Conditional discontinuation of criminal proceedings in cases of driving under the influence of alcohol in Poland

Conditional discontinuation of criminal proceedings is an institution of Polish criminal law which allows the Polish court to refrain from imposing a penalty on the perpetrator of a crime if the court finds that certain specific conditions are met. In the case of driving under the influence of alcohol or intoxicating substances in Poland (Article 178a of the Polish Criminal Code), conditional discontinuation of criminal proceedings may be an important legal tool, the use of which will make it possible to avoid severe punishment. The application of this institution does not lead to the person being entered in the Polish National Criminal Register, thanks to which the perpetrator formally remains unpunished. It is therefore a solution which, in certain cases, allows the perpetrator to maintain their current professional and personal situation, while at the same time subjecting them to a probationary period and specific obligations.

The institution of conditional discontinuation of criminal proceedings in Poland is therefore a compromise between the principle of the inevitability of punishment for a person who violates the law and the principle of humanitarianism. It allows the court to respond flexibly to cases where a conviction could be considered too severe a sanction, while at the same time enabling the offender to be punished in a symbolic manner – through the very fact of acknowledging guilt and imposing obligations during the probation period. This allows the court to:

• achieve educational goals with regard to the offender,
• prevent their stigmatisation resulting from a conviction (in practice – no entry in the Criminal Record Register),
• signal to the public that committing a crime does not go unpunished by the justice system.

Of course, conditional discontinuation of criminal proceedings in a case of driving under the influence of alcohol in Poland is not applied automatically by the courts and requires certain conditions to be met in each case.

In this article, we have attempted to provide a practical explanation of:

1. the legal effects and consequences for a driver who violates Article 178a of the Polish Criminal Code,
2. the grounds for applying conditional discontinuation of proceedings in cases of driving under the influence of alcohol or intoxicating substances,
3. what the case law practice is in cases of driving under the influence of alcohol,
4. what steps should be taken to increase the chances of benefiting from the institution of conditional discontinuation of criminal proceedings.

The offence of driving under the influence of alcohol or intoxicating substances in Poland

According to Article 178a of the Polish Criminal Code, anyone who, while intoxicated or under the influence of intoxicating substances, drives a motor vehicle on land, water or in the air, is subject to imprisonment for up to 3 years.

The provision refers to the ‘state of intoxication’ defined in Article 115 § 16 of the Polish Criminal Code, according to which intoxication occurs when:

• the blood alcohol content exceeds 0.5 per mille or leads to a concentration exceeding this value, or
• the alcohol content in 1 dm3 of exhaled air exceeds 0.25 mg or leads to a concentration exceeding this value.

Therefore, if the blood alcohol content does not exceed the above-mentioned standards, the person commits a misdemeanour (and not a crime) as defined in Article 87 of the Polish Code of Misdemeanours, which we describe in more detail in this publication.

It is worth noting that for criminal liability for driving under the influence of alcohol to arise, it is not necessary for the perpetrator to know the exact level of alcohol in their blood. It is sufficient that:

1. they are aware that they are intoxicated or intoxicated, i.e. they know or could recognise that they have consumed alcohol or intoxicants to such an extent that their mental and physical abilities are impaired,
2. this awareness resulted from their level of mental development and ability to recognise their own condition, i.e. the perpetrator had to be able to assess that they were not fully sober, even if they did not know the concentration of alcohol in their body.

In other words, criminal liability does not depend on the exact blood alcohol concentration, but on whether the driver could and should have consciously assessed that their ability to drive was impaired. In most cases, this is indeed the case, as it is common knowledge that even a small amount of alcohol negatively affects the driver’s concentration, reflexes, ability to judge distance and reaction time.

A practical example from Polish case law:

“The perpetrator must therefore be aware of being intoxicated or intoxicated, which does not mean that they must know their blood alcohol concentration, as awareness of such a circumstance, i.e. intoxication, must be understood as the perpetrator’s ability to recognise their own condition, resulting from their level of mental development (resolution of the Polish Supreme Court – Professional Liability Chamber of 27 June 2024, ref. no. I ZI 2/24).

Does every instance of drink driving always result in a conviction in Poland?

The answer is no. Not every offence under article 178a of the Polish Criminal Code must result in a conviction for the perpetrator. The Polish legal system has an institution that allows the court to refrain from imposing a penalty. This mechanism is the conditional discontinuation of criminal proceedings, which is a form of ‘special criminal liability’. In practice, a court’s decision to conditionally discontinue criminal proceedings means that although the court finds the perpetrator guilty of committing a crime, it refrains from imposing a penalty. As a result, as indicated above, the perpetrator does not appear in the National Criminal Register as a convicted person.

Pursuant to Article 66 § 1 of the Polish Criminal Code, conditional discontinuation of criminal proceedings consists in refraining, for a probationary period, from conducting a trial before a court against a specific perpetrator in a case concerning a specific prohibited act constituting an offence. The court may conditionally discontinue proceedings if:

• the circumstances of the offence are not in doubt,
• the guilt and social harmfulness of the offence are not significant,
• the perpetrator has not previously been convicted of an intentional offence,
• and there is a reasonable assumption that they will comply with the law, in particular that they will not commit another offence.

The proceedings are discontinued for a probationary period of one to three years (Article 67 § 1 of the Polish Criminal Code). During this time, the perpetrator must comply with the law, and in the event of a repeat offence, the conditional discontinuation may be revoked.

Grounds for conditional discontinuation of criminal proceedings in cases of driving under the influence of alcohol in Poland

In order for the court to refrain from imposing a penalty, it is necessary to meet and demonstrate all the grounds for conditional discontinuation of criminal proceedings specified in Article 66 § 1 of the Polish Criminal Code. This institution is of an exceptional nature, therefore the court may apply it only if each of the grounds is met in a manner that leaves no doubt.

With regard to the individual conditions:

1. the circumstances of the offence are beyond doubt

Conditional discontinuation of criminal proceedings may only be applied if there is no doubt whatsoever as to the commission of the offence.

For example, in cases involving driving under the influence of alcohol, the act specified in Article 178a of the Polish Criminal Code consists of driving a motor vehicle. It is worth noting that the Polish Criminal Code does not contain a legal definition of driving, but case law indicates that this act is intrinsically linked to actions consisting in setting a vehicle in motion and keeping it in motion. This means that simply sitting behind the wheel of a vehicle that has not been started does not qualify as driving a vehicle and is therefore not a criminal offence (Polish Supreme Court resolution of 8 December 1960, ref. no. VI KO 64/60). Similarly, starting the engine without moving the vehicle does not constitute a causative act within the meaning of Article 178a of the Polish Criminal Code.

Therefore, only the actual driving of a vehicle while intoxicated or under the influence of intoxicating substances qualifies as a criminal offence, and thus it is possible to consider the conditional discontinuation of criminal proceedings.

Another example may be the Court’s doubts as to whether the driver exceeded the above-described standards, i.e.:

• the blood alcohol content exceeds 0.5 per mille or leads to a concentration exceeding this value, or
• the alcohol content in 1 dm3 of exhaled air exceeds 0.25 mg or leads to a concentration exceeding this value. 

Not exceeding the standards described above will also not constitute a crime, but a misdemeanour (described in more detail in this publication), and therefore the perpetrator will not be able to take advantage of the institution of conditional discontinuation of proceedings, as no crime has been committed.

Therefore, when analysing the evidence in the case, the court must first and foremost reach the irrefutable conclusion that an offence specified in Article 178a of the Polish Criminal Code has been committed, i.e. the perpetrator’s act meets the essential conditions for the offence of driving under the influence of alcohol in Poland. Only after such a finding can the court (although it is not obliged to do so) decide to conditionally discontinue criminal proceedings. Without this condition being met, there are no grounds for applying the discontinuation mechanism, as no offence has been committed.

• the fault and social harmfulness of the act are not significant

Another prerequisite for the conditional discontinuation of criminal proceedings in a case of driving under the influence of alcohol in Poland is that the social harmfulness of the act should not be ‘significant’. At the same time, it is impossible to specify what the legislator means by ‘insignificant’; legal doctrine indicates that it cannot be ‘large’ or ‘significant’, but rather “small” or ‘insignificant’. This leads to the conclusion that the degree of social harmfulness of the act, which determines the possibility of applying conditional discontinuation of proceedings, should always be assessed in relation to the specific offence and the person committing it. Each case is different and requires separate analysis by the court – the degree of social harmfulness must be assessed individually, in relation to, among other things, the specific facts of the case, the type of vehicle, the blood alcohol concentration, the place and circumstances of the incident, and the degree of guilt of the perpetrator.

Court rulings indicate that the relevant circumstances analysed by the court will include, in particular:

• no previous convictions for intentional offences,
• the perpetrator’s attitude – in particular, previous compliance with the law and responsible behaviour in private and professional life,
• the perpetrator’s personal characteristics and circumstances – age, health and mental and physical condition, family and professional situation, stability in life,
• awareness of the unlawfulness of the act and motivation – in particular, whether the perpetrator was (could have been) aware that they were driving under the influence of alcohol,
• intentional or unintentional nature of the act – an unintentional act, e.g. after consuming alcohol the day before and being unaware of their state of intoxication, reduces the degree of guilt,
• any extraordinary circumstances that may partially justify the perpetrator’s behaviour, for example, acting under the influence of strong emotions or stress in a situation where they have received news of an illness, accident or other sudden family emergency,
• remedial measures taken by the perpetrator, e.g. education or participation in prevention programmes.

With regard to the premise of no previous convictions, it should be clarified that the perpetrator must have no previous convictions for intentional offences at the time of the decision on conditional discontinuation of proceedings. If there are non-final convictions for intentional offences at that time, there is generally no obstacle to conditional discontinuation of proceedings, due to the principle of presumption of innocence. Consequently, only a final conviction for an intentional offence excludes the possibility of applying conditional discontinuation of proceedings.

Practical example from Polish case law:

“The subjective and objective circumstances of the case, in particular the psychological deficiencies found in the defendant (affecting the extent of his guilt) and the fact that he was ’only” riding a bicycle, indicate that the degree of social harmfulness of the act attributed to the defendant is not significant. These circumstances, combined with the fact that the defendant has never been in conflict with the law in the past and has no criminal record, lead to the conclusion that the conditions specified in Article 66 § 1 of the Polish Criminal Code are met in his case.” (judgment of the Polish Regional Court in Olsztyn of 21 August 2013, ref. no. VII Ka 677/13).

“Article 66 § 1 of the Polish Criminal Code cannot be applied to a perpetrator who has previously been convicted of an offence under Article 178a § 2 of the Polish Criminal Code (judgment of the Polish Supreme Court – Criminal Chamber of 15 January 2008, file ref. no. III KK 357/07).

It should be emphasised that in such cases, the lawyer’s task will be to comprehensively present to the court all relevant information and circumstances that may indicate the absence of significant social harmfulness of the act and a positive criminological prognosis for the perpetrator. In practice, this means not only describing the course of events, but also presenting the full context of the defendant’s personal and professional life, their attitude towards the act committed, their compliance with the law to date, as well as any mitigating circumstances that may have influenced their behaviour.

• a reasonable assumption by the court that the defendant, despite the discontinuation of proceedings, will comply with the law, in particular will not commit a crime

Another prerequisite for conditional discontinuation of proceedings is a so-called ‘positive criminological prognosis’ for the perpetrator, i.e. a reasonable assumption by the court that the defendant will obey the law and not commit another offence after the proceedings have been discontinued. This assumption is not merely declarative, as the court must base it on actual data concerning the perpetrator and their previous conduct. The elements that the court takes into account when formulating such a prognosis include, among others:

• the perpetrator’s attitude, including admission of guilt, expression of remorse and willingness to repair the consequences of the act. The court will assess whether the perpetrator understands the consequences of their behaviour and is willing to take responsibility for it,
• personal characteristics and living conditions, such as age, health, family and professional situation, and social stability. It is obvious that a person with an established social position, a permanent job and a stable family environment who violates Article 178a of the Polish Criminal Code should be perceived by the court as less likely to repeat the criminal act.
• character traits of the perpetrator that are relevant for predicting their future behaviour include: impulsiveness, self-control, common sense, diligence, care for loved ones, consistency, ambition, respect for others, sensitivity to human suffering and empathy,
• their current lifestyle, i.e. compliance with the law in everyday life, no conflicts with the law and responsible functioning in society.

Only a combined analysis of the above (and possibly other factors) will allow the court to assess whether the application of conditional discontinuation of proceedings in a given case will be justified and effective, both from the point of view of the legal order and the rehabilitation of the offender. The court’s assumption must be justified and supported by specific circumstances so that the decision not to impose a penalty meets the objectives of criminal proceedings: protecting society and shaping citizens’ legal awareness.

A practical example from Polish case law:

“In the circumstances of this case, it is reasonable to assume that, despite the conditional discontinuation of proceedings, the defendant will comply with the legal order, in particular, will not commit a crime. This is indicated by his attitude during the trial. The defendant’s stable lifestyle to date allows us to conclude that he accepts the established legal order and generally complies with it, apart from the incident that took place on 18 May 2015.” (judgment of the Polish District Court in Piotrków Trybunalski of 28 November 2016, case no. VII K 562/15).

Conditional discontinuation of proceedings and a driving ban in Poland

In cases involving driving a motor vehicle while intoxicated, courts may consider it reasonable to temporarily exclude the perpetrator from participating in road traffic. Although in a situation where the defendant is granted conditional discontinuation of criminal proceedings, a driving ban is not mandatory, in practice this measure is often applied due to its educational and preventive nature (cf. Polish Supreme Court decision of 29 January 2002, I KZP 33/01, OSNKW 2002/3–4/15).

When imposing a penalty in the form of a driving ban, the courts take into account, among other things, the degree of intoxication of the offender, their previous behaviour and the circumstances of the incident. In cases where the alcohol content in the body only slightly exceeds the statutory intoxication threshold, courts often consider that imposing a minimum ban, for example for a period of one year, fully achieves the educational and preventive objectives of this measure.

How to apply for conditional discontinuation of criminal proceedings?

An application for conditional discontinuation of criminal proceedings in Poland may be submitted at the preparatory stage, i.e. before the case is formally referred to court. In accordance with the regulations, the prosecutor may submit an application to the court for a conditional discontinuation order instead of an indictment. Of course, the court is not bound by the prosecutor’s request, but practice shows that in most cases it grants the request and refrains from convicting the defendant. It therefore seems important to submit the motion as soon as possible, while the case is still pending before the prosecutor. If, however, the motion is submitted at the jurisdictional stage, it should be addressed to the court conducting the criminal proceedings.

The application should include the following information:

• date and place of application,
• personal details of the applicant, i.e. first name, surname, address for service, e-mail address and telephone number,
• case reference number (at the preparatory stage, the reference number usually begins with ‘PR’ or ‘Ds.’, while at the criminal proceedings stage, it begins with the Roman numeral of the criminal division and the letter ‘K’),
• title of the application, i.e. application for conditional discontinuation of proceedings,
• justification for the application, in which the applicant presents
• all arguments in favour of granting the application.

The application must be signed by hand. If attachments are included with the letter, they should be listed.

Summary

Conditional discontinuation of criminal proceedings allows the court to refrain from imposing a penalty if the perpetrator’s guilt and the social harmfulness of the act are not significant, and there is a reasonable assumption that they will abide by the law. In cases involving driving under the influence of alcohol Poland, the circumstances of the offence, the offender’s attitude, their previous criminal record, personal characteristics and living conditions are all relevant. The decision to apply this mechanism requires a comprehensive assessment of the situation, and its aim is both to protect society and to rehabilitate the offender.

The defence lawyer’s task is to work with the client to present to the court all relevant evidence and circumstances that may indicate that the offence did not cause significant social harm and that the offender has a positive criminological prognosis. This may include, among other things, documents confirming professional and family stability, opinions on the absence of a criminal record, employment certificates, certificates of participation in educational courses or therapies, as well as any evidence of the offender’s positive attitude towards the offence committed, such as an admission of guilt and expression of remorse.

Properly prepared and documented information allows the court to take into account the individual situation of the perpetrator when deciding on conditional discontinuation of proceedings. Thanks to this, the court’s assumption is justified and based on specific facts, which increases the likelihood that the decision will meet the objectives of criminal proceedings – the protection of society and the effective rehabilitation of the perpetrator.