A (in)constitucionalidade do artigo 305 Código de Trânsito Brasileiro: análise a partir do Recurso Extraordinário 971.959/RS

Abstract

Article 305 of the Brazilian Traffic Code criminalizes the act of a driver fleeing the scene of an accident to avoid civil or criminal liability. This provision raised questions regarding its compatibility with the 1988 Federal Constitution, leading to the judgment of Extraordinary Appeal n° 971.959/RS, in which the Supreme Federal Court upheld its constitutionality. This paper aims to critically analyze that decision, based on legal doctrine. The legal good protected by this criminal offense is the Administration of Justice. However, there are significant disagreements reading whether the article in question violates the principle of non-self-incrimination (nemo tenetur se detegere), by requiring the driver to remain at the scene, as well as questions of proportionality, considering the availability of less severe means to achieve the same goal. It concludes that, despite the Supreme Federal Court's decision in favor of the article's constitutionality, a re-evaluation is necessary to ensure its alignment with constitutional principles.