You’ve just committed a traffic violation and want to know what’s ahead.
Before contacting a Lawyer Paul Napoli, here are some free information that will guide you…
When an offense is committed, two parallel proceedings are opened: an administrative procedure and a criminal procedure.
Both procedures are theoretically independent of each other. However, they are closely linked because they are both based on the same police report.
The police of the canton in which the offense took place will draw up a report which it will transmit to the Public Prosecutor’s Office to decide on the guilt and the sentence.
In order to determine who is the person who committed the offense, especially in case of speeding, the police will send a notice to the keeper as well as a personal and financial situation sheet. The notice to the cardholder is used to determine whether the vehicle owner was the driver at the time of the offense. The personal and financial situation sheet allows the public prosecutor to collect the financial information necessary for the imposition of a financial penalty, the amount of the day-fine being linked to the income of the offending person.
The public prosecutor will then either make a penal order, if he considers that the person is guilty of a criminal offense, or refer the case to a court (a rarer case) in the case of a serious offense.
Procedures are often automated and the public prosecutor’s office follows very few directives, especially with regard to drunk driving and speeding.
The penal order
The penal order is pronounced by the Public Ministry.
It can not be pronounced when the public prosecutor considers penalties of more than 180 days-fine, 720 of general interest work or 6 months of custodial sentence.
The penal order is a kind of proposal for a decision, which becomes final when the defendant does not oppose it.
The opposition must be filed within 10 days of notification of the penal order.
It must be addressed to the authority that issued the decision, ie to the Public Prosecutor’s Office or the Contraventions Department.
The public prosecutor then has three solutions:
- It cancels its order and makes a filing order or an order of non-entry;
- It cancels its order and makes a new penal order, against which a new opposition period will run as soon as the new penal order is notified;
- He maintains his order and makes an order against the opposition, against which no appeal is open, which he transmits to the Police Court. The opposition order serves as an indictment.
Parallel to the criminal procedure, an administrative procedure will open.
It is common for the administrative procedure to open in a different canton from that in which the criminal proceedings are pending, which is a regular source of confusion. This is due to the fact that the administrative procedure is conducted in the canton of the person’s domicile, while the criminal proceedings are conducted by the public prosecutor of the canton in which the offense was committed.
The police will send their report to the administrative authority of the canton of the domicile of the person who committed the traffic offense.
The administrative authority will then send a letter to the offending person, announcing the measure that it intends to take (such as license withdrawal measure) and inviting him to decide within a certain time.
It is in this first letter that it is necessary to assert his professional need of the vehicle if necessary, as well as to explain the circumstances of the offense.
Administering authorities have very little room for maneuver when it comes to speeding or drinking and driving. The law contains minimums below which the administrative authority is not allowed to go. Therefore, even if you have a professional need for your vehicle, it will not be possible to obtain a withdrawal period lower than that recommended for the category of offense concerned. The professional need of the vehicle will simply encourage the administrative authority not to pronounce a longer withdrawal period.
The administrative authority will then pronounce its decision.
The remedies or opposition are always indicated at the end of the decision. In Geneva, it is possible to appeal against the decision within 30 days to the Administrative Court of first instance.