Nötigung in road traffic: what penalty tailgating and braking to obstruct carry

The statute names a range, not an outcome. Alongside the basic range of § 240 Abs. 1 StGB, § 240 Abs. 4 StGB provides for imprisonment of six months up to five years in particularly serious cases. The two standard examples the statute names there concern compelling a pregnant woman to terminate the pregnancy and the misuse of a position as a public official. By their wording they do not come into consideration for traffic matters.

For many of those affected the penalty is not the hardest consequence anyway; what stands alongside it is: a Fahrverbot (a ban on driving), the withdrawal of the Fahrerlaubnis (the legal permission to drive), entries in the Fahreignungsregister. More on that below.

The Straßenverkehrs-Ordnung requires constant care and mutual consideration (§ 1 Abs. 1 StVO) and prohibits harming, endangering or obstructing or inconveniencing others more than is unavoidable (§ 1 Abs. 2 StVO). The distance from the vehicle in front must as a rule be great enough for the driver to stop behind it even if it brakes suddenly; a driver in front may not brake hard without a compelling reason (§ 4 Abs. 1 StVO). Overtaking is governed by the rules of § 5 StVO.

Breaches of these provisions are in the first place Ordnungswidrigkeiten. § 49 Abs. 1 StVO says so expressly, among other things in number 1 for § 1 Abs. 2 StVO, in number 4 for the distance under § 4 StVO and in number 5 for overtaking under § 5 StVO. Sanctioning is governed by § 24 Abs. 1 StVG; in these cases an administrative fine of up to two thousand euros is possible (§ 24 Abs. 3 Nr. 5 StVG).

Whether the matter stays with administrative fine proceedings or whether criminal proceedings are conducted depends on how the Staatsanwaltschaft (the public prosecution office) assesses the incident, in particular the question of intent. That assessment rests on the case file, on the statements of the person making the report and, where they exist, on recordings. It is not settled once a report has been made.

Two terms must be kept apart. The Führerschein is the driving licence document, the Fahrerlaubnis the legal permission to drive. What is withdrawn is the Fahrerlaubnis.

Even while proceedings are still running, the judge can provisionally withdraw the Fahrerlaubnis where there are strong grounds for assuming that it will be withdrawn (§ 111a Abs. 1 Satz 1 StPO). At the end, the court withdraws the Fahrerlaubnis where it follows from the offence that the convicted person is unfit to drive motor vehicles (§ 69 Abs. 1 Satz 1 StGB). The Fahrerlaubnis lapses when the judgment becomes final (§ 69 Abs. 3 Satz 1 StGB), and the court sets a Sperre (a period during which no new Fahrerlaubnis may be granted) of six months up to five years (§ 69a Abs. 1 Satz 1 StGB).

One point about this is easily overlooked. § 69 Abs. 2 StGB contains a list of offences in which the offender is as a rule to be regarded as unfit. Named there are the endangering of road traffic under § 315c StGB (number 1), the prohibited motor vehicle race under § 315d StGB (number 1a), driving while intoxicated under § 316 StGB (number 2), leaving the scene of an accident without permission under § 142 StGB on the conditions named there (number 3) and full intoxication under § 323a StGB in so far as it relates to one of these offences (number 4). Nötigung under § 240 StGB and dangerous interference under § 315b StGB are not in this list. That does not mean that the Fahrerlaubnis is out of danger there, because § 69 Abs. 1 Satz 1 StGB applies irrespective of the list. It means that the standard presumption does not operate and that the court must establish the unfitness from the offence itself.

Where the Fahrerlaubnis remains, a Fahrverbot of one month up to six months comes into consideration (§ 44 Abs. 1 Satz 1 StGB).

From what distance onwards is tailgating Nötigung? The statute names no distance. § 4 Abs. 1 StVO requires a distance that allows the driver to stop even if the vehicle in front brakes suddenly. Whether conduct beyond that is to be assessed as Nötigung is governed by § 240 Abs. 1 StGB and by the weighing under § 240 Abs. 2 StGB.

Is flashing the headlights punishable? The statute does not name flashing the headlights as a criminal offence of its own. § 5 Abs. 5 StVO permits, outside built-up areas, announcing an overtaking manoeuvre by brief sound or light signals, and prohibits dazzling oncoming drivers while doing so. Whether flashing the headlights is in the individual case to be assessed as a threat of an appreciable harm is a question under § 240 StGB and cannot be answered in general terms.

I braked because somebody was tailgating me. Can that be held against me? That is possible. § 4 Abs. 1 Satz 2 StVO provides that a driver in front may not brake hard without a compelling reason. Depending on the course of events, § 240 StGB or § 315b StGB come into consideration. In such cases reports may be made on both sides; both sides are then Beschuldigte, that is, people against whom an investigation is being conducted.

Do I lose the Fahrerlaubnis after a conviction for Nötigung? The statute does not provide for anything automatic. § 240 StGB is not in the list of § 69 Abs. 2 StGB. Withdrawal presupposes that unfitness follows from the offence (§ 69 Abs. 1 Satz 1 StGB). Whether that is so is decided by the court.