Tersedia versi daring: http://jhp.ui.ac.id
DOI: http://dx.doi.org/10.21143/jhp.vol47.no3.1549 CRIMINAL LIABILITY OF DRUNKEN AND RECKLESS DRIVERS (A
RESEARCH CONDUCTED IN PADANG POLICE STATION)
Nilma Suryani*
* Lecturer in Faculty of Law, Andalas University Korespondensi: nilmasuryani@gmail.com
Naskah dikirim: 10 Februari 2017 Naskah diterima untuk diterbitkan: 7 Juni 2017
Abstract
Based on the wording of Article 310 UULLAJ against reckless drivers and drunken drivers can be held accountable criminal, because their negligence that causes of traffic accidents. If convicted, the accident case will be forwarded to the court. From January to September 2013 there were 33 cases of accidents handled by the traffic police investigator; 3 cases that went to trial for causing the death of the victim with the respective penalty of 3 years in prison, while 13 people were injured weight and 35 minor injuries. For the case of violation of traffic police conducted a raid well together with the Department of Transportation Padang do travic evidence either in place or in the courts speeding ticket there are 2500 cases of traffic tickets. But unfortunately this is not a deterrent because the driver ticketed only about IDR 100.000.00- IDR 250.000,00 should be above IDR 1.000.000,00 so the driver deterrent because it is very expensive. If only IDR 100,000,00 later they repeated because it is too cheap.
Keyword:criminal liability, inconsiderate, drivers and liquors
Abstrak
Berdasarkan Pasal 310 UULLAJ terhadap pengemudi sembrono dan minuman keras dapat dikenai pertanggungjawaban pidana, karena kelalaiaannya penyebab kecelakaan lalu lintas. Jika terbukti bersalah, kasus kecelakaan tersebut akan diteruskan ke pengadilan. Dari bulan Januari sampai September 2013 ada 33 kasus kecelakaan yang ditangani oleh penyidik polisi lalu lintas yaitu; 3 kasus yang diadili karena menyebabkan korban meninggal dengan hukuman masing-masing 3 tahun penjara, sedangkan 13 orang luka berat dan 35 luka ringan. Untuk kasus pelanggaran polisi lalu lintas dilakukan razia bersama dengan Dinas Perhubungan Padang memang ada bukti baik di tempat kejadian atau di pengadilan. Oleh sebab itu, perlu adanya pertanggungjawaban pidana terhadap pengemudi yang terbukti meminum minuman keras.
I. Introduction
Indonesia as a developing country continues to improve itself both in terms of physical development of various facilities and infrastructure, and non-physical human intellectual preparing to fullfill the development. Development and modernization are an activity that is done on purpose to bring the people to the changes planned or desired. Within the scope of the development, development is a social planned changing; legal development has become a necessity that can not be circumvented. Even economic planning is an aspect that stood out; economic planning wants the legal framework to be relied on to support the effort being made for building society in terms of both physical and spiritual.
Development is done by the Indonesian government in all fields including the development in transportation. Development of facilities like good roads and transportation are propagated widened. On the one hand the development of the transport sector is very beneficial because it helps people to move to another place. On the other hand the development of transportation is not matched by the development of public awareness about the importance of road safety. Moreover, public vehicle drivers are often reckless for pursuing payment without taking into account the safety and comfort of passengers.
The increasing number of deaths from reckless drivers and drivers who drank alcohol have been very disturbing for society. As a result, there is a lot of traffic accident that occurr; it can be minor injuries, severe, even often die on the spot. There is an evidence for this. Traffic accidents happen every year; it was found that 2,500 cases of victims die. So far, people assume that the accident is a commongthing. Actually, the accident could have been avoided if the driver keeps the rules of society and the traffic.
in driving. But the driver ignored it because he was drunk. The drunk driver almost hit the motorcycle and all passengers were terrified.
It is important to understand the traffic rules so that security and safety in traffic can be maintained so that the people or pedestrians, as well as the driver, avoid the traffic criminal offenses. As stated in the Preamble of Law No. 22 of 2009 on Traffic and Transportation (LLAJ Law) says that Traffic and road transport has a strategic role in supporting the development and national integration as part of efforts to promote public welfare as mandated by the 1945 Constitution. Therefore it is clear that to carry out the order, smoothness and safety of traffic, support from the legal professionals and the public are needed. As a result, the inherent right of motorists and road transport service users and others who get caught can be protected to develop the economy and regional development better. Traffic order road users rely heavily on the level of public awareness. Moreover, security is related to the collective safety of road users themselves. In Article 1, point 32 LLAJ Act states that Traffic order and road freight traffic is a condition that takes place on a regular basis in accordance with the rights and obligations of each road users. Meanwhile, Article 1 point 30 and Article 1 point 31 states:
Article 1 point 30
Traffic safety and road transport is a state of liberation for everyone, things and vehicle from interference or fear in traffic
Article 1 point 31
Traffic safety and road transport is a state taking away everyone for the risk of traffic accidents caused by humans, vehicles and or the environment
Since the driver's reckless and drinking that lead to accidents either injury or loss of life of other people and there has been no decisive action from law enforcement officials, especially the Traffic Police, is very disturbing, we are interested in doing research for the driver inconsiderate and who drank liquor is legally accountable actions (criminal) entitled:
II. Criminal Liability of Drunk Public Transport Drivers and
Inconsidertae Jurisdiction of Police Resort City of Padang
The formulation of the problem are as follows:
a. How is the criminal responsibility of public transport drivers who drank liquor and inconsiderate under LLAJ laws ?
b. What was done by the Traffic Police investigators and the Department
III. REVIEW OF RELATED LITERATURE
Criminal accountability cannot be separated from criminal deed or action. According to Moelyatno, criminal deed is an action prohibited by a rule of law in which that prohibition was accompanied by threats or sanctions in the form of specific criminal for anyone who violates the prohibition. Any person who commits a criminal offence does not in itself are convicted. Accountability is emerged by the objective of denunciation of the criminal offence and by the subjective to someone who qualifies for criminal sentenced because of his acts. The definition of ‘offense’ in psychology is only viewed as a psychological relationship (inner) between the doer and his deed. The inner relationship can be a deliberate action or forgetfulness (negligence). Besides, there must be ability of taking responsible and there is no excuse for offense eradication.
It goes the same in terms of traffic matter. The requirement is either deliberate or fault element of negligence causing others injured or died. Specifically, an accident, that both occured because of the driver that inconsiderate and hangover, they have gotten the error element i.e. deliberately drank the drinks which is clearly prohibited by the law, as well as take high speed (inconsiderate) where they are aware of such a feat is prohibited and is liable to be punished if they break them. Traffic police on duty on the road can do a good job as stated in Article 13 of The Law No.2 in 2002 on the Police which reads:
Principal duty of State police of the Republic of Indonesia are: a) Maintaining the security and discipline of the society b) Enforcing the law
c) Providing protection, shelter and conducting society services
Indonesian Police is the government officials who play a role in maintaining security and regulation of the society, upholding the law and providing protection, shelter and service to the society in the framework of the rights of security in the country. The order of the organization and the work method of arrangement of Republic Indonesia State police tailored to the interests of the execution of duties and authorities are regulated more by presidential decree. For the purposes of supervision, arrangement and orderliness of traffic, thus, trafic police or what is called as “Polantas” is then formed.
Uniformity and security in the society will be preserved if every members of the society obey the rules that exist in that society. The rules of life in the societies are known as the law. Law means by which weaves elements of all the other tied (as the subject of law enforcement and society as an object) are integral. That is why the government makes rules of law, one of which is criminal law as a tool of creation of the security and orderliness for society.
by the convicted person upon the lives of freedom and wealth after he committed an offense.
While according to Sudarto, the criminal is sufferings which is deliberately beared to the person doing the deed that meets certain conditions.
Then, according to Sudarto, the term ‘condemnation’ is a synonym of ‘sentencing’. Sudarto said that the word ‘sentencing’ originates from a base ‘sentence’. Thus, it can be defined as determining the penalty or deciding what punishment that is appropriate to be taken. Setting the law for an event does not only deal with the field of criminal law but also civil law. Therefore this paper centers on criminal law, resulting such term to be narrowed, that is the punishment on criminal cases, which are often synonymous with condemnation or giving overthrow of the criminal by the judges1.
According to the Indonesian Criminal Code, Chapter II Article 10, the followings are the types of criminal:
I. Basic primary crime 1. Deadly crime 2. Imprisonment 3. Confinement crime 4. Fines
II. Additional crime
1. Revocation of certain rights, 2. Deprivation of certain items,
3. The announcement of the judge’s verdict.
The purpose of criminal law is to protect the public and fulfill the sense of justice. Therefore the criminal law is the law of the sanctions charaterized by torture or suffering, and the way to achieve the goal of criminal law against a person who has committed a criminal offence, which can only be done by the state or nation. This matter is supported by ‘criminalize theories’ that are divided into two main groups, namely:
1. The group that views a basic justification is made of the deed that has been done (backward looking) or looking back, or because there is a crime then there is a criminal.
2. The group that viewsthe basis of justificatory criminal as to benefits which can be obtained from the overthrow of the criminal (forward looking) or looking forward with the purpose of criminalization.
For those reasons, the driver who drink liquor and commit inconsiderate action that violates the Criminal Code (KUHP) and the Statute of
LLAJ, while they have an offense, deliberately drinking alcoholic beverages and conducting inconsiderate acts, thus leading to accidents resulting in injury and loss of life of others should take responsibility of it. Traffic police as investigators must investigate such cases so that the driver get deterred and do not repeat it the same action.
IV. Discussion
a. The accountability of criminal of public transportation driver, drinking liquor and commiting improper conducts, based on Indonesian Constitution or just statutes or laws.
Issues on awareness in traffic is very common to arise in developing
countries as well as big cities. Society’s understanding of discipline in road
traffic is very low. It happens due to the increasing number of people are also enlarging their activity, causing density in highways. This matter triggers numerous problems in traffic. For example, there is an increase in traffic jam and accident in metropolis. To some extent, it influences the beauty of a city for the state of being of the vehicles and public transportation gives few impacts toward the city’s view. In this case, citizen is one of the factors effectively contributing to obey the rules. However, their obedience in riding motorcycle has not been seen yet. In fact, if it is done well, will bring helpful effect to the traffic itself and comfortability of the road users. The phenomenon has been proven based on data of the number of motorcycle accidents occured in Indonesia in 2011. There are 109.038 cases in 2011 and 109.776 in 2012. It obviously indicates that the quantity of traffic accident is steeply rised over years26.
Road is a public space that could be entered by anyone. There are various interaction happened between people in road. A number of fraud and deception might appear, emerging conflicts as a part of social interaction. Communication process taken place not only between the road users but to the surroundings as well. In using the road, riders are often ignoring the safety of other road users, which at times could threaten them.
In 2009, Indonesian national police force issues a new regulation, that is Constritution No. 22, 2009 about Traffic and Transportation. This constitution was established in Plenary Meeting of Indonesian House of Representatives on May 26, 2009, which was then legalized by the President of Republic of Indonesia on June 22, 2009. The background of this regulation establishment was an increasing number of everyday traffic accidents and lack consciousness to ride wisely. From the information on those crashes, it was found that most of the accidents is caused by public transportation drivers. There were many victims in the accidents. High number of accident is caused by great amount of violation. Suppressing the quantity of violation hopefully could reduce accident and in the other way, increase security in transportation. The new regulation and constitution hopefully also evoke deterrent effect for those who break the rules. Hence, they would not repeat the same misconduct.
According to Constitution No.22, 2009, Article 1, point (1) :
“Traffic and Transportation is a unity system comprises of traffic, transportation, traffic network, vehicles, drivers, road users, and their
administration”.
At this point, Traffic and Transportation is a base for society to follow the traffic regulation in driving and riding.
Within Constitution No.22, 2009, Article 1, point (8) :
“vehicle means every transportation moved by mechanical tools in the form of machine other than the ones operated in rail”.
This constitution considers that Traffic and Transportation have strategic role in supporting the national development and integration as an attempt to improve public safety.
Further, in the constitution body, it is elaborated that the objectives that are going to be reached in the constitution are:
1. To realize a safe, secure, smooth, and orderly traffic and transportation in relation to other type of transportation in encouraging national economic matters, advancing public welfare, strengthening national
unity and association, as well as to uphold the country’s dignity. 2. To realize a traffic ethos and culture of nation
3. Maintaining law and law assurance for society
Accident can be happened because of various factors. Nevertheless, the primary factor is the recklessness of the driver. For instances, operating handphone during driving or riding, breaking the traffic signs, committing improper actions, drinking liquor, etc.
As revealed in Article 310, Constitution No.22, 2009:
(1) Each person’s driving or riding vehicle, in which because of his recklessness causing traffic accident with vehicle damage and/or property as what is mentioned in Article 229, section (2), is imprisoned for 6 months at most and/or charged fine up to one million rupiah. (2) Each person’s driving or riding vehicle, in which because of his
recklessness causing traffic accident and victims with minor injury, as well as vehicle damage and/or property as what is mentioned in Article 229, section (3), is imprisoned for one year at most and/or charged fine up to two million rupiah.
(3) Each person’s driving or riding vehicle, in which because of his recklessness causing traffic accident and victims with major injury as what is mentioned in Article 229, section (4), is imprisoned for five year at most and/or charged fine up to ten million rupiah.
(4) In accident as it is mentioned in section (3) causing death, is imprisoned for 6 years at most and/or charged fine up to twelve million rupiah. On the basis of the Article 310 UULLAJ towards reklessness driver and drink-liquor who could be asked for their criminal responsibility, which because of their carelessness engendering traffic accident, Padang County Police investigator therefore conducts investigation and scrutiny based on Criminal Code Procedure (KUHAP) regulation. If proven in triggering crush, furthermore, the case would be proceed to into the court. As a matter of fact, there were 33 accident cases from January until September 2013, which was handled by traffic police. Three of the criminals progressed to the judicial
in prison. As for traffic trespassing, traffic police managed to do an inspection together in cooperation with Department of Transportation of Padang. As a result, there were 2500 citation cases at that time. Unfortunately, most of the drivers are not deterred, probably because the citation costs merely around one hundred thousands rupiah or two hundred and fifty thousands rupiah. The charge should be increased over one million rupiah in order to give deterrent effect to people.173
2. Attempts of traffic police investigator area of Padang and Department of Transportation toward reckless drivers and liquors
Traffic police is deemed as an executor having a duty to guard, arrange, protect and do the patrol, educate society and implement traffic, register, as well as to identify driver or vehicle, investigate traffic accidents, and uphold the law, in order to sustain security, discipline, and smoothness of transportation. Moreover, service (in term of traffic service) to society is also
operated for enhancing people’s quality of life, because in modern society,
traffic is the main factor supporting citizens productivity. Troubles in traffic is just one tiny example that somehow impede or even stop the productivity of society. Thus, traffic police has similar visions and missions to Indonesian national police force, in the future.
Traffic situation nowadays, especially in big cities, is filled by high mobility people, where growth of vehicle is tremendous, but it is not equaled to the increasing number of road facility and infrastructure, not to mention people deficient consciousness of law, are the root of unsafe, unsmooth, and disorderly traffic. Those problems are undoubtedly made to happen by human or people.
Indonesian national police force has done their best to continuously getting better through preventive activities such as guarding, adjustment, patrol, and accomplishing socialization about traffic understanding, as well as operating events in attempt to retain the law in form of giving sentences to the traffic offenders with the intention to elicit deterrent effect. In spite of those efforts, the results do not seem adequate to provide significant contribution in order to promote and create a safe, organized, and smooth traffic (KamtibcarLantas).184
The total of traffic police personnel in County police in Padang are 146 people, 3 citation staff, 80 traffic police who have duty to work in the street, which consist of: Controller A in traffic police command post, started from 07.00 am – 03.00 pm, Controller B begins at 03.00 pm – 09.00 pm, and Motor Brigadir Controller, who has responsibility to watch for the cars and motorcycle in the street. Next, Controller A works along primary roads started from Jalan Bagindo Azis Chan until Khatib Sulaiman, Jalan Pemuda –
17 Based on an interview with AiptuIrwan, the head of Sub Unit I Traffic police investigator, County Police (Polresta), Padang, on Thursday, 17 October 2013, at 13.30 WIB
S.Parman, and Jalan Perintis Kemerdekaan. Other roads and streets are in control of Police Sector territory of jurisdiction. Within territory of jurisdiction of County police, traffic police have done action based on the law in facing the reckless drivers by means of giving citation. There were 2500 citation cases began from January until September 2003, but in fact, public transportation drivers headed to Pasar Raya Siteba-Jati, Pasar Raya-Kampus Unand Limau Manis, remain conducting improper behaviour in driving, even an inspector who deliberately uses the public transportation directed to Pasar Raya-Kampus Unand Limau Manih, has twice encountered drunk drivers and drink liquor during driving with two friends. Unluckily, this bad action has currently found by traffic police investigator from the inspector. During this time, the police
did not know about the drivers’ action in drinking liquor while driving. They only know about the reckless thing. From 33 accident cases from January until September 2013, three of the criminals progressed to the judicial process due to
victims’ death. In addition, there were 13 people heavily injured and other 35 were lightly wounded. Each of the criminal got 3 years detention in prison. Usually, the reckless drivers are not the main driver, but the subtitute drivers who are typically involving teenagers. The fact that the drivers are often changed make the police difficult to advice everytime they get citated. The main driver, subtitute drivers, and the owner of the mini-bus should be reminded about traffic regulations. Besides, they also have to warn each other, because they have to pursue the daily payment and get the money for living. That is why they tend to drive fast in order to get much money, and even fight over passenger with other driver.195
Department of Transportation as a nation institute whose responsibility is to manage public transportation, especially Department of Transportation in Padang, often receive reports from citizens about that irresponsible driver who even drops the passenger before they arrive at their destination. The probable reason for this is that the drivers want to go home or there is a possibility of lots of passengers in another place. Consequently, a lone passenger is frequently dropped before his destination. In order to cope this problem, every year is held what is called as AKUT (Awak Angkutan Umum Teladan). It is an annual program completed to give such an award to good drivers. Hopefully through this event, socialization about traffic regulations and encouragement to obey them would be easier, resulting safety in driving. It is the system of daily or monthly disbursement that causes the drivers drives fast and reckless. This system is then altered by Padang Department of Transportation by providing
Trans Padang, where the drivers are employed so that they will not have quarrel with others to get passengers. The owner of the transportation is as well reminded everytime they administer their Motor Vehicle Inspection, to retell their drivers to obey the traffic regulation. In case that the owner simply ignore the advice, the process of Motor Vehicle Inspection would be postponed.
Department of Transportation shall also socialize about the importance of abiding rules throughout advertising boards with the purpose to remind both those who drives public transportation or private cars and motorcycles. The police will also conduct inspection together with traffic police to temporary dispossess the driver or rider license and study what kind of violation that has been done.20
It is such an unfortunate to witness the reality in the field. The traffic police must be in the command post according to working hours they have been asked to. But then again, the police only be there in certain hours. It is a must for the traffic police to be in the command post so that drivers would not drive recklessly.
V. Conclusions and Suggestions
A. Conclusions
1. The accountability of criminal of public transportation driver, drinking liquor and commiting improper conducts, based on Constitution.
In 2009, Indonesian national police force issues a new regulation, that is Constritution No. 22, 2009 about Traffic and Transportation. This constitution was established in Plenary Meeting of Indonesian House of Representatives on May 26 in 2009, which was then legalized by the President of Republic of Indonesia on June 22 at the same year. The background of this regulation establishment was an increasing number of everyday traffic accidents and lack consciousness to ride wisely. From the information on those crashes, it was found that most of the accidents is caused by public transportation drivers. There were many victims in the accidents. High number of accident is caused by great amount of violation. Suppressing the quantity of violation hopefully could reduce accident and in the other way, increase security in transportation. The new regulation and constitution hopefully also evoke deterrent effect for those who break the rules. Hence, they would not repeat the same misconduct.
As regulated in Article 310, Constitution No.22, 2009, about reckless driver and drink-liquor who could be asked for their accountability in which because of his recklessness causing death would be imprisoned for 6 years and charged fine as twelve million rupiah (Section 4), if he causes major injury, he would get imprisoned for 5 years and/or charged fine about ten million rupiah (Section 3). Then, if the offender causes minor injury and vehicle damage, he would be imprisoned for a year and/or charged fine up to two million rupiah (Section 2). Lastly, offender causing damage only to the vehicle would be jailed for 6 months and/or charged fine one million rupiah (Section 1).
2. The attempts of traffic police investigator Padang area and
Department of Transportation toward reckless drivers and drink-liquor are:
identify driver or vehicle, investigate traffic accidents, and uphold the law, in order to sustain security, discipline, and smoothness of transportation. In order to uphold the law towards reckless driver, citation inspection is conducted in collaboration with Department of Transportation. As for traffic accident, the traffic police execute investigation and scrutiny. If someone is proved to drive or ride irresponsibly and causing traffic accident, then the case would be proceed to the court trial. In point of fact, there were 33 accident cases in 2013, causing death to people. Three of the criminals progressed to the judicial
process due to victims’ death. In addition, there were 13 people heavily injured and other 35 were lightly wounded. Each of the criminal (public transportation drivers) got 3 years sentence in prison.
Further, in attempt to solve the problems mentioned above about reckless driver, Department of Transportation creates an event called AKUT
(Awak Angkutan Umum Teladan). It is an annual program completed by gathering all drivers and giving such an award (cash) to good drivers who could be a model for others in terms of his behaviour in driving. Hopefully through this event, socialization about traffic regulations and encouragement to obey them would be easier, resulting safety in driving. Moreover, public transportation owners are also given such a Supervision Card, while everytime they do Motor Vehicle Inspection, they will be given guidance to always remind their drivers for abiding traffic regulations. Aiming at solving the problems, Department of Transportation operates Trans Padang, where the drivers are employed so that they will not have quarrel with others to get passengers or driving wildly to pay off the rent or deposit to their boss. Hence, with this new system, discipline and safety in roads could be realized. There may be no lifes taken and no damage oocured.
B. Suggestions
1. Traffic police investigator Polresta Padang has already been trying to do tasks on the road, but it hasn't been maximum yet because the official officers propotion are only 80 people. Then there is large number of drivers which are not deterrent in doing inconsiderate actions. Even more, traffic police have just recently known that there are public transport drivers who drink liquor while driving public transportation and it is very dangerous to the safety of the passengers and other road users. It is hoped that this research can help the police officers to work optimally, run the task on the road, and be in the command post during the hours of service. This activity may help the drivers to get the feeling of insecure for inconsiderate and drink-liquor behaviour so that comfort and orderliness traffic can be achieved.
Assembly at provincial of Padang is expected to re-review the regulation of the speeding tickets with heavier penalties so that the drivers get
deterrent effect. In addition, Trans Padangaccomodation and
accomplishment ought to be accelerated because in this new model of
