Trabalho de Conclusão de Curso de Graduação
A colisão entre o princípio do silêncio versus o direito à vida e à segurança pública na recusa ao teste do etilômetro
Autor
Santos, Ana Gabriela Gabriel
Institución
Resumen
Mixing alcoholic beverages and driving is a dangerous combination responsible for several accidents throughout Brazil. The crime provided for the driver who drives under such conditions is laid down in Article 306 of the Brazilian Traffic Code. According to the law, the crime of driving under the influence of alcohol will remain configured only by providing proof alcohol concentration greater than or equal to 6 decigrams through alcohol tests. Then, in order to get rid of criminal charges, the drivers refuse to perform the breathalyzer, claiming protection principles of silence and non-self-incrimination contained in the Brazilian Constitution. The alleged principles end up colliding with the principles of the right to life and public safety which express the constitutional interest of community protection. In this context, this work aims to show the balance technique as a solution for the collision between principles. The study presented an approach to the normativity of principles and its projection in Law due the post-positivism and the neo constitutionalism paradigm. Through the examination of the arguments over the subject was analyzed which principles should prevail in the case and, consequently, was checked the possibility of mandatory breathalyzer, taking into consideration the guarantee of principles as fundamental rights that guide the democratic state. At last was held an analysis of the decisions taken by the Court of Justice of the State of Rio Grande do Sul about the subject.