Judge Suspends First
Trial For Reckless
Driving Citing
Constitutional Issues
The first trial of
reckless driving under
the new Ley de Tránsito
was suspended by the
judge on the basis of
serious constitutional
errors in the
legislation. Judge David
Hernández suspended the
trial while waiting a
decision by the Sala
Constitucional before
proceeding.
Alejandra Acuña Aguilar
is the first to stand
trial, charged with
reckless driving on
January 1, 2009, near
the Santa Ana Delegación
de la Fuerza Pública
(police station). The
woman was stopped by
members of the Fuerza
Pública who called in
the Policía de Tránsito
to give the woman a
breathalyzer test, which
resulted in a reading of
2.24, when the maximum
allowed is 0.74.
Acuña Aguilar was
detained and taken to
the Tribunales de
Justicia (courts).
According to judge
Hernández the new law
that went into effect on
December 23, 2008, and
is being tested in court
for the first time, has
constitutional flaws and
feels every judge has
the duty to consult when
there is doubt.
In this case the doubt
can only be cleared up
by the magistrates of
the Sala Constitucional
or Sala IV as it more
commonly known.
Hernández said the
legislation should be
clear on its
interpretations. In the
case of Acuña Aguilar
who is charged with
driving under the
influence, the law is
not clear on the type of
vehicle that constitutes
an offence. Is it a
bicycle, a horse, an
airplane? said the judge
and if applying the
letter of the law, in
his interpretation, it
excludes passenger
vehicles, applying only
to vehicles of public
transport - taxis and
buses.
The judge also found
problems with the
application of the
breathalyzer test.
Under the law an accused
has the right to have a
private blood or urine
test done within 30
minutes of the test by
the transit police.
However, if the accused
is detained and in a
holding cell, which
under the law the
suspected drunk driver
must be detained and
placed in preventive
detention, the accused
cannot exercise his or
right.
Given the questions
raised by judge
Hernández and the
request of the Sala IV
consultation, the
defence attorney
questioned the validity
of the confiscation of
the vehicle and asked
that the judge order a
return of the
confiscated vehicle to
his client.
However, prosecutor
Alfredo Araya argued
that the vehicle was
used to commit the
offence and returning
the vehicle would be
like handing a gun.
Notwithstanding, the
judge ordered the return
of the vehicle, but not
the license plates,
which means the vehicle
cannot circulate on
public roads.
Judge Hernández is an
experience trial court
judge, participating in
the murder trial of
journalist Parmenio
Medina, the judge who
ordered and took part in
most of the raids in the
Caja-Fischel case and
coordinator of the
establishment of the
Tribunal de Flagrancia
that went into effect
last year.
For his part, the
director of the Policía
de Tránsito, Germán
Marín, said the law will
continue to be applied
and without exceptions. |
