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Articles 186 and 187 of the Highway Code provide, as an ancillary penalty, for suspension of the driving licence (for a period which varies according to the seriousness of the penalty imposed). The ancillary penalty…
Articles 186 and 187 of the Highway Code provide, as an ancillary penalty, for suspension of the driving licence (for a period which varies according to the seriousness of the penalty imposed). The ancillary penalty in question is applied even if the defendant opts for a so-called plea bargain, that is the application of a penalty at the parties' request, and the penalty is suspended. It will therefore be the judge in the criminal proceedings who imposes the ancillary penalty at the end of the trial, and it will take effect and begin to run when the judgment becomes enforceable (that is, after the three levels of jurisdiction have been exhausted, or if the time limits for pursuing them expire without being used).
In practical terms — and we are still dealing with suspension of the driving licence as an administrative penalty ancillary to a conviction in the criminal court — it is the competent administrative authority, that is the Prefect, which gives effect to it.
Suspension as an ancillary penalty has a punitive and rehabilitative function and is imposed by the criminal court on the same principle as all penalties (including ancillary penalties) provided for by the Criminal Code.
Very often (indeed, for the offences indicated in Articles 186 and 187 of the Highway Code, always) the order suspending the driving licence imposed by the criminal court as an ancillary penalty follows a first suspension decided and carried out by the competent Prefect following withdrawal of the licence by the police who ascertained the offence (which will then be the subject of the criminal trial where the breach of the Highway Code also constitutes an offence).
That suspension, the duration of which is decided and which is carried out in practice by the Prefect, is provided for by Article 223 of the Highway Code (headed: Withdrawal of the driving licence as a consequence of an offence), which provides for the Prefect to intervene following withdrawal of the driving licence by the officer or the ascertaining body "…in cases of offences for which the ancillary administrative penalty of suspension or revocation of the driving licence is provided…".
Following that withdrawal at the time of the charge, the driving document is sent to the Prefect with territorial competence, who will order "…provisional suspension of the driving licence for up to a maximum of two years…" (in certain cases provided for by paragraph 2 of the same Article 223 of the Highway Code, provisional suspension may be for up to three years).
There are therefore two orders suspending the driving licence as a result of the commission of offences under the Highway Code (chief among them driving under the influence of alcohol and driving in a state of psycho-physical alteration through the use of narcotic substances under Articles 186 and 187 of the Highway Code):
– a first order immediately after the fact (that is, following withdrawal of the licence by the officers who record the commission of the criminal conduct provided for by the offence-creating provision), provided for by the Highway Code as an interim measure (and not with a punitive or rehabilitative function), decided by the competent Prefect without an adversarial hearing, with a wide discretion, and with a rather restricted right of defence for the person concerned (only written submissions may be filed, in a very short time) and, at most, "deferred" to a possible challenge before the Justice of the Peace (in exactly the same procedure as is used to challenge so-called fines);
– a second order suspending the driving licence, decided by the judge in the criminal proceedings as an ancillary administrative penalty together with the penalty provided for commission of the offence. The second suspension will in practice likewise be applied by the Prefect (but decided by the criminal court) following the trial, in which the person concerned will be able to conduct his or her defence fully (so far as possible, having regard to the concrete facts).
It is clear that the two suspension orders fall at two quite distinct stages in time: one very close to the commission of the conduct treated as an offence, and one after the outcome of the criminal trial, so that the convicted person will certainly already have served the "first" interim suspension of the driving licence decided and applied by the Prefect under Article 223 of the Highway Code.
The case law has clarified that the two periods of suspension (the Prefect's interim suspension and the punitive and rehabilitative suspension of the criminal court) are not cumulative: the person to whom they are applied will NOT have to serve an arithmetical sum of the two periods, because the period already imposed by the Prefect on an interim basis must be deducted from that decided by the criminal court as an ancillary penalty.
The judge in the criminal trial, when quantifying suspension of the driving licence as an ancillary penalty, will therefore NOT be able to take account of the period of suspension previously applied by the Prefect (on an interim basis); and it will be the Prefect, in enforcing the penalty imposed by the court, who deducts the period served as interim suspension.
Judicial practice has also established that this "setting off" must be carried out in practice by the Prefect (who, it will be recalled, is responsible for the concrete application of the suspension even where it is a suspension of the licence as an ancillary penalty decided by the criminal court), even if the criminal court does not mention the deduction in the judgment:
"… the different purposes and different conditions which characterise the Prefect's order of provisional suspension of the driving licence and the ancillary penalty of suspension of the licence applied by the criminal court, at the outcome of a finding of breach of the Highway Code, exclude the possibility of counting the period of provisional suspension in determining the duration of the administrative penalty finally applicable by the court. That does not, however, mean that the two periods of suspension are cumulative, since they are instead complementary: it is necessary that, in relation to the same fact and as against the same person, the application of the ancillary administrative penalty of suspension of the licence be a single application and fall between the minimum and the maximum provided for by the provisions of the Highway Code, even if the final suspension, ordered by the court, was preceded by the provisional application ordered by the Prefect. It follows that it is the Prefect, as the body enforcing the ancillary administrative penalty, who must deduct, as a matter of obligation, the period of suspension already served, without any need for an express statement to that effect by the competent judicial authority. (see the Joint Divisions of the Court of Cassation, 21 June 2000, Cerboni)."
