A driver's intoxication is only valid if proven.
A Supreme Court ruling dismisses subjective assessment of intoxication; justices argue that the law defines a limit on alcohol consumption, which can only be determined through a breathalyzer or blood test.
Brazilian Supreme Court (STF) - In a close vote, decided by the deciding vote of Justice Maria Thereza de Assis Moura, president of the Third Section, the Superior Court of Justice (STJ) ruled that only a breathalyzer test or a blood test can determine a driver's level of intoxication to trigger criminal proceedings. This ruling serves as guidance for other levels of the Judiciary, where cases dealing with the same issue had been suspended since November 2010.
According to most ministers, the Dry Law brought an objective criterion for characterizing the crime of drunkenness, typified by article 306 of the Brazilian Traffic Code (CTB). It is necessary to prove that the driver is driving under the influence of at least six decigrams of alcohol per liter of blood. This value can be attested only by a blood test or by a breathalyzer test, according to the definition of Decree 6.488/08, which regulated the tolerance margin of alcohol in the blood and the equivalence between the two tests.
"If the criminal offense is specific and requires a certain amount of alcohol in the blood, unless the law changes, the judge cannot form their conviction by violating what the law says," stated Minister Maria Thereza when defining the legal principle.
The trial began on February 8th and was interrupted by three requests for review. Of the nine members of the Third Section, five ministers voted following the dissenting (contrary to that of the rapporteur) and winning point of view. The appointed judge Adilson Macabu was the first to express this opinion and, therefore, will draft the judgment. In addition to the president of the Section, Ministers Laurita Vaz, Og Fernandes, and Sebastião Reis Júnior also concurred with this understanding.
Strict legality
In presenting his position at the session on February 29th, Judge Macabu emphasized the constitutionality of a driver's refusal to submit to a breathalyzer test (both breathalyzer and blood test), based on the principle against self-incrimination, according to which no one is obliged to produce evidence against themselves.
Given the objective nature of the criminal offense (article 306 of the Brazilian Traffic Code), the judge considered the use of other means of proof inadmissible in light of the driver's refusal to cooperate with a blood or breathalyzer test.
He emphasized that the limit of six decigrams per liter of blood is an objective element of the criminal offense that cannot be relativized. “The law does not contain useless words, and in the name of adapting it to other purposes, one cannot infringe upon the rights of the citizen, transforming him into a defendant for conduct not foreseen by law. A judge judges, not legislates. One cannot innovate in the scope of application of a criminal norm. That is not the function of the Judiciary,” he stated.
Quality of laws
The judge believes that, in practice, there is a significant decline in the quality of laws. But this does not give the judge the power to legislate. “Traffic has always killed, kills, and will continue to kill, but it is up to the Legislative branch to establish the rules for punishment, not to the Judiciary to expand legal norms,” warned the judge. “The protective shield of the individual cannot be weakened in the face of the state's punitive power. If the law is deficient, the fault does not lie with the Judiciary,” he argued.
Minister Og Fernandes also lamented that the change brought about by the Dry Law now requires a minimum amount of alcohol in the blood, verifiable only by two types of tests, making the rule more beneficial to the offending driver. "It is extremely troublesome for a judge to encounter this flaw," he stated. But he concluded: "Criminal matters are governed by the principle of legality, and the judge must submit to the law." Minister Maria Thereza de Assis Moura similarly reminded that changes to the law can only be made by the legislature.
Concrete case
In the appeal filed with the Superior Court of Justice (STJ), the Public Prosecutor's Office of the Federal District (MPDF) opposes a decision by the local Court of Justice (TJDF), which ended up benefiting a driver who did not submit to a breathalyzer test because the test was not offered by police officers at the time. The driver was involved in a traffic accident in March 2008, when the Dry Law was not yet in effect, and at the time was sent to the Forensic Medical Institute, where a clinical test confirmed his state of intoxication.
Accused by the Public Prosecutor's Office under article 306 of the Brazilian Traffic Code (CTB), the driver managed to have the criminal proceedings dismissed through a habeas corpus, arguing that the alcohol concentration required by the new wording of the law introduced by the Dry Law had not been proven. The local court understood that the new law would be more beneficial to the defendant, as it imposes a stricter criterion for verifying drunkenness, and should therefore be applied to events prior to its enactment.
The Third Section's decision denied the appeal filed by the MPDF (Public Prosecutor's Office of the Federal District).