delivered the opinion of the Court.
Juan Rivera Figueroa, appellant herein, was convicted of operating a motor vehicle under the influence of intoxicating liquor and sentenced to serve six months in jail.1 In this appeal he assigns two errors aimed at challenging the weighing of the evidence. He also alleges that under the concurring circumstances the penalty is excessive.
A reading of the testimony of prosecution witness Rafael Rodriguez shows that, if believed, as it undoubtedly was, the violation was fully established: defendant smelled strongly of liquor, staggered and “talked a lot,” stuttered *376and could not hold himself up. People v. Pérez Escobar, 91 P.R.R. 9 (1964); People y. Vélez Ruíz, 89 P.R.R. 51 (1963), and cases therein cited. In order to reach this conclusion, we expressly dismiss the fact of the refusal to have a blood or urine sample taken which does not constitute an incriminating element, since it merely calls for a sanction of an administrative nature. People v. Otero Valle, 89 P.R.R. 71 (1963); People v. Superior Court, 86 P.R.R. 791 (1962).
We agree with appellant that the circumstances of the case do not warrant the imposition of a six-month penalty but rather the minimum provided by the statute at the time of the commission of the offense, namely, 10 days in jail. However, since the Act was amended in order to authorize the imposition of a fine, Act No. 6 of April 30, 1965 (Sess, Laws, p. 9), we shall grant him the benefit of the amendatory statute.2 The penalty imposed shall be modified in order to impose to appellant a fine of $100. In People v. Otero, 61 P.R.R. 33 (1942); People v. Cases, 61 P.R.R. 371 (1943) People v. Malavé, 61 P.R.R. 391 (1943); People v. Soto, 61 P.R.R. 497 (1943), we imposed the penalty authorized by an amendatory statute which reduced the minimum prescribed by the original Act for violations committed prior to its effectiveness.
Prom the preceding summary it appears clearly that' this is not an intervention in the imposition of the penalty by the trial court since the ground of the assignment of error is precisely that the penalty imposed is excessive. We cannot but consider it, and it is little less then useless to remand the case to the trial judge to review the judgment since he did not make good use of his discretion at the *377time of imposing the original penalty. This Court has the 'recognized power to modify penalties, especially where, as in the present case, it has available the elements of judgment necessary to do so.
The insecurity and uncertainty referred to in the dissenting opinion is more apparent than real. An examination of our judgments in criminal appeals shows that the grounds of such assertion are very precarious.
Judgment will be rendered accordingly.
Mr. Chief Justice Negrón Fernández dissented in part. Mr. Justice Belaval delivered a separate opinion in which he dissents from the pronouncement modifying the judgment. Mr. Justice Santana Becerra concurs in the result.—0—
The trial court disregarded § 5-802 (d) of the Vehicle and Traffic Law which provides, in conviction cases,- a mandatory suspension of - the driver’s license for a minimum period of one year. . '
Sections 44 and 386 of the Political Code, 2 L.P.R.A. §§ 252 and 253, do not bar this solution since the Act in this case is amendatory of a penalty and not derogatory of criminal liability. People v. District Court, 70 P.R.R. 644 (1949), actually involved a repeal of a penal act, even though the Legislative Assembly labelled it “amendment” (at p. 647).