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| Judges questions constitutionality of DUI law https://forum.costaricaticas.com/viewtopic.php?f=1&t=26871 |
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| Author: | Irish Drifter [ Fri Jan 23, 2009 11:24 am ] |
| Post subject: | Judges questions constitutionality of DUI law |
From this mornings Inside Costa Rica " 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 PolicÃa 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 PolicÃa de Tránsito, Germán MarÃn, said the law will continue to be applied and without exceptions." |
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| Author: | Orange [ Fri Jan 23, 2009 12:15 pm ] |
| Post subject: | |
-How can a drunk driving law exclude passenger cars? That's precisely who it was created for. -And the person cannot exercise their right to have a blood test because they are detained? I say let them out so they can drive to the nearest lab and have their blood drawn. Afterall, it's their right. 
Sounds like this judge is an American lawyer/judge, trying to interpret things that aren't there. This guy is an imbecile. She got her car back, but needs to go get some plates. MUY TICO! 
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| Author: | Pacifica55 [ Fri Jan 23, 2009 12:44 pm ] |
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Orange, no matter the intent, if the law is not clear about exactly what "vehicle" it applies to then it cannot be enforced. Should be easy to clear up. As far as the breathalyzer, even in the US they have to be calibrated and certified on a regular basis. Are you saying that a person should not have the opportunity to challenge the validity of the test? Some unscrupulous cop could have a hayday with a "sensitive" breathalyzer. I believe this whole thing will shake out as I predicted last year: The fines are so high that it makes fighting the offense worthwhile. The CR judicial system is notoriously inept with a very low conviction rate. Soon, the courts will be even more backed up. The bribe system may end up yielding less money to the cop than the old system because motorists will demand the ticket instead of paying an outrageous fine. In any event, the lawyers will get the cash..... 
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| Author: | Irish Drifter [ Fri Jan 23, 2009 1:50 pm ] |
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Pacifica55 wrote: As far as the breathalyzer, even in the US they have to be calibrated and certified on a regular basis. Are you saying that a person should not have the opportunity to challenge the validity of the test? Some unscrupulous cop could have a hayday with a "sensitive" breathalyzer. That has been something I have worried about since the law was passed. The transitos have portable breathalyzers. No one has ever said, in any article I have read, if they are ever calibrated and therefore how accurate they are. In the U.S., in most states, a portable breathalyzer is used only to establish that it is possible the person is above the limit. They are then administered a either a blood alcohol test or tested with a full scale breathalyzer which are calibrated on a fixed time schedule. Recently in South Florida the test results were thrown out because a defense attorney introduced into evidence that the FHP technician who certified the calibration of some machines did not follow the proper procedure of using distilled water. Orange wrote: And the person cannot exercise their right to have a blood test because they are detained? I say let them out so they can drive to the nearest lab and have their blood drawn. Afterall, it's their right.
I suspect that is a tongue in cheek response because obviously the suspected intoxicated driver would be driven by the police to the point where further testing could be done as is done in the United States. |
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| Author: | DiegoC [ Fri Jan 23, 2009 9:22 pm ] |
| Post subject: | |
The breath analyzer the Transit Police use here, the hand held type, are notoriously inaccurate. The use of the device would not hold up in many states. Police who don’t know how to estimate the degree of intoxication through field sobriety tests including the onset of horizontal gaze nystagmus have to use the hand-held device to screen drivers. The more sophisticated breath analyzers require a stable platform in order to be calibrated and then used. The outcomes of a stable calibrated intoxilyzer are usually accurate. It is just like ID said, if a breath analyzer was not been properly calibrated it is clearly a rebuttable presumption for the defense which would cause an immediate dismissal of charges IF the prosecutor was foolish enough to file the charge in the first place. But, this is Costa Rica where throwing spaghetti against the wall to see what sticks is not just an art form, it is sometimes de-facto law -- guilt until proven innocent. I have it on very good authority that the trial lawyers for the fiscalia are really angry because the new traffic law in dominating all of their time and they cannot do anything else except deal with an overwhelming calendar of traffic violations. |
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| Author: | mike121 [ Sat Oct 22, 2016 8:21 am ] |
| Post subject: | Re: |
Orange wrote: -How can a DUI law exclude passenger cars? That's precisely who it was created for. -And the person cannot exercise their right to have a blood test because they are detained? I say let them out so they can drive to the nearest lab and have their blood drawn. Afterall, it's their right. Sounds like this judge is an American lawyer/judge, trying to interpret things that aren't there. This guy is an imbecile. She got her car back, but needs to go get some plates. MUY TICO! Hello In such kind of situation, just go through with the Best DUI lawyer, who had a knowledge of all DUI laws. Thanks |
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| Author: | Osgood [ Sat Oct 22, 2016 10:48 am ] |
| Post subject: | Re: Judges questions constitutionality of DUI law |
Yes,the case is still ongoing 
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