Monday, March 7, 2016

Opinion evidence; when admissible under Sec. 50, Rule 130


“x x x.

None of the police officers, to note, categorically denied the petitioner’s allegation about being physically hurt before being brought to the Ospital ng Maynila to be tested for intoxication. 

What the policemen claimed was that it took the three (3) of them to subdue the fifty-five year old petitioner. Both actions were done in excess of their authority granted under RA 4136. 

They relied on the medical certificate issued by Dr. Balucating attesting that petitioner showed no physical injuries. The medical certificate was in fact challenged not only because the petitioner insisted at every turn that he was not examined, but also because Dr. Balucating failed to testify as to its content. Ms. Delos Santos, the medical record custodian of the Ospital ng Maynila, testified, but only to attest that the hospital has a record of the certificate. The trial court, in its decision, merely stated:

At the outset, the records of the case show that the same were not testified upon by the doctor who issued it. Instead, the Records Custodian of the Ospital ng Maynila was presented by the Prosecution to testify on the said documents.

However, although the doctor who examined the accused was unable to testify to affirm the contents of the Medical Certificate he issued (re: that he was found to have an alcoholic breath), this court finds that the observation of herein private complainants as to the accused’s behavior and condition after the incident was sufficient.

Under Section 50 of Rule 130 of the Revised Rules of evidence:

The opinion of a witness for which proper basis is given, may be received in evidence regarding x x x x

The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person.32

In sum, the MeTC, as echoed by RTC and CA later, did not rely on the medical certificate Dr. Balucating issued on June 12, 2006 as to petitioner’s intoxicated state, as the former was not able to testify as to its contents, but on the testimony of SPO4Bodino, on the assumption that he and his fellow police officers were acting in the regular performance of their duties. 

It cannot be emphasized enough that smelling of liquor/alcohol and be under the influence of liquor are differing concepts. 

Corollarily, it is difficult to determine with legally acceptable certainty whether a person is drunk in contemplation of Sec. 56(f) of RA 4136 penalizing the act of driving under the influence of alcohol. 

The legal situation has of course changed with the approval in May 2013 of the Anti-Drunk and Drugged Driving Act of 2013 (RA 10586) which also penalizes driving under the influence of alcohol (DUIA),33 a term defined under its Sec. 3(e) as the "act of operating a motor vehicle while the driver’s blood alcohol concentration level has, after being subjected to a breath analyzer test reached the level of intoxication as established jointly by the [DOH], the NAPOLCOM] and the [DOTC]. 

And under Sec. 3(g) of the IRR of RA 10586, a driver of a private motor vehicle with gross vehicle weight not exceeding 4,500 kilograms who has BAC [blood alcohol concentration] of 0.05% or higher shall be conclusive proof that said driver isdriving under the influence of alcohol. 

Viewed from the prism of RA 10586, petitioner cannot plausibly be convicted of driving under the influence of alcohol for this obvious reason: he had not been tested beyond reasonable doubt, let alone conclusively, for reaching during the period material the threshold level of intoxication set under the law for DUIA, i.e., a BAC of 0.05% or over. Under Art. 22 of the RPC,34 penal laws shall be given retroactive insofar asthey are favorable to the accused. Section 19 of RA 10586 expressly modified Sec. 56(f) of RA 4136. Verily, even by force of Art. 22 ofthe RPC in relation to Sec. 3(e) of RA 10586 alone, petitioner could very well be acquitted for the charge of driving under the influence of alcohol, even if the supposed inculpatory act occurred in 2006.

X x x.”