Lei Seca mais dura passa a valer a partir de hoje
[ad#336×280]s novas regras que endurecem a lei seca e começam a vigorar nesta sexta-feira (21) devem acabar com a brecha usada por muitos motoristas para fugir de punição. Segundo especialistas ouvidos pelo G1, recusar o bafômetro não vai mais impedir o processo criminal, mas há críticas à “subjetividade” do texto.
Para advogados, a lei aumenta o poder da autoridade policial de dizer quem está embriagado e, para defensores da tolerência zero ao volante, a norma transfere aos tribunais a tarefa de interpretar cada caso, dando margem para que motoristas alcoolizados escapem da Justiça.
O que muda
A mudança no Código Brasileiro de Trânsito sancionada sem vetos nesta quinta-feira (20)pela presidente Dilma Rousseff possibilita que vídeos, relatos, testemunhas e outras provas sejam considerados válidos contra os motoristas embriagados. Além disso, aumenta a punição administrativa, de R$ 957,70 para R$ 1.915,40. Esse valor é dobrado caso o motorista seja reincidente em um ano.
A lei seca havia sido esvaziada depois que o STJ (Superior Tribunal de Justiça) decidiu que o bafômetro e o exame de sangue eram obrigatórios para comprovar o crime. Motoristas começaram a recusar os exames valendo-se de um direito constitucional: ninguém é obrigado a produzir provas contra si mesmo. O condutor era multado, perdia a carteira e tinha o veículo apreendido, mas não respondia a processo.
Isso acontecia porque a lei previa como conduta proibida dirigir com mais de 6 dg/L (decigramas por litro) de álcool no sangue. Agora, passa a ser crime “conduzir veículo automotor com capacidade psicomotora alterada em razão da influência de álcool ou de outra substância psicoativa que determine dependência”. Com isso, o limite de álcool passou a ser uma das formas de se comprovar a embriaguez, e não mais um requisito de punição.
Críticas
Para o senador Ricardo Ferraço (PMDB-ES), autor de um projeto que previa tolerância zero aos motoristas, as mudanças são como “enxugar gelo”. “A lei poderia ter sido mais ousada, porque nós estamos diante de uma epidemia. São mais de 40 mil mortes por ano.”
O maior problema, no entanto, segundo o senador, está na subjetividade da nova lei. “Eu acho que ficou muito subjetivo. Os agentes vão fotografar, vão filmar. Mas como o juiz vai interpretar essa prova? O bafômetro é a única ferramenta eficaz de comprovar”, defende. “Nós teremos problemas na interpretação disso [pelos tribunais].”
“Eu acho que a lei traz inovações e mudanças que faziam parte da proposta de nossa autoria aprovada no Senado. O vídeo, imagem, testemunho para inibir esse consórcio perverso que é a embriaguez e a direção no trânsito”, afirma Ferraço. “Mas estou aguardando para ver na prática esta forma tão subjetiva que a lei incorporou de comprovar a embriaguez”, afirma.
O advogado constitucionalista Pedro Serrano também avalia que as novas regras possuem conceitos subjetivos que podem abrir espaço para contestações no Supremo Tribunal Federal (STF).
“No direito penal, o crime tem que ser previsto usando palavras precisas, e não palavras abertas. É muito vago falar em ‘afetar a capacidade psicomotora’. Isso acaba jogando na autoridade policial o poder de definir, e não na lei. Cabe à lei definir qual é a conduta proibida, e não à autoridade policial”, afirma. “Do contrário, fere o Estado de Direito.”
“Qualquer pessoa que sofrer esse tipo de constrangimento pode levantar essa questão. É um princípio constitucional”, completa.
Elogios
Já para o juiz criminal de São Paulo Fábio Munhoz Soares, um dos que devem julgar casos envolvendo pessoas embriagadas ao volante, a mudança “é um avanço”.
“Agora basta qualquer tipo de prova que demonstre que você está embriagado. Não adianta recusar o bafômetro. A lei acabou com aquela situação do sujeito que sai cambaleando e não tem como comprovar que estava bêbado. Ele é encaminhado para a delegacia para o perito para fazer o exame clínico”, diz.
Para o magistrado, o policial tem papel relevante. “Sempre foi desse jeito. O policial sempre foi ouvido, ele é uma testemunha muito importante”, afirma.
O promotor Marcelo Barone também elogia a alteração. Segundo o integrante do Ministério Público, a forma anterior da lei impedia que os motoristas alcoolizados fossem denunciados. “Digamos que não era uma brecha, era uma avenida inteira. Eu mesmo cheguei a deixar de oferecer denúncia. Agora vão aumentar os flagrantes, prisões, denúncias. A pessoa vai sentir alguma consequência no ato”, avalia.
Mas o juiz ressalva que, “para que seja processado criminalmente e condenado, é necessário que fique demonstrado que o indivíduo teve a capacidade alterada”. “Do contrário, não há como ser condenada”, afirma.
Penas
O aumento da multa aos motoristas não é consenso entre os especialistas, mas, sobre a punição na esfera penal, ele avaliam que o Congresso perdeu a oportunidade de aumentar as penas em caso de condenação.
“Essas multas muito pesadas são só para dizer que é mais severo, mas tem muito pouca eficácia”, avalia o juiz Munhoz Soares. “Mas matar bêbado no trânsito devia ser uma causa de aumento de pena. É esse o tipo de crime que nos deixa mais perplexos. Se quer realmente prender, tem que colocar uma pena alta, mais de quatro anos.”
Para o promotor, a pena deveria ter sido aumentada, porque hoje geralmente é convertida em serviços à comunidade. “Por que nos Estados Unidos funciona? Porque lá é preso, aqui não. Mas isso implica em aumentar o número de pessoas presas. Tem que construir presídios, não interessa para o governo”, diz.
Já Dirceu Rodrigues Alves Jr, da Associação Brasileira de Medicina do Tráfego (Abramet), acredita que a única solução é a tolerância zero de álcool no trânsito. “Essa legislação realmente facilita o diagnóstico. O bafômetro passa a ser usado como fator de negativa do álcool, ou seja, o motorista vai soprar para provar que não ingeriu álcool. Mas tudo fica alterado com a bebida, atenção, concentração, raciocínio, respostas, reflexos, visão, audição. Teria que proibir totalmente”, afirma. Com informações do G1
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