If you drink, now more than ever… Don’t Drive!

by | Jan 14, 2016 | Articles | 0 comments

The mere fact of driving a motor vehicle having consumed liquor above the legal maximum allowed (0.5 gr/lt of blood) configures the commission of the crime of common danger called drunk driving provided for in art. 274º of the Penal Code, which punishes such conduct with imprisonment ranging from six months to two years. This could be aggravated in cases of recidivism (increase of the penalty up to half of the maximum penalty – 4 years), collision, serious injuries, death, incurring in other criminal offenses of special gravity, in addition to the administrative consequences that could entail even permanent disqualification.

In this regard, we must mention that most cases of drunk driving have been receiving a treatment that could be considered “light”, based on criteria of minimum injury, since they concluded at a preliminary level with the application of the principle of opportunity, a procedural mechanism that entails prior acceptance of criminal liability, the payment of an amount for civil reparation, in exchange for the abstention of the exercise of the criminal action by the Prosecutor’s Office, holder of the criminal action, that is, it orders the definitive filing of the complaint, and without generating any precedent whatsoever.

Today, with the entry into force of the so-called Immediate Process (special process regulated in the NCPP) the situation is no longer peaceful, but on the contrary, the offender could be detained by the PNP for up to 24 hours, within which time the prosecutor must request – under responsibility – the application of such special process, since we are facing a case of flagrante delicto, and even more so since the law expressly orders it in cases of drunk driving and omission of family assistance – within this period of time the prosecutor may decide on an alternative solution (preliminary opportunity principle) or, depending on the seriousness of the case, request the judge to apply this special process, which, as it is logical to suppose, was regulated under criteria of speed and procedural economy, which could even entail – depending on the seriousness of the crime – the imposition of effective imprisonment in record time, that is, within 72 hours, after convening the single hearing for immediate trial.

It is important to take into account what could eventually be the legal consequences that a person who irresponsibly decides to drive a vehicle after drinking liquor (for example: 3 or 4 glasses of beer would exceed the maximum permitted by law) could face, depending on his or her background and the nature of the event:

– In case he/she is intervened in a police operation of breathalyzer – those that are usually given in beach season in diverse strategic points of the Panamericana Sur, and other places of Lima – and with positive result, he/she could be detained by the PNP being put at the disposal of the prosecutor’s office, who will have in principle to urge the application of the immediate process, and put the detainee at the disposal of the Judge, this with the request of the personal coercion measure that corresponds.

It must be taken into account at this point that during the detention the application of the so-called principle of opportunity could be urged, which is of optional application by the Prosecutor, who must analyze the seriousness of the case, aggravating and/or extenuating circumstances, etc.

– In case the detainee is subjected to the so-called immediate process, the corresponding prosecutorial accusation will be formulated, which in the case of the crime of drunk driving could be aggravated in case of being a repeat offender, since the penalty could be increased up to half of the maximum penalty, that is, up to 04 years. This situation will generate that at the end of the processing (maximum 72 hrs) the Judge will decide what penalty will be imposed on the offender, which could be of an EFFECTIVE nature, in addition to the legal situation until then, which could be preventive imprisonment or detention.

– The situation would be irremediably aggravated in case of injuries and deaths resulting from the traffic accident that could be generated by the drunk driver offender, whose legal situation would be aggravated and by the same nature must be subjected to the common process regulated in the NCPP, under which assumption, in most cases, it would pass to the Judge with a prosecutorial request for preventive detention, i.e., it would be subjected to prosecution with effective detention.

An example of the application of the immediate process or trial that has been recently publicized at a national level is the case of the aggression carried out by Mrs. Buscaglia against a police officer, in circumstances in which he tried to give her a traffic ticket in the vicinity of the Jorge Chávez International Airport.

Beyond the questions related to the lack of proportionality of the penalty foreseen for this crime (crime of violence and resistance to authority in the aggravated modality, whose penalty ranges from 08 to 12 years, if the passive subject is an authority), this case would supposedly serve to dissuade offenders who attack the PNP without any respect for the principle of authority (which in most cases the police themselves have justifiably earned since in most cases they act as agents provocateurs), we appreciate the prompt action of both the Public Prosecutor’s Office and the Judicial Power, Although it did not materialize, since an agreement was reached via Early Termination (a procedural simplification mechanism foreseen in said norm), it has meant that the citizens see a quick response to “crime” being sentenced in record time, which, although we have our observations, would comply with the demand for a quick and efficient justice, which would lead to a great discharge of the criminal justice system.

Finally, it is important to point out the importance of being legally assisted by lawyers prepared for the technical criminal defense, who should not only prepare the strategy or theory of the case to be followed, but mainly, provide the client with the alternatives that he/she has when facing this type of special processes and in general terms, when a person is subjected to an investigation of this nature, in order to avoid abuses and arbitrariness that could be incurred, to the detriment of the exercise of the right of defense of every citizen. And mainly, to make us aware of the consequences that in all areas of our lives and our families, could generate this type of irresponsible behavior, disrupting the regular course to go even to serve a sentence.