Murder by Dangerous Driving: Decision of the BGH of 16 January 2019, Case No 4 StR 345/18 Judgment of the LG Hamburg of 19 February 2018, Case No 621 Ks 12/17 German Federal Court of Justice (Bundesgerichtshof—BGH) 4th Criminal Senate
| DOI | 10.1177/0022018319850903 |
| Published date | 01 June 2019 |
| Author | Michael Bohlander |
| Date | 01 June 2019 |
| Subject Matter | Case Notes |
Case Note
Murder by Dangerous Driving
Decision of the BGH of 16 January 2019,
Case No 4 StR 345/18 Judgment
of the LG Hamburg of 19 February 2018,
Case No 621 Ks 12/17 German Federal
Court of Justice (Bundesgerichtshof—BGH)
4th Criminal Senate
Keywords
Homicide, aggravated murder, causing death by dangerous driving, mens rea
The defendant, D, had been convicted by the Hamburg District Court of, among other things, one count
of theft, one count of aggravated murder (Mord) and two counts of attempted aggravated murder as well
as aggravated assault, and sentenced to an aggregate life sentence. The dist rict court also awarded
damages for pain and suffering to the mother of the victim who was killed, because she had suffered
a nervous breakdown upon hearing the news that her son had been killed and serious long-term mental
distress, but this aspect shall be omitted from the discussion. It is equally of no interest for our purposes
that D was also put under a custodial addiction treatment order pursuant to s 64 of the German Criminal
Code on account of his alcohol abuse.
D had broken into a taxi in the early hours of the morning in order to steal the satnav and other
electronic accessories; when he found a spare ignition key in the console he decided on the spot to steal
the entire car. He was heavily drunk at the time, with a calculated blood-alcohol concentration range
between 1.17‰ and 1.8‰ (¼1,170 and 1,800 ppm). The car was an automatic model, something D was
not familiar with. Accordingly, he had difficulties at first driving the car, with sudden stops and starts. He
had not turned the taxi’s headlights on, either. This came to the attention of witness A, an off-duty police
officer, who flashed his unmarked car’s lights at D to alert him that something was wrong. D, who did
not know A was a police officer but wanted to avoid detection at any cost, started speeding away from A,
who took up the chase, which made D drive ever more dangerously, running over red lights, failing to
brake at intersections and increasing his speed to a point where he thought no-one would pursue him any
further. Indeed, after a while A, who had by then called his colleagues on duty for support, abandoned his
efforts at keeping up with D, since he did not want to risk causing an accident himself.
In the meantime, a marked police car had been dispatched to the vicinity, and D passed that car
shortly afterwards; the police immediately took up a high-speed pursuit of D, who had become increas-
ingly confident driving the automatic. D, who saw the lights of the police car and heard the siren, decided
to ‘up the ante’ and drive even more recklessly. He wanted to avoid being caught by the police at any
cost. He crossed a number of major multiple-lane intersections at a speed of about 80–90 mph before
finally moving into the opposite lane of the oncoming traffic at a speed of around 100 mph; all of this
happened within the Hamburg city limits—not on a freeway or motorway—where an average speed
limit of no more than 30 mph was in force. Due to the early hour, traffic was light but D had earlier
passed several cars in the opposite lanes moving at around 30 mph or slightly more, so he was aware of
The Journal of Criminal Law
2019, Vol. 83(3) 191–194
ªThe Author(s) 2019
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DOI: 10.1177/0022018319850903
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