05practice area
Traffic crimes
Practice in traffic crimes in São Bernardo do Campo and São Paulo, from the police stage to the criminal case, with attention to the driving license.
Monday to Friday, 9am to 6pm. The message already says it came from this page. Send it and describe the situation in a few lines.
A traffic stop can open two paths at the same time, an administrative one before the traffic authority and a criminal one in court, when the conduct is defined as a crime in the Brazilian Traffic Code. The practice handles the criminal side, from the police station to the end of the case, in São Bernardo do Campo, São Paulo and the ABC region.
The practice frequently assists professional and ride-hailing drivers, for whom the driving license is a work tool. Each situation requires individual analysis, within the limits of the law.
When the case starts at a traffic stop or at a police station, the practice keeps a dedicated service for assistance in flagrante arrests and at the police station, with guidance on the first steps.
Drunk driving
Driving a motor vehicle with psychomotor capacity impaired by alcohol or by another psychoactive substance that causes dependence is a crime under article 306 of the Brazilian Traffic Code. It may be established by breathalyzer, blood test, clinical examination, video or witness testimony, and the defense examines how that evidence was produced and what it actually shows.
Breathalyzer refusal
Refusing the breathalyzer test is an administrative infraction (article 165-A of the Brazilian Traffic Code), with a fine and suspension of the right to drive, but the refusal on its own is not a crime. A criminal case depends on other evidence indicating that the capacity to drive was impaired.
Accidents with victims
When an accident results in death or injury, the case may be classified as negligent homicide (article 302) or negligent bodily injury (article 303) while driving a motor vehicle. If the driver was under the influence of alcohol or another psychoactive substance, the law provides a higher penalty for homicide (article 302, § 3) and for serious or very serious injury (article 303, § 2).
Suspension of the driving license in the criminal case
In the criminal case, the suspension of the driving license, or the prohibition on obtaining one, may come as a penalty, which in the main traffic crimes is provided for together with the prison term, or as a precautionary measure during the investigation and the case (articles 292 to 294 of the Brazilian Traffic Code). For those who drive for a living, this effect often weighs as much as the main penalty.
Handing the vehicle to someone who cannot drive
Allowing, entrusting or handing the wheel to a person without a license, with a revoked or suspended license, or unfit to drive safely, including due to intoxication, is a crime under article 310 of the Brazilian Traffic Code.
common questions
Frequently asked questions
Is refusing the breathalyzer a crime?
No. Refusal is an administrative infraction under article 165-A of the Brazilian Traffic Code, with a fine and suspension of the right to drive. The crime under article 306 requires proof that the capacity to drive was impaired, which may come from other means, such as a clinical examination, video or witnesses.
What is the difference between the infraction and the crime of drunk driving?
The infraction (article 165 of the Brazilian Traffic Code) is handled by the traffic authority and leads to a fine and a proceeding to suspend the right to drive; any concentration of alcohol is enough (article 276). The crime (article 306) requires a concentration of at least 0.3 milligrams of alcohol per liter of exhaled air or 6 decigrams per liter of blood, or signs of impaired capacity, and it is investigated by the police, prosecuted by the Public Prosecutor's Office and judged in court. Both can run at the same time, over the same facts.
I was taken to the police station after a traffic stop. What happens now?
At the police station a police report is filed and, if there is an arrest in flagrante, an arrest record is drawn up. When the maximum prison term for the offense does not exceed four years, bail may be set by the police chief (article 322 of the Code of Criminal Procedure), which covers a good part of traffic crimes. The person has the right to remain silent and to speak privately with a lawyer.
Does helping the victim after an accident change anything?
Yes. Under article 301 of the Brazilian Traffic Code, a driver who gives prompt and full assistance to the victim is not subject to arrest in flagrante nor required to post bail. Failing to assist, or failing to ask the authorities for help when direct assistance is not possible, is a crime under article 304. If the driver is answering for the negligent homicide or injury, the omission increases the penalty for those crimes by one third to one half (articles 302, § 1, III, and 303, § 1).
Can the driving license be suspended in the criminal case?
Yes. In negligent homicide, negligent injury and drunk driving (articles 302, 303 and 306 of the Brazilian Traffic Code), the suspension of the license, or the prohibition on obtaining one, is part of the penalty set by law, for 2 months to 5 years (article 293). It may also be ordered as a precautionary measure, at any stage of the investigation or of the case, when the judge finds, in a reasoned decision, that it is necessary to safeguard public order (article 294). This is separate from the suspension imposed by the traffic authority in the administrative proceeding.
The information on this page is general and informational. Each situation requires individual analysis, within the limits of the law.