Reckless driving – new rules with big consequences

In March 2021, Denmark introduced new, stricter rules for reckless driving. This means, among other things, that a vehicle can be confiscated – even if it has been lent. In this article we take a closer look at the new rules and how they have been enforced in the first year.
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After several tragic cases where reckless drivers were involved in severe accidents, the Danish Parliament decided in 2020 to act against reckless driving. The new rules entered on 31 March 2021 and have now been in force for more than a year.

WHEN can THE VEHICLE BE CONFISCATED?

A major consequence of the new rules is that a vehicle can be confiscated if a person has driven recklessly. Even if it is not the owner who is behind the wheel.

However, the law allows the authorities to refrain from confiscating the vehicle if they assess that it would be disproportionately intrusive for the owner to do so. These are typically cases, where the owner could neither have known that the vehicle would be used for reckless driving, nor could they ensure financial security when they transferred the vehicle to someone else.

The starting point is that vehicles are confiscated for reckless driving. The comments on the law suggest that the possibility of avoiding confiscation is a narrow exception. If the vehicle is lent, the owner must try to cover the loss through a compensation claim against the driver of the vehicle.

WHAT IS THE STATUS AFTER ONE YEAR OF THE NEW RULES?

Legal practice over the past years shows that the courts enforce the rules in most cases. Even when an owner has obtained a signed statement of truth and checked criminal records from the borrower of the vehicle, this has not been sufficient to avoid confiscation.

In cases like these, it must always be investigated whether the owner knew that the vehicle would be used for reckless driving and has taken every opportunity to clarify the risk. If this is the case, the courts will subsequently investigate whether the owner has taken reasonable steps to secure himself financially in the event of confiscation.

THE OWNER MUST EXAMINE THE BORROWER’S FINANCES

To secure its financial position, it is required that the owner has sufficiently and relevantly investigated the borrower’s finances and could not, on that basis, reasonably foresee that a compensation claim would be without cover. It appears from the statutory comments that it is not enough to e.g., avoid confiscation that the driver has been declared insolvent in the bailiff’s court, or that the driver must pay off the car over several years.

It is our assessment, which is supported by legal practice, that it is quite difficult to get through with confiscation not taking place.

ARE PROPERTY RIGHTS VIOLATED BY CONFISCATION?

Property rights are a particular legal aspect of the rules that owners of vehicles need to be aware of. According to international law, the property right is inviolable, unless it is done in the interest of society, there is the clear legal authority, and it is proportional to the offence. It may be doubtful whether the Danish legislation complies with this, but if the rules are to be changed, it requires the courts to overrule them.

CURRENT CASES IN THE SUPREME COURT WILL BE DECISIVE

At the moment, the Supreme Court is dealing with a number of cases regarding the rules for reckless driving. The assessment of whether the legislation is in line with international law will be decisive for whether we will see changes. If the Supreme Court decides that confiscation can take place as described in the law, the rules will continue as they are today, and then a change will require a case at the Human Rights Court.

Recommendations if you lend your vehicle:

  • Always consider the regulations on reckless driving if you lend your vehicle. Or if your employee use company cars as free cars or use vehicles to carry out their work, e.g., in the service profession.
  • As the owner or lessee, you must ensure that you have done everything possible to clarify whether the vehicle would be used for reckless driving and whether the driver can pay a compensation claim.
  • If your vehicle is confiscated, you should immediately object to the grounds. It is important to do this in case the rules are later overruled as being in breach of international law.

WHAT OFFENSES DOES RECKLESS DRIVING COVER?

The term reckless driving covers a number of violations of the Criminal Law and Road Traffic Law.

Violations of the Criminal Law

  • Negligent manslaughter under particularly aggravating circumstances.
  • Negligently causing significant harm to someone’s body or health under particularly aggravating circumstances.
  • Wilfully causing imminent danger to someone’s life or property.

Violations of the Road Traffic Law

  • Particularly reckless driving.
  • Speeding by more than 100 per cent when driving at a speed of more than 100 km/h.
  • Driving at a speed of 200 km/h or more.
  • Driving under the influence of alcohol with a blood alcohol level of more than 2,00.

This article was published in Ind§igt no. 26 in June 2022