The CBR procedure after an alcohol test: measures, objection and appeal

The CBR administrative procedure after an alcohol test is a separate, administrative track in which the Central Office for Motor Vehicle Driver Testing (Centraal Bureau Rijvaardigheidsbewijzen, CBR) assesses whether you are still fit to drive. It runs alongside any criminal case and can lead to an educational measure, an investigation into your fitness to drive, suspension of your licence and, ultimately, a declaration that your licence is invalid. Objection to the CBR and appeal to the administrative court are open to you, in both cases within six weeks.

This article follows that administrative track from the police notification to the final decision, and sets out where the real room for defence lies. It does not deal with the criminal case brought by the Public Prosecution Service, nor with the immediate seizure of a licence at the roadside; those are covered in our articles on alcohol and your driving licence and on appealing the seizure of your driving licence.

The CBR track and the criminal case are two separate procedures

One alcohol test can set two procedures in motion at the same time, and they do not wait for each other. The Public Prosecution Service decides whether to prosecute for driving under the influence under article 8 of the Road Traffic Act 1994 (Wegenverkeerswet 1994, WVW 1994); the penalty may include a fine, a community service order and a disqualification from driving. The CBR does something different: it is an administrative body charged with road safety and asks only whether you still meet the requirements of driving ability and fitness to drive. Guilt is not its subject.

The practical consequences of that separation are often underestimated. An acquittal in the criminal case does not undo a CBR measure, a dismissal of the prosecution does not return your licence, and the fact that you have already paid a fine is no argument before the CBR. Nor is it double punishment in a legal sense: an administrative measure aimed at road safety is not a criminal penalty. The two tracks also have different burdens of proof and different deadlines, which is why each needs its own response.

The legal basis for the CBR powers

The CBR derives its powers from the Road Traffic Act 1994 and from the Regulation on measures for driving ability and fitness 2011 (Regeling maatregelen rijvaardigheid en geschiktheid 2011), which converts alcohol readings into specific measures. Four provisions carry the procedure.

• Article 130 WVW 1994 – the police notify the CBR when facts or circumstances suggest that the holder no longer meets the requirements of driving ability or fitness, and the holder may be required to hand in the driving licence.
• Article 131 WVW 1994 – on the basis of that notification the CBR decides to impose an educational measure or to order an investigation into driving ability or fitness, and it can suspend the validity of the licence for the duration of the procedure.
• Article 132 WVW 1994 – the person concerned must cooperate with the measure imposed and pay the costs; failure to do so leads to the licence being declared invalid.
• Article 134 WVW 1994 – after the investigation the CBR takes a decision and must declare the licence invalid if the requirements of fitness are not met.

Article 164 WVW 1994 sits alongside this framework: it allows the police to require immediate surrender of the licence at the roadside where a disqualification from driving is a serious possibility. That seizure belongs to the criminal track, even though the same incident triggers the CBR notification.

From police notification to CBR decision, step by step

The administrative procedure follows a fixed sequence. Knowing where you are in that sequence determines what you can still do, because each stage has its own deadline and its own decision that can be challenged.

The police notification

After a breath or blood test above the limit the police draw up an official report and send a notification to the CBR under article 130 WVW 1994. The statutory limit is 0.5 per mille, or 220 microgrammes of alcohol per litre of exhaled air; for novice drivers, meaning holders of a licence for less than five years or seven years for those who obtained it at seventeen, the limit is 0.2 per mille or 88 microgrammes. The notification is administrative in nature and is sent regardless of whether the Public Prosecution Service decides to prosecute.

The CBR assessment

The CBR assesses on the basis of the official report whether there is a justified suspicion of insufficient fitness or driving ability. It does not carry out its own investigation into the facts at this stage and does not hear you first. The outcome is a written decision stating which measure is imposed, and that decision is the point at which the six-week objection period starts to run.

The measure and the suspension

Under article 131 WVW 1994 the CBR imposes an educational measure or orders an investigation. Where an investigation into fitness is ordered, the CBR normally also suspends the validity of the licence with immediate effect, so that you may not drive from the moment the decision is served. Driving during a suspension is a separate criminal offence and carries its own consequences.

Carrying out the measure

You must register within the period stated in the decision, attend the appointments and pay the costs, which are set by the CBR and payable in advance by the driver. An investigation into fitness consists of an interview with a psychiatrist and a medical examination, including blood tests that indicate longer-term alcohol use. A summons that is ignored counts as a refusal to cooperate.

The decision after the investigation

Article 134 WVW 1994 requires the CBR to take a decision as soon as possible after the investigation. If the report concludes that you do not meet the fitness requirements, for example because a diagnosis of alcohol abuse or dependence is made, the CBR must declare the licence invalid. There is no discretion at this point: the obligation follows from the statute itself. If you do meet the requirements, the suspension is lifted and the licence remains valid.

Which measure follows from which reading

The Regulation on measures for driving ability and fitness 2011 links the measure to the alcohol reading and to whether you are a novice driver. This is the most concrete part of the procedure and the part clients most often misunderstand, because the thresholds are not the same as those in criminal sentencing.

• Light educational measure on alcohol and traffic (LEMA) – for an experienced driver at a reading from 350 microgrammes per litre, or 0.8 per mille, but below 435 microgrammes; for a novice driver from 220 microgrammes, or 0.5 per mille, but below 350 microgrammes.
• Educational measure on alcohol and traffic (EMA) – for an experienced driver at a reading from 435 microgrammes per litre, or 1.0 per mille, but below 785 microgrammes; for a novice driver from 350 microgrammes, or 0.8 per mille, but below 570 microgrammes. Refusing the breath test also leads to an EMA.
• Investigation into fitness to drive – for an experienced driver from 785 microgrammes per litre, or 1.8 per mille; for a novice driver from 570 microgrammes, or 1.3 per mille. Repeat incidents within a set period and a combination of alcohol with other circumstances can also lead to an investigation.

An educational measure is a course rather than a punishment, and completing it ends the matter; failing to attend does not. An investigation is the heavier route, because it can end in the licence being declared invalid. The CBR sets and publishes the fees for both, and the driver pays them.

What happens if you do not cooperate

Article 132 WVW 1994 obliges you to cooperate with the measure imposed and to bear its costs. If you do not register in time, do not appear, do not pay, or frustrate the investigation, the CBR declares the licence invalid without assessing your actual fitness at all. This is the most avoidable outcome in the whole procedure and also the most common one: the deadline is missed because the letter went to an old address or was set aside during a criminal case.

A declaration of invalidity is a decision in its own right and is open to objection, but the grounds are then limited to whether the CBR was entitled to conclude that you failed to cooperate. Arguing afterwards that you were in fact fit to drive does not help. If something genuinely prevented you from attending, such as documented illness or a summons that never reached you, say so in writing before the deadline expires rather than afterwards.

Objection, appeal and interim relief

Every CBR decision is an administrative decision within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht, Awb), so the ordinary administrative remedies apply. The deadlines are strict: an objection or appeal lodged one day late is declared inadmissible unless the delay is excusable.

Objection to the CBR

You lodge a written notice of objection with the CBR within six weeks of the day after the decision is sent, under article 6:7 Awb read with article 7:1 Awb. State which decision you are challenging, why it is wrong and what you want instead. If you cannot yet substantiate the objection, lodge a provisional notice within the deadline and ask for time to complete it. You are entitled to be heard before the decision on the objection is taken, and under article 7:4 Awb you may inspect the file, including the official report, at least a week before the hearing.

Grounds that carry weight are concrete: the reading was recorded incorrectly or the measuring device was not properly calibrated, the notification does not concern you, the CBR applied the wrong category of measure to the reading, the investigation did not follow the prescribed protocol, or the report of the psychiatrist is internally inconsistent. The CBR reconsiders the case in full but remains bound by the same mandatory rules.

Appeal to the district court

If the objection is dismissed, you can appeal to the administrative law division of the district court within six weeks under article 8:1 Awb. Court fees are payable and are set annually by law. The court reviews whether the facts were properly established, whether the correct provisions were applied, whether the decision is adequately reasoned, and whether the CBR observed the procedural safeguards. It does not substitute its own judgement on your fitness for that of the medical experts, which is why a defence that relies only on disagreement with the diagnosis rarely succeeds.

Further appeal to the Council of State

Either party may appeal against the judgment of the district court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) within six weeks. That is the highest administrative court for these cases, and its case law is what determines how the CBR applies the Regulation in practice.

Interim relief while the procedure runs

An objection or appeal does not suspend the CBR decision, so a suspension or an invalidation continues to have effect. Under article 8:81 Awb you can ask the provisional relief judge to suspend the decision, provided a substantive objection or appeal is pending. Two conditions must be met: an urgent interest and a serious prospect of success in the main proceedings. In alcohol cases the second condition is the obstacle, because the underlying rules leave the CBR so little discretion; the application is realistic mainly where there is a demonstrable procedural defect.

Proportionality and the limits of a balancing of interests

Article 3:4 paragraph 2 Awb provides that the adverse consequences of a decision may not be disproportionate to the purpose it serves, here road safety. In this field the legislature has largely made that assessment in advance by prescribing which measure follows from which reading, so the CBR has little room left. The administrative court intervenes only where application of the rule leads to consequences the legislature cannot have intended in a situation it did not foresee. Dependence on a licence for work, financial hardship, care responsibilities and poor public transport are, in the settled case law, not enough on their own.

Compensation for an unlawful decision

If a CBR decision is annulled because it was unlawful, compensation for the resulting loss can be claimed. The request goes to the CBR first; if it is refused, the administrative court can be asked to award damages under the compensation provisions of the Awb. Four conditions apply: the decision was unlawful, actual loss was suffered, there is a causal link between the two, and the loss can be attributed to the CBR. Loss of income is in principle recoverable, but it must be documented, and awards in these cases are rare.

Challenging the official police report

In the administrative procedure the CBR may in principle rely on the correctness of an official report drawn up by an officer under oath, in so far as it records the officer own observations. Contradicting it therefore requires more than a denial: you must produce concrete, verifiable material that raises genuine doubt about its accuracy, and the burden of doing so rests on you. This principle of administrative law is what makes the file, rather than the story, decisive.

• Documentation on the breath analysis device, in particular its approval and the date of its last calibration.
• The measurement record itself, including the waiting period observed before the test and whether a second measurement was taken.
• A medical statement offering an alternative explanation for the reading, such as a condition or medication that affects it.
• Camera images, audio recordings or witness statements that describe the course of events differently.
• An expert report on measurement error or on the interpretation of blood values used in the fitness investigation.

Requesting the file at an early stage is therefore the single most useful step. Article 7:4 Awb gives access to the documents in the objection procedure, and article 15 of the General Data Protection Regulation gives you a right of access to the personal data the CBR holds about you. General complaints about the officer conduct, without documents, almost never succeed.

Getting your driving licence back

A declaration of invalidity does not mean a permanent ban, but it does mean starting again. Where the licence was declared invalid because you failed to cooperate, a new licence can be applied for once the underlying grounds no longer stand in the way, and the CBR will normally require the investigation to be completed after all. Where the licence was declared invalid on grounds of fitness following a diagnosis of alcohol abuse or dependence, the Regulation on fitness requirements 2000 (Regeling eisen geschiktheid 2000) requires a demonstrated period of abstinence before a person can again be found fit; in practice that means at least a year, supported by medical evidence, followed by a fresh fitness assessment.

Two further points are easy to overlook. The costs of the new investigation, the fitness statement and the new licence are borne by the driver. And entirely separately from the CBR track, a licence can become invalid by operation of law under the repeat-offender rule in article 123b WVW 1994 where a driver is convicted twice within five years of driving with a high alcohol reading, which is a criminal-law consequence that the CBR does not administer.

What to do after a CBR decision

Act on the date on the letter, not on the date you opened it. Diary the six-week deadline immediately, and lodge a provisional objection if you need more time to gather evidence. Register for the measure and pay within the period stated even if you intend to object, because non-cooperation produces an invalid licence regardless of the merits of your objection. Ask for the file at once, and check the reading, the device data and the timing of the test against the report.

Keep the two tracks apart in your own head as well: what you say in the criminal case is on file and can be used in the administrative procedure. Above all, do not drive during a suspension. A single check ends any prospect of a favourable outcome and adds a criminal offence to the file.

Law & More assists drivers throughout the CBR procedure: reviewing the notification and the measure imposed, requesting and analysing the file, lodging objections and appeals with the CBR, the district court and the Council of State, applying for interim relief, and advising on the route back to a valid licence. If you have received a letter from the CBR after an alcohol test, please contact us so that the deadline can be safeguarded and your position assessed.

Frequently asked questions