–> By Florian Wehner – Published on 5. December 2021
Category: Drinking/Driving, Traffic law
Between involuntary walks and unrestricted mobility is, in addition to a waiting period, often the dreaded medical-psychological examination (MPU).
This test, colloquially known as the "idiot test," consists of a series of medical tests, psychological interviews, and exercises that assess whether you are fit to participate in traffic again. To convince the appraiser at the first attempt, however, of one’s own inner transformation is not so easy, as is well known.
It is better to use all legal possibilities to avoid this expensive and nerve-racking investigation. However, if you can no longer do anything against the underlying judgment or the penalty order, you should in most cases better prepare well for the upcoming MPU. If you still fail, either the courts can help – or you keep the negative result to yourself and try again. If you pay attention to certain aspects, you have better chances the second time around.
1. When to order an MPU after drinking and driving?
If you drive under the influence of alcohol in traffic, you can be prosecuted and risk your driver’s license. In the case of drunk driving, the sog. Revocation of the driver’s license under § 69 of the Criminal Code – StGB ordered by a criminal court judging traffic offenses or. for this purpose issues a criminal court order. After the conviction, the court decides whether the person concerned is unfit to drive as a result of the offense. However, if you are caught driving with a blood alcohol concentration of more than 1.1 per mille, driving in a serpentine manner with at least 0.3 per mille in your blood, or even seriously endangering road traffic or committing a hit-and-run, you will almost always lose your driver’s license (cf. § 69 para. 2 StGB).
If you want to drive again, you have to apply for a new driver’s license. But the court usually imposes a sog. A ban period of between six months and five years, before the expiry of which no new driver’s license can be issued. The application for reinstatement can be submitted to the driving license authority only three months before the expiry of the time limit.
After this enforced waiting period, it is usually not necessary to take a new driving test. However, the driving license authority orders the driver to undergo an MPU. § 13 FeV (Driving License Ordinance) determines in which cases a medical-psychological expert opinion must be requested. This is the case if
- signs of alcohol abuse there are or otherwise facts justifying the assumption of alcohol abuse (alcohol dependence is not required),
- man repeatedly through Offenses in road traffic under the influence of alcohol attracts attention,
- a Blood alcohol concentration of 1.6 per mille or more or a breath alcohol concentration of 0.8 mg/l or more was determined,
- the driver’s license was revoked for one of the first three reasons mentioned, or
- otherwise it must be clarified whether alcohol abuse or alcohol dependence no longer exists.
If the person concerned refuses to undergo a medical examination or does not provide the driving license authority with the expert opinion requested by the authority in due time, the authority is entitled to conclude in its decision that the person concerned is not fit to drive.
The Federal Administrative Court has ruled in its decision of 17. March 2021 ruled that even in the case of a a single drunk driving offence with a high blood alcohol concentration and the absence of signs of failure a medical-psychological expert opinion must be provided. Otherwise it can be concluded that the person is not fit to drive.
In the case of persons who have achieved a high alcohol habit due to their drinking behavior, there is not only an increased risk of recidivism, but also the risk that the effects of alcohol consumption on driving safety can no longer be realistically assessed. According to current scientific findings, an exceptional alcohol habit can be assumed if the person concerned did not show any alcohol-related signs of failure at a blood alcohol concentration of at least 1.1 per mille.
2. How to prevent the driving license revocation?
If one is convicted, the driver’s license is invalid from that moment onwards. The document is either confiscated or invalidated if the police have not already confiscated it during the fatal alcohol test.
In the best case, however, it is possible – with the help of a good criminal defense lawyer – to avoid being convicted at all. If one has behaved cooperatively during the police check, but has not made any statements about one’s own alcohol consumption, it is often possible to prove errors in the blood test (z.B. lack of a court order, no proof of the time interval between the last alcoholic drink and the blood test) and to successfully challenge this at the hearing.
It is also more difficult, but not impossible, to appeal against the conviction before the sentence becomes final. Here it is possible to change legal counsel if one did not feel well represented in the first instance.
3. MPU ordered – can you still avoid it now?
If the letter asking you to submit an MPU report is already in your mailbox, it will be difficult to avoid the MPU now.
First of all, one should in any case make use of one’s own claim, inspection of records to get into all the documents that the authority will send to the MPU assessor. The court’s rationale for the decision to revoke the driver’s license and impose a suspension period is particularly important. It is the basis on which an assessor will later work.
Unfortunately, there is nothing you can do about the order itself. As the Federal Administrative Court sees it, the letter is only preparatory and does not contain a regulation that you can attack on your own – after all, you can also decide not to "voluntarily" undergo the MPU and give up your driver’s license.
However, you can defend yourself if the authorities have already revoked or suspended your driving license. has failed in their recovery. So if you want to avoid the MPU at all costs, you can wait until the deadline of the authority has passed and collect a negative notice. If so, it is possible to prevent this decision from taking immediate legal effect by means of summary proceedings in court. In addition, an appeal must be filed within one month of receipt of the decision. File a lawsuit in the administrative court. Such procedures can z.B. Be successful if the driver’s license office has made formal errors in ordering the MPU or has incorrectly assessed the underlying facts. A specialized lawyer for traffic law knows these "loopholes" and can advise on this individually.
4. How to prepare for the MPU and pass it
If such measures are unsuccessful, there is no way around the MPU. Then you have to go to a recognized "assessment center for driving suitability" yourself to order the MPU – for example the TuV. The MPU itself then consists – as the name suggests – of a medical and a psychological examination section.
In the medical part of the MPU the body is examined – for example blood is taken if alcohol dependence is suspected. In addition, the expert asks the affected person about his consumption behavior. In addition, the authority may require additional proof that you are participating in a so-called. ETG program participated and regular Evidence of abstinence has yielded. Naturally it takes time to complete such a program. Therefore, one should inquire about this requirement before applying for reinstatement of the driver’s license.
In the psychological part one must first also undergo certain performance tests (e.g.B. Reaction performance, concentration, attention etc.). The evaluator then prepares a written prognosis, after one or more interviews, about whether he or she believes the individual’s future behavior will be positive enough to allow him or her to drive again. In doing so, it follows a predefined scheme, the "Assessment criteria for forming a judgment in medical-psychological driving aptitude diagnostics".
To prepare for this conversation, there are various commercial preparation courses, but their quality varies widely. More important than learning any answers by heart here is to, To seriously deal with what happened at that time. You must be able to show that you have analyzed and acknowledged the misconduct in detail. It is also important to be able to credibly describe how you have changed your own life. The motivation to change must come from within oneself and not have been driven by external circumstances. Finally, one must acknowledge that exceptional situations can happen again and again, and therefore have a realistic strategy ready to prevent oneself from making such a big mistake again.
5. What to do if you fail?
If one has "failed" despite all preparation, it may help to know that one is absolutely not alone with it. Many fail the first time to dispel the mistrust of the official psychologist. The most important thing in such a case: The expert opinion is very important for the person concerned, but not for the driver’s license office! One is not obligated to report the negative decision to the driver’s licensing authority and certainly should not do so, even when called upon to do so. And the assessment body is prohibited by the contract from sharing any information without consent.
There are Possibilities to fight against this expert opinion. One way is to sue the expert himself in a civil court on the grounds that he violated his contractual obligations and did not properly prepare the expert opinion. However, such lawsuits have prospects of success only in exceptional cases.
Another option is to go to the administrative court and challenge the appraisal itself. This can be helpful if the established assessment criteria have not been met. For example, the assessor must not base his assessment on a statistical probability of relapse in connection with alcohol, but must look at the individual situation of the person in question. However, for such a process you have to give the court a sog. Submit a superior opinion that shows that the first examiner was wrong. The "senior assessor" is then another first assessor.
If you do not manage to submit a positive report to the authorities in one of these ways, you will miss the official deadline and your application for a new license will be rejected. In case the authority has ordered an MPU in order to keep the driver’s license, it will revoke it after the deadline has expired. As already explained above, in exceptional cases you can go against it.
If one decides against a judicial procedure resp. If you are unsuccessful, you have to reapply to the driver’s license authority, wait for the MPU order and then repeat the test – until you are successful.
In summary, the following applies if you have lost your driver’s license due to drunk driving and would like to get it back despite an MPU order:
- The authorities usually require an MPU if you have been convicted of drunk driving, the ban period has elapsed and you have applied for a new driver’s license
- You cannot appeal against the order to undergo an MPU – you can only go to court when the "rag" is gone
- To prepare for the MPU, you should seriously consider what happened at the time, be able to justify why it could not happen again now and why you have decided to change your life
- If you fail the MPU: The result should not be communicated to the authorities!
7. Practical tips
If you have to repeat the MPU, it is important to look for a new expert who does not know the result or the content of the initial report. Then you have a decisive advantage: You know which points led to the negative decision the first time and you can focus on them to prepare for the next time. If you follow the recommendations of the first traffic psychologist, you have a good chance of success with the second one.