The Italian law n°. 41/2016: what the emergency doctor must know

Claudia Cicchini¹ MD PhD, Francesco Rocco Pugliese² MD

1) Medical Doctor

2) Director

Emergency Department, Sandro Pertini Hospital, Rome, Italy

Abstract

Background

The law 41 enacted on 2016 march 23^rd introduces the new legislation of road homicide (article 589 bis) and severe and very severe road personal injuries (article 590 bis) in the Penal Code, significantly innovating some both substantial and procedural arrangements.

State of the art

The more significant innovation of the law 41 is the major severe sanction for crimes under the effect of alcohol and /or narcotics or psychotropic drugs immediately after the car accident: the imprisonment is mandatory in the cases of the paragraph 2 and 3 of the art. 589 bis of the Penal Code and facultative in the case of paragraph 1, 4, 5 of the art 589 bis of the Penal Code and paragraph 2, 3, 4, 5 art 590 bis of the Penal Code.

Thus the question is about the mode and timing of the investigation of the new aggravating factors ex paragraph 2, 3 and 4 art 589 bis and 590 bis of the Penal Code.
The paragraph 3 bis of the art 359 bis of the Code of Criminal Procedure allows the public prosecutor to have the compulsory execution of the blood tests.

Conclusion

Thus an ad hoc protocol with the necessary links between judicial police and emergency department must be defined in every hospital to standardize the blood sampling and the medical examination.

Introduction

The law 41 enacted on 2016 march 23^rd introduces the new legislation of road homicide (article 589 bis) and severe and very severe road personal injuries (article 590 bis) in the Penal Code (p.c.), significantly innovating some both substantial and procedural arrangements (1).

The purpose of the legislator is to more rigorously persecute the unintentional behaviors in the road circulation.

Doubts were born whether the penalties were proportionate to the crime, but these questions concern the management of the lawsuit, not the physicians and paramedics competences.

Since 2016 march 25^th the crimes due to car accident are:

road homicide ex art 589 bis p.c.;
serious and very serious road personal injuries ex art 590 bis p.c.;
unintentional personal injuries ex art 590 p.c. (1).

Art. 589 bis p.c.

A new incriminating figure is introduced after the “generic” unintentional homicide (art 589 p.c.), modifying the paragraph 2 and deleting the paragraph 3 (1).

The basic hypothesis is referable to anybody, the aggravating factors concern only the motor vehicles drivers.

Until 2016 March 25^th:

Unintentional homicide	Imprisonment
basic hypothesis	6 months-5 years
violating the circulation rules of law	2-7 years
violating the circulation rules of law AND under the influence of alcohol (art. 186 traffic laws) or narcotics or psychotropic drugs (art. 187 traffic laws) (3)	3-10 years
multiple homicides or homicide associated to unintentional personal injuries	as the penalty for the more serious injury (15 years max)

Since 2016 March 25^th:

road homicide	imprisonment
basic hypothesis	2-7 years
WITH blood alcohol content >1.5 g/L (art 186 traffic laws) or alteration by narcotics or psychotropic drugs (3)	8-12 years
WITH blood alcohol content >0.8 < 1.5 g/L (art. 186 traffic laws) AND conditions cited in the art.186 bis paragraph 1 b, c, d traffic laws) (3)	8-12 years
WITH blood alcohol content >0.8 < 1.5 g/L (art. 186 traffic laws) (3)	5-10 years
WITH twofold or greater allowed upper limit of speed, or passing through a crossroad with red traffic light or driving on the wrong side of the road, or doing not allowed U-turn or driving on continue line or pedestrian crossing.	5-10 years

Art. 590 bis p.c.

The construction of the article is the same as that of the art. 589 bis: a basic hypothesis and aggravating factors for motor drivers.

Serious or very serious personal injuries	imprisonment
basic hypothesis	3 months-1 year (serious injuries) 1-3 years (very serious injuries)
WITH blood alcohol content >1.5 g/L (art 186 traffic laws) or alteration by narcotics or psychotropic drugs (3)	3-5 years (serious injuries) 4-7 years (very serious injuries)
WITH blood alcohol content >0.8 < 1.5 g/L (art. 186 traffic laws) AND conditions cited in the art.186 bis paragraph 1 b, c, d traffic laws) (3)	3-5 years (serious injuries) 4-7 years (very serious injuries)
WITH blood alcohol content >0.8 < 1.5 g/L (art. 186 traffic laws) (3)	18 months – 3 yeas (serious injuries) 2-4 years (very serious injuries)
WITH twofold or greater allowed upper limit of speed, or passing through a crossroad with red traffic light or driving on the wrong side of the road, or doing not allowed U-turn or driving on continue line or pedestrian crossing.	18 months – 3 yeas (serious injuries) 2-4 years (very serious injuries)

Other aggravating factors (art. 589 bis paragraph 6, art. 590 bis paragraph 6, art. 589 ter, art. 590 ter p.c.) don’t concern the medical competence (1).

The new crime ex art. 590 bis c.p. is prosecutable ex officio. The not serious injuries in the road circulation are still sanctioned according to the art 590 p.c. and they can be persecuted only after a complaint.

Actually in many circumstances it’s not possible to determine the exact severity and prognosis of the injuries immediately after the car accident, so it’s difficult to decide for the arrest or other precautionary measures. The physicians must establish the correct entity and the prognosis of the lesions as soon as possible, diligently communicating the data to the Judicial Authority.

The judicial Authority must urgently acquire the sanitary documentation and give the disposal for the technical advice ex art 359 and 360 of the Code of Penal Procedure (c.p.p.) (2).

State of the art

The more significant innovation of the law 41 is the major severe sanction for crimes under the effect of alcohol and /or narcotics or psychotropic drugs immediately after the car accident: the imprisonment is mandatory in the cases of the paragraph 2 and 3 of the art. 589 bis p.c. and facultative in the case of paragraph 1, 4, 5 of the art 589 bis p.c. and 2, 3, 4, 5 art 590 bis p.c. (1).

Thus the question is about the mode and timing of the investigation of the new aggravating factors ex paragraph 2, 3 and 4 art 589 bis and 590 bis p.c..

The blood alcohol content can be determined by means of the breathalyzer, measuring the alcohol in the exhaled air in two measurements. If the driver consents, or if he is unconscious and treated with medical cures, the blood alcohol content can be ascertained by blood sampling.

The request of ascertainment of blood alcohol content can be made by the Judicial Police in every case of road accident.

Keep in mind that the alcohol is quickly metabolized: in a person in good health the blood concentration decreases 0.10-0.40 g/h, starting 30 minutes after the end of drinking.

The request of detecting narcotics or psychotropic drugs can be made by the Judicial Police only if there are founded and specific reasons, that the Judicial Police must clearly specify in the request: the involvement in a road accident is not sufficient.

This assessment is routinely made by means of urine test. Otherwise urine catabolites of narcotics can be detected until a week after they were been taken, even if the effects of the psychophysically alteration last few hours. Thus using the urine test we can assess only that a driver had previously taken narcotics, not also his current psychophysically alteration.

The description of the driver behavior could suggest a previous drugs taking, but it seems inadequate as the alteration can be related to other causes, such as the stress for the road accident itself, concomitant alcohol ingestion, generic variety of the symptoms.

Thus it’s mandatory to analyze a blood or saliva sample: according to the forensic toxicological chemistry these are the only samples permitting to ascertain which drug is in the blood and whether the behavior alteration is actual or not.

The blood and saliva sampling is a common practice not leading to health risks or injuries of the dignity, but it needs a minimal restraint. Because of this the sampling needs the informed consent.

The unjustified refusal exposes the driver to liability (art 186 paragraph 7 and art 187 paragraph 8 of the traffic laws), but it doesn’t allow to ascertain the criminal offence of the aggravating factors of the paragraph 2 , 3 and 4 of the new crimes a priori (1, 3).

This is the reason why the legislator of the law 41 modified the art 224 bis and 359 bis c.c.p., extending these dispositions to the art 589 bis and 590 bis p.c. (1, 2)

The paragraph 3 bis of the art 359 bis c.c.p. allows the public prosecutor to have the compulsory execution of the blood tests (2).

The request of the judicial police

In the suspect of road severe and very severe injuries or road homicide, the Judiciary Police must immediately inform the public prosecutor, who issues a reasoned decree according to the paragraph 3 art 359 bis c.c.p. (2). In the first time the decree can be or oral or written, but it must be confirmed in writing before the validation of the judge for preliminary investigations .
The enquiry of the Judicial Police to the health staff of evaluating the presence of alcohol and /or drugs in the blood must always be preceded by the advice for the suspect of the possibility of assistance by a defense attorney. If this advice lacks, the procedure is canceled (art 180 p.c., art 182 paragraph 2 second period p.c.) (1).
The members of the health staff engaged to perform the blood sampling are appointed judicial police auxiliaries: besides the usual civil, criminal and amministrative liability these auxiliaries are responsible also for the non usability of an unrepeatable act.

The protection of the sphere of the individual liberty

Only the driver of a motor vehicle, who seems responsible for road severe or very severe injuries or road homicide, may be subjected to coercive investigations. These activities include not only the saliva and skin hairs sampling, as reported in the art 224 bis c.c.p., but also the blood sampling (2).

Even if the coercive blood sampling is a restriction of the personal liberty and an invasion of the body sphere, it doesn’t affect the physical integrity or the psychic or corporal health or the dignity, as it is a routine medical practice, and thus it doesn’t violate the art 13 of the Italian Constitution, indeed it respect it (4).

In fact the law 41 disciplines:

the sampling modalities (which kinds of sampling are necessary to assess an actual assumption of alcohol or drugs according to the clinical toxicology);
the cases, i.e. the driver is involved in a road accident with serious or very serious injuries or death of somebody, and he shows a mental and physical alteration suspected for alcohol or drugs abuse, and he refuses to submit himself to alcohol or drugs search;
the limits of the sampling, i.e. the absence of damages to the mental and physical health or the dignity of the driver, and the indispensability of the sampling itself.

Furthermore the law provides for a motivated measure of the Judicial Authority with the order of less invasive as possible sampling and this measure requires validating by the judge for preliminary investigations within 48 hours. The public prosecutor must specify that the measure is indispensable for the investigations.

Thus the adoption of an invasive act in the body sphere, as the blood sampling is, depends on serious crimes (art 589 bis and 590 bis p.c.) and the judge has the right of the final evaluation regarding the legality and usability of the sampling (1).

The Constitutional Court twice pointed out that the blood sampling is an act of ordinary administration in the medical practice so much so that it can be performed by a paramedic; it doesn’t affect the dignity, the safety or the psyche and it isn’t life-threatening; and it minimally affects the personal freedom.

Assumption of the need of a proper medical action is that a serious and irreparable damage to the investigations originates from the delay or omission in performing the blood sampling. In fact in no other way investigators can determine the alcohol levels as requested in the paragraph 2, 3 and 4 of the art 589 bis and 590 bis p.c., and the concurrent psychical alteration and drugs assumption as requested in the paragraph 2 of the same articles (1).

Thus according to the law 41 the blood sampling not only can be suggested, but it must be compulsorily imposed by the judicial police if it’s necessary to assess the aggravating factors.

If the assessment of alcohol or drugs intoxication is part of the usual diagnostic and therapeutic protocol in the hospital (for example in unconscious patients or in patients with cranial trauma and abnormal behavior), the judicial authority can get these data and utilize them in the criminal trial.

If this assessment is not necessary for the physicians, the inability to express a consensus equates to a refusal, according to the art. 224 bis and 359 bis c.c.p. (2).

If the suspect declares that the blood sampling could be dangerous because of specific pathologies, the emergency physician, appointed judicial police auxiliary, must write a technical report about the concrete danger and then the judicial police must inform the public prosecutor. The public prosecutor must contact the available legal specialist.

If the blood sampling cannot be performed, it’s necessary to take a sample of saliva: in this case only drugs intake can be assessed and blood alcohol values are unachievable.

Conclusions

The assessment of the aggravating circumstances needs technical and quantitative investigations, that only medical and paramedical personnel are able to guarantee, because they are properly trained and they are able to use suitable tools.

These technical and quantitative investigations cannot be repeated and delayed because the elements to be analyzed are alterable.

When the judicial police must do acts and investigation requiring specific technical competences, it may employ suitable persons who cannot refuse their work, according to the art 348 c.c.p. paragraph 4 (2).

The result is that the need of conferring the task of police auxiliary to the health staff cannot be delayed.

According to the art. 356 c.c.p. , 360 c.c.p. and implementing provision 114 c.c.p. the suspect may appoint an attorney and a medical expert; they may assist to the operations, without causing delay (2).

If the suspect is not able to or do not want to appoint an attorney, a public defender is appointed.

The judicial police must indicate how long the health personnel must wait for the attorney; the health personnel act as requested by the judicial authority.

The misapplication of these articles of law can configures an invalidity.

The judicial police can arrest the suspect only if the exact values of blood alcohol levels are available according to the art 589 bis p.c. or 590 bis p.c. paragraph 2, 3, 4 (1). In the other cases the judicial police report the driver for the crime of refusal according to the art 186 paragraph 7 traffic laws and the art 589 bis c.p. or 590 bis p.c. basic hypothesis (1,3).

Regarding to the drugs intake it’s mandatory for the judicial police to arrest the driver only if the presence of drugs metabolites is confirmed in the blood and a psychic and behavioral alteration is reported in the medical examination.

When the prognosis of the victim is not yet available, the driver can be detained by the judicial police only long enough to identify himself.

The compulsory investigations can never be made on the road. They can be made only in a hygienic place because of the protection of the physical and psychic integrity of the suspect.

Thus an ad hoc protocol with the necessary links between judicial police and emergency department must be defined in every hospital to standardize the blood sampling and the medical examination.

References

The Penal Code (coordinated and updated text of the Royal decree 19th October 1930 n° 1398).
The Code of Criminal Procedure (coordinated and updated text of the Decree of the President of the Republic 22nd September 1988 n° 447).
The new traffic laws 2017 (Legislative Decree 285/92)
The Constitution of the Italian Republic