JIMLs / inf. art. 111 CC Road After a search of the famous case tenacious no final decision yet so sad promoted by the corporate site of the Metropolitan Police, see http:// www.metropolitana.gob.ar/noticia_59.html - it was finally found.
Basics verdict on February 16, 2011 in the summary No. 7229, Cause No. 36005/10, caratulas "JARA MAYORGA, Israel Luciano s / inf. art. 111 CC. "
AUTOS AND SEEN:
fundamentals to deliver verdict on February 16, 2011 No. 7229 into the record, because Issue . 36005/10, caratulas "JARA MAYORGA, Israel Luciano s / inf. art. 111 CC "followed by Israel against Mayorga Jara Luciano, identified with DNI No. 93708180, 40 years old, born on January 7, 1971, in Lima, Peru, the son of Cesar Jaime Jara (v) and Ana Maria Mayorga (v), single, merchant, domiciled in the street Tucumán 3617, Department 1, of this City:
AND WHEREAS:
That is accused Israel Mayorga Jara Luciano events of July 18 , 2010, at approximately 03.13 hours, at the intersection of Avenida Rafael Obligado and La Pampa Street, this city, when the person circulating a domain IKU-164 vehicle, while under the influence of drugs, with diminished capacity to drive in an appropriate way, having been made, by the Traffic Police Corps and City Transit, first a consideration with a pupilometer, which yielded positive results, and mindful of this, we proceeded to perform a control of saliva, which also tested positive, indicating the presence of cocaine and amphetamines.
That in his closing argument the prosecutor, Dr. Mario Gustavo Galante, accused Mr Jara Mayorga in relation to the fact described above, which had brought in the provisions of art. Act 111 of 1472, basing its findings on the evidence adduced during the trial hearing and the findings of fact and law arising from the minutes added to fs. 90/94. In its submission argued that the conduct displayed by the accused is serious, that has jeopardized its integrity and the rest of the population, and taking into account the provisions of art. 26 CC, requested that he imposed a sentence of three days of detention for more effective compliance with the accessory penalties of disqualification from driving for a period of ninety (90) days and attendance at driver education, with costs.
For its part, the Lord Advocate Officer, Dr. Francisco Malini Larbeigt, by the arguments arising from the minutes of fs. 90/94, entreated the acquittal of his godson procedural understanding that there is no evidence the responsibility of appointed, or who has ingested a toxic substance. In its brief argued that the only element of charge is a device that does not have a hundred percent effectiveness in relation to trying to determine, with no other evidence that will help determine that his client was unable to drive.
turn challenged the certification of the device used to perform the test, alleging that the same is not made within the country.
In turn, Mr. Jara Mayorga said he did not consume drugs or alcohol, that circumstance does not understand why the test result was positive, posing as a question the same to drink a "Actron" after any sport. Said that the day he was arrested for carrying out the control, the first test made it yielded no result, so the attending physician informed him that he would proceed to make further checks, which were positive. He said he had attended the album "Pasha" to drop two of his lady friends went to dance and was arrested for vehicular control to leave the place where he first made the measurement with the pupilometer and then the test saliva, recognizing in the hearing of those agents involved in describing the procedure and after testimony of these, the role of each in it.
In turn, during the debate audience were heard the officers involved in the procedure Marcelo Ariel Gonzalez Leon and Santiago Carlos Dominguez, the control action Maximiliano Diego Ojeda, Dr. Claudio Alejandro Seoane and Dr . Pablo Martínez Carignano.
In his statement, Mr. González León, story recall the procedure because it was the first positive control in this type of operations in Latin America. He claimed that in the first place was performed a breathalyser test which yielded results negative, then was tested with positive result of pupilometer and finally to control the saliva test used, discard the first device must not yield any results, resulting in the second positive result. During his story described the functioning of the device, saying that if the saliva sample is enough, the line is marked "C" in it and the time necessary to be marked the other lines, being that if all the control are marked is negative and if either is absent the control is positive for that substance. Also, on being shown the control device in question, recognized the same as usual used, as well as signing the minutes of fs. 2 and fs report. 3. Clarified that the said device is not marked line for the substance "cocaine." Finally, he noted that the photographic view of fs. 4 is usually performed as a complementary procedure (cf. minutes of fs. 67/70).
In turn, Mr. Dominguez gave explanations regarding procedures to carry out vehicle checks and operation of the device "salivaconfirm" which were answered with those made by the witness González León, recognizing sign in fs certificate. 2 and the photographic view of fs. 4, as well as the device was displayed, indicating that the line will not be marked for the substance "cocaine", the result is positive for it (see minutes of fs. 67/70).
For his part, Mr. Ojeda said their participation as a witness the carving of the minutes, stating that during the procedure was shown a "white gadget" can not remember in detail (cf. minutes of fs, 67 / 70).
also the president of the firm supplying the devices "salivaconfirm" with those checks are performed, Dr. Claudio Seoane said that it is a plastic instrument, packed in hermetically, which opens at the time of the examination and receives one end of saliva, which must be exposed three and five minutes, and if there is a substance in the fluid, the line indicating their presence is white. He argued that it is very effective, higher than ninety percent, with high sensitivity and specificity and that the outlet is qualitative, since it indicates the presence of a quantity of substance in the saliva but does not establish what that amount. He indicated that the dose sensing apparatus is minimal, so had been requested in the statement for bidding by the City Government, detecting if marijuana 12ng/ml, 50 ng / ml for amphetamines, 20 ng / ml for cocaine and benzodiazepines and 40 ng / ml for opiates. Said he does not know if there is another more sensitive device, noting that it determines the sensitivity of the sum of true positives plus false negatives, and the measurements yielded few false negative results. In turn, on being shown the test procedure of yore, said that should be taken as positive for cocaine, since the lines must be completely absent for the result to be so for their presence. That also explained how pupilometer works, noting that measures both the reaction of the pupil by fatigue as the ingestion of substances, taking a curve that yields both results (cf. minutes of fs. 79/81).
Finally, Dr. Pablo Martínez Carignano in his capacity as Director General of Road Safety of the City Government of Buenos Aires, explained that the Department charge that determines the schedules of controls alcohol and drugs. In the case of the latter is the first time carried out in South America and for that reason were engaged in the study of the subject for over a year, having carried out various consultations, including them to the Chair of Forensic Medicine and Toxicology, Faculty of Medicine of the University of Buenos Aires. He explained that the controls are qualitative rather than quantitative, in compliance with legally established, noting that the report referred to and was accepted as evidence emerges that there is minimal amounts of drugs allowed since they exert their action directly on central nervous system. He said the device used is ninety-eight percent (98%) effectiveness and the technical report of the control is done by the National Administration of Drugs, Food and Medical Technology (ANMAT) and as approved by international bodies , including the U.S. Food and Drug Administration (FDA), a procedure "ce clearance, these elements were sufficient to authorize the national income. Remember says the procedure, as was present and was the second control tested positive since the beginning (see minutes of fs. 90/94).
In turn, when ruling has also been taken into account that emerges from the minutes of fs. 2, fs reports. 3 and 49/50, the photographic view of fs. 4, fs documentation. 74/78 and fs. 82/89.
Thus, the record of fs. 2 and fs report. 3, realize the procedure conducted, which shows that the domain IKU stop the vehicle 164 is performed yielding control pupilometer positive, then passing control to test saliva affirmative result for cocaine and amphetamines, as was the carving of the minutes misdemeanors.
For its part, the documentation for fs. 74/78 reports on the use of the device and its specifications, it appears that has a certainty of more than ninety-five percent, the same for determining the presence of cocaine is ninety-seven point eight percent (see fs. 77).
also the report that fs looks simple to copy. 82/89, produced by the Department of Forensic Medicine and Toxicology, Faculty of Medicine of Buenos Aires University, maintains that "... there is not as recognized by national and international literature, a permissible concentration of substances referred to above . This is supported in that they exert their action directly on the central nervous system. Even in predisposed or pre-existing conditions could develop over the expected effects. You should also be noted that those who become addicted to these substances have on this basis, a pharmacological tolerance than expected, compared to the same dose in a casual experimenter ...".
Sitting above, at this point and the perspective of sound criticism, coinciding with the assessment outlined above it in order to give substance to the verdict handed down on 16 February this year, which comes to understand the act charged and proved the authorship of Mr. Jara Mayorga in it. This because understand that the accumulated evidence are an annoying box clear, precise and consistent evidence arises.
RESULTS:
That type with minor offenses in which the conduct in question has been framed to Mr. Jara Mayorga is that provided in Art. Act 111 of 1472, which punishes conduct two alternatives: one driving the vehicle exceed the allowable limits of alcohol in blood and another of someone who drives a vehicle "... under the action of other substances that reduce the ability to do ..."; corresponding to the displayed by the nominee, the second hypothesis.
In this sense, the conduct in question is to have circulated in the circumstances of time and place described above, with a domain IKU-164 vehicle, being under the influence drugs, with their diminished capacity to drive in an appropriate way, having been made, by the Traffic Police Corps and City Transit, first examined by a pupilometer, which yielded positive results, and attentive to it, proceeded to perform a control of saliva, which also yielded positive results, indicating the presence of cocaine and amphetamines.
As stated in the latest doctrine on the matter, it is a violation of danger, it needs to consummate the subject had driven a vehicle on public roads with their diminished driving conditions, creating a danger for third parties.
The behavior is defined by two elements: a) driving a vehicle, and b) the fact of being under the influence of substances other than alcohol, which diminish the ability to do so.
focuses on analysis of these elements, driving can be defined as the activity whereby the mechanisms driving the direction of a vehicle by moving in space, which involves the implementation of himself and his movement .
Under this definition, can only be author who is driver of the vehicle, or who is in charge of it.
The second element in the rule, made a generic reference to any substance, except alcohol intake in the form which has established residence in the other conduct intended as an alternative for the type-that of a so can adversely affect driving ability of the subject.
In turn, Art. 5.4.1 of the 2148 Act determines that it is considered impaired fitness to drive when there is drowsiness, fatigue, impaired motor coordination, attention, sensory perception or critical thinking, changing thinking, ideation and common reasoning.
For its part, the legislature, unlike the description in relation to the driving of a vehicle exceeding the allowable limits of alcohol in blood, has not made a quantitative benchmark for substances that diminish the ability to do so.
Note that art. 5.4.4 of the Act 2148 (Code of Traffic and Transport), states that it is forbidden to drive any vehicle with more than 0.5 grams of alcohol per liter of blood, motovehículos with more than 0.2 grams alcohol per liter of blood reaching the ban on passenger vehicles, children and cargo, at any concentration of the substance in the blood.
However, no indication of a permissible level of concentration of other substances that reduce the ability to drive, being provided only that the evidence to determine their presence will be qualitative, as the art. 5.4.8 of the 2148 law.
about it should be noted that, according to the documents that looks at fs. 82/89, which accounts for the report prepared by the Department of Forensic Medicine and Toxicology Faculty of Law, University of Buenos Aires: Any amount present detected substances that make up the list referred to by this report, affects driving ability and that they exert their action directly on the central nervous system .
For its part, the effects of cocaine use (substance found in the test made in the proceedings) may result in driving, are related to lack of security, less cautiously, more aggressive driving, worse perception of traffic signals, incorrect calculation of distances, increased sensitivity to glare, poor ability concentration and driving less accurate and coordinated.
Thus, analyzing what is stated in the previous paragraph, with more medical opinion that there is a tolerance allowed because this substance operates directly on the central nervous system, leads me to conclude that Lord's driving ability was impaired Mayorga Jara.
That said, I understand that the end objectives required by the type misdemeanors, are fulfilled in the actions taken by the defendant.
Indeed, the testimonies of Messrs. González Domínguez León and reveals that, due to the preventive control operations carried out traffic by the Government of the City of Buenos Aires, it was found that wrought on the record who acts fs. 2, the defendant was driving a car here in public and be subject to review by the pupilometer yielded positive results, a circumstance which was performed the saliva test was also positive, saying both at the hearing that was only well understood for the presence of cocaine.
concerned Proceedings realize the act of note, the report fs. 3, photographic view of fs. 4 and the device with which the test was fluid, having given evidence at the hearing that Mr. Ojeda was styled witness misdemeanor record.
In turn, Dr. Seoane, to examine the device that comes with the bundle, said only
had proved positive for the presence of cocaine. This way, under the single line was completely absent from the place where records are made measurements of the substances had been so positive for the same.
Finally, what makes the fact, Dr. Martínez Carignano, said there that day have been found under which proved to be the first operational tests carried out to verify the presence of substances incompatible with the conduct and other than alcohol.
However, the distinguished and courageous Officer Lord Advocate, in the audience questioned the probative value of the test called "salivaconfirm" used for measurements in the controls. This issue deals mainly two aspects: first the degree of certainty and effectiveness of the measurement and the other certification of the device used, since the procedure is not carried out in the country.
understand that the proposition should be settled in order to reinforce the conclusion that I prove the objective criminality of the conduct reproached, because the relevant charged by the procedure used for determining the presence of substances that diminish the ability to drive, because the latter is an element of type.
However, in order to provide support to the argument that allows me to reject the criticisms made by Dr. Malini Larbeigt, I had to resort to literature authors and foreign works published in various pages that illustrate the theme, as in the specific matter at hand, little or nothing has been written in the country.
For this, I was illustrating a paper published in the website of the Generalitat de Catalunya, the Road Safety Attorney, Helena Maria Prieto González, whose findings have also been part of the reports the Attorney General of Spain.
From work shows that for decades, different sectors and institutions insist on the harmful effects of alcohol consumption and other substances have on driving and road safety, under which we have worked on programs and strategies that allow recognition of drivers who are under the influence of these substances.
Accordingly, depending on the laws of each country have adopted different procedures ranging from clinical reports to test body fluids.
thus generated concern for the prevention of accidents by avoiding substances that can alter the handling capacity was extended to improve testing in public, paying particular attention to the possibility of conducting and reliability.
result of that, among other works, the recommendations arising from the so-called Project Rosita (Roadside Testing Assessment) and Rosita II Project, carried out in the European Union, coordinated by the University of Ghent, in which involving the Institute of Legal Medicine, University of Santiago de Compostela, and some U.S. states.
The project in its various phases tended to establish the conditions to be met for a drug test detection in traffic controls. In their conclusions, based on sensitivity analysis and specificity, it emerged that in order to meet the standards, they should be above 90% (ninety percent), with an accuracy above 95% (ninety five percent) for amphetamines, benzodiazepines and cannabis.
should be noted that the sensitivity of a test indicates the percentage of samples showing positive results in laboratory and had achieved positive results in saliva test performed on the road and is to determine the number of false negatives. Specificity indicates the percentage of samples with negative results in the laboratory and had yielded negative results in saliva test performed on the road and aims to determine the number of false positives.
Under this, if you look at the documentation accompanying the fs. 74/78, it appears that the accuracy of the test "salivaconfirm"-used in the present case, "is greater than ninety-five percent (95%), resulting in the case of cocaine with an accuracy of ninety-seven point eight percent (97.8%).
This was supported by the testimony of Drs. Seoane and Martinez Carginano at the hearing.
should be noted that the evidence does not yield a result of one hundred percent effective. It made remember some questions regarding the validity of the shots taken by the breathalyzer, the measurements carried out in checks for the presence of upper limits to the permissible blood alcohol.
must also be reported that, in this case, the saliva test is not an isolated element.
In fact, all controls, according to the testimonies of Drs. Seoane and Martínez Carignano, the test is performed on the fluid is positive only if an inspection by the pupilometer.
This instrument, explained Dr. Seoane, muscle reactivity measured by detecting the presence of substances as well as signs of tiredness or fatigue, showing a curve with two different results.
In the instant case, the report fs. 3, indicates that the control exercised by the pupilometer has been positive in the case of Mr. Jara Mayorga. This was corroborated by witnesses and Domínguez González León, agents acting for the procedure, which adds the statement by Dr. Martínez Carignano.
a result, positive result pupilometer more positive outcome of a test with a high percentage of reliability, I understand that argument is rejected for lack of accuracy of measurements made, it valued the perspective of sound criticism.
turn, dismiss the argument regarding the lack certification of detection devices because, as Dr. Martínez Carignano said at the hearing, the National Food, Drug and Medical Technology (ANMAT ) has approved its entry into the country and considered it unnecessary to conduct an analysis of quality here, because it has enough international technical reports, including that done by the U.S. Food and Drug Administration (FDA) a procedure "ce clearance."
grounds A is added to the medium for the test is not invasive or cruel, thus fulfilling the requirements of the standards to which I referred above, as it is a qualitative test consistent in saliva collection with a sterile, disposable detector which performs detection through a system of selective chemical reagents.
Finally, I consider that the obligation to undergo the test does not affect the ban on self-incrimination guaranteed, because the perpetrator is taken as an object test and not as a subject in the case of a finding of the presence of chemical substances other than alcohol that decrease the ability to drive.
As far as the subjective aspect of behavior, Mr. Jara Mayorga, knows he can not drive a car if you have consumed substances that diminish their ability to do so, notwithstanding the fact that the day drove his shot in the street, resulting in positive test for the presence of cocaine in his body.
At this point, let assume that rule out the presence of amphetamines aware that the analysis of the device accompanies the file, displayed at the hearing, the testimony of the carvers of the minutes and Dr. Seoane, there has only been positive for the presence of cocaine.
This will set the required intent to commit the offense.
In regard to the harmfulness of the conduct required by art. 1 of Act 1472 and by art. 13 of the CCAB, with the displayed by the accused, has violated the legal right "security and order in transit" protected by the rule. I have in mind to do it is to be protected in transit security as a subspecies of public safety, avoiding dangerous behavior, going beyond the tolerable risk, and may affect third parties.
Thus, Mayorga Jara, driving his shot at dawn on a Sunday, more precisely at 03.13 am in the intersection of Avenida Rafael Obligado and La Pampa Street, this city, in the vicinity of a known disk, verifying both the binocular as the device used, the presence of a substance that can reduce your ability to drive.
not find circumstances which justify the conduct or exclusive cause of guilt.
Therefore, the defendant must be held accountable in the character of the author, was aware of who was driving off the road, under the circumstances I have been pointing out (arts. 12 and 20 of Act 45 of 1472 and CP).
regard to the penalty to impose, a lack of records (pages 64), personal circumstances, the good impression made, the fact that he always found the law in these proceedings and other guidelines contained measurable penalty in the art. Act 26 of 1472, I have to determine the punishment of one (1) day of arrest, which left open compliance, determining that the meeting within three months with the rules of conduct consisting of: 1) take up residence and inform the court of this change, 2) comply with subpoenas or requests that the Prosecutor or the Court made thereto, and 3) take the course that dictates the School of Education Road and Traffic of the City Government of Buenos Aires (arts. 22 inc. 3, 25, 45 incs. 1, 2 and 7, 46 and 111 of the Act 1472).
With regard to the costs of prosecution, the circumstances described in the hearing I may waive the payment thereof (art. 14 of Law 12).
Finally, according to the provisions of art. 11.1.3 of Annex I of the 2641 law applicable to, the firm found Case, were sent a letter to Transit History Registry of the Government of the City of Buenos Aires.
Buenos Aires, February 23, 2011 .-
