Driving a vehicle without a driving license

In an attempt to answer most of the questions asked by people being investigated for the offense of driving a vehicle without a driving license, the following is a brief analysis of the criminalization in the current legislation.

Thus, in Title VII, Chapter II of the Criminal Code, the legal text of Article 335 incriminates the offense of driving a vehicle without a driving license, which is part of the group of offenses against traffic safety on public roads.

Specifically, the provisions of Article 335 provide as follows:

(1) Driving a motor vehicle or a tram on public roads by a person who does not have a driving license shall be punishable by imprisonment for a term of one to five years.

(2) The driving on public roads of a vehicle for which the law provides for the obligation to hold a driving license by a person whose driving license is not appropriate for the category or subcategory of which the vehicle in question is part or whose license has been withdrawn or canceled or whose right to drive has been suspended or who is not entitled to drive motor vehicles in Romania shall be punishable by imprisonment of 6 months to 3 years or a fine.

(3) The same penalty shall be imposed on a person who entrusts a vehicle for which the law provides for the obligation to hold a driving license for driving on public roads to a person whom he knows to be in one of the situations referred to in paragraph 1. (1) or paragraph (2). (2) or under the influence of alcohol or psychoactive substances.

Preliminarily, it should be noted that the provisions under consideration cannot be dissociated from the rules contained in Emergency Ordinance No 195/2002 on traffic on public roads, as subsequently amended and supplemented, which constitutes the framework regulation on traffic on public roads. We, therefore, emphasize that the terms ‘motor vehicle’, ‘public road’, and ‘vehicle’ mean the following:

• motor vehicle – any power-driven vehicle normally used for the carriage of persons or goods on the road or for towing, on the road, vehicles used for the carriage of persons or goods. Vehicles running on rails called trams and agricultural or forestry tractors are not considered motor vehicles. Trolleybuses are considered to be motor vehicles;

• public road – any land communication route, except railways, specially laid out for pedestrian or road traffic, open to public traffic; roads which are closed to public traffic are marked at the entrance with visible signs;

• vehicle – a mechanical system moving on the road, with or without means of self-propulsion, normally used for the carriage of persons and/or goods or for the performance of services or works.

Therefore, for the act to constitute a criminal offense, in any of the variants incriminated, it is also necessary to meet the conditions listed above, as appropriate.

Returning to this point, the text of the incriminating provisions of Article 335 of the Criminal Code has as its legal object social relations relating to traffic safety on public roads. It includes in its content three ways of committing the offense, namely:

The first way of committing the offense involves an act of driving committed by a person who does not have a driving license, i.e. that the act of driving the motor vehicle or tram is carried out on a public road. In practice, this is the simplest way of committing the offense and the most common in legal practice.

The second way of committing the offense is by driving on public roads a vehicle for which the law requires a driving license to be held by a person in one of the following situations:

• holds a driving license which is not appropriate for the category or subcategory to which the vehicle belongs;
• who had her driving license revoked;
• whose driver’s license was revoked;
• whose right to drive has been suspended;
• who is not entitled to drive a motor vehicle on the territory of Romania.

It should be noted that the penalty limits for committing the offense in one of the ways listed above are lower, i.e., from 6 months to 3 years or a fine.

Concerning this method of committing the offense, we would point out that the Supreme Court recently handed down a ruling of interest to drivers who do not hold a driving license issued by the competent authorities in Romania but who have a provisional driving license issued by the competent authority in the UK.

Thus, by Decision, No 78/2022, the High Court of Cassation and Justice – Criminal Matters Division established that, under Romanian law, driving a vehicle on public roads by a person holding a valid provisional driving license issued by the competent authority in the United Kingdom (“Provisional Driving Licence”) constitutes the offense of driving a vehicle without a driving license provided for in Article 335(1) of the Criminal Code. (2) of the Criminal Code, where the person is not entitled to drive a motor vehicle in Romania.

At the same time, we specify persons in the situations covered by para. (2) of art. 335 of the Criminal Code, their driving license or the proof of its replacement, as the case may be, shall be withheld. If the driving license is withheld, they are issued a replacement license without the right to drive.

Last but not least, the pronouncement of a final judgment of conviction for the commission of the offense referred to in Article 335 para. (2) of the Criminal Code leads to the cancellation of the driving license issued by the Romanian authority.

The last way of committing the offense is to entrust a vehicle, for which the law requires a driving license, to be driven on public roads to a person in one of the following situations:

• do not have a driving license;
• has a driving license which is not appropriate for the category or subcategory to which the vehicle in question belongs, or whose license has been withdrawn or canceled, or whose right to drive has been suspended, or who is not entitled to drive a motor vehicle in Romania;
• is under the influence of alcohol or psychoactive substances.

Concerning this hypothesis, it is essential to point out that the entrustment must relate to the handing over of the vehicle and the giving consent to drive it. In other words, the agent must be aware that the transfer of the vehicle will result in its being driven on public roads by a person in one of the abovementioned situations.

At the same time, it is necessary to clarify the way of entrusting a vehicle, for which the law provides for the obligation to hold a driving license, to be driven on public roads, to a person who is under the influence of alcohol.

Thus, in addition to the conditions listed above, we specify that following Decision No 14/2020 of the High Court of Cassation and Justice, for the offense to be held in the custody modality, the person to whom the vehicle is entrusted must have a blood alcohol level of more than 0.80 g/l of pure alcohol.

In other words, if a person entrusts a vehicle to be driven on public roads to a person who is under the influence of alcohol, and the latter has biological blood samples taken with a result of less than 0.80 g/l pure blood alcohol, the person who entrusted the vehicle will not be criminally liable.

What should be noted in relation to the three modes of commission is that the offense provided for in Article 335 is always committed with intent. This means that if the act is committed with intent, the conditions for the violation are not met.

Bogdan, D. A. Serban, G. Zlati, The New Penal Code. Special Part. Analyses, explanations, comments. Perspectiva clujeană, Ed. Universul Juridic, Bucharest, 2014, p. 599.