Der Richtervorbehalt bei der Blutprobenentnahme gemäß § 81a Abs. 2 StPO

The taking of blood samples is one of the most frequently carried out compulsive procedures of the German Code of Criminal Procedure (StPO). Despite its regular urgency, the authority to give such an order is vested in the judge; only if a delay would endanger the success of the examination, the measure may also be ordered by the investigative authorities. This situation results in disputes in terms of competence which many courts have had to deal with in recent years. The author takes this as an occasion to analyse the dogmatic structures of the judges’ and the investigative authorities‘ competence and develops practicable solutions.
The German legislator has recognised the need for action: In 2017, the new Sec. 81a para. 2 sentence 2 StPO – which only applies to traffic offences – was created. However, the interpretation of this regulation raises many questions and does not meet the aim to simplify the procedure of taking blood samples from all points of view.