Karlsruhe Higher Regional Court, decision of 26.04.2023, ref. 1 ORbs 35 Ss 146/23

In proceedings conducted by us, the Higher Regional Court of Karlsruhe overturned a judgment of the Mosbach Local Court in a ruling dated April 26, 2023 (Ref. 1 ORbs 35 Ss 146/23), in which our client was sentenced to a fine of €240 and a one-month driving ban for negligently failing to immediately give way to an emergency vehicle with flashing blue lights and an emergency horn.

What had happened?

Our client, a professional driver, was accused of failing to give way in time to a police vehicle with flashing blue lights and siren on the BAB 81 highway. The Mosbach Local Court based its conviction essentially on the testimony of a police officer who stated that our client should have noticed the emergency vehicle and stopped overtaking.

Our argumentation and success before the OLG

We lodged an appeal against the judgment, arguing in particular that the local court’s findings on the perceptibility of the special signals and the specific traffic situation were incomplete and contradictory. The Karlsruhe Higher Regional Court fully agreed with our arguments:

• The findings of the Local Court regarding the perceptibility of blue lights, sirens and horns were contradictory and insufficiently substantiated.
• There were no concrete findings regarding the distance of the emergency vehicle, the speed of the vehicles involved and the possibility of safely stopping the overtaking maneuver.
• The OLG emphasizes that the requirements for the road user’s perceptibility and behaviour always depend on the specific circumstances and cannot be assumed across the board.

Significance for practice

The decision of the Karlsruhe Higher Regional Court shows that a conviction for failing to give the go-ahead for emergency vehicles with blue lights and sirens may only be made on a sound factual basis. The courts must carefully examine whether and when the emergency vehicle could actually be noticed and what alternative courses of action were available to the person concerned in the specific situation.

Conclusion: Anyone who is confronted with a fine for allegedly failing to release emergency vehicles should have the accusations and the evidence carefully examined. We are at your side as experienced defense lawyers in traffic law.

Full text

Karlsruhe Higher Regional Court

1. SENATE FOR ADMINISTRATIVE FINES

Resolution

In the fine proceedings against […] born on […], resident: […], defense counsel: Attorney Günter Grüne, Friedhofstraße 11, 97421 Schweinfurt, Gz. 419/22 GG for traffic offence

the Higher Regional Court of Karlsruhe

1. Senate for Fines by the judge at the Higher Regional Court […] as a single judge on April 26, 2023:
2. On appeal by the person concerned, the judgment of the Mosbach Local Court of December 15, 2022 is set aside with the underlying findings.
3. The case is referred back to the same division of the Mosbach Local Court for a new hearing and decision, including on the costs of the appeal on points of law.

Reasons

I. By judgment of the Mosbach Local Court of 15.12.2022, a fine of €240 was imposed on the person concerned for negligently failing to immediately provide a clear lane for an emergency vehicle with blue lights and siren and he was banned from driving motor vehicles of any kind on the road for a period of one month, subject to the four-month period under Section 25 (2a) StVG.

The appeal on points of law lodged by the person concerned in due form and time is based on the violation of substantive and formal law.

In a letter dated 31.03.2023, which was sent informally to the defense attorney, the Public Prosecutor General’s Office requested that the judgment be set aside.

II The admissible appeal is already provisionally successful with regard to the substantive complaint raised, as the contested judgment does not stand up to substantive examination. The further complaint of a violation of formal law is therefore no longer relevant.

The partially contradictory and incomplete statements in the judgment do not support the assumption of a negligent failure to immediately give an emergency vehicle with flashing blue lights and siren a clear path.

In its application dated March 31, 2023, the Karlsruhe Public Prosecutor General’s Office states the following:

III The appeal on points of law is also well-founded. The findings of the judgment are not free of gaps, contradictions and violations of the principles of reasoning and experience. They therefore do not form a viable basis for examining whether the law, in particular Section 38 (1) StVO, was correctly applied to the established facts. The contested judgment must therefore already be set aside on the general substantive complaint (see Meyer-Goßner/Schmitt, Strafprozessordnung, 65th ed. 2022, § 337 marginal no. 21 with further references).

According to Section 38 (1) StVO, all road users must immediately give way to emergency vehicles with blue flashing lights and sirens. This first requires the signs to be visible (Kettler in: Münchener Kommentar zum StVR, 1st edition 2016, Section 38 StVO para. 2). This can be assumed, for example, if the emergency vehicle is in the vicinity, about 50 meters away (see KG Berlin, judgment of 08.01.2001 12 U 7095/99- juris, para. 13).

What creating a clear lane means and what measures the road user must take to enable the driver of the special-right vehicle to continue driving unhindered then depends on the specific traffic situation and the local conditions (see HeR in: Burmann/Heß/Hühnermann/Jahnke, Straßenverkehrsrecht, 27th edition 2022, § 38 StVO para. 4; Kettler loc. cit. § 38 para. 2; OLG Cologne, decision of 13.01.1984 1 Ss 905/83- juris).

According to these principles, the findings of the Mosbach Local Court regarding the perceptibility of the signs and the specific traffic situation and local conditions cannot support the guilty verdict. The Mosbach Local Court based its findings solely on the information provided by the police officer […]. She stated that the person concerned should have noticed the emergency vehicle approaching with blue lights, siren and horn, as she and her colleague, who was not questioned, were only driving about 1 km on a clear stretch behind the truck when it pulled out” p. 3 of the judgment. The witness also stated that the person concerned could have stopped the overtaking maneuver.

As a result, the Local Court found that the person concerned had refuted his claim that he had looked in the rear-view mirror before overtaking another truck and only noticed the police vehicle driving at very high speed when the overtaking maneuver was complete.

The Local Court based its findings on the fact that the person concerned should have noticed the police car, even when pulling out, as the police car was only a few hundred meters behind him on a clear stretch of road”, but in any case could have stopped the overtaking maneuver, as the witness stated (p. 4 of the judgment).

The findings on the perceptibility of blue lights, sirens and horns are not free of contradictions. Although the witness […] stated that the emergency vehicle was approx. 1 km away from the person concerned at the time he pulled out, the Local Court assumes a distance of a few hundred meters in its discussion of perceptibility. Insofar as the Local Court wanted to describe a few hundred meters as a kilometer, the findings made regarding the local traffic conditions (“clear”) are in any case not sufficient to justify the conclusion of perceptibility. Acoustic perceptibility at a distance of one kilometer is rather remote, also in view of the engine and driving noises of two trucks.

If the findings on perceptibility are already incomplete and inconsistent, it is also not possible to reliably assess the question of whether the person concerned should have refrained from the overtaking maneuver he had initiated or could at least have stopped it. To answer this question, there is also a lack of sufficient findings on the specific traffic situation. For example, it was not established at what speed the two trucks were traveling or at what speed the approaching police vehicle was traveling. Insofar as the possible termination of the overtaking maneuver that had already been initiated is used as a connecting factor for conduct contrary to due care, there are no findings on the respective driving positions of the two trucks at the relevant time. It is therefore not possible to assess whether the person concerned should have been required to abort his overtaking maneuver by dropping back and moving over to the right-hand side or whether it would have been preferable to end the overtaking maneuver. This applies all the more since, in the absence of any findings in this regard, it cannot be ruled out that the truck in the right-hand lane, whose driver was not questioned, slowed down, as is usual among truck drivers.

IV. In view of the above, the judgment of the Mosbach Local Court with the underlying findings must be set aside, section 79 (3) sentence 1 OWiG, 353 (1), (2) StPO. The Senate agrees with these correct statements. Since further factual findings must be made, the Senate is not permitted to make its own decision on the merits in accordance with Section 79 (6) OWiG. The contested judgment was therefore to be set aside with the findings made and the case referred back to the district court for a new hearing and decision – including on the costs of the appeal proceedings (Section 79 (3) sentence 1 and (6) OWiG in conjunction with Section 354 (2) sentence 1 StPO). There is no reason to refer the case back to another division.

The jurisdiction of the single judge follows from Section 80a (1) OWiG; a transfer of the case to the three-judge senate for administrative fine cases in accordance with Section 80a (3) OWiG was out of the question.

[…] Judge at the Higher Regional Court