In practice, the new Law 13,546 / 2017, which enters into force on March 19, 2018, does not change anything that has been happening before in relation to those who drink, drive, cause a traffic accident and kill: in some cases, the driver is not even arrested and responds to the case in freedom. The bail still exists and the intoxicated driver will continue to walk out the front door of the police station even though he has just killed someone in traffic. Within a maximum of 5 days, he will receive the CNH back and can continue driving. Law 13,546 / 2017 also does not increase the penalty for those driving under the influence of alcohol or with the altered psychomotor state. What she does is to create a qualifier for the crime of manslaughter for those who kill in traffic when driving drunk, but the penalty of 5 to 8 years will only be applied by the judge, after the driver is tried in court. Even if the driver who killed in traffic is convicted of manslaughter , Article 44, item I of the Criminal Code states that custodial sentences (community service provision) may be replaced by deprivation of liberty (substitute imprisonment, jail). Regardless of the time of conviction.
Since December 19, when Law 13,546 / 2017 was approved, audiences and fanciful posts began to roll through social networks and, above all, through whatsapp, which caused a certain despair among the population. It is at this time that we see how people can be easily misled and come out viralizing misinformation on the internet.
To make the air even more dramatic, the layman who recorded the audio came to speak on “general alert”, warns that anyone caught drunk driving is already sleeping in jail, will no longer have bail and will serve a sentence of 5 to 8 years of imprisonment. Many headlines announced the “increased penalty for drunken driving”, and even law firms posted videos on youtube stating that, as of March 20, 2018, when the law goes into effect, “there will be no further bail , nor the conditional suspension of the process and nor criminal transaction to benefit who kills intoxicated in the transit. “(when the penalty is replaced by community services). To undo these lies and explain to the people in a way that everyone understands, I decided to write this post.
The first lie: increased pen for drunk driving
To begin with, Law 13,546 / 17 did not stir at all with regard to the driver driving drunk. The CTB articles that deal with it are 165 (driving under the influence of alcohol, drugs and even controlled drugs that cause addiction) and this has never given and will not give a chain, even with the new law. The driver will be notified for a serious infraction multiplied by 10, a fine in the amount of R $ 2,934.70, CNH will have collected for a maximum of 5 days, and administrative proceedings will be opened in Detran for the suspension of the right to drive for 12 months . The car will only be squeaked if a sober driver does not pick you up at the time of the notice.
Another CTB article dealing with drunken driving is the 306, a crime of driving traffic with altered psychomotor ability. In these cases, yes, the driver is assessed in all that he has in art. 165 and taken to the police station so that he can receive a voice of arrest there by the delegate and be indicted for traffic crime. The new law did not change anything in the provision of penalty for traffic crime: detention, from six months to three years, fine and suspension or prohibition of obtaining permission or authorization to drive a motor vehicle. The bail still exists: if the driver has money he pays the bail and exits through the front door of the police station. If you do not, go to the jail.
The second lie: no more bail
The bail continues to exist both for those who are caught driving drunk and even for those who kill drunk in traffic. The new Law 13546/17 did not change any of this as it is misrepresented on the internet! According to the Federal Constitution and the Code of Criminal Procedure, only heinous crimes of racism, racial insult, torture, narcotics trafficking and torture are unfeasible. Traffic crimes are not unapproachable.
The third lie: the penalty for those who kill alcoholic in traffic increased to 5 to 8 years
Not even in the time of penalty for those who kill drunk in traffic, Law 13546/17 stirred! She only added Paragraph 3 to Art. 302 of the CTB, which can not be read in isolation from the article and the caput, and which makes the form of manslaughter qualified. Look how it is today and how it will look after the law comes into effect:
Art. 302. Practice guilty homicide in the direction of motor vehicle:
Penalties – imprisonment, from two to four years , and suspension or prohibition of obtaining permission or authorization to drive a motor vehicle.
As everyone can see, the penalty time for killing someone in transit remains the same, and this will not change with Law 13,546 / 17. The only thing that changes is the inclusion of paragraph 3 at the end of article 302, qualifying the crime of manslaughter for those who kill driving drunk in traffic.
If the agent 3 conducts motor vehicle under the influence of alcohol or any other psychoactive substance dependence to determine:
Penalties – seclusion, from five to eight years, and suspension or prohibition of the right to obtain permission or authorization to drive a motor vehicle.
This means that during the trial, at the time of the sentence, the judge will take into account that the agent (a term used in the law to refer to the person who committed the crime) was intoxicated when he directed and caused the death of someone. This will weigh on the dosimetry of the penalty, but only when the defendant is the popular jury.
The fourth lie: every driver who causes bodily injury or kills in traffic takes chain from 5 to 8 years
The fact is that the person who kills in the traffic even when being drunk, will not necessarily fulfill 5 to 8 years of imprisonment. This is because article 44, item I, of the Criminal Code states that “regardless of the punishment applied, if the crime is guilty” (and for any type of guilty crime), custodial sentences (community services and payment of basic food baskets, for example) replace deprivation of liberty (imprisonment, jail).
At this point, the new law almost rained in the wet because the paragraph that intended to criminalize any alcoholic dosage in the blood was vetoed by the President of the Republic. In addition, Law 13,546 / 2017 only copied the text of art. 59 of the Criminal Code and pasted it in the form of § 2 in art. 291, recommending to the judge that at the time of applying the penalty for those who drink, direct and kill, give special attention to the guilt, the circumstances and the consequence of the crime. In art. 308 went on to regard as a crime the wooden horse and cramp, and added a paragraph to art. 303, which now qualifies the crime of serious or very serious bodily injury with a qualifier of 2 to 5 years’ imprisonment. In this case, there is also a guarantee and replacement of the detention penalty for the provision of community services and basic food baskets.
The discussion between the possible fraud and guilt will continue to exist and the penalties may reach up to 7 years of imprisonment for eventual misconduct. That is, if the defendant is indicted for possible fraud, which has been increasingly difficult in traffic crimes.