O poder de polícia do estado e a aplicação do princípio da proporcionalidade no código de trânsito brasileiro

Abstract

This study aims to do a review within the Administrative Law, about the Laws 11.795/08 and 12.760/12, due to the innovations brought to the Brazilian Traffic Code. The importance of the review happens by the drastic increasing of the administrative penalties adopted, as well as the policy of "zero tolerance" for alcohol. Thus, it was necessary to analyze the changes invoked by the legislature, to the principles of supremacy of the public interest, proportionality and of the individualization of penalties, checking, then the limits of individual rights, as well as the police power of the State. Thereunto, it was essential a doctrinal and jurisprudential examination of these principles and indispensable a collection of statistical data to official bodies and unofficial, amid scientific paper. It was also used the comparative method in order to assess the proportionality principle within the CTB (Brazilian Traffic Code), and the coherence of the legal system, taking as a basis the largest administrative fine present in that statute, which is that expected by the laws under discussion. Finally, it was concluded that there was violation of the principle of proportionality, as well as the inconsistency of the legal system with the advent of Laws 11.795/08 and 12.760/12, since there are other offenses that have a much higher potential to cause fatalities, going on, in these cases, an omission by the legislator, due the penalties applied being much reduced. Moreover, the policy of "zero tolerance" adopted with single penalty for all of those who infringe the law, independently of the level of alcohol found, was against the principle of individualization of penalties. For these reasons, it was interpreted that these laws, which changed the CTB, would be unconstitutional.