Non-compliance with the principles of innocence and non-self-incrimination, for refusing to undergo a breathalyzer test (Original)

Abstract

This article analyzes the constitutional validity of the presumption provided in Article 464.5 of the Comprehensive Organic Criminal Code, which considers the driver to be in the highest state of intoxication when they refuse to take a breathalyzer test. It also examines its compatibility with the principles of presumption of innocence and prohibition of self-incrimination. The objective is to determine whether, in numeral 5 of Article 464 of the Comprehensive Organic Criminal Code, the legislator has disregarded the principles of innocence and the prohibition against self-incrimination. The study employed a qualitative methodological approach, of a dogmatic-analytical nature, using methods such as analysis-synthesis, exegetical, and inductive. The results show that the challenged presumption reverses the burden of proof and erodes the core content of the presumption of innocence and the nemo tenetur principle (no one is obliged to incriminate themselves), by turning the defendant's refusal into an almost conclusive indication of guilt. It is therefore recommended to implement a legislative reform that classifies refusal as an independent and proportional offense, while maintaining the requirement for scientific proof of blood alcohol content and ensuring both road safety and due process.