibility, a protocol on an administrative offense must be drawn up.

Are witness signatures required in the administrative protocol?

Info

The protocol on an administrative offense, drawn up after the imposition of an administrative penalty, contested by the person against whom the case of an administrative offense has been initiated, is attached to the relevant resolution (clause 121 of these Administrative Regulations), which can be appealed in the manner prescribed by Chapter 30 of the Code. Witnesses and attesting witnesses registration of an accident and violations - what's the difference? In this case, they can go to the case only as witnesses.

In accordance with Article 25.7 of the Code of Administrative Offenses of the Russian Federation, any adult person who is not interested in the outcome of the case can be a witness. There must be at least two witnesses.

Protocol on administrative offense of the traffic police

In cases provided for by Chapter 27 and Article 28.1.1 of this Code, the presence of witnesses or the use of video recording is mandatory. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results.
3. The participation of witnesses in proceedings regarding an administrative offense is recorded in the protocol. What is the role of witnesses and witnesses when accused of violating traffic rules? Such persons include close relatives, traffic police inspectors and other persons.

But with witnesses everything is a little more complicated. Therefore, we will decide who can be a witness, what his role is and in what cases the presence of witnesses is mandatory. What is the difference between attesting witnesses and witnesses? According to Article 25.7.

What you need to know when drawing up a traffic violation report

To summarize, it must be said that the presence of witnesses to draw up an administrative protocol is not mandatory, but if they are included in the document, then their signatures must certainly be in it. Can a traffic police officer be a witness? 2. The witness is obliged to appear when summoned by the judge, body, or official who is prosecuting the case of an administrative offense, and to give truthful testimony: to report everything known to him about the case, to answer the questions posed and to certify with his signature in the appropriate protocol the correctness of recording his testimony .

1) not testify against yourself, your spouse and close relatives; 2) give evidence in their native language or in a language they speak; 3) use the free assistance of a translator; 4) make comments regarding the correctness of recording his testimony in the protocol.

Witnesses and witnesses

An administrative offense is usually detected as a result of an audit. which is one of the forms of state control. Based on the results of the inspection, officials of the state control (supervision) body or municipal control body conducting the inspection draw up an act in the prescribed form.

If during the inspection violations of mandatory requirements and legislation of the Russian Federation are revealed, the official who conducted the inspection issues legal entity or an individual entrepreneur in respect of whom the inspection was carried out, an order to eliminate the identified violations with an indication of the time frame for their elimination, and also takes measures to bring the persons who committed the identified violations to justice. Responsibility can be administrative and criminal.

Should there be witnesses when drawing up a protocol?

When taking measures to ensure compliance with the Code of Administrative Offences, the official in charge of the administrative offense case may involve any adult who is not interested in the outcome of the case. How should drivers be tested for alcohol intoxication? Of course, the first 10 days of January cannot pass without particularly distinguished drivers, who will be deprived of their licenses for 1.5 years for driving while intoxicated. I hope that you are a responsible person and will never drive while intoxicated.
Having some knowledge in the field of jurisprudence, I can say the following. In administrative law, there is initially a presumption of trust in an official who has the right to draw up administrative protocols.

Important

Therefore, the mandatory presence of witnesses when drawing up such a protocol is not provided for by law. In this case, the evidence of guilt in committing an administrative offense is the protocol itself.

But if certain witnesses are included in the administrative protocol, but their signatures are missing from the document, such a protocol may be declared invalid because it does not contain all the details.

• challenging by the person against whom the case has been initiated the existence of an administrative offense and (or) the administrative punishment imposed on him;
• identification of an administrative offense committed by a minor who has reached the age of sixteen;
• identification of an administrative offense that does not entail a warning, committed by a sergeant, sergeant major, soldier, sailor undergoing military service on conscription, or a cadet of a military educational institution of vocational education before concluding a contract with him for military service.

When a determination is made to initiate a case of an administrative offense and conduct an administrative investigation, a protocol on the administrative offense is drawn up at the end of the administrative investigation. Mandatory requirements for the accident protocol In accordance with the provisions of Art.

Familiarization with the protocol on the administrative violation The person in respect of whom the protocol on the administrative offense has been drawn up must be given the opportunity to familiarize himself with it. A person has the right to provide explanations and comments on the contents of the protocol, which are reflected in it or attached to it.

The driver must sign the protocol for familiarization. The protocol on an administrative offense is signed by the employee who compiled it and the person in respect of whom it was drawn up.

If the specified person refuses to sign the protocol, a corresponding entry is made in it. The person in respect of whom the accident report was drawn up, as well as the victim, is given a copy of this protocol against signature.

is to establish the fact of violation of the Road Traffic Rules (TRAF), for which administrative liability is provided. Let's consider the procedure for drawing up an accident report when a driver violates traffic rules. The possibility of bringing the culprit to justice depends on how correctly the protocol on the case is drawn up. A protocol drawn up with procedural violations can serve as one of the grounds for terminating the proceedings.

In accordance with the requirements of Articles 23.3, 28.3 of the Code of Administrative Offenses of the Russian Federation, the following are authorized to draw up protocols on administrative offenses for violations of traffic rules:

• head of the state road safety inspection, his deputy;
• head of the center for automated recording of administrative offenses in the field of traffic police, his deputy;
• commander of a regiment (battalion, company) of the road patrol service, his deputy;
• traffic police officers with special rank.

In accordance with the requirements of the Code of Administrative Offenses of the Russian Federation, the Administrative Regulations of the Ministry of Internal Affairs of the Russian Federation for execution state function for control and supervision of compliance by road users with road safety requirements, approved by Order of the Ministry of Internal Affairs of Russia dated March 2, 2009 N 185 (registered with the Ministry of Justice of Russia on June 18, 2009 N 14112), the grounds for drawing up a protocol on an administrative offense are:

• identification of an administrative offense, if the consideration of the case of this administrative offense is not within the competence of the employee;
• challenging by the person against whom the case has been initiated the existence of an administrative offense and (or) the administrative punishment imposed on him;
• identification of an administrative offense committed by a minor who has reached the age of sixteen;
• identification of an administrative offense that does not entail a warning, committed by a sergeant, sergeant major, soldier, sailor undergoing military service on conscription, or a cadet of a military educational institution of vocational education before concluding a contract with him for military service.

When a determination is made to initiate a case of an administrative offense and conduct an administrative investigation, a protocol on the administrative offense is drawn up at the end of the administrative investigation.

Mandatory requirements for the accident protocol

In accordance with the provisions of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, the protocol on an administrative offense shall indicate the date and place of its preparation, position, special rank, surname and initials of the employee who compiled the protocol, information about the person against whom the case of an administrative offense was initiated, surnames, first names, patronymics, residence addresses , telephone numbers of witnesses and victims, if any, place, time of commission and event of an administrative offense, article of the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation, providing for administrative liability for this offense, paragraph of the Road Traffic Rules (TRAF) or other normative legal act, the violation of which was committed, an explanation of the person against whom the case was initiated, other information necessary to resolve the case.

A universal sample accident protocol has been developed for use by traffic police officers (see below).

Participation of witnesses in drawing up a protocol on an accident

If witnesses participate in proceedings in a case of an administrative offense, a record of this, indicating their last name, first name, patronymic, residential address, telephone number, information about an identity document, is made in the appropriate protocol. Any adult who is not interested in the outcome of the case may be brought in as a witness. The number of witnesses must be at least two. The observations of the witness must be entered into the protocol.

According to the requirements of the Code of Administrative Offenses of the Russian Federation, the presence of witnesses is mandatory when applying the following measures in the case (provided that video recording is not used):

1. delivery;
2. administrative detention;
3. personal search, search of things, search of a vehicle in the possession of an individual; inspection of premises, territories, things and documents located there;
4. seizure of things and documents;
5. suspension from driving a vehicle of the relevant type;
6. examination for alcohol intoxication;
7. medical examination for intoxication;
8. detention of a vehicle;
9. seizure of goods, vehicles and other things;
10. drive unit;
11. inspection of the place where the administrative offense was committed.

The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results.

New. With the amendments made to the Code of Administrative Offenses of the Russian Federation, the presence of attesting witnesses has become optional in cases where video recording of a procedural action is used.

In the case of the use of special technical means, their testimony is reflected in the protocol on the administrative offense. In this case, the name of the special technical means and its number are indicated.

Rights of persons held accountable

When drawing up a protocol on an administrative offense, it is mandatory to explain procedural rights to drivers (or other persons) held accountable.

Such rights are provided for in Article 25.1 of the Code of Administrative Offenses of the Russian Federation, according to which a person against whom proceedings are being conducted for an administrative offense has the right to familiarize himself with all the materials of the case, give explanations, present evidence, file petitions and challenges, and use the legal assistance of a defense lawyer

Consideration of a petition when drawing up a protocol on an accident

Most often, drivers exercise their powers to submit petitions. The request must be submitted in writing. Petitions of persons participating in the proceedings on an administrative offense are attached to the case and are subject to immediate consideration by the employee within his competence. The decision to refuse the application is made by the traffic police officer in the form of a ruling. When filing a petition for consideration of the case at his place of residence, this petition may be reflected in the protocol on the administrative offense.

Receiving explanations

When drawing up a protocol on an administrative violation, before receiving explanations, the person against whom a case of an administrative offense has been initiated, as well as other participants in the proceedings in the case, must be explained the rights and obligations provided for in Article 51 of the Constitution of the Russian Federation, which is recorded in the protocol.

For reference: Article 51 of the Constitution of the Russian Federation. No one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law. Relatives include: spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren.

Familiarization with the accident protocol

The person in respect of whom a protocol on an administrative offense has been drawn up must be given the opportunity to familiarize himself with it. A person has the right to provide explanations and comments on the contents of the protocol, which are reflected in it or attached to it. The driver must sign the protocol for familiarization.

The protocol on an administrative offense is signed by the employee who compiled it and the person in respect of whom it was drawn up. If the specified person refuses to sign the protocol, a corresponding entry is made in it.

The person in respect of whom the accident report was drawn up, as well as the victim, is given a copy of this protocol against signature.

Map of the location of the accident

If it is necessary to provide additional information that may be important for the correct resolution of the case of an administrative offense, the employee who identified the administrative offense draws up a detailed report and (or) a diagram of the place where the administrative offense was committed, which are attached to the case. The diagram of the place where the administrative offense was committed is signed by the employee who compiled it and the person against whom the administrative offense case was initiated. If the specified person refuses to sign the diagram, a corresponding entry is made in it.

Appealing a protocol on an administrative offense

The current legislation does not provide for the procedure for appealing the protocol in an accident case. The Code of Administrative Offenses of the Russian Federation establishes the possibility of appealing only decisions in cases of administrative offenses.

At the same time, according to general rule It is not the document itself (the accident report) that can be appealed, but the actions of the traffic police officer who compiled it. In this case, the complaint must indicate specific actions with which the applicant does not agree. You can appeal the actions of a traffic police officer to a higher official, or to the court, as well as to the district prosecutor's office.

Prepared by "Personal Prava.ru"

Additional Information

Witnesses

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(more details on this page) .

official forgery

Witnesses

According to the Code of Administrative Offenses of the Russian Federation4, any adult who is not interested in the outcome of the case can be brought in as a witness.

The number of witnesses must be at least two. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. The participation of witnesses in proceedings regarding an administrative offense is recorded in the protocol.

witnesses .

1. Changes to the protocol were made without the driver’s knowledge

• Officials do not have the right to independently, unilaterally correct procedural documents (protocols, acts, etc.). In paragraph 4 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On some issues that arise for courts when applying the Code of Administrative Offenses of the Russian Federation” dated March 24, 2005, it is stated that if a protocol on an administrative offense is drawn up or other materials are drawn up incorrectly, the judge must make a ruling on the return of these documents to body or official who compiled them (clause 4, part 1, article 29.4 of the Code of Administrative Offenses). The data in the protocol did not allow us to draw a conclusion about the specific place where the offense was committed. The traffic police clarified the address, signing on the documents “to believe the corrected one.” The driver did not was present, and he was also not informed - which violates the requirements of the Code of Administrative Offenses of the Russian Federation (Parts 4, 4.1, 6, Article 28.2) (case of the Supreme Court of the Russian Federation No. 82-AD16-3). Near the notes there are stamps of the traffic police department and “corrected believe” , but there are no signatures of the alleged violator. The traffic police inspector independently “reclassified” the driver’s violation. Thus, the person against whom proceedings are being conducted for an administrative offense was deprived of the guarantees provided by law for the protection of his rights, since he could not competently object and give explanations for the essence of the changes made to procedural acts.
• A copy of the protocol on the offense differs from the document presented by the traffic police: already in the absence of the driver, the traffic police inspector entered the word “repeated” into the protocol, accordingly correcting the record of the violation - from part 1 to part 4 of Art. 12.8 Code of Administrative Offences. At the same time, there is no evidence that they tried to hand over the corrected protocol to the driver. This was confirmed by the testimony of a traffic police officer.
• The content of the administrative offense protocol in the case does not correspond to the copy of the same protocol handed to him by the traffic police officer; the protocol on referral for a medical examination and the magistrate’s ruling on accepting the case for proceedings and scheduling a court hearing were not signed.
• The protocol was lost, and a duplicate protocol was not drawn up in the presence of the driver; he was notified of the document in the proper manner, which violates the norms of the Code of Administrative Offenses of the Russian Federation (Parts 4, 4.1, 6 of Article 28.2). There is no reason to believe that the duplicate protocol was drawn up in compliance with the requirements of the code, which means that the copy of the protocol available in the case cannot be considered as evidence of the driver’s guilt (case No. 44-AD16-17).

2. The protocol was drawn up without witnesses

• In Part 2 of Art. 25.7 of the Code of Administrative Offenses states that traffic police officers must carry out an examination for alcohol intoxication and a referral for a similar examination to a medical institution in the presence of 2 witnesses (who certify the completion of procedural actions with their signatures in the protocol) or using a video recording (which is also recorded in the protocol) . If there were no witnesses, a video taken by a traffic inspector should be attached to the case file.

  Witnesses and witnesses

  When the case materials do not contain such a record or information about witnesses, the judge is obliged to return them to the official who drew up the protocol (clause 4, part 1, article 29.4 of the Code of Administrative Offenses);

• The witness explained to the court that traffic police officers did not show him the driver who refused to blow through the breathalyzer, and that he did not remember whether they told him that this citizen refused to go for a medical examination at the hospital. The second witness was not called to court. At the same time, the protocol contains an entry made by the traffic police inspector, “he refused to undergo a medical examination,” not certified by the driver’s signature, and there is no note “he refused to sign.” The protocols received under such circumstances on suspension from driving a vehicle and on sending for a medical examination were recognized as unacceptable evidence in the case as obtained in violation of the requirements of the Code of Administrative Offenses of the Russian Federation.

3. The protocol does not contain mandatory information

• The inspector did not indicate on what basis he sent the driver for a medical examination. This can be done if you refuse to undergo an on-site examination, disagree with its results, or if there are signs of intoxication with negative breathalyzer readings.
• The driver’s agreement or disagreement with the results of the examination did not appear in the report; there was not a single driver’s signature there - in all the columns where its presence was required, there was a “refused” mark. The protocol by which the driver was sent for examination to a drug dispensary did not obtain the driver’s consent to undergo this procedure, there are no signatures of the driver and witnesses. At the same time, the protocol was drawn up earlier than the certificate of examination for alcohol intoxication, in violation of the order established by clause 1.1 of Art. 27.12 Code of Administrative Offenses of the Russian Federation. The above circumstances do not allow us to conclude that the traffic police official complied with the procedure prescribed by law for establishing the fact that the person driving the vehicle is intoxicated, and indicate the presence of irremovable doubts about the guilt of E. A. in committing the administrative offense imputed to him.

Witnesses

Before starting a conversation about the role of witnesses in administrative proceedings, it would not be amiss to define the very concept of “witness”.

The Code of the Russian Federation on Administrative Violations1 states the following:

A person who may be aware of the circumstances of the case to be established may be called as a witness in a case of an administrative offense.”

This means that a witness can be any adult passenger in your car, husband, wife, brother, sister, friend, mother-in-law, etc., if they can testify in a criminal case.

Very often, inspectors do not take into account the testimony of passengers, citing the fact that they are interested parties and cannot be witnesses. In such a situation, read the text of Article 25.6 of the Code of Administrative Offenses to the inspector (see above), and also be sure to reflect your complaints in the explanation column in the protocol (for more details, see the section “Procedure for drawing up an administrative protocol”) , in the future this will simplify the process of appealing the decision in court (for more details, see the section “Appealing the decision”) .

There are cases when information about witnesses appears in the protocol after it has been signed. To prevent such illegal entry of information into a document, make sure that all empty columns of the protocol contain the “Zorro sign” (Z).

If such an unpleasant situation nevertheless happened to you - in the “Witnesses” column you unexpectedly discovered new names - then when appealing the decision in court (more details on this page) petition to call these “witnesses” into the courtroom to testify. You will be pleasantly surprised how difficult it is to answer the judge’s questions for a person who has not seen the offense itself, and who is obligated to appear in court by the same Article 25.6 of the Code of Administrative Offenses of the Russian Federation (it is shown on this page) .

You should know that if a traffic police inspector enters “fake” witnesses into the protocol or refuses to indicate the passengers of your car as witnesses, then he commits a criminal offense - official forgery, liability for which is provided for by the Criminal Code of the Russian Federation2 and provides for punishment in the form of a fine, compulsory labor, correctional labor, forced labor, arrest for up to six months or imprisonment for up to two years.

Report this to the inspector, perhaps his conscience will awaken and he will begin to act as he should - within the framework of the Law.

Also, “fake” witnesses and witnesses can be exposed by contacting a lawyer. He can submit a request to the address bureau and thus verify the fact of registration of these people at the address recorded by the inspector. A lawyer has many other techniques that he can use to protect your interests.

No less common is a situation on the road when an inspector, drawing up a protocol, stops another car and asks the driver of this car to act as a witness and sign the protocol. What’s offensive is that many people sign without thinking, rejoicing that they weren’t stopped for a violation, but simply to sign. In this case, inform the pseudo-witnesses that you will request that they be subpoenaed to testify.

Who can be a witness: his status and characteristics

Explain to them that by law they will be required to appear at the court hearing. And also remind you that giving knowingly false testimony is a crime for which the article of the Code of Administrative Law Violations of the Russian Federation3 provides for punishment - the imposition of an administrative fine.

Witnesses

According to the Code of Administrative Offenses of the Russian Federation4, any adult who is not interested in the outcome of the case can be brought in as a witness. The number of witnesses must be at least two. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. The participation of witnesses in proceedings regarding an administrative offense is recorded in the protocol.

Witnesses can also act as witnesses 5 according to the circumstances of the correctness of the actions of officials when drawing up procedural documents, for example, when a police officer conducts a procedure for examining a driver for alcohol intoxication using special technical means (section “Alcohol intoxication”) .

When considering a case of an administrative offense, the court was deprived of the opportunity to interrogate witnesses to verify the legality of removing the driver from driving a vehicle and conducting an examination for alcohol intoxication. The statement of the person against whom proceedings were conducted for an administrative offense that he did not drink alcohol and that the traffic police inspector’s witnesses were not involved in participating in the procedural actions was not refuted.

Proceedings in the case of driving while intoxicated were terminated due to the absence of an administrative offense.

P O S T A N O V L E N I E

on termination of proceedings

about an administrative offense

Yekaterinburg (Date removed)

Judge of the Yekaterinburg Garrison Military Court Shargorodsky I.G., with secretary Dubova E.A., with the participation of the traffic police inspector of the traffic police regiment of the State Traffic Safety Inspectorate for the municipality "City of Yekaterinburg" Maslova A.V., the person against whom proceedings are underway for an administrative offense , Ya. and defender A.A. Krupenko, having considered the case of an administrative offense under Art. 12.8, part 1 of the Code of Administrative Offenses of the Russian Federation, in relation to Ya. (personal data withdrawn),

U S T A N O V I L:

Ya. is accused of (date withdrawn) at 0:25 a.m. in Yekaterinburg, near house No. ... on Lyapustina Street, he was driving a car ..., state registration plate ... in a state of intoxication. In this regard, a case was initiated against him for an administrative offense under Part 1 of Art. 12.8 Code of Administrative Offenses of the Russian Federation.

Confirming the existence of the offense imputed to Ya. and his guilt, the traffic police authority presented protocols on the administrative offense and on the suspension from driving a vehicle, the certificate of examination for intoxication and the paper attached to it, as well as the report of the traffic police inspector Maslov. These materials contain information that at 0:25 a.m. (date removed) Ya., driving a car ..., state registration plate ..., was stopped by a traffic police squad at the house ... on Lyapustina Street in Yekaterinburg. From the protocol on removal from driving a vehicle and the certificate of examination for intoxication, it follows that in the presence of witnesses M1 and M2, inspector Maslov removed Ya. from driving the car and examined the latter for intoxication due to the presence of signs of alcohol intoxication: the smell of alcohol on the breath, instability postures, behavior inappropriate to the situation. From the examination report and the paper data, it follows that during the examination of Ya. using the Alkotektor measuring device, the concentration of alcohol vapor in the air exhaled by the named person was 0.540 mg/l, which gave the inspector grounds to state the state of intoxication. In the same act, Y. made a note that he agreed with the results of the examination, and in the protocol on the administrative offense he indicated in the explanation that he drank 0.33 liters of beer before driving the car.

When the judge considered the case, Ya. did not admit guilt. At the same time, he explained that in the first hour (date withdrawn) on Lyapustina Street in Yekaterinburg, while driving a car, he was actually stopped by traffic police officers. At the inspector's suggestion, he performed an examination test, and the device determined the state of intoxication. Then the inspector drew up protocols and a report, copies of which were not given to him. There were no witnesses during the examination and drawing up reports. Considering that it was useless to argue with the traffic police officers, he also signed the protocols, indicating that he agreed with the violation. He did not drink alcohol before driving.

At the court hearing, traffic police inspector Maslov explained that when he stopped Ya, he realized from the smell emanating from the latter and his behavior that he was intoxicated. To remove Ya. from driving and conduct an examination, he stopped arriving citizens, whom he brought in as witnesses. He established the identity of the witnesses from their own words and did not check the documents of these citizens. Having examined Ya using a measuring instrument and received data that the permissible concentration of alcohol vapor was exceeded, he drew up the necessary act in the presence of witnesses. Ya. did not dispute the results of the examination and did not deny his guilt.

In accordance with Art. 25.7 of the Code of Administrative Offenses of the Russian Federation, a witness is an adult person who is not interested in the outcome of the case, who certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. Article 27.12 of the Code of Administrative Offenses of the Russian Federation provides that removal from driving a vehicle and examination for alcohol intoxication is carried out in the presence of two witnesses.

To eliminate contradictions in resolving this case, the judge, having granted the defense lawyer’s request, decided to call and interrogate M1 and M2 as witnesses, attracted, as indicated in the protocol and the act, by inspector Maslov as witnesses. Meanwhile, it was not possible to call the named persons. From the certificates and explanations of citizen D. received from the chief of staff of the department of internal affairs for the Talitsky city district, it follows that citizen M1 in the city of Talitsa on the street ..., house ... apartment ... does not live and there is no information about his registration in the OUFMS. From the testimony of inspector Maslov it follows that the police were unable to establish the location of witness M2 for two days. During the inspection, it was found that M2 in Yekaterinburg on the street ..., house ..., apartment ... is not inhabited. Maslov testified that the traffic police do not have any other information regarding M1 and M2.

It should be concluded that the judge is deprived of the opportunity by questioning witnesses to verify the fact of the examination, the content and results of this procedural action. Having no other way to eliminate the contradictions, it is necessary to conclude that it is impossible to verify the legality of the examination and the reliability of the results obtained and doubts about Ya’s guilt, based on his explanation during the consideration of the case, cannot be eliminated. Ya.’s statement that he did not drive a vehicle while intoxicated, as well as that he was removed from driving without witnesses and was examined for intoxication by the examined evidence, is not refuted by the examined evidence.

In coming to this conclusion, the court also takes into account the provisions of Art. 1.5 of the Code of Administrative Offenses of the Russian Federation states that a person brought to administrative responsibility is not obliged to prove his innocence, and irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person. As for Y.’s fulfillment of the above entries in the administrative offense protocol and the examination report, they themselves cannot serve as sufficient evidence of the existence of the offense imputed to him and his guilt, since they were obtained in the absence of a real opportunity to use the help of a defense lawyer.

In accordance with Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, an administrative offense is recognized as an unlawful, guilty action (inaction) of an individual or legal entity for which administrative liability is established by the Code. In this particular case, the court states that the evidence examined at the court hearing did not at all establish the fact that Ya was intoxicated while driving and comes to the conclusion that there was no event of the administrative offense charged against him.

Guided by Art. Art.

Witnesses and attesting witnesses when registering road accidents and violations - what is the difference?

24.5, 26.11, 29.9, 29.10 Code of Administrative Offenses of the Russian Federation,

P O S T A N O V I L:

Terminate the proceedings in the case of an administrative offense under Part 1 of Art. 12.8 of the Code of Administrative Offenses of the Russian Federation in relation to Ya. on the basis provided for in paragraph 1 of Part 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation, due to the absence of an administrative offense event.

Upon entry into force of the resolution legal force driver's license in the name of Ya. return to the named person.

The resolution may be appealed to the Ural District Military Court within ten days from the date of delivery (receipt) of a copy of the resolution.

Genuine with proper signature.

Copy is right:

Judge of Yekaterinburg

garrison military court I.G. Shargorodsky

Protocol on administrative offense of the traffic police

Mandatory requirements for the accident protocol

Participation of witnesses in drawing up a protocol on an accident

Rights of persons held accountable

Appealing a protocol on an administrative offense

One of the reasons for stopping a driver by a traffic police officer is to establish a violation of the Traffic Rules (TRAF), for which administrative liability is provided. Let's consider the procedure for drawing up an accident report when a driver violates traffic rules. The possibility of bringing the culprit to justice depends on how correctly the protocol on the case is drawn up. A protocol drawn up with procedural violations can serve as one of the grounds for terminating the proceedings.

In accordance with the requirements of Articles 23.3, 28.3 of the Code of Administrative Offenses of the Russian Federation, the following are authorized to draw up protocols on administrative offenses for violations of traffic rules:

• head of the state road safety inspection, his deputy;
• head of the center for automated recording of administrative offenses in the field of traffic police, his deputy;
• commander of a regiment (battalion, company) of the road patrol service, his deputy;
• traffic police officers with a special rank.

In accordance with the requirements of the Code of Administrative Offenses of the Russian Federation, the Administrative Regulations of the Ministry of Internal Affairs of the Russian Federation for the execution of the state function of control and supervision of compliance by road users with requirements in the field of ensuring road safety, approved by Order of the Ministry of Internal Affairs of Russia dated March 2, 2009 N 185 (registered with the Ministry of Justice of Russia on June 18 .2009 N 14112) the grounds for drawing up a protocol on an administrative offense are:

• identification of an administrative offense, if the consideration of the case of this administrative offense is not within the competence of the employee;
• challenging by the person against whom the case has been initiated the existence of an administrative offense and (or) the administrative punishment imposed on him;
• identification of an administrative offense committed by a minor who has reached the age of sixteen;
• identification of an administrative offense that does not entail a warning, committed by a sergeant, sergeant major, soldier, sailor undergoing military service on conscription, or a cadet of a military educational institution of vocational education before concluding a contract with him for military service.

When a determination is made to initiate a case of an administrative offense and conduct an administrative investigation, a protocol on the administrative offense is drawn up at the end of the administrative investigation.

Mandatory requirements for the accident protocol

In accordance with the provisions of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, the protocol on an administrative offense shall indicate the date and place of its preparation, position, special rank, surname and initials of the employee who compiled the protocol, information about the person against whom the case of an administrative offense was initiated, surnames, first names, patronymics, residence addresses , telephone numbers of witnesses and victims, if any, place, time of commission and event of an administrative offense, article of the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation, providing for administrative liability for this offense, paragraph of the Road Traffic Rules (TRAF) or other regulatory legal act, violation of which admitted, explanation of the person against whom the case was initiated, other information necessary to resolve the case.

A universal sample accident protocol has been developed for use by traffic police officers (see below).

Participation of witnesses in drawing up a protocol on an accident

If witnesses participate in proceedings in a case of an administrative offense, a record of this, indicating their last name, first name, patronymic, residential address, telephone number, information about an identity document, is made in the appropriate protocol. Any adult who is not interested in the outcome of the case may be brought in as a witness. The number of witnesses must be at least two. The observations of the witness must be entered into the protocol.

According to the requirements of the Code of Administrative Offenses of the Russian Federation, the presence of witnesses is mandatory when applying the following measures in the case (provided that video recording is not used):

1. delivery;
2. administrative detention;
3. personal search, search of things, search of a vehicle in the possession of an individual; inspection of premises, territories, things and documents located there;
4. seizure of things and documents;
5. suspension from driving a vehicle of the relevant type;
6. examination for alcohol intoxication;
7. medical examination for intoxication;
8. detention of a vehicle;
9. seizure of goods, vehicles and other things;
10. drive unit;
11. inspection of the place where the administrative offense was committed.

The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results.

New. With the amendments made to the Code of Administrative Offenses of the Russian Federation, the presence of attesting witnesses has become optional in cases where video recording of a procedural action is used.

In the case of the use of special technical means, their testimony is reflected in the protocol on the administrative offense. In this case, the name of the special technical means and its number are indicated.

Rights of persons held accountable

When drawing up a protocol on an administrative offense, it is mandatory to explain procedural rights to drivers (or other persons) held accountable.

Such rights are provided for in Article 25.1 of the Code of Administrative Offenses of the Russian Federation, according to which a person against whom proceedings are being conducted for an administrative offense has the right to familiarize himself with all the materials of the case, give explanations, present evidence, file petitions and challenges, and use the legal assistance of a defense lawyer

Consideration of a petition when drawing up a protocol on an accident

Most often, drivers exercise their powers to submit petitions. The request must be submitted in writing. Petitions of persons participating in the proceedings on an administrative offense are attached to the case and are subject to immediate consideration by the employee within his competence. The decision to refuse the application is made by the traffic police officer in the form of a ruling. When filing a petition for consideration of the case at his place of residence, this petition may be reflected in the protocol on the administrative offense.

Receiving explanations

When drawing up a protocol on an administrative violation, before receiving explanations, the person against whom a case of an administrative offense has been initiated, as well as other participants in the proceedings in the case, must be explained the rights and obligations provided for in Article 51 of the Constitution of the Russian Federation, which is recorded in the protocol.

For reference:Article 51 of the Constitution of the Russian Federation. No one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law. Relatives include: spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren.

Familiarization with the accident protocol

The person in respect of whom a protocol on an administrative offense has been drawn up must be given the opportunity to familiarize himself with it. A person has the right to provide explanations and comments on the contents of the protocol, which are reflected in it or attached to it. The driver must sign the protocol for familiarization.

The protocol on an administrative offense is signed by the employee who compiled it and the person in respect of whom it was drawn up.

Witnesses when drawing up a protocol on administrative offenses of the traffic police

If the specified person refuses to sign the protocol, a corresponding entry is made in it.

The person in respect of whom the accident report was drawn up, as well as the victim, is given a copy of this protocol against signature.

Map of the location of the accident

If it is necessary to provide additional information that may be important for the correct resolution of the case of an administrative offense, the employee who identified the administrative offense draws up a detailed report and (or) a diagram of the place where the administrative offense was committed, which are attached to the case. The diagram of the place where the administrative offense was committed is signed by the employee who compiled it and the person against whom the administrative offense case was initiated. If the specified person refuses to sign the diagram, a corresponding entry is made in it.

Appealing a protocol on an administrative offense

The current legislation does not provide for the procedure for appealing the protocol in an accident case. The Code of Administrative Offenses of the Russian Federation establishes the possibility of appealing only decisions in cases of administrative offenses.

At the same time, as a general rule, it is not the document itself (the protocol on an accident) that can be appealed, but the actions of the traffic police officer who compiled it. In this case, the complaint must indicate specific actions with which the applicant does not agree. You can appeal the actions of a traffic police officer to a higher official, or to the court, as well as to the district prosecutor's office.

Prepared by "Personal Prava.ru"

1. In the cases provided for by Articles 115, 177, 178, 181 184, part five of Article 185, part seven of Article 186, Articles 193 and 194 of this Code, investigative actions are carried out with the participation of at least two witnesses, who are called to certify the fact of the investigation action, its progress and results, except for the cases provided for in part three of this article.

(as amended by Federal Law dated July 4, 2003 N 92-FZ)

(see text in the previous edition)

2. In other cases, investigative actions are carried out without the participation of witnesses, unless the investigator, at the request of participants in criminal proceedings or on his own initiative, makes a different decision.

3. In hard-to-reach areas, in the absence of proper means of communication, as well as in cases where the implementation of an investigative action is associated with a danger to the life and health of people, the investigative actions provided for in part one of this article can be carried out without the participation of witnesses, as indicated in the investigative protocol actions, a corresponding record is made. If an investigative action is carried out without the participation of witnesses, technical means of recording its progress and results are used. If it is impossible to use technical means during an investigative action, the investigator makes a corresponding entry in the protocol.

4. Before starting an investigative action, the investigator, in accordance with part five of Article 164 of this Code, explains to the witnesses the purpose of the investigative action, their rights and responsibilities provided for in Article 60 of this Code.

Question: The judge issued a deprivation of rights for a period of 2 years for driving a vehicle while intoxicated. There are no witnesses included in the protocol. were not present when all the documents were drawn up, IDPS drove up to them in the parking lot and wrote down their data, they were not present at the examination. I did not receive a copy of the examination; when studying the case materials, I did not find the receipt that the breathalyzer should issue; the time was unclear in the protocol on suspension and the protocol on the APN. Please tell me, if I appeal the court decision, is there a chance to get my rights back?
Answer: In our opinion, you have a chance to regain your rights by appealing the court decision. However, in order to indicate which points of the decision you need to appeal and what you need to refer to, it is necessary to study the case materials, namely: a protocol on an administrative offense, a protocol on suspension from driving a vehicle, a medical examination report for intoxication, a resolution of a magistrate about depriving you of the right to drive vehicles. If you do not have any of the specified documents, then we inform you that in accordance with Part 1 of Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, a person against whom proceedings are being conducted for an administrative offense has the right to familiarize himself with all the materials of the case and enjoy other procedural rights in accordance with the Code of Administrative Offenses. Thus, you can come to the magistrate’s court where your case was heard, file a petition (in accordance with Article 24.4 of the Code of Administrative Offenses of the Russian Federation) to familiarize yourself with the materials of your case and, using the photography method, photograph each sheet of the case. From the text of the question, we can determine that when preparing the case materials, traffic police officers committed a number of gross violations of the current legislation. Thus, it is unacceptable to draw up a protocol of suspension from driving a vehicle, a certificate of examination for alcohol intoxication and a protocol of referral for a medical examination in the absence of two. The requirement for presence is directly established in Article 27.12 of the Code of Administrative Offenses of the Russian Federation, as well as clauses 4, 11 of the “Rules for examining a person who drives a vehicle for alcohol intoxication and recording its results, sending the said person for a medical examination for intoxication, medical examination this person for a state of intoxication and registration of its results” (approved by Decree of the Government of the Russian Federation No. 475 of June 26, 2008). Also, the absence of a printout of the breathalyzer readings on paper makes it impossible to use these readings as evidence, since in accordance with paragraph 5 of these Rules, examination for alcohol intoxication in accordance with the legal threshold for the concentration of ethyl alcohol in exhaled air is carried out using technical means measurements that ensure recording of research results on paper, approved for use by the Federal Service for Surveillance in Healthcare and social development, certified in the prescribed manner by the Federal Agency for Technical Regulation and Metrology, the type of which is included in the state register of approved types of measuring instruments. Incorrect indication of the time of commission of an administrative offense or the time of drawing up protocols can also be grounds for termination of a case of an administrative offense.

Sincerely, auto lawyers of the company “No to Deprivation!”