‘Reverse victimization’

The Mandaue City Council on Monday, July 21, invited the Traffic Enforcement Unit (TEU) of the Mandaue City Police Office (MCPO) to clarify its policies on the detention or arrest of drivers involved in vehicular accidents that result in death or injury, according to a report from The FREEMAN.

In a resolution authored by Mandaue City Councilor Carlo Fortuna, he raised concerns that drivers of vehicles that were hit are often the ones being detained. This, he noted, naturally leads to confusion among ordinary observers, as the driver of the vehicle that was struck ends up being arrested if someone is hurt or killed in the incident.

Fortuna, a lawyer, expressed concern that the policy may violate the principle of due process, particularly when drivers are arrested before fault is clearly determined, according to a report by CDN Digital. In the same report, Police Lieutenant Colonel Kieth Allen Andaya, head of TEU-MCPO, explained during the City Council session last Monday, that “under Rule 113 of the Rules of Criminal Procedure, drivers who appear to be primarily at fault in accidents resulting in death or injury may be subject to immediate warrantless arrest.”

So who’s to say that one party is obviously at fault and the other is clearly without fault or contributory negligence? A proper investigation is still necessary, right?

To be candid, traffic authorities often arrest whoever is still alive and unscathed because of a tendency to avoid making early factual determinations. They would often leave the matter for the prosecutors, or off-site investigators, or even the parties themselves to sort out.

But under Rule 113, Section 5 of the Rules of Criminal Procedure, a warrantless arrest is only allowed “if the person to be arrested has committed, is actually committing, or is attempting to commit an offense in the presence of the arresting officer (in flagrante delicto), or when an offense has just been committed and the officer has probable cause to believe based on personal knowledge that the person to be arrested committed it.”

In traffic accidents, this is often invoked when there is death or physical injury resulting from the incident, which may fall under Reckless Imprudence Resulting in Homicide or Serious Physical Injuries under the Revised Penal Code.

In practice, however, traffic authorities err on the side of caution and detain the driver of the bigger vehicle when the driver or passenger of the smaller vehicle (usually a motorcycle) dies or is injured, regardless of fault. They believe that a crime of reckless imprudence “may” have been committed. They expect that the determination of fault will be left to the post-incident investigator, the prosecutor, court, or settlement negotiations.

Obviously in many cases, this lack of confidence to assess the facts on-site and to default to detaining the driver who is still alive, is seen as the safest procedure that satisfies the authorities on site’s duty to act.

But if there is clear evidence (e.g. dashcam footage, witness accounts, or CCTV) that the driver of the bigger vehicle did not act with imprudence or negligence, whether direct or contributory, then detaining the driver is not justified. Otherwise, it’s as if probable cause rests merely on the fact that someone died or was injured, and the unscathed party is presumed at fault --not on actual facts indicating a crime.

The emphasis here is on the word “indicating”, because probable cause is clearly defined as “such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the person sought to be arrested or charged is probably guilty thereof." Probable cause is assessed from the standpoint of a reasonably prudent person, guided by practical experience and common sense, not legal technicalities or after-the-fact analysis.

Police may argue that detention is not a form of punishment, but merely a safeguard to ensure accountability. But our law is clear: detention must be based on probable cause; that is, facts reasonably indicating that a crime has been committed and that the person to be arrested is likely responsible.

There are many other lawful and less coercive means to secure accountability, such as issuing subpoenas, requiring affidavits, or referring the matter to the prosecutor for preliminary investigation. Detaining a person who appears innocent in the eyes of reasonably prudent observers turns what is meant to be an act of justice into an act of injustice.