La inconstitucionalidad del Art. 464 Numeral 5 del Código Orgánico Integral Penal.

Abstract

The normative conflict between the constitutional principle of the presumption of innocence and the practice of tests for drunkenness or intoxication by civilian traffic police officers, according to the aforementioned article, is addressed. This article imposes on drivers the obligation to submit to tests without guaranteeing them adequate information about the legal consequences of their choice, which may violate fundamental rights such as the presumption of innocence and due process. Through interviews and surveys of legal professionals, the research proposes a legal reform to both the Organic Integral Penal Code and the Enforcement Regulations of the Organic Law of Land Transport, Transit and Road Safety, specifically Article 245. This reform suggests establishing clear obligations for traffic officers to inform them about the consequences of refusing to take tests for drunkenness or intoxication, thus guaranteeing respect for due process and the presumption of innocence. The study highlights the collision between constitutional norms that guarantee the presumption of innocence and infra-constitutional provisions that presume the individual's responsibility based on evidence obtained under possible coercion or without due process. It seeks, through the principle of constitutional supremacy, to declare the unconstitutionality of numeral 5 of article 464 of the Organic Integral Penal Code, arguing that it violates essential procedural guarantees in a constitutional state of rights and justice. The thesis contributes to the legal debate on the need to harmonise criminal legislation with the fundamental principles and rights enshrined in the Constitution, proposing regulatory changes that reinforce the protection of drivers' rights in the face of procedures for verifying drunkenness or intoxication.