– May 23, 2023

Overtaking on the wrong side – legal consequences

Overtaking on the right on the motorway has always been a punishable offence. However, if no one is endangered in the process, overtaking on the right is now, as an exception, only an administrative offence and does not necessarily have to result in a ban on driving. This was stated by the Federal Supreme Court in its landmark decision of 3 November 2022.

The driving licence is withdrawn by the competent authority pursuant to Art. 16 para. 2 of the Road Traffic law (SVG) if an offence against the road traffic regulations is committed for which proceedings under the Administrative Fines law (OBG) are excluded.

Such a case exists in particular if other people are endangered by the behaviour of a motorist or if damage is caused.

According to the old case law, a motorist could always rely on not being suddenly overtaken on the right on the motorway. The Federal Supreme Court therefore qualified overtaking as a serious offence against the Road Traffic law. Therefore, the administrative fine procedure was excluded and the driving licence had to be revoked.

In its decision of 3 November 2022, however, the Federal Supreme Court changed its case law to the extent that overtaking on the right no longer necessarily constitutes a gross traffic offence, because the Federal Council included the offence of overtaking on the right in the Ordinance on Administrative Fines (OBV) on 1 January 2021. Since then, section 314.3 OBV provides for a fine of CHF 250 for overtaking on the right on motorways and motorways with several lanes, provided this is done without aggravating circumstances (e.g. poor road or visibility conditions, overtaking of several vehicles, etc.).

In the case mentioned, both the road and the visibility conditions were good and only one other car was overtaken in a non-dangerous place, which is why the slower driver did not have to adapt his behaviour. Thus, according to the Federal Supreme Court, the exceptional case of irregularity exists, although this should only be applied with restraint.

The driving licence was therefore not revoked and the case was sent back to the lower court for a new decision.

If you have any questions regarding Road Traffic law, our lawyers will be happy to advise you.