A aplicabilidade do art. 294 da lei 9.503/1997 (código de trânsito brasileiro) em casos de crime de embriaguez ao volante: uma análise do módulo processual de urgência

• Autor(a) principal: Lopes, Líssia Maria Eugênio
• Data de Publicação: 2013
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Ceará (UFC)
• Texto Completo: http://www.repositorio.ufc.br/handle/riufc/28021
• topic: Embriaguez (Direito penal); Trânsito; Medidas cautelares; Devido processo legal

This study addresses the applicability of article 294 of the Brazilian Traffic Code in criminal cases of drunk driving, typified in the article 306 of the same Code, confronting aspects of the provisional remedy to suspend the license to drive a motor vehicle or prohibition to obtain that license and the new normative framework established by Law no. 12,760 of 2012 on the crime of drunk driving, in terms of the procedural of urgency module. The research is carried out building on the analysis of the doctrine and jurisprudence on the matter. It is evident that article 294 of the Brazilian Traffic Code aims to forearm the social environment, but must conform to the constitutional model of process, in direct compliance with the precepts laid down by the Constitution of 1988 about the process. These precepts are implemented in the adversarial principle, the right to defense and the presumption of innocence, which form the criminal due process, especially regarding the requirement of guaranteeing public order, which denotes an undefined legal concept, and should be defined according to the case, excluding up any biased interpretation anticipate the guilt of the accused. It is analyzed the crime of article 306 of the Brazilian Traffic Code under the focus of the amendments given by Law no. 12,760 of 2012, especially regarding the expansion of evidence capable of proving the psychomotor ability change, new elementary type criminal, replacing the specific concentration of 6 dg/L of blood. It is found that, for the decree of provisional remedy to suspend or prohibit obtaining the license, in specific cases of crime of drunk driving, the Brazilians Courts of Justice have understood the need of substantiate the interlocutory decision in order to prove the fumus boni juris and the actual dangerousness of the offender, based on the analysis of the criminal clearance certificate, the seriousness of the offenses and the social repercussions for being an exceptional measure. It is found that the provisional remedy of article 294 of the Brazilian Traffic Code must fit the specific circumstances of the crime of drunk driving, shall being imposed under the utmost caution, in light of the need for valuation of both the concept of public order as the elementary change of psychomotor ability, by examining the evidence, it can denote subjectivity, looking up for realization of fundamental rights and guarantees, in particular the due process of law.