In brief
- The Constitutional Court dismissed, unanimously, the challenge of a driver on trial in Galați, who argued that the law does not tell him at what moment his blood alcohol level is measured. The moment is the one in which he is driving, not the one in which blood is drawn from him.
- The decision concerns the form that Article 336(1) of the Criminal Code had before 9 July 2023, the date on which Law no. 200/2023 entered into force. It matters for offences committed until then that are only now reaching the courts.
- The text applicable today is harsher. After Law no. 172/2024, the penalty is imprisonment from 1 to 5 years and a ban on exercising certain rights, without the fine option that the old wording contained.
Published: Official Gazette of Romania (Monitorul Oficial) no. 743 of 3 September 2026
In force from: 3 September 2026, the date of publication, under Article 147(4) of the Constitution
A driver on trial in Galați asked the Constitutional Court to find that the criminal law does not tell him at what moment his blood alcohol level is measured, and the Court answered that the moment is the one in which he has his hands on the wheel. Decision no. 136 of 17 February 2026 was published in Official Gazette of Romania no. 743 of 3 September 2026 and dismisses as unfounded the plea of unconstitutionality of Article 336(1) of the Criminal Code, the article that punishes driving a vehicle with a blood alcohol concentration above 0.80 g/l of pure alcohol. The Court held the line it has kept for years, just as it did when it dismissed the argument of another driver, unhappy that the law does not say what training the officer operating the speed camera has.
The plea was raised by Nicușor Ioniță in File no. 14.325/233/2020 of the Galați District Court, Criminal Division, in proceedings on his guilt for driving a vehicle under the influence of alcohol. The court referred the file to the Constitutional Court by the order of 7 July 2021, and at the Court the case received the number 2.522D/2021. From the referral to the delivery of the decision, 1,686 days passed, that is four years and seven months.
The defence argument started from an older decision of the same Court. By Decision no. 732 of 16 December 2014, published in Official Gazette of Romania no. 69 of 27 January 2015, the Court found that the phrase „at the time the biological samples are taken” in Article 336(1) is unconstitutional. The reason: the moment of sampling does not depend on the driver, it may come one or two hours after the stop, and the blood alcohol level changes in the meantime. The offence would thus have been completed later than it was committed, which contradicts the logic of an offence of endangerment. The driver from Galați argued that, once that phrase was removed and in the absence of any intervention by Parliament, the text was left without any point of reference in time, therefore unforeseeable, in breach of Article 1(5) and Article 23(12) of the Constitution and of Article 7(1) of the European Convention on Human Rights.
The Court replied that the point of reference exists and that it had itself supplied it in 2014: the value of 0.80 g/l is referred to the moment when the act of driving on public roads is committed. The rest is done by the expert report. The reasoning states that establishing the blood alcohol level requires a toxicological analysis of the samples and a retroactive calculation of the value that existed when the driver was stopped in traffic. The Court added one further argument that concerns the addressee of the rule: a person who drives carries on an activity of permitted risk, has gone through a form of training and has a duty to keep up with the rules, so cannot claim to have been taken by surprise.
The solution is not new. The same criticisms had been dismissed by Decision no. 819 of 12 December 2017 and by Decision no. 24 of 19 January 2021, and the Court found that no new elements had appeared to justify a change of case-law. The decision was taken unanimously, by a panel of eight judges, and is final.
A procedural detail appears at point 10 of the decision. The Galați District Court ordered the referral to the Court in the introductory part of the order, not in the operative part, that is the part at the end, the one that is enforced and against which appeals are brought. The Court noted the mistake, referred to Decision no. 226 of 15 April 2014 and said plainly that it cannot hold it against the author of the plea, because otherwise he would pay for an error of the court.
On another criminal law provision the Court reached the same conclusion: by CCR Decision no. 222/2026 it held that using inaccurate or incomplete documents for European funds remains a crime.
What it changes in practice
The decision is generally binding from the date of publication, that is from 3 September 2026, and produces effects only for the future. The rule is written in Article 147(4) of the Constitution: the decisions of the Constitutional Court are published in the Official Gazette of Romania, and from publication they are binding on everyone. Being a decision of dismissal, it takes nothing out of the Criminal Code. Its effect is to close a loophole.
In concrete terms, the defence which says that Article 336(1) is unclear because it does not state the moment when the blood alcohol level is measured has nowhere left to go. The plea can be raised again, but a court receiving it will find that the question has already been settled, and that the Court has given the same answer three times: in 2017, in 2021 and now, in 2026.
For the file from which everything started, the Galați District Court receives notice of the decision and continues the trial. For the other pending files the effect is the same: the mechanism by which the blood alcohol value at the moment of driving is reconstructed starting from the blood sample taken later stays in place. In its point of view, the Government stated that the instrument currently used for this estimate is the Widmark formula, which takes into account the particular features of the person and the interval between the start of drinking and the peak concentration in the blood. The Court neither endorsed nor expressly rejected this method, it merely held that a retroactive calculation is possible.
An indirect effect concerns those still on trial for old offences. The decision refers to the wording preceding Law no. 200/2023, that is to offences committed up to and including 8 July 2023. For these, the applicable text remains the one providing imprisonment from one to 5 years or a fine, under the rule of the more favourable criminal law in Article 5 of the Criminal Code.
What has changed compared with the previous situation
The form the Court examined read as follows: driving on public roads a vehicle for which the law requires a licence, by a person who, at the time the biological samples are taken, has a blood alcohol concentration above 0.80 g/l of pure alcohol, is punishable by imprisonment from one to 5 years or by a fine. The phrase about the time of sampling was declared unconstitutional in December 2014 and ceased to produce effects, but stayed in print in the Criminal Code for years on end.
This is where the longest interval in the whole story appears. Article 147(1) of the Constitution gives Parliament or the Government 45 days from the publication of the decision to bring the text into line with the fundamental law, and during that period the provisions found unconstitutional are suspended by operation of law. The period ran from 27 January 2015 and expired on 13 March 2015. Parliament intervened through Law no. 200/2023, published on 6 July 2023. Between the two publications 3,082 days passed, more than 68 times the constitutional deadline.
Law no. 200/2023 rewrote Article 336(1) through Article I point 7 and simply removed the phrase that had fallen, without putting another one in its place. The text became: driving on public roads a vehicle for which the law requires the holding of a licence, by a person who has a blood alcohol concentration above 0.80 g/l of pure alcohol, is punishable by imprisonment from one to 5 years or by a fine. The same law also introduced a new article, 336^1, which punishes the consumption of alcohol or psychoactive substances after a road accident, until the samples are taken. The law was published on 6 July 2023 and entered into force three days later, that is on 9 July 2023.
The second change came quickly. Through Article III point 4 of Law no. 172/2024, published in Official Gazette of Romania no. 510 of 31 May 2024 and in force from 3 June 2024, the penalty was tightened: imprisonment from 1 to 5 years and a ban on exercising certain rights, without the alternative of a fine. Between the entry into force of the two laws 330 days passed. The result is that three different forms of the same paragraph apply in parallel today, depending on the date of the offence: the one before 9 July 2023, the one between 9 July 2023 and 2 June 2024, and the one from 3 June 2024 onwards.
What has not changed is precisely the point from which the case started. Even after two interventions by Parliament, Article 336(1) does not say in its text at what moment the 0.80 g/l is measured. The answer lies in the reasoning of a 2014 decision of the Constitutional Court, which a driver has no way of finding by reading the Criminal Code.
Advantages and disadvantages
What it improves
- The point of reference is easy for any driver to remember: what counts is how much alcohol you have in your blood when you drive, not how much you have when you reach the sampling.
- The solution was taken unanimously and repeats what the 2017 and 2021 decisions had said, so it is stable and predictable for the courts.
- It closes off a defence that could stretch out files by many months, without changing the outcome.
- The Court refused to penalise the author of the plea for the procedural mistake of the district court, which had referred the matter to the Court through the introductory part of the order rather than through the operative part.
What remains a problem
- The decision uses two formulations for the same point of reference: at point 17, „the moment when the act of driving is committed”, and at point 18, „the moment of being stopped in traffic”. In the ordinary case they are the same thing, but when the driver is found after he has stopped, the two moments give different values.
- The text of the law still does not contain the point of reference in time. A person reading the Criminal Code does not learn from it at what moment the blood alcohol level is measured.
- The retroactive calculation remains an estimate, and the decision says nothing about the margin of error or about what happens when two expert reports give values on either side of the 0.80 g/l threshold.
- Between the delivery of the decision, on 17 February 2026, and its publication, on 3 September 2026, 198 days passed in which the decision existed but produced no effect.
Practical advice
- If you are on trial, check the date of the offence first. It determines which of the three forms of Article 336(1) applies to you and whether the fine is still an option as a penalty.
- The 0.80 g/l threshold is measured in blood, not in exhaled air. The roadside breath test gives an indication, the blood sample and the toxicological analysis decide.
- Ask to see the retroactive calculation in the expert report, not only the final value. The time interval used between the stop and the sampling is the assumption on which the whole result rests.
- Do not drink alcohol after an accident, until the samples are taken. Since 9 July 2023 this is punished separately, by Article 336^1 of the Criminal Code.
- Do not rely on the defence that you drank after you stopped the car. It has to be proved, and the point of reference remains the blood alcohol level at the moment of driving.
- If you choose to raise a plea of unconstitutionality, ask the court to order the referral to the Court in the operative part of its order. The Court passed over this mistake here, but it is not something to count on.
Frequently asked questions
From what date does the decision apply?
At what moment is the blood alcohol level established?
Does the decision change anything in the Criminal Code?
Why is an old form of the text being discussed?
What did Law no. 200/2023 change?
What is the penalty in force today?
If the offence dates from 2022, which law applies to me?
What does it mean that an offence is one of endangerment?
Did the Galați District Court get anything wrong?
Can I still raise the same plea in my own file?
Editorial analysis
The decision is correct and short, and the problem it solves was not, in fact, the Court’s. The figure that says everything is obtained by putting together two dates taken from the text of the decision itself: Decision no. 732/2014 was published on 27 January 2015, and Law no. 200/2023 on 6 July 2023. Between them lie 3,082 days. The period that Article 147(1) of the Constitution gives Parliament to repair a text declared unconstitutional is 45 days, and it expired on 13 March 2015. The legislature exceeded that period more than 68 times over. Throughout this stretch, the Criminal Code stayed in print with a phrase that no longer produced effects, and drivers were tried against a point of reference that sat in a statement of reasons, not in the law.
The second calculation concerns the Court itself. The referral came on 7 July 2021, the decision was delivered on 17 February 2026, and it was published on 3 September 2026. From the first day to the last there are 1,884 days, of which 198 came after the solution had already been reached unanimously. The decision produces no effect during those 198 days, because Article 147(4) ties binding force to publication. The file on the merits, no. 14.325/233/2020, had been open since 2020, so it waited almost six years for this clarification, for an answer that repeated what had already been said in 2017 and in 2021.
It is also worth noting what does not fit together inside the decision. At point 3, the prosecutor asks for dismissal by invoking Decision no. 336 of 20 May 2021, but that decision appears nowhere else in the Court’s reasoning, which rests on Decision no. 819/2017 and on Decision no. 24/2021. And at the very core of the argument, the Court uses two different formulations: at point 17 it says that the relevant moment is that of committing the act of driving, at point 18 that it is the moment of being stopped in traffic. In the vast majority of cases these coincide, because the driver is stopped while driving. They part company precisely in the situations that reach the courts: the car found stationary after an accident, the driver identified later, the drinking continued between the two moments. There, choosing one or the other can move the result to one side or the other of the 0.80 g/l threshold.
What should be changed
- The point of reference in time, written into the Criminal Code. A single sentence in Article 336(1), saying that the blood alcohol concentration is referred to the moment of driving, would spare the courts a discussion that has been running since 2014 and would give the driver the answer where he looks for it.
- A single formula in the Court’s case-law. Either „the moment of driving” or „the moment of being stopped in traffic”, but not both in the same decision. The choice matters in files where there is a gap between the stop and the sampling.
- Consequences for exceeding the 45-day period. A mechanism to hold Parliament to repairing texts declared unconstitutional, otherwise the case of Article 336 repeats itself: eight and a half years of uncertainty, paid for by the addressees of the rule.
- Publication of decisions within a fixed period after delivery. The 198 days here are time in which the courts know a solution exists but cannot use it. A statutory deadline for drafting and publication would close the gap.
- A public methodology for the retroactive calculation of blood alcohol. The margin of error, the assumptions about time and the way results at the edge of the threshold are handled should be regulated, so that two expert reports in the same file do not reach opposite conclusions.
- An official table of the successive forms of Article 336. Three wordings apply in parallel, depending on the date of the offence. Publishing them with the exact periods, on the legislative portal, would reduce errors of classification.
Original text of the legal act
The text below is reproduced in Romanian, the official form of publication.
The full text, as published in the Official Gazette of Romania
Official Gazette of Romania no. 743 of 3 September 2026 16 pages PDF, 173 KB the act starts on page 7
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This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.