Garantias processuais penais: a recusa ao teste do etilômetro como meio de prova do estado de embriaguez

Abstract

The present study deals with the legality and constitutionality of the means of proving the state of alcoholic drunkenness foreseen in the Brazilian Traffic Code, with a focus on the obligatory test of the ethylometer, following the changes promoted by laws nº 11705/2008, nº 12.760 / 2012 and 13,281 / 2016. The discussion on the extension of the right to silence and the obligation of the driver to undergo tests to prove alcoholic drunkenness are highlighted. The research is based on the analysis of doctrine, jurisprudence and legislation pertinent to the subject, mainly the Constitution of the Federative Republic of Brazil of 1988, the Brazilian Transit Code (CTB), the Pact of São José da Costa Rica and laws nº 11,705 / 2008, nº 12.760 / 2012 and nº 13.281 / 2016. By this it is understood that doctrine and jurisprudence have been attributed too extensive an interpretation of the right to silence, so as to create a general right not to produce evidence against oneself. It is therefore necessary to delimit the extension of the application of the right to silence, which seeks to enable the accused or defendant to remain silent during interrogation and to protect him from measures taken by the State that affect his or her integrity or human dignity.