Appellant, Víctor E. Rivera Arroyo, was accused and convicted of driving a motor vehicle under the influence of intoxicating liquor (§ 5-801 of Act No. 141 of July 20, 1960 — 9 L.P.R.A. § 1041). He was imposed a $150 fine or 15 days in jail and his driver’s license was suspended for a period of one year. Later on the trial judge amended the sentence in order to set aside the additional eight-month suspension of the driver’s license for unjustifiably refusing to submit himself to the chemical analysis, in view of our decision in People v. Ortega Otero, 97 P.R.R. 465 (1969).
The evidence for the prosecution consisted of the testimony of Dionisio Rosas González and that of policeman Luis Daniel Rivera. The former explained that upon taking a semi-curve on a Guaynabo road he noticed that a Volkswagen driven by appellant approached, that the latter stopped at the shoulder of the highway and when he started again he hit the witness’ vehicle on the left front fender; that appellant’s eyes were red “but he was not drunk . . . he was somewhat upset ... he did not want to accept guilt or anything .... We were
Policeman Rivera testified that when he arrived at the scene of the accident he proceeded to talk with the drivers of the vehicles involved in the accident; that “when I talked with the driver of the Volkswagen [appellant] I noticed that he smelled strongly of liquor . . . and then he stammered as he spoke to me, reason why I was able to notice that he was drunk.” (Italics ours.) When questioned, he said that he was more or less at a distance of about from the witness stand to the trial judge’s chair in the courtroom. He also testified that he told appellant that “I was going to bring an action against him for being under the effects of intoxicating liquor and I made the pertinent legal warnings . . . whether he wanted to voluntarily submit himself to the taking of the blood or urine .... He refused ... I put him in the patrol car .... In order to take him to the hospital to see whether on the way he made up his mind to have the sample taken ... he refused” and then I told him that, “if he refused, when the case was brought the magistrate could retain his license until the day of the trial, and if he was found guilty or not guilty, the magistrate could suspend his license for two years also ... I proceeded to take the case to the Court of Investigations.” On cross-examination he testified that “I told him to show me the driver’s license and the vehicle’s license, he gave it to me” he took it from “His pocket, I suppose . . . he also told me that he had hit that youth’s car because I think that youth, I think that he had switched on the high lights or something like that . ... He told me the address [where he lived].” (Italics ours.)
Appellant testified in his defense that “what happened that day was that I went to Corozal, to see my mother who was alone, and then coming back, since it was Saturday and during those days the traffic flow was heavy, and since I live in Río Piedras, I had to use that road, and at the moment of
There was no evidence to the effect that appellant observed an antisocial conduct.
The evidence in this case is almost identical to the evidence adduced in People v. Zalduondo Fontánez, 89 P.R.R. 63, 65-66 (1963) and less robust than the evidence in People v. Diaz Just, 97 P.R.R. 56, 61 (1969), and People v. Galleti Rodríguez, 88 P.R.R. 275, 277, 278 (1963).1 See also, People
We deem it convenient to clarify the point concerning the two reasons for which, under the Vehicle and Traffic Law it is proper to suspend the driver’s license in these cases. The penalties provided by the act to punish the offense of driving a motor vehicle under the influence of intoxicating liquor are established in § 5-802 of the act, 9 L.P.R.A. § 1042. Subdivision (a) of said section establishes a fine or jail, or both penalties, for the first violation. Subdivisions (b) and (c) of said section provide other penalties when other circumstances concur.
Subdivision (d) of said § 5-802 of the act, 9 L.P.R.A. § 1042 (d), provides in a mandatory manner that in the case of a first conviction the court shall decree, in addition to the above penalties, the suspension of the driver’s license for a period of not less than one year nor more than two. In case of recidivism, the revocation shall be permanent. That subdivision (d) also provides for any nonresident.
In another section of the act, § 5-804, 9 L.P.R.A. § 1044, the procedure to be followed when the arrested person refuses to submit himself to the chemical analysis is established. Subdivision (c) of said section provides that at the time of the trial, if the judge finds that the defendant was not justified in refusing to submit himself to the chemical analysis to which § 5-803 of the act refers, the judge shall order the suspension of the license for a term of not more than two years.
What is described above comprises two different situations. The first refers to the commission of the offense of driving a motor vehicle under the influence of intoxicating
In view of the grounds indicated, the judgment rendered in this case should be reversed and appellant acquitted.
1.
Compare the evidence adduced in Galleti, supra, with the evidence presented in People v. Eliza Colón, 95 P.R.R. 657 (1968), where we affirmed the conviction for driving under the influence of intoxicating liquor.