Turning on Ignition to Close Car Windows is not starting the vehicle

Oct 7, 2022 Benn-Ibler Rechtsanwälte GmbH

In the case at hand, the Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) dealt with the question of whether turning on a vehicle’s ignition without starting the engine in order to close the car windows constitutes ‘putting a vehicle into operation’.

The appellant had been consuming alcohol at the scene of his offence. His car was unlocked and the windows were rolled down. The police had been called because of neighbourhood noise complaints. Two officers arrived at the scene and ordered the appellant to close his car windows. The appellant got into his car and turned the key in order to turn on the ignition so as to comply with the officers’ order. Subsequently, he refused to take a breathalyser test and fled the scene.

The appellant was fined by the administrative authorities for refusing to take a breathalyser test.

The Administrative Court recently overturned the original decision and ruled as follows:

Pursuant to Section 5 (2) of the Austrian Road Traffic Act (Straßenverkehrsordnung, StVO), traffic police officers, in specific situations, are entitled to test an individual’s breath for alcohol content, for example, if an individual is suspected of having driven a vehicle while under the influence of alcohol. However, the actual act of driving is not the only relevant item because even just simply sitting in the driver's seat may constitute cause for suspicion. Therefore, it seemed plausible that the appellant had attempted to put his car into operation.

Putting a vehicle into operation describes an action that precedes driving the vehicle. This also includes actions necessary to put the vehicle into motion through engine power. Although turning on the ignition may be understood as such an action, each setting must be considered in detail. Since, in this case, the engine had not been started and there had been no intention to do so, it can be assumed that no action was taken by the appellant that preceded putting the car into motion.

VwGH Ro 2022/02/0009 (2 June 2022)