O princípio do nemo tenetur se detegere no crime de embriaguez ao volante: pièce de résistance no vale tudo probatório

Abstract

This work was developed during the Criminal Sciences Master's Degree undertaken at the Graduate Program in Criminal Sciences of the Law Faculty at the Pontifical Catholic University of Rio Grande do Sul, and it is linked to the Criminal Violence System concentration area and to the Contemporary Criminal Legal Systems research line. The study carried out here aimed to analyze the right one has to not produce evidence against himself and its application in drunk driving evidence. In the first chapter, aspects of criminal policy related to traffic violence are addressed, emphasizing the drunken driving offense, as well as the failure of the criminal law as means of control for the problems in today's society, such as the numerous cases of dead and wounded people on the Brazilian streets and roads. In a second step, the study goes through the provided items of proof in Art. 306 Brazilian Traffic Code – drunk driving, as per the drafting given by the Law 12,760 / 2012, ascertaining from the general concept of evidence, through its features; the dependence or not of the accuser’s cooperation for their production, the necessity of intervention from “corporal”, to finally analyze in detail the means of proof for the drunken driving offense configuration. The third and final chapter analyzes the principle of nemo tenetur se detegere, its origin and reception in the legal system, as a fundamental right, including the consideration of the unconstitutionality of evidence for the drunkennessconfirmation, based on the prevalent application of the nemo tenetur se detegere principle.