It is a fact that cannot be denied. That the increase in values of fines and more rigorous punishments made the violators feel the consequences of their conduct more forcefully, there is no doubt. That the interest for the knowledge about the traffic legislation has grown, it is an evident fact between us, professionals of the transit.
Unfortunately, however, it leaves us frustrated in the application of traffic legislation. There are various contradictions and imperfections in Law. 9,503 / 97, which established the Brazilian Traffic Code, even though our legislators have had sufficient time to prepare which has come to be known by many as "one of the best traffic codes in the world", since the Special Commission created to prepare its draft was based on a decree signed by the Vice President of the Republic in the exercise of the Presidency in 1991 , which resulted in a period of six years for its proposal and procedure in the Legislative Branch.
There are so many contradictions and imperfections, sometimes obvious, other times detected only by the keen observation, that it would not be an exaggeration to conclude that there is a need for a complete revision of the Law, taking advantage to include the numerous projects that are being processed in the National Congress, for changing the Traffic Code.
The classifications of the various traffic infractions, for example, give ample reasons to doubt that there has been a final revision of the legal text, after all, how to accept that it is classified as an infraction of a light nature, as provided for in article 16 - Driving without attention or without INDISPENSABLE safety precautions? (I pointed out).
What is more serious for traffic: driving a motorcycle with the headlight off or the lamp burned? For the legislator, forgetfulness is worse than deprivation, since in the first case it was classified on article 244, IV as a very serious infraction (in which, in addition to the fine, suspension of the right to direct) and, in the second, established, in article 230, XXII, only the fine of medium nature.
And the use of plumbing marks (known as zebra areas)? Both parking and simple traffic are prohibited, but, contrary to what should be assumed, parking is a less serious infringement (Article 181, VIII) than simple traffic (Article 193); while in the parking lot the fine will be R$ 127.69, in traffic on such marks we have a fine of R$ 574.62.
The prediction of penalties and administrative measures is another aspect in which not always the logic is valued: If the administrative measure of retention of the vehicle has the purpose of enabling the irregularity to be remedied at the place of the infraction and the penalty of seizure of the vehicle has character more punitive, with the withdrawal of the vehicle from circulation from one to thirty days, according to Article 262, in which of the following two situations, the transit agent should authorize the driver of the vehicle to remedy the irregularity at the place of the infraction: driving of vehicle with the altered color or the driving of the vehicle with the plate covered by the towbar? If the reader imagined that the first case should entail the seizure of the vehicle and the second only the retention for regularization, taking into account only the ease of solving the problem, it is deeply mistaken, since items VII and VI of article 230 of the CTB (respectively) show us the opposite.
Because of the retention of the vehicle, can someone tell me what the retention provided for in article 170 is (directing threatening pedestrians crossing public roads or other vehicles)? Or, why is the violation of parking against driving (Article 181, XV) the only parking infraction in which the removal of the vehicle is not foreseen?
We also find flaws in the use of technical terms, because, despite the concepts brought by Annex I of the CTB, some traffic infractions have inappropriate expressions, such as:
In article 183, we have the infraction "Stop the vehicle on the pedestrian crossing in the change of signal" (which, by the way, is more serious than the violation of article 182, VI, in which the stop occurs deliberately, for embarkation or landing of passengers) - considering the concept of stop, it is natural that the expression used in Article 180 (Have your vehicle immobilized ...) should have been chosen in the writing of this article.
In article 200, we have another interesting example, as it provides, as infraction, the overtaking by the right of collective transport vehicle stopped for embarkation or disembarkation. However, conceptually, the overtaking maneuver only occurs when a vehicle passes through another one that MOVES in the same direction and at a slower speed, leaving and returning to the origin track.
And why do we find so many expressions to mean the same thing when it comes to, for example, the vehicle that is moving in the public highway? Or are there differences between Driving (articles 162 and 252), Driving (articles 230, 232, 235 and 244), Transit (Articles 184, 186, 187, 188, 193, 194, 218, 219, 223, 231 and 237 ) and When the vehicle is in motion (articles 185 and 250)?
When a driver is convicted of a traffic offense, should his right to drive, from two months to five years (articles 292 and 293) or the definitive cassation of the qualification document (article 263, III) be suspended?
Besides the contradictions, there are articles totally out of purpose:
The sole paragraph of article 49 requires that boarding and disembarkation ALWAYS take place on the sidewalk side, except for the driver. And when the vehicle is stopped on the left side of a one-way road? Is the driver obliged to go inside the vehicle to get down on the side of the road ??? (and of course, switching places with the passenger ...)
How to file a vehicle for violation of Article 201 (Fail to keep the distance of one meter and fifty centimeters when passing or overtaking bicycle)? Or, how to file a vehicle for the infraction of article 231, IX (Transitar with the vehicle off or disengaged, in decline)?
And the power to hear appeals at second instance, provided for in Article 289 Paragraph I establishes that, in the case of a penalty imposed by the Union transit body or entity, in case of suspension of the right to drive for more than six months, revocation of the document of authorization or penalty for serious infractions, jurisdiction is of CONTRAN ..... have only forgotten that the Union transit body or entity, which is DENATRAN, does not apply any penalty, much less the suspension or annulment penalties (which are enforced by the Transit Authority or Transit Authority of the Member States). ).
Traffic crimes would yield as many considerations, from the prediction of more severe penalty for wrongful bodily injury (compared to the malicious modality, Penal Code), to the inclusion of controversial crimes, such as Article 305 (which creates a contrary situation to the constitutional prohibition of civil arrest for debt - in this case, supposed debt) or the sole paragraph of article 304, which made it a point to mention that the driver affects the omission of relief even if his omission is supplied by third parties or if he is a victim with instant death or minor injuries (I only hope that no one will fight to rescue the victim of an accident, for fear of responding to the crime of omission).
You see, as I mentioned at the outset, there are many examples. This is not, of course, pure perfectionism or analysis of the Brazilian Transit Code, but it should be remembered that, among other principles, the Public Administration, by virtue of Article 37 of the Federal Constitution, must obey the principle of legality, and, for Sometimes it becomes difficult to comply with the law, or even to enforce it, in the midst of so many contradictions and imperfections ...
São Paulo, March 29, 2006.
JULYVER MODESTO DE ARAUJO, 1st Lieutenant of the Military Police of the State of São Paulo, Councilor of CETRAN / SP, Coordinator and Professor of courses in the area of traffic, Bachelor of Law, Post-graduation in Public Law by the Superior School of Public Prosecution and Author of books and articles on traffic legislation.