In brief
- The Constitutional Court dismissed, unanimously, as unfounded, the challenge brought by a driver on trial in Curtea de Argeș. The man argued that the offence of drink driving is unconstitutional because the rules under which his blood is taken and analysed do not sit in an organic law but in ministerial orders. The Court replied that the procedure for establishing the blood alcohol level is not a constituent element of the offence but a technical mechanism for taking evidence, so it need not be laid down by statute.
- The text under review is no longer in force. The Court examined Article 336(1) of the Criminal Code in the wording preceding Law No. 200/2023, applicable to acts committed up to 8 July 2023. Law No. 200/2023 removed from the text the phrase „at the time the biological samples are taken”, without touching either the threshold or the penalty.
- Anyone caught today faces something different. Under Law No. 172/2024, in force since 3 June 2024, the penalty is imprisonment from 1 to 5 years and a ban on exercising certain rights, with no fine as an alternative. The threshold remains 0.80 g/l of pure alcohol in the blood.
Published: Official Gazette of Romania (Monitorul Oficial) No. 773 of 11 September 2026
In force from: 11 September 2026, the date of publication
The rules under which your blood is taken and your alcohol level calculated need not be written into a statute; an act of the minister or of the Government is enough. That is the conclusion of Decision No. 140 of 17 February 2026, published in Official Gazette of Romania No. 773 of 11 September 2026, by which the Constitutional Court unanimously dismissed as unfounded the plea raised by a driver on trial in Curtea de Argeș. It is the second decision on the same article published within eight days: on 3 September 2026 came Decision No. 136/2026, in which the Court held that the blood alcohol level is assessed at the moment of driving, not at the moment the samples are taken.
Article 336(1) of the Criminal Code is the text that turns drink driving into a crime. In the wording that reached the Court, it punished „driving on public roads a vehicle for which the law requires the holding of a driving 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 in the blood”, with imprisonment from one to 5 years or with a fine. Below the 0.80 g/l threshold the act falls outside this text and stays in the realm of administrative offences.
The case started at the District Court of Curtea de Argeș, where the author of the plea was being tried for driving a vehicle under the influence of alcohol. By its interlocutory judgment of 14 October 2021, the court referred the matter to the Constitutional Court, and the case was registered as No. 3.289D/2021 on the Court’s docket.
The driver’s argument concerned neither the threshold nor the penalty, but where the rules of measurement sit. The figure above 0.80 g/l is, he said, what separates an administrative offence from a crime, hence an essential element of the criminal act. How that figure is arrived at, namely how the sample is taken, stored, transported and analysed, was however laid down by Order of the Minister of Health No. 1.512/2013 and by Order of the Minister of Health No. 277/2015, acts below the level of statute. Neither the Criminal Code nor the Code of Criminal Procedure describes the procedure. Hence the complaints under Article 73(3)(h) of the Constitution, which requires offences and penalties to be regulated by organic law, under Article 23(12), which enshrines the legality of criminalisation, and under Article 1(5), which requires quality of the law.
The District Court of Curtea de Argeș considered the plea unfounded, because the criminalising rule states clearly both the act and the penalty. The presidents of the two chambers of Parliament, the Government and the Ombudsman submitted no views. The representative of the Public Ministry asked for dismissal as unfounded, relying on Decision of the Constitutional Court No. 238 of 8 April 2021, an earlier ruling on the same Article 336(1).
The answer is built in three steps. First the Court recalls what typicality means: an act is a crime only where the conduct matches exactly the pattern in the criminalising rule, and under Decision No. 405 of 15 June 2016, paragraph 65, only the primary legislator may lay down the conduct the addressee of the law is required to follow. It then takes stock of what Article 336(1) actually contains: the prohibited act, the circumstances relevant to criminal liability and the sanction, that is everything the principle of legality of criminalisation requires. Finally, it classifies the measurement procedure as something other than an element of the offence.
The sentence carrying the outcome is in paragraph 19: the procedure for establishing the alcohol content „does not have the nature of a constituent element of the offence laid down in Article 336(1) of the Criminal Code, but represents a technical mechanism for taking evidence, used exclusively to verify that the objective condition of exceeding the threshold of 0.80 g/l of pure alcohol in the blood is met, which is why there is no need for it to be regulated by organic law”. In other words: the statute says what is forbidden and how heavily it is punished, while administrative acts say only how it is proved.
What it changes in practice
The decision is final and generally binding from publication, that is from 11 September 2026, under Article 147(4) of the Constitution. Being a dismissal, it repeals no text and changes nothing. Anyone looking for a change in the law will find none: the effect is to close an argument, not to rewrite a rule.
The first effect occurs in the case in Curtea de Argeș, which resumes before the judge with the rule untouched. The decision is communicated to the District Court of Curtea de Argeș.
The second effect concerns anyone minded to bring the same complaint again. A dismissal as unfounded does not formally block a fresh plea, but it makes one all but pointless: the Court has ruled on the merits, has said the text is constitutional, and a court seised of the same complaint will invoke this decision. The difference from a dismissal as inadmissible matters. Inadmissible means the merits were never reached and the question stays open. Unfounded means the merits were reached and the answer has been given.
The third effect is the one that counts in a case now pending. A defence built on the idea that the blood alcohol procedure is unlawful because it sits in an order rather than in a statute has nothing left to stand on in constitutional terms. That does not close off challenges to the evidence itself: the Court said the procedure is a mechanism for taking evidence, and compliance with that mechanism continues to be reviewed by the criminal court, under the ordinary rules on nullity and exclusion of evidence.
The fourth effect is indirect and concerns the current wording of the law. The Court’s answer formally concerns a text no longer in force, but its reasoning transfers effortlessly to the text in force: the 2024 version of Article 336(1) uses the same threshold of 0.80 g/l, and the procedure for establishing the level still sits in an act below the level of statute, Government Decision No. 877/2024.
What has changed compared with the previous situation
This decision has changed nothing. The text itself, however, changed twice during the almost five years the case sat with the Court, and for a driver that is the useful part.
The first change came from the Court, eleven years ago. By Decision No. 732 of 16 December 2014, published in Official Gazette of Romania No. 69 of 27 January 2015, the Court upheld a plea and found the phrase „at the time the biological samples are taken” in Article 336(1) unconstitutional. Under Article 147(1) of the Constitution, a provision found unconstitutional is suspended by operation of law and ceases to produce legal effects 45 days after the decision is published, unless Parliament or the Government bring it into line with the Constitution. Nobody intervened, so the phrase ceased to produce effects from 13 March 2015. What survived was explained by the Court in Decision No. 238 of 8 April 2021, published in Official Gazette of Romania No. 613 of 22 June 2021: the text punishes the person who is above 0.80 g/l at the moment of being stopped in traffic, not at the moment the sample is taken, and the value at the wheel is reconstructed by calculating backwards from the toxicological analysis carried out later.
The second change came from Parliament, eight years later. By Article I point 7 of Law No. 200/2023, published in Official Gazette of Romania No. 616 of 6 July 2023 and in force from 9 July 2023, Article 336(1) was rewritten as follows: „Driving on public roads a vehicle for which the law requires the holding of a driving licence, by a person who has a blood alcohol concentration above 0.80 g/l of pure alcohol in the blood, is punishable by imprisonment from one to 5 years or by a fine.” The only change is the removal of the six words declared unconstitutional in 2014. The threshold stayed at 0.80 g/l and the penalty stayed at one to 5 years or a fine. The same law also created a new offence, Article 3361, for anyone who consumes alcohol or psychoactive substances after an accident causing death or injury, before samples are taken.
The third change is the heaviest of them all. By 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 whole of Article 336 was rewritten. The act under paragraph (1) is now punishable by imprisonment from 1 to 5 years and a ban on exercising certain rights. The fine option has gone, and the additional penalty has become mandatory. Paragraph (2) punishes driving under the influence of psychoactive substances in the same way, and paragraph (3) raises the penalty to 2 to 7 years and a ban on exercising certain rights for public passenger transport, the transport of dangerous substances or products and practical driving instruction or licence testing. The same law added a new paragraph to Article 83, providing that deferral of sentencing may not be ordered for the offences under Articles 335 and 336.
The framework around the contested procedure has also moved in the meantime. Order of the Minister of Health No. 1.512/2013 was repealed by Order of the Minister of Health No. 3.969/2024, published in Official Gazette of Romania No. 735 of 26 July 2024, and the rules on taking, storing and transporting samples passed into Government Decision No. 877/2024, published in Official Gazette of Romania No. 709 of 19 July 2024. The procedure therefore climbed from a ministerial order to a government decision, but still sits below the level of organic law, that is exactly where the author of the plea said it must not sit.
Advantages and disadvantages
What it improves
- It gives an answer on the merits, not a procedural dismissal. The text is declared constitutional against the complaints raised, so the debate about the rank of the act governing the measurement of blood alcohol gets a resolution rather than a postponement.
- It draws a clear line between the criminalising rule and the means of proof. The statute sets the act, the threshold and the penalty, while administrative acts set how the crossing of the threshold is proved. The distinction is useful well beyond traffic cases.
- It was delivered unanimously, with no dissenting or concurring opinion, so it leaves no doubt about what the Court meant.
- It confirms indirectly that the threshold of 0.80 g/l of pure alcohol in the blood is an objective condition of the criminal rule, not the outcome of an administrative assessment.
- It closes off a line of argument that was consuming court time. The claim that the blood alcohol procedure ought to be organic law had been raised repeatedly, and a ruling on the merits removes it from future cases.
What remains a problem
- 206 days passed between delivery and publication, and the decision produces effects only from publication. No rule imposes on the Court a deadline for publishing decisions delivered on pleas.
- From the referring judgment to publication, 1,793 days passed, almost five years, for reasoning on the merits running to eight paragraphs. On the date of delivery, the text under review had been out of force for 954 days.
- The decision cites no earlier ruling of the Court on Article 336. Decision No. 238/2021 appears once only, in the account of the prosecutor’s submissions, not in the Court’s reasoning.
- It nowhere says at what moment the blood alcohol level is assessed, even though it reproduces a text containing the phrase annulled in 2014 on precisely that ground. The answer exists, but in other decisions.
- It does not deal with the practical question behind the complaint: what happens if the sampling procedure is not followed. The Court classifies it as a mechanism of proof and stops there.
- The list of elements of the offence in paragraph 15 does not match the one in paragraph 19, and the difference is not one of style.
Practical advice
- Check the date of the act first, because the penalty hangs on it. For acts committed up to 2 June 2024 the version allowing a fine as an alternative to imprisonment applies, if it is more favourable, under Article 15(2) of the Constitution and Article 5 of the Criminal Code. For acts from 3 June 2024 onwards, the fine no longer exists under Article 336(1).
- Keep the timing reference in mind: the 0.80 g/l threshold is assessed at the moment of driving, not at the moment the sample is taken. The figure in the analysis report is the starting point for a backward calculation, not the final number. The present decision does not restate the rule, but it comes from Decision No. 732/2014 and is explained in Decision No. 238/2021.
- Do not build your defence on the idea that the blood alcohol procedure is unlawful because it is laid down by an order or by a government decision. The present decision answers that argument directly and rejects it.
- Do challenge, instead, whether the procedure was actually followed, if that is in issue: the interval between being stopped and the sample being taken, the conditions in which the sample was stored and transported, the identity of the specimen, the backward calculation. The procedure is, in the decision’s own terms, a means of proof, and means of proof are reviewed by the criminal court.
- When you read a provision of the Criminal Code on a legislation portal, look at the date up to which the consolidated version is updated. Article 336 was rewritten twice in less than a year, and an old version shows a different penalty range from the applicable one.
- Do not confuse the two decisions published in September 2026 on the same article. Decision No. 136/2026, in Official Gazette of Romania No. 743 of 3 September 2026, concerns the moment at which the blood alcohol level is measured. Decision No. 140/2026, in Official Gazette of Romania No. 773 of 11 September 2026, concerns the rank of the act governing the measurement procedure. Both were delivered on the same day and both were dismissed.
Frequently asked questions
What did the Constitutional Court decide, in short?
What does dismissed as unfounded mean, and how does it differ from dismissed as inadmissible?
Has anything changed for drivers after this decision?
What is punishable today under Article 336(1), and how heavily?
What did Law No. 200/2023 change in the text under review?
I am in a case about acts committed before July 2023. What does the decision mean for me?
Where are the rules on sampling and analysis written now?
Why did it take so long?
Where can I find the full text of the decision?
Errors and inconsistencies in the published text
- The operative part declares constitutional a wording that contains a phrase without legal effect since 13 March 2015, without excluding it. Paragraph 10 reproduces the object of the plea as the provisions of Article 336(1) „which read as follows”, and the text quoted contains the phrase „la momentul prelevării mostrelor biologice”, at the time the biological samples are taken. At paragraph 11, the same decision states that by Decision No. 732 of 16 December 2014, published in Official Gazette of Romania No. 69 of 27 January 2015, the Court found that very phrase unconstitutional. Under Article 147(1) of the Constitution, provisions found unconstitutional are suspended by operation of law, and if Parliament or the Government do not intervene within 45 days of publication of the decision, they cease to produce legal effects; nobody intervened, so the deadline expired on 13 March 2015. The operative part nevertheless finds that „the provisions of Article 336(1) of the Criminal Code, in the wording preceding the entry into force of Law No. 200/2023 (…), are constitutional against the complaints raised”, with no reservation as to the phrase. A reader in good faith may reach two conclusions: either the whole earlier wording, phrase included, is validated for acts committed before 9 July 2023, or the phrase falls outside the review because it no longer produced effects. In old cases the difference decides whether the 0.80 g/l threshold is assessed at the moment of driving or at the moment the sample is taken, which is to say it decides guilt. Decision No. 136/2026, delivered on the same day on the same text, addresses this point expressly.
- Paragraph 15 and paragraph 19 list the elements of the offence differently, and the first implies a condition the second does not require. Paragraph 15 holds that the act under paragraph (1) „involves two defining elements: on the one hand, driving a vehicle under the influence of alcohol and, on the other, a blood alcohol concentration above 0.80 g/l of pure alcohol in the blood” and adds that „the two conditions must be met cumulatively”. Paragraph 19 describes the same material element differently: „driving on public roads a vehicle for which the law requires the holding of a driving licence, by a person having a blood alcohol concentration above 0.80 g/l of pure alcohol in the blood”, with no separate requirement of being under the influence of alcohol. The text quoted by the Court itself at paragraph 10 contains no such requirement, but does contain two conditions that paragraph 15 omits: that the driving take place on public roads and that the vehicle be one for which the law requires a driving licence. The consequence shows up in a trial: from paragraph 15 it can be argued that the prosecution must prove, alongside the figure in the analysis report, a state of being under the influence, while from paragraph 19 that the figure is enough. Both formulations sit in the same decision and can be invoked as they stand, in an act whose very subject is the question whether the statute contains all the constituent elements of the offence.
Editorial analysis
The distinction the Court draws is correct and useful: a criminalising rule has to say what is forbidden and how heavily it is punished, while the way a breach is proved could never fit into the statute as well. Were it otherwise, every laboratory detail would call for an amendment to the Criminal Code. The trouble is that the answer stops exactly where the hard part begins. The author of the plea was not complaining that the procedure is technical, but that the 0.80 g/l threshold is the only boundary between an administrative offence and a crime, and that the result telling you which side of the boundary you are on is produced entirely under rules Parliament neither wrote nor controls. The Court calls that procedure a „technical mechanism for taking evidence” and treats the question as closed. In eight paragraphs of reasoning on the merits there is not a word about what happens when the mechanism is not followed.
The complaint has, moreover, outlived the act that answered it. When the plea was raised, in October 2021, the procedure sat in Order of the Minister of Health No. 1.512/2013. Since 19 July 2024 it has sat in Government Decision No. 877/2024, published in Official Gazette of Romania No. 709. It has climbed one rung in the hierarchy of acts, but has stayed below the level of organic law, which is exactly where the driver from Argeș said it must not sit, and the 0.80 g/l threshold has remained unchanged from one version of the text to the next. The Court’s 2026 answer applies, in substance, to the version in force since 3 June 2024 as well, even though formally it concerns a wording repealed more than three years ago.
The figures tell the second part of the story, and they are visible not by reading the decision but by counting. From the interlocutory judgment of 14 October 2021 to delivery, 1,587 days passed, and from delivery to publication another 206, 1,793 days in all, almost five years. On the date of delivery, the text under review had been out of force for 954 days. The comparison that puts the figure in context is with the Court’s own practice on the same article: the ruling that started the whole debate, Decision No. 732/2014, was delivered on 16 December 2014 and published on 27 January 2015, in 42 days, almost five times faster. And Decision No. 136/2026, delivered in the same sitting, on the same paragraph, was published on 3 September 2026, eight days before this one. Two answers to the same underlying question, given on the same day, reached the reader in two different issues of the Official Gazette of Romania, more than six months after they were written.
A third observation emerges from setting two dates in the same paragraph against each other. Paragraph 17 states that Order of the Minister of Health No. 1.512/2013 was repealed by Order No. 3.969/2024, published on 26 July 2024, and then that „following the repeal” the rules were laid down by Government Decision No. 877/2024. The decision had, however, been published on 19 July 2024, seven days before the repealing order, so the order of events is the reverse of the one described. The real sequence shows care on the part of the issuers rather than an oversight: the new rules were brought into force first, so as not to leave a single day without a sampling procedure, and the old order was repealed only afterwards. That is precisely the detail that would have strengthened the Court’s reasoning, had it been read in the order in which it happened. Finally, the decision cites no earlier ruling on Article 336: the 2021 one appears only in the account of the prosecutor’s submissions, and the 2014 one is mentioned as legislative history, not as precedent. For an act published precisely so as to be generally binding, the absence of any reference is a loss: the reader cannot tell settled case law from a one-off answer.
What should be changed
- Writing into Article 336 of the Criminal Code the moment at which the blood alcohol level is assessed. A single sentence stating that the threshold is assessed at the moment of driving. Effect: the debate that produced Decision No. 732/2014 and has been rerun from case to case ever since disappears, and the backward calculation of the blood alcohol level gains a statutory basis rather than merely a case-law one.
- Express mention, in the object of the plea, of the fragments that no longer produce legal effects. Where the Court examines an old wording containing a phrase annulled earlier, the object ought to be defined with that reservation. Effect: courts applying the decision in cases about old acts no longer have two possible readings of the operative part.
- Correction of the list of constituent elements in paragraph 15, by a published rectification. Effect: the argument that the prosecution must prove a state of being under the influence separate from the crossing of the threshold disappears, an argument that can currently rest on the official text of the decision.
- A statutory deadline for publishing in the Official Gazette of Romania the Court’s decisions delivered on pleas. Effect: the 206-day interval between delivery and publication would no longer be possible, and the courts trying the case the question came from would know when the answer is due.
- Publication in the same issue of decisions delivered on the same day on the same statutory text. Effect: the reader and the court get the whole answer at once, rather than half on 3 September and half on 11 September, with the risk that one is read without the other.
- Citation of its own precedent when the Court rules a second time on the same article. Effect: whoever reads the decision can see whether they are looking at settled case law, and the authors of pleas stop rerunning a line of argument already closed on the same ground.
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. 773 of 11 September 2026 16 pages PDF, 103 KB the act starts on page 2
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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.