DRUNK DRIVING AND PRESCRIPTION OF THE OFFENSE

Today we will discuss a case addressed by our study related to drunk driving

The fact:

Mrs F., in evident state of alcoholic intoxication, guilty she got to drive her own car and was stopped by police officers, presenting "difficulty in verbal expression and strong alcoholic halitosis", for which she was subjected to a qualitative assessment with a precursor device giving a positive result.

She was therefore subjected to the two alcohol test alcohol tests which both gave positive results and therefore Mrs F.'s license was withdrawn and she was referred to the Public Authority in a state of freedom.
The suspect for driving under the influence of alcohol was thus the recipient of a request for the issuance of a criminal decree of conviction by the PM, a criminal decree issued by the GIP for the crime referred to in art. 186 paragraph 2 letter B) and 2 sexies of the Highway Code.

The judgment:

Mrs F. - convinced of her own reasons - proposed opposition against the criminal decree condemning the (suspended) penalty of a fine of € 4,350.00.
During the first hearing it was found by the defense that the immediate judgment decree had not been properly notified to the accused.

According to the orientation of the Supreme Court, the notification of an act to the accused, which is not possible at the elected domicile due to the failure to find, despite the assumption of information on the spot and at the registry office, of the domiciliary, who does not appear to reside o living in that municipality, must be carried out by delivery to the defender and not by deposit in the municipal house with the related notices, because this situation is resolved in a case of unsuitability of the election of domicile.

In the same way it is necessary to proceed in the event that the addressee refuses to receive the deed and, in the case there is instead a declaration of domicile, in the event that the accused is not found at the declared address nor are there other persons suitable to receive the 'act.
It also specifies the Supreme Court that for notifications made in the domicile declared or elected pursuant to art. 161 and 162 cpp, the provisions of theart. 157 cpp, in fact, the methods of execution of the notification established by art. 157 paragraph 8 cpp are consequent to the occurrence of the situations hypothesized by paragraph 7 (lack, unfitness, refusal to receive the document with consequent obligation to carry out new searches for the accused).

Such situations are in themselves preclusive of the possibility of notification at the declared or elected domicile or at the domiciliary and suitable for identifying the hypothesis provided for by art. 161 paragraph 4 cpp.
The impossibility of proceeding with the notification in the hands of the person designated as domiciliary, for refusal to receive the document or for the failure to find the domiciliary or the accused himself in the place of declaration or election of domicile or of other suitable persons, integrates the hypothesis of the impossibility of notification pursuant to art. 161 paragraph 4 of the Code of Criminal Procedure, therefore it is not possible to proceed with theart. 157 paragraph 8 cpp.

So in case the notification at the declared domicile or elected is impossible for one of the causes provided for by art. 157 paragraph 7 cpp, the notification must be carried out pursuant to art. 161 paragraph 4 cpp, not being able to proceed with the forms provided for by art. 157 paragraph 8 cpp.
The single judge therefore noted the failure to notify in favor of the accused and ordered the hearing to be postponed with renewal of the notification.

At the following hearing it was found that, being a contravention offense, the minimum limitation period had expired without any further valid act interrupting the limitation of the limitation.
The Judge therefore declared that there was no need to proceed against the accused because the offense was extinguished by prescription.

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