摘要
施用毒品駕車的危險性高，執法人員礙於當下無法檢測及判定，造成行車用路人不可預測的風險。不能安全駕駛罪屬於抽象危險犯，只要行為人故意施用毒品後，而有駕車的事實，即應該當構成要件；至於因過失服用藥物，導致的不能安全駕駛的狀態，因屬被動性所為，法律似不應強人所難，而以本罪論罪科刑，且該罪原係仿照德國立法，僅增訂抽象危險犯立法，未將具體危險犯納入，以致在刑度上不合理及對抽象危險犯定位不清，因而造成實務操作判斷困難。實務上施用毒品罪與不能安全駕駛罪，依數罪併罰，會造成重複評價問題，本文看法以為應依想像競合處罰較為適當，因為施用毒品與不能安全駕駛彼此有關連性，依想像競合處理應較為合理，除可避免重複評價的問題，又可具體反應各被侵害之構成要件，而對行為人給予適當評價，以符合罪責相當原則。
並列摘要
Driving while drugged (DWD) is a high-risk driving behavior. Because it is difficult to have drug tests at the scene by police, DWD usually leads to unpredictable risks to other road users. Dangerous driving is considered as a crime of abstract danger. It should be a constituent element if the actor intentionally takes drugs before driving. On the other hand, if the influence is due to the unintentional drugs, which is considered a passive behavior, it should not be treated as dangerous driving. Also, the legislation of DWD is primitively referred to by German law. It merely considers the crime as an abstract danger and does not take into account the crime of concrete danger. However, it leads to irrational penalties and unclarified crimes of abstract danger, and the difficult judgment in practical operation. In practical operations, the application of Combined Punishment for Several Offences to the drivers who violated both laws of taking drugs and dangerous driving will cause repetitive appraisement. This article advocates that it is more suitable to determine the punishments for DWD drivers based on the ideal concurrence because taking drugs bears relevance to dangerous driving. Using ideal concurrence, the repetitive appraisement for DWD can be avoided. In addition, it reflects each of the constituent elements of victims, and gives the actor appropriate appraisement in order to match the principle of appropriateness between offence and penalty.