Circular No. 23/2008/TT-BCA-C11 guiding the implementation of certain provisions of Decree No. 146/2007/NĐ-CP dated September 14, 2007 on administrative penalties for violations in the field of road traffic.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 146/2007/NĐ-CP dated September 14, 2007

On Administrative Sanctions for Violations in the Field of Road Traffic

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Based on the Administrative Offense Handling Law 2002; the Law Amending and Supplementing Certain Provisions of the Administrative Offense Handling Law;

Based on Decree No. 146/2007/NĐ-CP dated September 14, 2007 on Administrative Sanctions for Violations in the Field of Road Traffic;

Based on Resolution No. 05/2008/NQ-CP dated February 4, 2008 of the Government's Regular Meeting in January 2008;

Based on Decree No. 136/2003/NĐ-CP dated November 14, 2003 on the Functions, Tasks, Authorities, and Organizational Structure of the Ministry of Public Security;

The Ministry of Public Security issues guidelines for implementing certain provisions of Decree No. 146/2007/NĐ-CP dated September 14, 2007 on Administrative Sanctions for Violations in the Field of Road Traffic as follows:

1. Suspension of the Right to Use a Driver’s License, Certificate of Traffic Law Knowledge Enhancement

a) The suspension of the right to use a driver’s license, certificate of traffic law knowledge enhancement (hereinafter referred to as the driver’s license) shall only be applied to persons who commit violations that must be subject to the suspension of the right to use a driver’s license for a period or indefinitely according to Decree No. 146/2007/NĐ-CP dated September 14, 2007 on Administrative Sanctions for Violations in the Field of Road Traffic (hereinafter referred to as Decree No. 146/2007/NĐ-CP).

The period of suspension of the right to use a driver’s license shall be calculated from the time the driver’s license is temporarily seized. In cases where a person simultaneously commits multiple violations, all of which are subject to the suspension of the right to use a driver’s license, the suspension shall only be applied to the violation with the longest specified suspension period.

b) If a person committing a violation is subject to the administrative sanction of suspending the right to use a driver’s license as stipulated in Decree No. 146/2007/NĐ-CP, but that person holds a lower-class driver’s license for the vehicle being driven or has less remaining usage time on the driver’s license than the suspension period, the decision to suspend the right to use the driver’s license shall still be issued.

For example, if a person with a Class B1 driver’s license drives a truck with a design load capacity over 3500 kg and commits a violation, the decision to suspend the right to use the Class B1 driver’s license shall still be issued; if the driver’s license has 30 days remaining usage time, but the suspension period is 60 days, the decision to suspend the right to use the driver’s license shall still be issued for 60 days.

2. Imposing Penalties on Motorcyclists and Motor Vehicle Riders Participating in Traffic While Wearing Helmets But Not Fastening Helmet Straps

Persons driving motorcycles or motor vehicles participating in traffic while wearing helmets but not fastening helmet straps shall be considered as not wearing helmets when participating in traffic and shall be subject to penalties as prescribed at Point g Clause 3 Article 9 of Decree No. 146/2007/NĐ-CP and Item 4 Resolution No. 05/2008/NQ-CP dated February 4, 2008 of the Government's Regular Meeting in January 2008; the penalty decision must clearly state the violation of wearing helmets without fastening helmet straps.

3. Imposing Penalties on the Act of Operating Vehicles with Incorrectly Sized Tires Installed; Arbitrarily Changing the Size of the Cargo Box

a) Vehicles with incorrectly sized tires installed are understood as those having one or more tires with sizes different from the tire size indicated in the technical design specifications of the manufacturer, vehicle registration certificate, and safety and environmental protection inspection book. Persons operating vehicles with incorrectly sized tires installed shall be subject to penalties as prescribed at Point d Clause 2 Article 19 of Decree No. 146/2007/NĐ-CP;

b) Arbitrarily changing the size of the cargo box is understood as altering the height of the cargo box compared to the original design dimensions of the manufacturer, vehicle registration certificate, and safety and environmental protection inspection book. Persons arbitrarily changing the size of the cargo box shall be subject to penalties as prescribed at Point e Clause 2 Article 19 of Decree No. 146/2007/NĐ-CP. If the modified cargo box dimensions are recorded in the safety and environmental protection inspection book but do not match the registration certificate, the person arbitrarily changing the cargo box size shall be penalized for failing to update the vehicle registration certificate upon modification (Point e Clause 4 Article 34 of Decree No. 146/2007/NĐ-CP).

4. Imposing Penalties on the Act of Operating Motorcycles and Motor Vehicles Without Carrying the Registration Certificate, Driver’s License (Points b, c Clause 2 Article 24 of Decree No. 146/2007/NĐ-CP); Operating Cars Without Carrying the Registration Certificate, Driver’s License, Safety and Environmental Protection Inspection Certificate (Point b Clause 3 Article 24 of Decree No. 146/2007/NĐ-CP)

At the time of inspection, if the operator claims to have the registration certificate, driver’s license, and safety and environmental protection inspection certificate (hereinafter referred to as certificates) but does not carry them, it shall be handled as follows:

a) In cases where the penalty is imposed through a simple procedure, a decision imposing the penalty for not carrying certificates shall be issued; if the violator fails to comply with the penalty decision but subsequently presents the certificates, the authority issuing the penalty decision shall revoke the penalty decision and issue a new decision imposing the penalty for not carrying certificates.

b) In cases where the penalty is imposed through a procedure involving the issuance of an administrative violation record and temporary detention of the violation objects, it shall be handled as follows:

- If the violation objects have been temporarily detained but not yet handed over to the responsible management authority and the violator subsequently presents the certificates, the administrative violation record shall be revoked; a new record regarding the failure to carry certificates shall be issued, and the temporarily detained objects shall be returned to the violator; a decision imposing the penalty for not carrying certificates shall be issued.

- If the contraband or means of transportation for administrative violations have been handed over to the responsible manager and no penalty decision has yet been issued, but the violator presents relevant documents, the law enforcement officer must report in writing to the authorized authority on the fact that the violator has presented such documents. Based on the case file of the administrative violation, the authorized authority shall issue a penalty decision regarding the act of not carrying documents. If a penalty decision has already been issued and the violator subsequently presents the documents, the authorized authority shall not change that penalty decision.

5. Imposing penalties on the act of the driver of a passenger car or a vehicle designed to carry people exceeding the number of persons specified (Clause 3 Article 27 Decree No. 146/2007/NĐ-CP).

The method of calculating the number of excess persons (X) to impose penalties according to Clause 3 Article 27 Decree No. 146/2007/NĐ-CP is as follows:

X = Total number of people on the vehicle at the time of inspection – (number of people or seats recorded on the vehicle registration certificate + additional number of people allowed for the type of vehicle without being subject to penalties).

Example: For a 45-seat vehicle, if it carries 49 people (exceeding 04 people), it will not be penalized; if it carries 54 people, the calculation of the number of excess people to impose penalties is as follows:

X = 54 people – (45 people + 04 people) = 05 people.

6. Suspending the circulation of vehicles violating administrative regulations (Clause 1 Article 49 Decree No. 146/2007/NĐ-CP).

a) For motorbikes or motorcycles that are means of transportation for administrative violations, suspending the circulation of these vehicles shall be carried out by temporarily seizing the motorbike or motorcycle.

b) For vehicles violating administrative regulations such as cars, tractors, or specialized vehicles, suspending the circulation of these vehicles shall be carried out by temporarily seizing the vehicle registration, front license plate, safety technical inspection certificate, or the vehicle itself.

- Temporarily seizing the vehicle registration, front license plate, and safety technical inspection certificate in the following cases:

+ Driving a vehicle at a speed exceeding the prescribed limit by more than 35 km/h (Point a Clause 8 Article 8 Decree No. 146/2007/NĐ-CP).

+ Operating a passenger car or a vehicle designed to carry people with an overload of more than 50% to 100% or more than 100% of the permitted number of passengers according to Clause 3 Article 27 Decree No. 146/2007/NĐ-CP.

Example: A 4-seat vehicle, if it carries from 8 to 9 people, is considered to exceed 50% to 100%, and if it carries 10 people or more, it is considered to exceed 100%; a 45-seat vehicle, if it carries from 72 to 94 people, is considered to exceed 50% to 100%, and if it carries 95 people or more, it is considered to exceed 100%.

+ Operating a vehicle not registered for commercial passenger transport while carrying passengers (Point a Clause 6 Article 27 Decree No. 146/2007/NĐ-CP).

+ Allowing standing, sitting, or lying on the roof, luggage compartment, or other parts of the vehicle while it is moving (Point b Clause 6 Article 27 Decree No. 146/2007/NĐ-CP).

- Seizing the vehicle applies to violations listed in Points a, b, and c Clause 1 Article 49 Decree No. 146/2007/NĐ-CP, except for the cases mentioned above.

c) Persons authorized under Article 46 of the Administrative Violation Handling Ordinance 2002 (as amended) have the authority to issue decisions to suspend the circulation of vehicles violating administrative regulations (Form No. 01 issued together with this Circular). In cases where the suspension of circulation is carried out by temporarily seizing the vehicle registration, front license plate, and safety technical inspection certificate, the violator must self-store the vehicle. When issuing an administrative violation record, it must clearly state that within five days from the date of suspension of circulation, the violator must return the suspended vehicle to its storage location.

During the period of suspension of circulation (excluding the time taken to return the vehicle to its storage location), if an individual or organization uses the vehicle for traffic, the person driving the vehicle will be penalized for failing to properly display license plates as stipulated in Point d Clause 2 Article 19 Decree No. 146/2007/NĐ-CP.

d) The duration of suspension of circulation of vehicles is calculated from the time of temporary seizure of the vehicle or vehicle registration, front license plate, and safety technical inspection certificate. If a person simultaneously commits multiple acts of administrative violations, all of which are subject to suspension of circulation, the longest suspension period shall apply.

For violations where Decree No. 146/2007/NĐ-CP specifies a range of suspension periods, the authorized authority issuing the decision to suspend circulation must base the decision on the nature, severity of the violation, and the violator's background.

7. Regarding the procedure for imposing penalties.

a) The procedure for imposing administrative penalties in the field of road traffic is implemented according to the Administrative Violation Handling Ordinance (as amended), Article 48 Decree No. 146/2007/NĐ-CP, and must use the penalty forms prescribed by the Ministry of Public Security.

b) The procedures for collecting and remitting fines are carried out according to the Administrative Violation Handling Ordinance (as amended), Article 47 Decree No. 146/2007/NĐ-CP, and related implementation guidelines.

8. Regarding delegation to impose administrative penalties.

Those authorized to impose administrative penalties in the field of road traffic by the People's Public Security Forces as stipulated in Article 44 of Decree No. 146/2007/NĐ-CP may delegate their subordinates to exercise the power to impose administrative penalties.

Delegation must be done in writing (Form No. 02 issued together with this Circular) and must specify the scope, content, and duration of the delegation. The delegated subordinate must bear responsibility for their decisions before their superior and the law, and cannot further delegate to any other individual.

9. Implementation organization.

a) The Director of the General Traffic Police Department is responsible for directing, inspecting, and guiding the implementation of this Circular.

b) The Director of the Provincial Police, under the direct jurisdiction of the Central Government, shall be responsible for directing units and local police organizations under their organizational authority to strictly implement this Circular; periodically every six months, annually, or at any time, they shall conduct inspections on administrative violation handling work in the field of road traffic and report the results to the Ministry (through the National Police总局)；

c) This Circular shall take effect fifteen days after its publication in the Official Gazette; previous regulations issued by the Ministry of Public Security regarding administrative penalties in the field of road traffic that conflict with this Circular shall be abolished.

The Heads of the General Departments, heads of units directly under the Minister, the Director of the Road Traffic Police Department - Railways, the Directors of provincial and centrally governed city police departments, and the Director of the Fire Prevention and Fighting Bureau of Ho Chi Minh City shall be responsible for organizing the implementation of this Circular.

During the process of implementing this Circular, if any difficulties or obstacles arise, the units and local police organizations shall report them to the Ministry (through the National Police总局) for timely guidance./.