Overtaking on the right near Hünenberg - that will be expensive

Overtaking on the right on the motorway can be expensive. A 30-year-old Swiss man was accused of deliberately and illegally overtaking three cars on the A4 motorway in Hünenberg, while driving towards Lucerne, in February 2018. The man was previously sentenced by the sole judge of the Canton of Zug to a fine of 40 daily rates of CHF 30 each, and to also pay the procedural costs of around CHF 3,300. The accused appealed against this decision to the Zug High Court. He asked that the judgment of the lower court should be overturned and that he be declared free of any guilt and punishment. The appeal judgment has now been made, but is not yet final.

The higher court supported the judgment of the sole judge, and rejected the appeal. In addition to the already stated fine and the first-instance procedural costs, the accused was also charged with additional procedural costs of CHF 2,550, of which he only has to pay 5/6^ths, as one sixth is borne by the state treasury. In addition, the man received a reduced compensation of CHF 710 from the court treasury for the defence that he requested in the appeal process. Although none of the numerous appeals from the defence were accepted and the judgment of the lower court was only changed slightly, the higher court followed a federal court decision in a similar case, which was generous, as the court emphasized.

The 30-year-old Swiss was accused of a gross violation of traffic rules. He was driving in the left-hand (overtaking) lane on the A4 motorway at Hünenberg in the direction of Lucerne, moved over the middle lane to the right-hand lane, and then overtook three other cars on the right. It was clear to the public prosecutor that this overtaking manoeuvre endangered the other drivers. The accused carried out the overtaking manoeuvre before the single-lane exit towards Schwyz had been indicated.

The high speed with which he carried out these manoeuvres posed a considerable danger to the road users traveling in the middle lane, who would not have expected to be overtaken on the right. The accused, on the other hand, should also have taken into account that other road users could move into the right-hand lane at any time. The man was observed carrying out the manoeuvre by an unmarked police vehicle, which filmed the incident. According to the appeal judgment, the man was travelling at between 145 to 150 kph at the time.

The accused did not deny that he had carried out the manoeuvre, but did deny carrying it out deliberately and outside the signalled exit lane. When viewing the police video at the time, he said he hadn’t realised that he was only allowed to drive past other vehicles when actually branching to the right. The Supreme Court rejected this argument of a legal misunderstanding as presented by the defence, however. The accused did not mention a legal misunderstanding in the context of his spontaneous first statement to the police, but said he had not realised that he should not have passed other vehicles until the junction. If the man had actually been convinced at the first interview that he had not acted illegally, he would have said so at the time.

The higher court agrees with the defence that the proceedings were not also about a possible speed violation. The situation, with the video with the overlaid speed information as evidence, does not exclude , however, that “not only additional information about the incriminated illegal overtaking itself, but also about other circumstances (such as the traffic volume at that time and the approximate speeds) could be drawn within the scope of the free judicial evaluation of the evidence". Despite the statements of the defence, an extension of the indictment (to include a speeding violation) would not be inadmissible, but could be the judicial determination of the relevant situation "taking into account all the evidence lawfully collected up to the time of the judgment."

It was clear to the upper court that the culpability of the man was not minor, and that the overtaking manoeuvre was deliberate and was carried out for purely selfish reasons. This is grossly negligent, even if the accused actually took the exit road after the overtaking manoeuvre - this in no way reduces the criminal liability.

The 30-year-old is no blank slate when it comes to violating traffic rules. According to the High Court, a current extract from the criminal record lists him twice for driving in an unfit condition and once for violating traffic rules, incorrect behaviour following an accident and insulting behaviour. Administrative measures were also imposed on him, amounting to a total of four periods of driving licence suspension between 2006 and 2014. The accused is now threatened with a further, longer-lasting suspension of his driving licence through the judgment of the higher court. In addition, due to his previous history and the fact that the accused appeared rather unimpressed by administrative measures, the high court indicates that the unconditional imposition of the fine should be mandatory.