For your interest for everyday police to reproduce Service Note below 1 / 11 on the seizure Police motor vehicles and motorcycles issued by the Prosecutor's Office of Andalucia, Ceuta and Melilla, which will systematize the procedure and, moreover, will clear doubts about when to intervene to justice a motor vehicle or a motorcycle whose driver has committed any of the crimes against road safety following the reform of the current Penal Code.
Senior Prosecutor of Andalucia, Ceuta and Melilla Road Safety
accordance with the provisions of art. 4 EOMF Law 24/2007 of October 9, art. 547 et seq. the LOPJ and art. 10 of the Real RD Decree 769/1987, of June 19th Judicial Police, in compliance with Instructions 3 / 2006 and 5 / 2007 of the Prosecutor General, and in order to coordinate all actions concerning road safety among all institutions involved and the Prosecutor's Office, then sets out the rules, which must conform police reports are prepared by facts relating to crimes against road safety.
SERVICE NOTE 1 / 11 ON THE POLICE SEIZURE OF MOTOR VEHICLES AND MOTORCYCLES
The last reform of the Penal Code, operated by LO 5 / 2010 of June 22 comes to set in the new art. 385 bis, which is considered an instrument of crime for the purposes of Articles 127 and 128, the motor vehicle or motorcycle used in the acts described in this chapter (arts. 379 to 385ter Penal Code), by deleting the reference to the forfeiture was done in paragraph 3 of art. 381 CP This new situation requires the need to coordinate police and judicial actions, and especially in the early stages of police intervention.
should be remembered that the seizure of effects and instruments of crime, at the beginning of the investigation is intended to prevent their return to be used to commit further violations and prevent loss of evidence.
To make a thoughtful and rational use of this option, it is necessary to analyze and interpret the rules relating to legitimize such a measure police. First, the Criminal Procedure Act in art, 282, imposes on the agent's duty to preserve the effects and instruments of crime to make them available to the Judicial Authority: "The judicial police has the purpose and shall be the duty of all who composed, out of public crimes that were committed in its territory or jurisdiction, practice, according to their powers, the necessary steps to check them and find offenders, and collect all the items, instruments or evidence of the crime of disappearance of which there is danger, making them available to the Judicial Authority. "
also in the process of summary proceedings, which are substantiated all Road Safety crimes in his art. 770 says:
Judicial Police will go immediately to the scene and take the following steps:
1. The presence of any physician or medical personnel as may be there to provide, if necessary, the relevant aid to the victim. The required, although I was only verbally, that does not comply without just cause requirement will be fined 500 to 5,000 euros, without prejudice to criminal liability that might have occurred.
2. Accompany the record of evidence photographs or any other magnetic medium or reproducing the image, when relevant to the elucidation of the offense and no risk of disappearance of their sources of evidence.
3. Collect and safeguard in all cases, instruments or evidence of the crime of disappearance of which there is danger, to make them available to the judiciary.
4. If death has occurred of a person and the body shall be found in the street, on the railroad tracks or other place of transit, send it to the next place that is most appropriate under the circumstances, restoring interrupted service and giving account immediately to the judicial authority. In exceptional situations to be adopted as an emergency measure, shall be noted in advance the position of the deceased, obtaining photographs and reporting on the exact location where he occupied.
5. Take personal data and addresses of persons who are in the place where the event occurred, and any other information that will help identify and find, such as usual work location, phone numbers or mobile, fax number or email address.
6. Intervene, if resulting from the vehicle and retain the registration certificate thereof, and the driving license of the person who is responsible for the event.
view of the above is beyond doubt the legitimacy of the members of the Security Forces of the State, autonomous regions and local police to intervene motor vehicles or motorcycles used for commission of a crime against road safety in the exercise of its investigative function as judicial police offenses generic art. LE 282 of the Criminal.
Despite all this, it is necessary to analyze the opportunity and convenience to use this power, and strict observance of legal requirements to do so.
First art. 127 of the CP to which it refers to art. 385 bis, which can be specifically prevents the seizure in this case the motor vehicle or moped, as "belonging to a third party in good faith is not responsible for the crime ..." and still be moderating this As with the nuances of art. CP 128, on the proportion of the action taken in relation to the seriousness of the offense.
However, to prevent fraud on the ownership of the vehicle when officers have reasonable grounds for believing the mere fictitious property for administrative purposes, investigate, and will carry on the crowded all the evidence to support this discrepancy.
2 .- Conclusions .- Messrs.
Consequently agents in carrying out their duties in the investigation of crime, and without prejudice to future refinements, consider the following rules:
1. - Do not intervene the vehicle to bring it to court if they belong to a third party in good faith is not responsible for the crime.
2 .- As the offending owner, the vehicle will be involved in the following cases:
a) when a crime is involved in the arts. 380 and 381 of CP
b) if as a result of a crime against road safety (art. 379-385 CP) has occurred resulting in death (art. 142 PC) or serious injury (art. 152 CP)
c) the case of a crime of failing to rescue the art. CP 195.3
d) in crimes of art. 379, 384 and 385 CP, when bona fide evidence that the offender was previously convicted to the facts under investigation for crimes against road safety, at least three times in the last year from date to date.
not forget that this "preventive confiscation, carried out by the agent, should be ratified or not by the competent judicial authority.
This is without prejudice to the possibility of immobilization of the vehicle under art. 84 of the Traffic Act.
In any event shall include, for diligence in the crowded, the place where the vehicle is deposited, and if it meets or not the conditions needed for successful conservation.
Sevilla January 11, 2011
Attorney Road Safety Officer for Andalucia, Ceuta and Melilla.
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