Many people are aware that drivers are prohibited from making phone calls or using mobile phones. However, one important point is often overlooked: Smoking while driving is also illegal and can result in fines or penalties.

Recently, the Shanghai First Intermediate People's Court concluded a case involving administrative penalties for a driver smoking inside a vehicle, upholding the decision made by a local traffic police detachment in Shanghai City (hereinafter referred to as the "Detachment").

[Case Review]

On September 20, 2023, Mr. Wang was stopped by traffic police for smoking while driving a car. The police officer informed him that smoking while driving constituted an offence that undermines safe driving, and imposed a fine of CNY 200. Although surprised, Mr. Wang signed the penalty notice. Upon returning home, he consulted online the Law of the People's Republic of China on Road Traffic Safety (hereinafter referred to as the "Road Traffic Safety Law") and found no explicit prohibition against smoking while driving. Consequently, he applied for administrative reconsideration with the Jinshan District government, which upheld the initial penalty after reviewing the case. Dissatisfied, Mr. Wang filed an administrative lawsuit with the Minhang District People's Court in Shanghai, seeking to overturn both the penalty and the reconsideration decision.

[Case Study]

The First Intermediate People's Court considered that, the smoke from smoking may impair a driver's visibility and distract attention to some extent, affecting vehicle control and the ability to respond to traffic emergencies, thereby compromising driving safety. In this context, the Detachment deemed that, Mr. Wang's actions as "other behaviors that obstruct safe driving", imposing a fine of CNY 200 on Mr. Wang pursuant to Article 90 of the Road Traffic Safety Law. The Court confirmed clear facts and correct application of laws, and dismissed Mr. Wang's request for claim.

Dissatisfied, Mr. Wang appealed to the Shanghai First Intermediate People's Court.

The Court, upon hearing the case, found that, the appellant, Mr. Wang, did not dispute the fact of smoking while driving but argued that it did not pose a hazard to safe driving. The Court deemed that drivers exhibiting 'distracted energy and diverted attention', which are essential feature of hazardous driving behavior, are prone to losing control of vehicles. Therefore, it is important to assess whether a behavior obstructs safe driving based on legislative intent of the traffic regulation. Smoking may divert a driver's attention and may blur his/her line of sight to some extent due to the smoke generated by a cigarette. Additionally, dropping a cigarette butt or ashes may lead to reflexive actions that compromise vehicle control. The risks associated with smoking while driving are comparable to, or even more severe than, behaviors such as making phone calls or browsing electronic devices. All these actions significantly hinder safe driving. Therefore, the Detachment's penalty decision against Mr. Wang, based on this legal provision, is lawful and appropriate.

As a result, the Shanghai First Intermediate People's Court denied Mr. Wang's request for appeal.

Paragraph 3 of Article 62 of the Regulations for the Implementation of the Law of the People's Republic of China on Road Traffic Safety (hereinafter referred to as the "Road Traffic Safety Implementation Regulations") stipulates that, drivers shall not commit unsafe driving behaviors such as making phone calls or watching television during driving. Drivers of motor vehicles who violate traffic safety laws and regulations may result in warnings or fines ranging from CNY 20 to CNY 200, as specified in Article 90 of the Road Traffic Safety Law by referring to [Relevant Provisions].

First, it is necessary to determine whether a specific act obstructs safe driving from the perspective of legislative intent. It is neither practical nor necessary for laws and regulations to enumerate every behavior that hinders safe driving, due to the complexity and variability of driving conditions. The examples of "making phone calls and watching television" mentioned in the Paragraph 3 of Article 62 of the Road Traffic Safety Implementation Regulations are not exhaustive. In addition to the explicitly listed scenarios, other actions that impair safe driving must also be prohibited, as indicated by the use of 'etc.' in the statute which includes additional, unspecified behaviors. 'Distracted attention and diverted focus' are intrinsic characteristics of actions that impede safe driving; therefore, albeit the absence of smoking while driving identified in the law, the aforesaid provisions apply to the acts that pose an equal or comparable risk to safe driving.

Second, drivers must strictly adhere to driving regulations and refrain from any actions that compromise driving safety. The legislative intent of the Road Traffic Safety Implementation is to enhance driving safety by prohibiting behaviors that compromise safe driving during operation. To ensure the safety of themselves, passengers, and other road users, drivers must rigorously follow safety guideline, exercise caution, and avoid any actions that may distract energy or divert attention.

Third, safe and civil driving is essential for maintaining a positive traffic environment and ensuring public travelling safety. Regulating driving behavior and elevating the safety standards for drivers not only protects passengers but also helps prevent traffic accidents, thereby safeguarding public safety and maintaining social order. Drivers shall avoid alcohol consumption, smoking, and distractions; driving in a courteous, safe manner is essential for a secure journey.

[Relevant Laws]

I. Regulations for the Implementation of the Law of the People's Republic of China on Road Traffic Safety

Article 62¡­

(3) Drivers of motor vehicles must not engage in behaviors such as using handheld phones or watching television that may comprise safe driving.

...

II. Administrative Procedure Law of the People's Republic of China

Article 69 If administrative actions are supported by conclusive evidence, applied in accordance with laws and regulations, and conducted following legal procedures, or if the plaintiff's request for the defendant to fulfill statutory duties is invalid, the people's court shall dismiss the plaintiff's claims.

Article 79 In cases where the reconsideration authority and the administrative organ that made the original administrative decision are co-defendants, the people's court shall rule on both the reconsideration decision and the original administrative action.

(Case prepared by: Yao Weihua from Shanghai First Intermediate People¡¯s Court)