The case: A lorry driver of a semi-trailer truck (permissible total mass over 3.5 tonnes) was driving on the A 94 federal motorway and overtook two vehicles in front of him. It took him more than a minute to overtake, resulting in a ‘tailback’ of several vehicles. After merging into the right-hand lane, the distance to the vehicle in front of him was less than ten metres at a speed of more than 50 km/h. The judgement does not specify on which day and at what time the incident occurred.
On 10 July 2023, the District Court of Mühldorf a. Inn sentenced the lorry driver in question to a fine of 200 euros for negligently committing the administrative offence of failing to maintain a minimum distance of 50 m from the vehicle in front in accordance with Section 4 Para. 3 StVO ‘and’ overtaking, although the speed travelled was not significantly higher than that of the overtaken vehicle, in accordance with Section 5 (2) sentence 2 StVO, and a one-month driving ban was imposed on him in accordance with Section 25 (2a) StVG. With his appeal on points of law against this conviction, the person concerned complains of a violation of substantive law.
A gut feeling is not enough
The Bavarian Higher Regional Court (BayObLG) upheld this appeal on the grounds that, on the one hand, the time of the offence was not sufficiently specified, which is already erroneous in terms of substantive law.
In addition, the assessment of the evidence was legally flawed in several respects, including that it was unclear how the police officer had come to the conclusion that the overtaking manoeuvre had taken too long and that a purely emotional estimate of the time was not sufficient due to the uncertainties involved. Accordingly, more detailed findings would have been required as to how the police officer arrived at the time estimate, for example by ‘counting’, using a watch or similar.
The court order thus shows that the accusation must be discussed precisely on what basis the witness estimated the overtaking time. A feeling alone is not enough.
Overtaking manoeuvres are only permitted on federal motorways if the person overtaking is travelling at a significantly higher speed than the person being overtaken.