The Nashville Files - Law No. 11.705/08: news in the fight against drunk driving

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Law No. 11.705/08: news in the fight against drunk driving

In response to the alarming increase of traffic accidents, a considerable resulting from the unfortunate combination of drinking and driving vehicles, was enacted Law no. 11,705. This latest standard of 19 June 2008, dubbed the "Prohibition", made changes in several provisions of the Brazilian Traffic Code that deal with drunk driving - whether in the criminal, whether at the administrative level. On some of these changes is that discussed here, emphasizing those related to the criminal matter.

Initially, it should be noted that some rules already on the Brazilian Traffic Code (CTB), are presented as a novelty introduced by the "Prohibition", when in fact no change. This is happening with the value of the fine imposed for violation of drunk driving, under art. 165 of CTB, which remains the same, but has been reported, in error, which increased considerably after the new Law The truth is that since the establishment of CTB in 1997, the fine is five times the amount considered very serious offense, ie, the same U.S. $ 957.70 (nine hundred and fifty-seven reais and seventy cents) out today .

Furthermore, it is completely new so-called "zero tolerance", that is, the occurrence of traffic infraction regardless of any concentration of alcohol per liter of blood. This change had already happened with the advent of Law no. 11,275, of February 7, 2006, which gave reword some devices Traffic Code. Consider: the CTB, in its original text, provided in art. 165: "Driving under the influence of alcohol, at over six decigram per liter of blood, or any narcotic substance, or to determine physical or psychological dependence" (emphasis added). However, in May 2006, the said Law no. 11,275 abolished the art. 165 CTB's just that stretch, highlighted above, which determined the level of alcohol. So, since that time, there was no longer any limit on offense drunken driving. Anyway, the Law no. 11.705/08 made that more clear with the amendment of art. 276 of CTB, which now provides: "Any concentration of alcohol per liter of blood the driver subject to the penalties provided for in art. 165 of this Code."

Next, it analyzed the novelty of Law no. 11.705/08 on the criminal aspect, as the withdrawal of one of the causes of increased crime of manslaughter in the direction of vehicle. This condition was provided for those who commit this crime and was under the influence of alcohol or substances with similar effects, increasing the penalty for a third to half. The reason for the repeal of item V of art. 302 of the CTB, which contained the rule in question was to facilitate the oversight of those in murder cases. If that circumstance continues, in theory, would have to be typed there all homicides in the direction of a motor vehicle when the driver was drunk. Towards classification as murder, there are recent court decisions, such as the Superior Court, which dismissed an application for habeas corpus made by an accused which, this being under the influence of alcohol, was involved in a traffic accident with fatal victim, and then convicted of murder (HC 82,427-PR, rel. Min Maria Thereza de Assis Moura, j. 17/12/2007, DJ 18/02/2008). Probably, these new trial influenced the removal of the cause of increased worth of art. 302 of the CTB.

Also in relation to a criminal court, the Law no. 11.705/08 brought a new definition of the crime of drunk driving. Before the recent amendments, the CTB, in his art. 306, prescribed as the crime of drunk driving: "Driving a motor vehicle on public roads under the influence of alcohol or substance having a similar effect, exposing the potential damage to invulnerability of others" (emphasis added). In turn, the Law no. 11.705/08 withdrew from the original text the term "exposing the potential damage to invulnerability of others," adding the following: "Being with concentration of alcohol per liter of blood less than 6 (six) decigram. In other words, what was required to characterize the violation of art. 165 (the minimum level of alcohol), now became part of the conduct of art. 306, the crime of drunk driving.

In this step, among all the changes brought about by the recent law, the removal of the requirement of exposure to injury, the new offense of drunk driving, in our view, is claiming more attention. In doing so, became a crime of specific risk in an abstract danger. And what is the difference between them? Utilizing the illuminating words of Alice Bianchini, see: "There are two kinds of danger crimes: crimes and crimes real danger of abstract danger. The distinction between them does not lie in the degree of danger presented, but the realization of the danger, that in the first case, requires a real proof [in the case of drunk driving, speeding or zigzags, for example] and, second, it is presumed without requiring proof of its existence "(Material Assumptions minima Law Enforcement , São Paulo: RT, 2002, p. 66). Thus, the crime of drunk driving, which was a real danger of crime, since required the confirmation of actual exposure to injury, after the Law no. 11.705/08, became a crime of abstract danger, that is, requires no proof of any conduct dangerous.

It is true that the law should follow the evolution of society in which it is inserted, new incriminating conduct prejudicial to social peace, or even exacerbating existing ones. But anyway, that setting the right company, can not transcend the limits imposed, explicitly or implicitly, by the current constitutional order and the rules adopted by it. Among these limitations, given the need to prove, before the creation of the offenses, the harm to the legal guarded, at least for an explanation of this and a real risk - which was not obeyed in the recent Law on the new offense drunk driving.

However, it is not intended here to disparage the legal interests protected by the new legal text, which is road safety. On the contrary, it is undeniable its extreme importance. What is questioned is the need to establish at least a real threat to that good criminal justice so that there is crime, a condition which is not present in the new legal writing. It is argued here, using once again the lesson of Alice Bianchini, that the existence of actual danger is minimal, which should require the conduct criminalized "(op. cit., P. 68).

In addition, other cases of drunk driving, without exposure to actual risk of harm, there can not be unpunished. These remain under the authority of law, should, through its administrative branch and that it fell in violation of art. 165 of the CTB, which, by the way, is quite strict on penalties imposed for whom it incurs.

Posta so the question, the solution that seems most reasonable is only typify the crime of drunk driving in those cases where there is exposure of the public purity the specific risk of damage. Therefore, to characterize the crime of drunk driving, plus the level of not less than six decigram of alcohol per liter of blood, you should require evidence of actual risk of harm, a risk that is evident in the ducts to move the red light, drive the vehicle in the opposite or nearly cause a traffic accident, for example. The remaining cases where the driver is making use of alcohol or psychoactive substances, without real danger of damage, are related to the administrative penalties, as explained above. Finally, any legislature, before attempting to create a new law, should consider the following words of Thomas Jefferson: "The application of laws is more important than its preparation.

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