(In) constitucionalidade da lei 13.103/15

Abstract

The purpose of this study is to discuss the illegality of the toxicological examination and the possibility of suffering ADI (Direct Action of Unconstitutionality), having, as its primary objective, to discuss the decision of the Direct Action of Unconstitutionality, since it violates the primordial rights of being provided for in the Federal Constitution. The Brazilian constitutional order expressly prohibits the admissibility of evidence ob- tained in a way that may violate the nemo tenetur se detegere (guarantees of the indi- vidual), since it is protected by the right not to self-incriminate, while passive (letting do) collaboration does not is covered by the right to silence (recognition of a person, blood collection, superficial examinations or examinations, alcohol tests, toxic sub- stances, etc.), for which the subject is required to be tolerated, since legislation pro- vides that every citizen can not be bothered with actions that involve attack to the physical or mental integrity and disrespect the human dignity. The proposed discussion is about the illegality of Law 13.103/15 which requires that the driver with a professional license undergoes a toxicological examination. Attention should be paid to the fact that there are no provisions in Brazilian law to mention whether or not the subject should cooperate with the evidence. However, fundamental rights that protect the physical and moral integrity, the intimacy of the individual and the right not to produce evidence against oneself, as well as rights that assure the principle of isonomy, attempt to the illegality of such examinations. In this way, it is understood why the toxicological ex- amination suffers ADI.