The Constitutional Court has issued a ruling that may cause changes in the regulations on alcohol testing, considering that the National Police violated the fundamental rights of a woman who was taken once morest her will to the police station to undergo the corresponding test. The examination at the Madrid Municipal Police headquarters confirmed that he far exceeded the permitted blood alcohol level. In fact, she was convicted by the ordinary jurisdiction for this fact, but she always maintained that current legislation did not allow her to be forcibly transferred to the police station, an issue in which the Constitutional Court has agreed with her, annulling the sanctions imposed on her. they imposed. The guarantee court reasons that the Police would have violated his right to personal liberty, included in article 17.1 of the Constitution, as well as the right to the presumption of innocence, proclaimed in article 24. The first of these articles establishes that “ Every person has the right to liberty and security. No one can be deprived of his freedom, except with the observance of what is established in this article and in the cases and in the manner provided for by law.
The ruling of the Second Chamber of the Constitutional Court – of which Judge María Luisa Balaguer, from the progressive sector, was the speaker – has estimated that the applicant for protection was taken to the police station once morest her will without the agents correctly applying the legal regulation of the controls. of alcohol, because no rule allowed them to take the woman to police stations to carry out the control there if she did not give herself freely. Instead, she consented following the officers warned her that if she persisted in her refusal she might be charged with a crime of disobedience, separate from that related to drunk driving.
The sentence of the criminal trial imposed on the convicted woman a seven-month fine, with a daily installment of six euros, with the subsidiary personal liability, in case of non-payment, of one day of deprivation of liberty for every two unpaid daily installments. Likewise, he was sentenced to deprivation of the right to drive motor vehicles and mopeds for a period of one year and one month, as well as to pay the costs of the procedure. It was considered proven, in summary, that the plaintiff, at around 2:30 a.m. on July 24, 2021, was driving a vehicle on Costa Rica Street in Madrid, following having ingested alcoholic beverages that impaired her mental and physical abilities to do so. “with the necessary prudence, attention and skill, which prevented her from circulating in safe conditions for herself and other road users.” The story continues that she was required to stop her vehicle by agents of the National Police Corps in a security check, “who observed obvious symptoms of alcohol intoxication, such as a strong smell of alcohol, red eyes, slurred speech, and a congested face. , drowsiness and abnormal wandering.”
In view of this, they requested the presence of the Madrid Municipal Traffic Police with a precision breathalyzer, but they were unable to obtain it. Since the latter was not possible, the acting agents asked the appellant to accompany them to the offices of the aforementioned Municipal Police. Once there, the plaintiff was urged by the competent team to undergo the breathalyzer detection test, “which was performed with a precision breathalyzer, using the exhaled air method.” The result was 0.98 milligrams per liter of exhaled air, in the first test carried out at 03:10 a.m., and 0.95 milligrams per liter of exhaled air, in the second test carried out at 03:38 a.m. . After the first conviction was appealed, the Madrid Court confirmed it, considering that “the evidence provided was sufficient and valid, concluding that the sentence imposed was legal, proportionate and justified in light of the circumstances of the specific case.”
The Constitutional Court has, however, reached the opposite conclusion. The court reasons in its ruling that “obtaining evidence in violation of fundamental rights (…) produces the effect of the fruit of the poisoned tree that determines the nullity of the testimonial, the breathalyzer report and any means of evidence derived from them. ”. The ruling states that the driver did not really consent to her being taken to the police station. “That freedom (…) is not present when the person who makes a certain decision—in our case, accompanying police officers to the police station—does so under significant pressure from a public official, so that one cannot speak of full self-determination or of the provision of free and unconditional consent. The sentence adds that the person who obeys the order (from the National Police in this case) cannot be made “in a worse condition” than “the other person who neglects or resists it.” And he adds very conclusively that “a deprivation of liberty does not cease to be a deprivation of liberty simply because the person affected accepts it.”
What affects the most is what happens closest. So you don’t miss anything, subscribe.
The Constitutional Court emphasizes that “in short, in cases of temporary deprivation of liberty of citizens by agents of the State, it is required that there be a legal standard of coverage, oriented towards legitimate purposes in constitutional terms, that is expressed clearly, not “cases in which the citizen acts completely voluntarily may be considered as such deprivation of liberty.” And he explains that “it cannot be deduced that there is a clear legal provision, that responds to the requirements of security and certainty, that justifies the transfer of a person from a point where they are intercepted at a security checkpoint to a police station to perform the breathalyzer test, in those cases in which the person does not voluntarily accept, in an unquestionable and clear manner, this trip to perform the test.”
The court itself suggests that legislative reforms may possibly be necessary by alluding to the fact that it expresses its decision in favor of the appeal “regardless of the political-legislative convenience of expressly regulating the situation described, from the perspective of this appeal for protection.” It makes it very clear, however, that “the lack of legal support for the actions of the agents, together with the need to restrictively interpret any exception to the general rule of freedom, must translate into the conclusion that the right of The appellant that, in this case, should be understood would be the right to freedom” and the one related to the presumption of innocence.
to continue reading
_
