Taking a blood sample from the driver of a vehicle involved in a road accident in order to determine his/her blood-alcohol level, when a breathalyser test was impossible
Right to non-self-incrimination;
Principle of human dignity;
Right to personal integrity;
Crime of abstract danger;
Principle of minimum intervention;
Presumption of innocence.
RULING No. 418/13
15 of July of 2013
Even though the right not to incriminate oneself is not expressly recognised in the Constitution, it does possess constitutional authority, because it is a corollary of the protection of fundamental values or rights like human dignity and the presumption of innocence. Taking a blood sample from a driver who is unable or unwilling to consent to it, in order to determine his/her blood alcohol level, does not imply a violation of the right of non-self-incrimination. It is a mere basis for an expert examination whose result is not known in advance, and it does not contain any declaration or active behaviour by the examinee that would suggest that he/she acknowledges facts that would render him/her liable. Nor does the sample represent a breach of the right to physical and moral integrity, both because it barely affects those rights and because the legislator must take account of the need to respect the preservation of rights pertaining to other interested parties.
The normative interpretation under which a driver who has been involved in a road accident and is physically incapable of blowing into a breathalyser tube to test his/her alcohol level must be subjected to a blood test conducted by a doctor from an official health establishment, which is then used to diagnose the extent to which the driver was or was not influenced by alcohol, namely for the purpose of determining his/her criminal liability, even if his/her state does not allow him/her to give or refuse consent for such a sample, is not unconstitutional.
This was a mandatory appeal by the Public Prosecutors’ Office against a decision in which the court a quo denied application of a norm contained in the Regulations governing the Inspection of Driving under the Influence of Alcohol or Psychotropic Substances (RFCIASP), on the grounds that it considered the norm unconstitutional. The norm in question says that when a person who is to be examined for the purpose of detecting alcohol in his/her blood is not in a physical condition that would enable him/her to blow into a breathalyser, the latter test must be replaced by a blood test, even if the subject is not in a state to be able to give consent.
At issue was evidence brought against a person accused of being the material author of a crime of driving a vehicle in a state of drunkenness. The court a quo considered that in the light of the Constitution, the examination was null and void as evidence, because the blood sample was taken when the accused was unconscious and unable to consent to or refuse it. This conclusion was reached as a result of the interpretation of the RFCIASP norm such that when a person who is in a road accident is rendered unconscious, it is lawful to take a blood sample without any consent on his/her part, in order to bring criminal proceedings against him/her.
The Constitutional Court gauged the norm’s constitutionality in the light of various parameters.
The Court said that the principle nemo tenetur se ipsum accusare had to be considered, regardless of the fact that it is not expressly stated in the Constitution. This principle is associated with the right to silence as an option that pertains to accused persons, who can choose not to make self-incriminatory statements, and protects them from the improper exercise of coercive powers with a view to forcing them to collaborate in their own incrimination.
The European Court of Human Rights has held that the right to non-self-incrimination does not cover the use in criminal proceedings of evidence that can be obtained from an accused and exists independently of his/her will. Examples include the taking of blood samples (Saunders v. The United Kingdom, decision of 17 December 1996).
Upholding its own earlier jurisprudence, the Constitutional Court took the view that taking a blood sample in order to determine the blood-alcohol level of a driver who is unable to give or refuse consent does not imply a violation of the right not to incriminate oneself.
Nor did it consider that there was any breach of the right to the inviolability of personal integrity, which encompasses physical and moral integrity. This inviolability does not mean that this right absolutely prevails over other constitutionally protected rights and interests. What it does entail is an absolute prohibition on the more intense forms of violation, such as torture and cruel, degrading or inhuman treatment. Given the characteristics of the intervention it entails and the reversibility of the damage the latter causes, taking a blood sample constitutes a very low level breach of the subject’s right to physical integrity. An exception would be a situation in which medical reasons linked to the examinee’s special health status mean that collecting such biological material might be inadvisable, because it involves a special danger or risk. In such cases, a blood test cannot be imposed, even if no alternative form of medical exam is possible. However, the fact is that exceptional situations of this kind are safeguarded in the relevant norms.
Where moral or psychological integrity is concerned, in its position as a legal value linked to self-determination and the manifestation of each person’s free will, the possible violation in the present case would not result from the direct contradiction of the examinee’s will – something that would be the case if one were to permit taking a sample from a subject who refused it – but from the impossibility of taking that will into consideration when the subject is unconscious.
It is also possible to consider that taking a blood sample affects the examinee’s right to the privacy of his/her personal life. However, the extent to which such an intervention intrudes into that life is small, all the more so in that it only involves extracting a sample of a given biological material with a view to obtaining a very circumscribed form of information intended for purposes determined by law, and takes place in a hospital and is done by health professionals who are bound by a code of confidentiality.
The Court noted that driving on the public highway is an activity that is simultaneously of manifest use to society and brings with it substantial risks of damage to fundamental legal assets, such as life, personal integrity and private property. It is thus essential to ensure the adoption of legislative measures designed to guarantee road safety, namely and when necessary, by requiring people not to drive.
The high accident rates on our roads are largely due to circumstances linked to drivers. The way in which alcohol consumption interferes with drivers’ behaviours has led the legislator to intensify the protection of the legal assets affected by the increased risk derived from driving under the influence of such substances.
The protection available in the penal field now includes a legal type of crime in the abstract danger category – a danger which in this case is created by driving a vehicle in a state of drunkenness or under the influence of narcotics or psychotropic substances.
The Constitutional Court has already said that this legal type of crime does not configure a violation of the principle of minimum intervention by the Criminal Law, which is based on the idea of proportionality when the right to personal freedom is restricted, so that the restriction must be that which is needed in order to protect other legal assets to which the Constitution affords its protection, must be appropriate in terms of reducing the risks that such assets will be damaged, and must be proportional in the strict sense, in that it must be based on widely accepted medical and scientific criteria that make it possible to gauge the degree to which the behaviour of persons who drive under the influence is distorted.
The creation of legal types of crime must be accompanied by legal means that make it viable and operable to provide evidence of the respective facts and then sanction them.
In the case of driving while drunk, any prohibition on taking blood samples from drivers who are incapable of giving, or unwilling to give, their consent would mean that it would be impossible to secure evidence of the objective elements of the legal type, and consequently that crimes committed by such drivers would go unpunished.
Examination in order to determine alcohol levels is necessary and appropriate to the need to safeguard the legal assets involved and to discover the truth which criminal procedure is designed to reveal.
The Court went on to look at the rights to one’s good name and reputation, and to the intimacy of one’s private life. It said that the assets the norm seeks to protect and the dangerous nature of the forms of behaviour it seeks to prevent, justify and legitimate the normative measure in question, while the personal loss to the subject who is obliged to undergo the alcohol test does not attain the essential core of fundamental rights that cannot be waived.
The effect on the fundamental rights that may be at stake here is intended to safeguard the efficacy of the state’s desire to punish, using sanctionative norms that are created in order to guarantee the effective material protection of other fundamental rights – life, physical integrity, private property – that are encompassed in the protection afforded to safety on the roads. Here too the restriction complies with the principle of proportionality, in that it is appropriate (it is an acceptable means of pursuing the objective of protecting the fundamental rights in question), necessary (because, given the perishable nature of the evidence, it is the only means that makes it possible to fulfil the state’s will to punish), and proportional in the strict sense of the term, in that it is a measure that is a balanced and fair response to the need to protect rights that must be protected.
One Justice concurred with the Court’s decision, but on different grounds. In her opinion the problem posed by the norm sub judicio cannot be resolved by looking at it from the perspective of restrictions on fundamental rights, whatever they may be. She saw the norm as a means by which the ordinary legislator has sought to harmonise the fulfilment of its duty not to affect the fundamental rights of certain persons (here, drivers of vehicles) with that of another duty to which it is also bound – that of issuing norms which efficiently protect the rights of others (other people’s rights to physical integrity and safety). The consequences of this distinction include the fact that it is not necessary to subject the norm to the test of its proportionality in order to assess its conformity with the Constitution.
Rulings nos. 95/11 (16-02-2011); 155/07 (02-03-2007); 319/95 (20-06-1995); and 128/92 (01-04-1992).