traffic accident
June 30, 2009 | 45,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear lawyers,
A week ago, a deer ran in front of my father's car. He swerved and rolled multiple times in a field. Thankfully, no one else was harmed. His car landed back on its "feet" and he, in shock, simply drove home. My mother immediately called my husband and me and asked us to come over. In the meantime, my father (still in shock) had a beer. We decided to inform the police. They arrived and initially didn't want to record the accident, as it was just my father involved and therefore a driving mistake. They then asked about alcohol consumption and had him blow into a breathalyzer. The reading exceeded the one beer he had after the accident. They took him to the station for a blood test. His driver's license was confiscated (further decisions will be made by the judge). Unfortunately, a few years ago there was already a 4-week driving ban due to driving under the influence of alcohol.
My question is: What should we inform the insurance company (comprehensive coverage)? The damage is not yet known to them. Should we involve a lawyer beforehand? Is there even a chance of receiving money from the insurance company? The police did not catch my father driving under the influence of alcohol; we called them to our home 2 hours later. There are no witnesses to the accident. We actually didn't have to notify the police (unfortunately a mistake), informing the insurance would have been enough. Can my father retract his statement signed at the police station (under shock and alcohol)?
Thank you for your help!
Dear inquirer,
Thank you for your inquiry!
I would like to address your questions considering the circumstances you have described as follows:
In your father's case, regarding the potential criminal liability for drunk driving under § 316 StGB (generally from 1.1 per mille, but also less, from 0.3 if there are particular signs of impairment, which will be assumed by the police/prosecution in case of a driving error), it will depend on the provability.
If the police assume, which is highly likely based on the current situation you have described, that your father had the relevant amount of alcohol in his blood at the time of the accident, then he will most likely face a procedure for driving under the influence and corresponding traffic consequences (4 points in Flensburg, fine, driving ban, and MPU).
Your father would have to prove that he only drank after the accident. But even in this case, the police will likely initially consider it an excuse, as the so-called post-drink, meaning alcohol intake after an accident or alcohol-related traffic offense, is one of the most common excuses in practice.
It may be possible to retroactively calculate, based on blood test values, at what point (with the help of the evaluation of alcohol breakdown products) your father must have drunk how much, which could potentially be exonerating (or potentially incriminating) for your father, depending on what this investigation actually reveals.
Therefore, I strongly advise that your father consult a local attorney experienced in traffic and criminal law to represent his legal interests, as this attorney can particularly review the case files and evaluate the exact results of the blood test as well as the information available to the police.
You should report the damage to the insurance first, but refrain from providing a final statement until the attorney has reviewed the investigation files.
Possibly, you or other witnesses could testify that your father drank out of shock after the accident, and therefore, the accident did not occur due to alcohol.
In the case of an alcohol-related accident, the insurance's liability under the general insurance conditions will typically be excluded.
A confession or statement can theoretically always be retracted. However, it will be a matter of the authority's assessment of evidence whether what was confessed is now considered proven or not.
The argument that your father was in shock and therefore confessed or made a statement is, in my opinion, plausible and should not be dismissed outright, especially if there are witnesses to his state at the time.
Before considering a step in this direction, it is essential to consult with an experienced local attorney.
Finally, I would like to point out the following:
The legal advice I have provided is based solely on the facts you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the circumstances.
Adding or omitting relevant information can lead to an entirely different legal assessment.
I hope that my explanations have been helpful to you. Please feel free to contact me through the follow-up option on this portal or via my email address if you have any further questions.
I am also available for further legal representation. If you decide to engage my services, I will credit the initial consultation fee paid in this forum in full.
I wish you a pleasant Tuesday evening!
Best regards,
Dipl.-jur. Danjel-Philippe Newerla, Attorney-at-Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
