[Testing the automobile driver in cases of uncertain qualification prognosis]

The qualification of a person to drive a motor vehicle is the presupposition for the required permission. The prognosis on future human behaviour, which is indispensible for a judgement on such a qualification, is difficult. Only in a few of these cases a clear "good"-prognosis or "bad"-prognosis can be found out. Frequently only an "uncertain"-prognosis is to be justified as a matter of fact. It is only to be said by the regulations of law, whether in cases of uncertain qualification prognosis the driver's licence should be given or denied or whether a driver's licence already given should be withdrawn or not. Starting points for theory and dogmatics on prognosis-decisions due to law and orientated in the knowledge of empiric sciences are to be found in administrative law as well as in criminal law. For example: penal regulations which call for prognosis should be interpreted in the manner that as a sanction (only to be imposed in cases of "bad"-prognosis) the milder measure is to be used at first. Only after an unsuccessful attempt with this milder measure it is allowed to take a more incisive measure (Frisch). In planning law the dilemma with prognosis should be overcome by reflexive feedback within the scope of a new type of procedural law, which would make a process of learning and evaluation possible and enforcable. From these starting points common legal principles on a "test-method" can be developed, which may be used in cases of "uncertain"-prognosis. Such a test-method may help for example to decide on execution relaxations due to the Law on Execution of the Sentence (OLG Celle). The decree on driver's licences on probation (valid since 1.11.1986) contains the most extensive regulations concerning the application of test-methods within driver's licences law. The solution of the problem shown there should be extended: Not only the first driver's licence should only be given on probation but also a renewed one. Even motorists coming conspicuous after the lapse of probation-time should be induced to behave appropriately in traffic by a test-method, which does not force qualification prognosis. So far a further development of point-system for repeated offenders is to be recommended. The test-method could be made quite more effective by refinement of the list of measures (e. g. injunction to participate in follow-up assistance or follow-up examination).