Hearing form under § 55 OWiG and your right to remain silent
Before issuing a fine notice, the authority must give the person concerned the opportunity to comment on the allegation (§ 55(1) OWiG). The hearing form is this offer. It must disclose the act alleged and the provisions that may apply (§ 136(1) sentence 1 StPO via § 46(1) OWiG).
You need say nothing on the matter itself. Under § 136(1) sentence 2 StPO, the person concerned is free to comment or to say nothing on the matter. § 55(2) OWiG excludes from this only sentences 3 to 5, which concern the notice about consulting defence counsel; the right to remain silent itself is untouched.
Personal details are different. You may neither give incorrect information nor refuse to answer regarding first name, family name and birth name, place and date of birth, marital status, occupation, place of residence, address and nationality (§ 111(1) OWiG). A breach of this is punishable by a fine of up to one thousand euros (§ 111(3) OWiG).
What information goes into the fine file
The hearing form is an investigative tool of the fine authority. What you enter becomes part of the case file and can be used against you in the further proceedings.
Anyone who confirms having been the driver takes the hardest part of the investigation off the authority’s hands. An admission of the offence makes the measurement dispensable as evidence. An account of events written from memory will later have to hold up against the measurement record, calibration certificate and photograph.
The OWiG attaches no deadline to returning the hearing form. Anyone who does not respond therefore misses nothing. The first deadline in the proceedings runs against the fine notice and is two weeks from service (§ 67(1) sentence 1 OWiG).
Who must name the driver, and who need not
The authority must establish the driver before it can issue a fine notice against them. Two questions hang on this for the keeper: their own involvement, and a possible logbook order (§ 31a(1) StVZO).
Keeper, family members and the right to refuse evidence
Under administrative offence law it is the driver who is liable for the offence itself. As long as the authority is investigating you as the person concerned, you need not comment on the matter, and that includes the question of who was at the wheel (§ 136(1) sentence 2 StPO via § 46(1) OWiG).
If a family member was driving, § 52(1) StPO applies. The right to refuse to testify belongs to fiancé(e)s, spouses and civil partners, even where the relationship no longer exists, as well as relatives and relatives by marriage in the direct line and collateral relatives up to the third degree. Via § 46(1) OWiG this applies correspondingly in fine proceedings.
For stopping and parking offences an exception applies. If the driver cannot be identified before the limitation period for prosecution expires, or identification would be disproportionately burdensome, the keeper bears the costs of the proceedings and their own expenses (§ 25a(1) sentence 1 StVG). The fine itself does not fall on them.
Logbook order under § 31a StVZO
If it was not possible to establish the driver after a breach of traffic regulations, the authority responsible under state law can order the keeper to keep a logbook (§ 31a(1) sentence 1 StVZO). Several vehicles can be covered, including ones to be registered in future. The provision does not prescribe a duration.
Before every journey, the driver’s name, first name and address, the registration number, and the date and time the journey began must be entered; immediately after the journey, the date and time it ended, with a signature (§ 31a(2) StVZO). The logbook must be handed over on request and kept for six months after the order period ends (§ 31a(3) StVZO).
Anyone who breaches these duties commits an administrative offence (§ 69a(2) nos. 4 and 4a StVZO). The order can be challenged on its statutory condition: it presupposes that establishing the driver was not possible. We examine from the file which enquiries of its own the authority carried out beforehand.
Deadlines, objection and costs after the hearing form
After the hearing, the fine authority decides whether to issue a fine notice. Two deadlines determine how much time both sides have: the limitation period for prosecution, and the objection period.
Limitation, objection period and access to the file
Prosecution of administrative offences under § 24(1) StVG becomes time-barred after six months (§ 26(3) sentence 1 StVG). The period begins as soon as the act is concluded (§ 31(3) sentence 1 OWiG).
Notification that investigation proceedings have been opened against you interrupts limitation (§ 33(1) sentence 1 no. 1 OWiG). It then begins afresh (§ 33(3) sentence 1 OWiG). Issuing the fine notice also interrupts limitation, provided it is served within two weeks (§ 33(1) sentence 1 no. 9 OWiG).
You can lodge an objection against the fine notice within two weeks of service, in writing or on the record, with the administrative authority that issued it (§ 67(1) sentence 1 OWiG). With the objection we apply for access to the file (§ 147(1) StPO via § 46(1) OWiG). This brings the measurement record, calibration certificate and photographs to light.
Lawyer’s fees and legal expenses insurance
Where the client is a consumer and no fee agreement was made, the fee for advice is capped at €250, and for an initial consultation at €190 (§ 34(1) sentence 3 RVG).
The defence lawyer’s fee in fine proceedings follows Part 5 of the RVG fee schedule, separated between the proceedings before the administrative authority and court proceedings. These are framework fees.
Their amount is determined by the lawyer in the individual case at fair discretion, above all according to the scope and difficulty of the work, the significance of the matter, and the client’s income and financial circumstances (§ 14(1) sentence 1 RVG).
Whether your traffic legal expenses insurance covers the case depends on the agreed terms and the timing of the offence. We obtain the confirmation of cover before we act.
Further information
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