Legal and technical aspects of identifying drivers who have fled from the scene of accidents

Gol'chevskii Vitalii Feliksovich PhD in Technical Science Lecturer at the Department of Tactical and Special Training of the East-Siberian Institute of the Ministry of Internal Affairs of Russia 664074, Russia, Irkutskaya oblast', g. Irkutsk, ul. Lermontova, 110 GVF.65@mail.ru Other publications by this author

The analysis of transport safety for 9 months of 2021 showed that the situation with the main indicators of accidents on the territory of the Russian Federation, as in previous years, remains, unfortunately, stably tense, despite the measures taken by the government in the field of road safety and the positive changes that have emerged over the past five years. During the analyzed period of time, 96 thousand 956 road accidents (hereinafter also referred to as accidents) occurred, in which 10 thousand 589 people were killed, 122 thousand 484 people were injured of varying severity ^[1].

The main causes of accidents are violation of traffic rules (hereinafter also — traffic regulations) when passing intersections — 19.9%, non-compliance with the speed limit (taking into account the condition of the roadway) — 17.3%, incorrect determination of the distance between moving vehicles — 11.8%, exit to the oncoming lane — 9.6%), violation of the rules of pedestrian crossings — 8.8%. ^[2]. Although the violation of pedestrian crossings is less than 10% of the total number of accidents, nevertheless, pedestrian collisions account for 25% of all types of accidents, and the death rate is more than 22%. Mostly (92.9%) Accidents involving pedestrians, for obvious reasons, occur in cities and towns in full view of many people.

The majority of pedestrian collisions occur outside the pedestrian crossing zone (59.4%), the death rate in these accidents reaches almost 80%. Pedestrians quite often (7.7%) do not comply with the requirements of traffic control signals. Over the past year, the density of pedestrian flows has increased significantly, after the partial lifting of restrictive measures caused by COVID-19. The lion's share of accidents involving pedestrians occurs at the end of the working week — on Friday and Saturday (15-16%). Obviously, fatigue accumulated during the working week affects, leading to a loss of vigilance and neglect of the dangers lurking on the roads.

The emergency period falls at the time of day from 17:00 to 20: 00, which is understandable, since people are in a hurry to get home from work, also an additional reason is the decrease in visibility and visibility due to evening twilight, which comes early in the autumn-winter period of the year. Two-thirds of these accidents are caused by drivers and one-third due to inattention or due to traffic violations by pedestrians themselves. Nevertheless, according to statistics, drivers tried to escape from the scene from every 12th accident (7.99%, 7 thousand 747 accidents), 390 people died in them and 7 thousand 776 people were injured. Thanks to well-organized operational investigative measures, a significant number of these offenses (17.4%, 1,350 road accidents) were solved in hot pursuit, but there are much more unsolved offenses (31.8%, 2,470 road accidents), and 116 people were killed and 2,458 injured in them. Of course, the vast majority of these crimes will be solved, but it is impossible to return human lives.

In accordance with the above, the purpose of this study is to identify factors and conditions of a legal and technical nature that allow improving the methods of accident investigation, and the search for persons who fled the scene, and further improving the quality of professional training of law enforcement officers.

The objects of the study are public relations developing in the field of ensuring transport safety during the investigation of an accident, the scene of the accident, vehicles and other materials related to this incident. The subject of the study is the methodological support of the accident investigation.  

 Of particular interest is the fact that in 20% of cases (1,563) drivers, hiding, abandon the vehicle at the scene. Most likely, drivers are hiding in order not to aggravate their situation, a state of intoxication. Unfortunately, the vicious practice of hiding from the scene of an accident is inherent not only to Russian drivers. For example, in the United States of America, according to American news, more than 90% of drivers who have fled from the scene of an accident manage to escape justice ^[3].            Decriminalization of Article 265 of the Criminal Code of the Russian Federation (hereinafter also referred to as the Criminal Code of the Russian Federation) "Leaving the scene of a traffic accident" (Federal Law No. 162-FZ of 08.12.2003 "On Amendments and Additions to the Criminal Code of the Russian Federation") gives the driver of a vehicle that has committed an accident a chance to illegally leave partially or completely from criminal liability.

Bringing the offender to administrative responsibility under Article 12.27, Part 2 of the Code of Administrative Offences of the Russian Federation (hereinafter — the Administrative Code of the Russian Federation) ^[4] for "leaving in violation of the Traffic Rules of the Russian Federation the driver of the place of a traffic accident, in which he was a participant ..." ^[5]. This punishment is in no way comparable with criminal liability for the said act.

It should be noted that, according to the note to Article 264 of the Criminal Code of the Russian Federation "Violation of traffic rules and vehicle operation", the state of intoxication is recognized "in case of establishing the fact that this person uses substances causing alcoholic intoxication, which is determined by the presence of absolute ethyl alcohol in a concentration exceeding the possible total measurement error established by the legislation of the Russian Federation on administrative violations, or in the case of the presence of narcotic drugs, psychotropic substances or their analogues or new potentially dangerous psychoactive substances in the body of this person, as well as a person driving a vehicle who has not fulfilled the legal requirement of an authorized official to undergo a medical examination for intoxication in the manner and on the grounds provided for by law Of the Russian Federation ^[4]".

In other words, to establish the fact of intoxication, an individual certified instrumental study is required. If the study has not been conducted for some reason, in particular due to the absence of the subject, then it becomes impossible to recognize the fact of intoxication within the imputation of Article 264 of the Criminal Code of the Russian Federation.

Therefore, it can also be stated that at present, within the framework of the current legal framework, leaving the scene of an accident by a driver who is intoxicated, no matter how banal, is a justified action. The driver, presumably, may have the hope of hiding altogether or waiting for sobering up.

 Yu. B. Suvorov notes that drivers who have escaped from the scene of an accident find themselves in a more advantageous position than respectable car owners who have remained waiting for inspectors, and administrative responsibility for this act is a relatively weak punishment ^[6]. O. A. Voronina also believes that in In Russia, the penalties for such violations are quite mild, and this provokes a large number of facts of drivers fleeing from crime scenes ^[7]. I. A. Tarakanov believes that the legislator, having provided for additional responsibility for criminal abandonment of the accident scene, relied not so much on existing qualification rules as on the need to strengthen responsibility for the facts of drivers leaving the scene of an accident ^[8].

We will not go into details of the consideration of the provisions of Article 264 of the Criminal Code of the Russian Federation, but below we will consider in detail how the provisions of Article 12.27, Part 2 of the Administrative Code of the Russian Federation are implemented in practice.

According to statistics, every ninth road accident (11.3%) is committed by drivers with signs of intoxication, and in every fifth road accident, drivers refuse to voluntarily undergo a medical examination for intoxication. Apparently, this is due to the fear of detecting residual alcohol in the exhaled air or blood, because the day before they (drivers) consumed alcoholic beverages in large quantities. It is appropriate to recall that the responsibility of the driver, who was driving drunk at the time of the accident, for death or injury to other persons is currently being punished very severely ^[9]. Article 264 (Parts 2, 4, 6) of the Criminal Code of the Russian Federation provides for imprisonment from 3 to 7 years, from 5 to 12 years, and from 8 to 15 years.

The maximum number of accidents is committed by persons with driving experience over 15 years in the age category from 30 to 40 years, i.e. experienced drivers, self-confident people with a certain status in society and clearly unwilling to go public in connection with their guilt in an accident, especially causing serious harm to health or death of a person by negligence. Being in a state of passion, such drivers succumb to surging emotions and hide from the scene.

The measure of criminal or administrative responsibility for leaving the scene of an accident is almost the same all over the world. For example, in accordance with the Belarusian Code of Administrative Offenses, a fine or deprivation of the right to drive vehicles for up to two years is provided for leaving the scene of an accident in which he is a participant. In case of abandonment in a life- or health-threatening condition of a participant in an accident, the driver faces criminal liability in the form of arrest or imprisonment for up to three years, as well as a fine ^[10]. In the Republic of Kazakhstan, Articles 345 and 346 of the Criminal Law, a fine or restriction of freedom for up to two years is applied to a person who drove a vehicle and left the scene of an accident, and violated the rules of the road or the operation of vehicles, in case of serious consequences ^[11]. In the USA, a fine from 1 thousand to 10 thousand dollars and (or) from one to five years in prison is awarded for hitting a pedestrian and leaving the scene of an accident, however, as noted above, these measures do not stop offenders ^[12]. Taking into account the world experience of law enforcement in relation to persons who fled from the scene of an accident, it is hardly possible to talk about tougher penalties for this offense, as it was in The Criminal Code of the RSFSR ^[13]. A number of scientists still tend to believe that the establishment of criminal liability for non-fulfillment of strictly regulated obligations of a participant in an accident will prevent the severity of the consequences of an accident ^[14].

The criminal legislation of the RSFSR did not contain responsibility for leaving the scene of an accident, and it fixed responsibility for causing serious bodily injury or death as a result of violation of traffic safety rules and operation of vehicles (Article 211 of the Criminal Code of the RSFSR). The sanction of the article implied punishment for such an act in the form of imprisonment for up to 10 years ^[15].

In practice, the qualification of leaving in danger at the scene of an accident according to the totality of Article 264 of the Criminal Code of the Russian Federation and Article 125 of the Criminal Code of the Russian Federation occurs quite infrequently and is mainly reduced to leaving the driver of the accident site. In this situation, the offender, contrary to the law, is not brought to administrative responsibility for the fact of leaving the scene of an accident ^[16].

Article 24.1 of the Administrative Code of the Russian Federation states that the objectives of the proceedings in cases of administrative offenses are comprehensive, complete, objective and timely clarification of the circumstances of each case, its resolution in accordance with the law, enforcement of the decision, as well as identification of the causes and conditions that contributed to the commission of administrative offenses ^[4].

At the same time, in accordance with Article 26.1 of the Administrative Code of the Russian Federation, the guilt of a person in committing an administrative offense and other circumstances relevant for the correct resolution of the case, as well as the reasons and conditions for committing an administrative offense, are subject to clarification when committing an administrative offense ^[4].  

The legal aspects in the consideration of criminal and administrative cases of road accidents lie in the complexity of their consideration and an ambiguous approach when making a conclusion.

An example of such a scrupulous consideration of the case can be an accident that occurred in the city Irkutsk. For obvious reasons, the names of the participants and some insignificant facts of the case were omitted or changed ^[17].

The accident occurred on 03/11/2021 at 8 : 45 a.m. on the Irkutsk — Angarsk bypass road near the house 280 on the street . Yaroslavsky. Presumably, Ilya Alekseevich Khadakov, driving a Toyota Corona vehicle, state number N006ET 38 region, allowed a collision with a Toyota Terzel vehicle, state number R811HN 38 region, under the control of M. M. Kasimov. After committing an accident, I. A. Khadakov left the scene of the accident, of which he was a participant, causing material damage, in the absence of signs of a criminally punishable act.

During the court session, Hadakov I. A. did not admit guilt in committing the specified offense, explained to the court that at the time of the accident on 03/11/2021 he was at home at the address: Shelekhov city, 5th microdistrict, 90, sq. 60. He did not drive a Toyota Corona car, state number N006ET 38 region. How his fingerprints turned out to be on the specified car, he does not know. He does not have a driver's license, he has never driven a car.

The defender of Khadakov I. A., lawyer Maslov A. S., explained at the hearing that his client Khadakov I. A. did not commit this offense, there is no evidence of his guilt in the case materials, he did not receive a driver's license and never drove a car. The conclusion of the fingerprint examination available in the case materials cannot be accepted as evidence in the case, since the origin of fingerprints is unknown, the case materials do not contain information when, by whom, where and under what circumstances they were seized.

The victim Kasimov M. M. explained that he was on 03/11/2021 in the morning, at about 8:45 a.m. I was driving along a bypass road in the direction of the city of Angarsk. Driving past the OMNI gas station, he felt a strong blow to the rear left side of the car, which caused his car to turn around and take out on the fence of the dividing strip. The driver, who was involved in this accident, fled the scene, and he did not see the car. Eyewitnesses of the incident explained that a silver Toyota Corona car crashed into his car, but they did not remember the registration number.

At the hearing, A. P. Yusupova was questioned as a witness, who explained that on 11.03.2021 she and her husband drove a Toyota Corona car, state number N006ET 38 region, went to take out garbage and buy groceries. Approximately at 8 h 30-40 min. they drove up to the trash cans in the indicated car, the husband left the car wound up with the key in the ignition and went to the Bean store for groceries, she meanwhile began to throw garbage out of the car. At this time, an unknown man approached her, judging by his appearance, in a state of intoxication. The man voluntarily got into their car and asked to take him home to the city of Shelekhov. He did not respond to requests to get out of the car and began pretending to be asleep. At the time when she was distracted to close the trunk, he abruptly pressed the gas, took off and disappeared in an unknown direction. In the future, she tracked the location of the car using a GPS navigator, so that it was found not far from the scene of the accident.

At the hearing, at the request of the defender of Khadakov I. A. Maslov A. S., V. A. Shaidurov was interrogated as witnesses. He explained to the court that he and I. A. Khadakov work together and are on friendly terms. On that day, 11.03.2021 Ilya was at his house at the address: Shelekhov city, 5th microdistrict, 90, sq. 60. In the morning by 9 o'clock he went to work, Hadakov I. A. came to work at 17 o'clock to congratulate one of the employees on her birthday.

Kostrikova K. T. was also questioned as a witness, who explained that she has been on friendly terms with Khadakov I. A. for more than 10 years and that in the morning on 03/11/2021, in the time interval from 9 a.m. to 11 a.m., she communicated with Khadakov I. A. through correspondence via the Viber messenger. She did not notice any oddities at the time of communication with him.

The court, based on the testimony of the victim, witnesses, having examined the case materials, comes to the following.

As follows from the protocol on the case of an administrative offense of 26.03.2021 38W No. XXXX, Ilya Alekseevich Khadakov 11.03.2021 at 8 h 45 min. in the city of Irkutsk in the area of the house on the street . Yaroslavsky, 280a,. driving a Toyota Corona vehicle, state number N006ET 38 region, allowed a collision with a Toyota Terzel vehicle, state number R811HN 38 region, under the control of M. M. Kasimov, left the scene of an accident in which he was a participant, causing material damage, in the absence of signs of a criminal offense, than violated the requirements of paragraph 2.5 of the Rules of the Road of the Russian Federation.

This fact is confirmed by the testimony of an employee of the road patrol service interviewed during the consideration of the case and is not disputed by the participants in the process.

As evidence confirming the fact that I. A. Khadakov committed the specified administrative offense, a number of procedural documents are attached to the protocol, including the expert opinion of the expert forensic center of the MEKO No. 1 of the Ministry of Internal Affairs of Russia in the Irkutsk Region No. XXX dated 03/22/2021 and the protocol of presentation of a person for identification dated 03/14/2021, according to which the investigator of the OD 011-4 MU of the Ministry of Internal Affairs of Russia "Irkutsk" was presented to the victim for identification by Hadakov I. A. Along with other persons, Yusupova A. P. identified Hadakov I. A. by facial features, by eyes (light), by the timbre of his voice (soft, gentle voice) and by the clothes he was wearing at the time of the crime (car theft).

The court is critical of the testimony of the witness Shaidurov V. A., since he is in close relations with Khadakov I. A. and is, in the opinion of the court, a person interested in the outcome of the case. The testimony of the witness Kostrikova K. T., in the opinion of the court, cannot testify to the absence of the fact that Khadakov I. A. was driving a Toyota Corona vehicle, state number N006ET 38 region, 12.03.2021. This witness explained only that I. A. Khadakov sent her a message in the form of a video on a mobile phone in the time interval from 9 am to 11 pm on 12.03.2021. In addition, Kostrikova K. T. is in friendly relations with Khadakov I. A., in connection with which the court sees her interest in the outcome of the case.

At the same time, the court cannot recognize as proven the objective side of the composition of the administrative offense in terms of the commission of an accident by Khadakov I. A. on 12.03.2021, as a result of which damage was caused to the Toyota Terzel vehicle, state number R811HN 38 region, under the control of M. M. Kasimov, and, accordingly, the abandonment of the accident site by him. The case materials do not contain "direct evidence of the commission of this accident involving the Toyota Corona car, state number N006ET 38 region.

The victim Kasimov M. M. and the eyewitnesses of the incident did not remember the registration number of the vehicle of the participant of the accident.

The Court believes that, since at the moment there are no circumstances in the case concerning the involvement of I. A. Khadakov in the case, except for a fingerprint, the question of whether it was I. A. Khadakov who was driving is moot.

Due to the established circumstances, the court considers that the materials of the case of an administrative offense contain irremediable doubts about the guilt of the person brought to administrative responsibility, which cannot be eliminated during the consideration of the case and must, in accordance with Part 4 of art. 1.5 The Administrative Code of the Russian Federation, interpreted in favor of this person.

Thus, taking into account the fact that the evidence confirming the fact of participation of I. A. Khadakov in an accident with damage to a Toyota Terzel vehicle, state number R811HN 38 region, is under control. Kasimova M. M., the magistrate does not have the location of the accident, of which he was a participant, and they cannot be obtained during the consideration of the case, the court concludes that the evidence testifying to the specified offense, containing signs of the objective side of the composition of the administrative offense provided for in Article 12.27 Part 2 of the Administrative Code of the Russian Federation, there are none in the case file.

Considering the above, the justice of the peace comes to the conclusion that there is no administrative offense in the actions of I. A. Khadakov, provided for in Article 12.27 Part 2 of the Administrative Code of the Russian Federation.

On the basis of the above, guided by Articles 1.5, 24.5, Part 1, paragraph 2, 29.9, Part 1-1, paragraph 1 of the Administrative Code of the Russian Federation on administrative offenses, the magistrate decided: the proceedings on the case of an administrative offense provided for in Article 12.27, Part 2 of the Administrative Code of the Russian Federation in respect of Ilya Alekseevich Khadakov should be terminated for lack of an administrative offense.

The considered example of an accident clearly indicates that at present it is necessary, first of all, not to talk about toughening the punishment for leaving the scene of an accident by the offender, but about developing a methodology for examining the scene of the accident and searching for those who escaped from it using modern technical means. This issue should be given special attention when training specialists in educational organizations of the Ministry of Internal Affairs of Russia, as well as in the framework of vocational training, retraining and advanced training.

The developed system of automatic control and fixation of road safety leaves no chance for the offender to escape unnoticed from the scene of an accident. Earlier it was noted that in many cases vehicles are left at the scene of an accident or in the immediate vicinity of it. Offenders are well aware that it is much easier to track a vehicle than a specific person. Quite often, offenders hide behind the theft of a motor vehicle (they claim theft as soon as possible after an accident). In this situation, special attention is paid to geolocation of the mobile phone of the owner of the vehicle, since he is almost always next to the owner, regardless of his actions, and inspection of the car for traces of the person driving it.

 The technical aspects of the consideration of traffic accident cases imply an ambiguous approach of judges to expert opinions and data obtained using modern tracking tools.

The relevance of these studies is also evidenced by the fact that when this article was being prepared for publication in the city of Simferopol, on February 14, a similar accident occurred with the participation of a State Council deputy. As a result of the accident, a 73-year-old woman was killed. According to the surveillance cameras, a car was installed and a suspect was detained, who first gave a confession, which he refused after a while.

Unfortunately, the scope of this article does not provide an opportunity to elaborate on the forensic methods of investigation of this type of crime. It should be noted only that they need to be constantly improved taking into account modern technical means.

In summing up the above , the following main conclusions can be drawn:

1. The situation with the main indicators of road safety, despite the measures taken by the Government, remains tense from year to year. A significant number of accidents are allowed by drivers under the influence of alcohol. The additions made to the Criminal Code of the Russian Federation regarding the tightening of responsibility for driving a vehicle in a state of intoxication did not allow to fully eliminate this problem.
2. According to a number of scientists, the situation with an accident can be improved by increasing responsibility for leaving the scene of the accident by the driver. A comprehensive approach is needed to solve this problem, including psychological training of drivers and high professional training of employees of the internal affairs bodies and the State Road Safety Inspectorate. 
3. There is a need for further improvement of forensic techniques for the investigation of criminal and administrative cases of road accidents with extensive use of modern technical means.