Decisions
The distribution of mutual contributions to causation and fault
When considering the contributions to causation and fault following a traffic accident, only those circumstances that are undisputed or proven can be taken into account. If none of the parties can prove such circumstances, only the operating risk of the vehicles may remain as an undisputed element.
In the present case, the plaintiff could not prove that the motorcycle on the main road was traveling at a speed at which there was still sufficient visibility (visual driving requirement). In turn, the defendants could not prove that the car turning left out of an exit onto the main road could not see the motorcycle because it was traveling too fast. The court therefore decided on the basis of the operating risks of the vehicles. The operating risk of the car coming out of the late visible property exit and turning left onto the road with right of way was considerably higher (increased risk potential) than the simple operating risk of the motorcycle. As a result, the car driver had to bear 75 percent of the damage.
(OLG Düsseldorf, judgment of August 14, 2006, Ref.: I-1 U 224/05)
No usability of the measurement of a breath alcohol concentration if the waiting period is not observed
When measuring the breath alcohol concentration using the standardized measuring method (in this case the Dräger Alcotest 7110 Evidential measuring device), there must always be a waiting period of 20 minutes between the measurement and the end of drinking. Only after this time does a fixed ratio between breath alcohol concentration and blood alcohol concentration appear, which is only subject to slight fluctuations. If the waiting time is not observed, the measurement result cannot be used. This applies in any case as long as the breath alcohol concentration limit of 0.25 mg/l is not very clearly exceeded.
In this case, a breath alcohol content of 0.284 mg/l was determined and the waiting time of 20 minutes between the end of drinking and the measurement was not observed during the measurement. The measurement result was therefore unusable and the person concerned was acquitted. (However, it should be noted that not all courts would assume that the measurement was completely unusable in such a case. In some cases, a safety deduction would also be made, which would have to be determined by an expert).
(OLG Hamm, decision of 24.08.2006, ref.: 3 Ss Owi 308/06)
Distribution of liability in a rear-end collision and relevance of a DEKRA expert opinion
On the surrender of a vehicle registration document after divorce