“Year of the Bicentennial of Peru: 200 years of Independence.

”
Technologic
al University
of Peru

INTEGRATIVE COURSE I: INTERDISCIPLINARY (14553)

FINAL WORK

THE STATE OF DRUNK SINCE THE

PERSPECTIVE OF CRIMINAL LAW,
CIVIL LAW AND MANAGEMENT
PUBLIC

STUDENT: MELISSA HIDROGO PICAZA

TEACHER: ODAR MONZÓN
CYCLE: 7MO

2021
SUMMARY:

Alcohol and the harmful consequences it brings have had a notable impact on the world's
population. The figure of drunkenness is not only an aspect of health, but it is also a figure
that little by little has been evolving in the law. Given this, the main objective of this work is
to analyze the figure of the state of intoxication applied from three perspectives: From
criminal law, civil law and public management respectively. We will evaluate when it is
appropriate to apply exempt or mitigate criminal liability for being under the influence of
alcohol consumption, as established in the Penal Code in article 20, paragraph 1. From civil
law, it is developed whether it is viable to demand civil compensation for the damages
caused despite the fact that the agent was declared exempt from criminal responsibility?
Finally, from Public Management, we will learn about the State's intervention to stop
problems, taking into account the needs of the population.

Keywords: Criminal law, civil law, public management, drunkenness, responsibility.

ABSTRACT:
Alcohol and the harmful consequences that it brings, have had a significant impact on the
world population. The figure of drunkenness is not only an aspect of health, but it is also a
figure that has gradually evolved in the law. Given this, the present work has as its main
objective to analyze the figure of the state of drunkenness applied from three perspectives:
From criminal law, civil law and management respectively. We will evaluate when
appropriate to apply exempt or mitigate criminal responsibility for being under the influence
of alcohol consumption, as established in the Penal Code in its article 20 paragraph 1. From
civil law, it is developed whether it is feasible to demand civil reparation for the damages
caused despite the fact that the agent was declared exempt from criminal liability? Finally,
starting from Public Management, we will learn about the intervention of the State to stop
problems, taking into account the needs of the population.

Key words: Criminal law, civil law, public management, drunkenness, responsibility.

I. INTRODUCTION
Given the birth of Rousseau's ideology (1762): “Man is born free, but society chains him,”
we understand the concept of contract where man and the state are related, the former in a
subordinate manner, that is, the State It is authorized to act coercively on the population,
however, it is limited under constitutional aspects, that is, it is controlled under the
regulations that allow the State not to abuse its power. Law in all its matters has been
crucial to maintaining order in society over time.

For example, Criminal Law, which through its regulations sanctions conduct that is
considered negative for public order. However, a question arises from what has been
mentioned: Does criminal law consider that any action that violates the law must be
punished without exception? Not necessarily, for this, there are various reasons why
Criminal Law considers that the sanction should not be applied, since, depending on the
case, said sanction or penalty can vary, be mitigated, or said criminal liability can also be
exempted.

In the case of Civil Law, this was created to regulate the relationships of individuals,
specifically we will analyze the figure exempt from criminal liability in cases of drunkenness
in different crimes. Understanding that, in this section it must be developed whether it is
possible to assume civil liability if there is a serious alteration of consciousness in the author
due to the level of alcohol in the blood, which declares him not liable. Taking into account
that, through the declaration of non-imputability, criminal responsibility can be declared
exempt but the penalty can also be mitigated or reduced.

Finally, from the perspective of Public Management we will analyze whether: Is there
sufficient regulation to stop alcohol consumption? The answer is clearly no, since sometimes
it is not enough that there are regulations that sanction, which is why the importance of the
State and public management, who, based on their institutions and the so-called public
policies focused on public needs, They guide compliance with regulations, but also drive the
population towards better development as a society. From this, we will analyze from our
point of view whether said State intervention is effective or not. Accordingly, we will identify
its shortcomings and deficiencies, in addition to establishing recommendations on this
problem.

II. THEORETICAL FRAMEWORK

A) General Aspects of Criminal Law
We start from the concept of the Theory of Crime, as indicated by Roxin, for a crime to be
configured, it must be previously evaluated and must mainly comply with four elements:
Action, typicality, illegality, guilt. While some authors usually add a last element, that is,
punishability. Next, we will develop each of the elements:
Action: It is constituted as the conduct or behavior, which is the basis of the Theory of
Crime, since it is the first filter to delimit its legal relevance, that is, so that the action can be
analyzed by the theory of law. , this must have an impact on the law. However, there are
occasions where the behavior is not sanctioned by law, since it involves involuntary acts,
reflex acts or even the agent is in a state of unconsciousness. It is important to highlight that
the action corresponds only to those of “doing” but also applies in cases of omission.
Typicality: After passing the first filter of the action, we must apply said conduct to the
aspect of the objective and subjective criminal type. In other words, it is analyzed whether
the legally relevant conduct is provided for in the Law. Then, through the objective type, it is
analyzed that the conduct complies with the elements: Subjects, typical conduct, legal good,
causal link so that it is confirmed that the conduct complies with the description of the
criminal type. While, in the subjective type, it is about analyzing the background of their
behavior and their actions, with respect to two elements: the will to commit the illicit act and
their knowledge to perpetuate it.

Illegality: The jurist Welzel defines illegality as “the disagreement of the action with the
demands imposed by law for the actions carried out in social life” (1956, p.56) , referring to
the fact that illegality is that quality contrary to the law, under which said action can be
sanctioned by the norm due to the inconsistency with the law. Unless, it is an exceptional
figure so as not to be punishable, as is the case of self-defense, where the execution of an
illegitimate aggression is required, not having caused said injury, in addition to the fact that
there must be reasonableness in the manner. and the means to repel illegitimate
aggression.

Guilt: Through this section, we see how a personal imputation trial is carried out, this is an
evaluation that is given personally of the conduct that has been determined to be
reprehensible, that is, it is typically criminal.

Punishability: Finally, this section is usually one of the elements of the theory of crime, but
some authors also consider that punishability is a characteristic of this theory. Punishability
is the quality of a person to be worthy of a punishment or penalty, since, all the elements of
the theory of crime have been met, now it would only be appropriate to apply the sanction or
penalty to a certain person.

B) General Aspects of Civil Law

Within civil law, we will find the figure of civil liability, whose main purpose is to compensate
the damage caused by the illicit act to a specific third party. To do this, we will develop the
types of civil liability and what damages will be factors in determining compensation for
damages.

Types of Civil Liability: To develop this section we resort to the double-track theory, where
contractual civil liability and extra-contractual civil liability are differentiated. In the first figure,
we see that said liability arises only in cases where there was origin of a contract or prior
agreement of the parties, so that damage can only arise from the total or partial breach of
the obligations that the parties had. In addition, non-compliance may also arise if the
clauses of the contract and the general rules of the contract were not complied with, as well
as complying with the principles of civil law. While, in the case of extracontractual civil
liability, it arises in the face of various circumstances external to a contract between the
parties, but it does have an impact on public order, since various legal rights that are
protected by the legal order and are violated. the state. In both cases, if the civil liability of
one of the parties is declared, they are forced to compensate for the damages caused.

Elements of Civil Liability: To do this, it must comply mainly with four elements: Firstly, it
requires the existence of damage caused to another, so that it is evident that some legal
right has been diminished. Secondly, the obligation to repair it arises, seeking to
compensate for the damage caused. Then, identify the competent subject to fulfill their
obligation. Finally, the damages caused are determined, as well as identifying which legal
assets have been diminished, to proceed to establish a compensatory payment in a rational
and proportional manner.

Damage: Regarding damage, this figure is characterized by being the damage caused to a
third party. Among its characteristics we see that this damage must be true, since it will have
to be demonstrated to request compensation. The damage is divided into two sections,
either the property damage of the person, since it is the damage applied to the goods and
objects, which are part of a person's assets. As in the case of consequential damage, where
they are the immediate losses from the moment the illicit act was caused and the loss of
profits, these are the profits and income that were not received due to the damage and its
consequences. On the other hand, there are damages applied directly to people, in their
physical and psychological integrity. As is the case of damage to the person, where it is
evidenced by the injuries and wounds caused, or could even amount to causing disabilities.
While, moral damage refers to possible psychological damage or social damage, that is, the
damage caused instability in the person's relationships due to the impact that the damage
had on them.

C) General Aspects of Public Management

From the perspective of public management, we can evaluate and analyze the action of the
State in the face of the problems and needs of the people, therefore, it requires developing
the figures of the State, management and public policy, to later apply it to our problems.

State: According to the political scientist Andradez, the State is defined as “(…) the political
organization of a nation, that is, the power structure that is based on a certain territory and
population” (1978). In other words, it corresponds to a set of institutions with autonomous
power to act in the good development of society, said power is attributed by the people, with
the purpose that the state has its coercive power based on the parameters of the legality,
reasonableness and proportionality. However, to achieve this general well-being for the
people, the State requires effective public management and develop various public policies
in their favor.

Public Management: Carlos Casas (2012) defines public management by its relationship
with how the goals of the State will be achieved, that is, how these activities will be oriented
with the well-being of society. So public management, in particular, is responsible for
correctly managing the State's resources, for the benefit of the common good. To do this,
public operators are taken into account, what is the national budget with which they are
available, the personnel and the work to achieve it, in addition to external factors that must
be previously evaluated for any management or activity to be carried out. Applied in our
particular case, our public entities must manage activities to discourage alcohol
consumption, particularly among young people and adolescents.

Public Policy: While, in the case of public policies, these are detailed projects or proposals
that have the purpose of completing public needs, or in any case, improving the quality of
life of the population. In order for these projects and programs to be established, the need
for a specific problem must first be declared. For example, given our problem due to the
increase in alcohol consumption, on various occasions, local and national programs have
been developed to eradicate excessive alcohol consumption, inform young people about the
harmful effects of alcoholic beverages, in addition to promote the DEVIDA program for good
recovery treatment for alcohol and drug consumption.

III. CRIMINAL PERSPECTIVE

From our criminal perspective, we will develop the correct application of the figure of the
non-imputability of the active subject in the face of exogenous situations, that is, we will see
how the defense of criminal responsibility should be applied for being in a serious state of
unconsciousness due to having consumed high quantities of alcohol at the time the illicit act
was committed, in accordance with art. 20 numeral 1 of the Penal Code. From the
application of the aforementioned regulations, we see some problems regarding the
interpretation of normative type, since its interpretation can be confusing. What do we call a
state of serious alteration of unconsciousness? It refers to the various external factors that
create a non-permanent state, where the senses are altered and distort the consciousness
that the subject has to understand their behavior, as is the case with alcohol and drugs. As
mentioned by our Supreme Court through its annulment appeal No. 1377-2014 where it
establishes the “Alcoholemia Table”, we see that when non-imputability, therefore, the
exemption from liability only applies in the fourth degree called serious alteration of
unconsciousness is greater than 2.5 ml/liter of alcohol in the blood, such a degree that it is
characterized by the lack of response to stimuli. To establish the specific degree, we
resorted to the application of the Widmark method, which has been highly criticized
throughout our research, which is not about its effectiveness, but rather the misuse of this
method is questionable. This problem is based on the reality of our country and the
slowness with which in many cases, the compilation of toxicological tests usually takes time
or when they are done they are out of time, yielding a false or inaccurate result to be able to
know the real one. alcohol content in the blood at the time of committing the illicit act, so that
this can significantly influence whether you are deserving of a sentence or whether you are
absolved based on the declared defense of criminal responsibility.

IV. CIVIL PERSPECTIVE

While, from the civil perspective, our problem revolves around the following question: is it
viable to demand civil compensation for the damages caused, even though the agent was
declared exempt from criminal responsibility? That is, in this section we will develop whether
compensation can be requested even though the accused agent has finally been declared
exempt from liability. Given this, the answer is yes, first of all, it is a right of the victim to
request reparation or compensation for the damages caused, in addition, it is an obligation
for the person responsible for the damages, in addition that, the purpose of reparation is
also to be based on a sanction that will harm the person responsible in his or her assets,
with the hope that the responsible agent does not commit the illicit act again, that is, does
not incur recidivism. However, when we are faced with cases where the
criminal liability, is usually a little more complex when it comes to supporting our request for
civil reparation, taking into account what damages, both in the patrimonial and non-
patrimonial spheres of the person, have been caused. To alleviate this problem, we require
greater intervention from the judicial authorities, in the event that, if we access a process for
compensation, it is important to highlight that it must be a short and immediate process,
since there is no reason being the fact of subjecting the victim to an arduous and
complicated process to require that the state of things be restored to one prior to the illicit
act, especially because our victim is in no sense responsible for what happened.

V. PUBLIC MANAGEMENT PERSPECTIVE

Regarding the perspective of public management in our country, we resolve the following
premise: Is the regulatory existence sufficient to stop alcohol consumption and crime acting
under the status of these drinks? The truth is that our State, based on its legislative power,
has not had enough content created to stop this problem, above all its failure is in enforcing
the rules, in addition to a low control of these alcoholic beverages, for example, when These
are adulterated. On the other hand, after the arrival of covid-19, many other problems were
neglected, giving preference to the virus. Due to this, we consider that the intervention of the
State is not effective to reduce the problem of alcohol in our country, since our public
management used to resolve it is not sufficiently suitable in accordance with the needs and
realities of the country, where it is evident that In rural areas there are more cases of
alcoholism and despite this, things are not usually better. I believe that this is often due to a
lack of interest and poor management of resources, where sometimes the official does not
know how to distribute his budget proportionally to his own needs. Regarding public policies,
this is usually another problem, since these are activities that have almost stopped due to
the pandemic, informative talks on the harmful consequences of this drink have been
discontinued, projects to guide young people towards to the correct use of alcoholic
beverages, as well as some prevention and treatment programs. As mentioned in previous
essays, the union of institutions is required so that a problem can be resolved in a
consolidated manner, so that solutions can be efficiently achieved in accordance with the
needs of our population. In our specific case, we required the participation of the Ministry of
Health, who are in charge of disseminating the repercussions that alcohol has on our health,
the Ministry of Economy and Finance, to achieve a greater injection of income for its budget,
the Ministry of Education, to guide young people and adolescents to proper use and control
of these drinks and finally we require the intervention of the Ministry of Development and
Social Inclusion, to reduce and/or eliminate the social problems that exist under the same
problem.

VI. JURISPRUDENCE

In the matters resolved our problems, we consider applying and analyzing local resolutions
and regulations to better contextualize our work:
Criminal: We resort to Appeal for Nullity No. 1377-2014, in which we can see the Blood
Alcohol Table, which establishes the indicators and degrees of state after alcohol
consumption. While, the CAS. N. ° 697-2017, explains what the state of unconsciousness is
and what its effects are caused by excessive alcohol consumption. Finally, the RN No.
2103-2018, shows us the differences between the defense of criminal responsibility and the
mitigation of punishment.
Civil: Cassation No. 2039-2019 is the clear example of what civil reparation should be like,
in the present case a man who inappropriately touched his minor niece while intoxicated,
although it is true that he did not comply with the exempt from responsibility, his sentence
was reduced due to his lack of understanding at the time of committing the crime.
Public Management: Based on municipal ordinance No. 0551-2020-MD regarding the “
Regulation of the sale of alcoholic beverages in the district of Breña”, we show that this is
directed towards correct marketing and above all that it will be a regulatory element basis to
guide the adequate consumption of alcoholic beverages, on a certain territory, as in the
present case, is the territorial jurisdiction of the district of Breña.

VII. RECOMMENDATIONS
As we saw, the regulations can be a little confusing and inaccurate when applying them
according to alcohol levels, for this, I request greater jurisprudence of mandatory
observance so that it can be a model and guide for similar cases. Likewise, I recommend
updating the doctrine regarding alcohol consumption and its link as an defense or mitigation
of punishment, establishing differences when alcohol consumption is established as an
aggravating circumstance, for example, when consumption is on purpose. Regarding civil
proceedings, one of the most recurring drawbacks is the delay and procedural burden, as
well as the low amounts of civil reparations, after causing damage to a third party. Given
this, I request that a full civil cassation be held that develops the elements to resort to civil
reparation when the serious state of unconsciousness is present, applied in cases where
alcohol is consumed in excess and its effects have an impact on the illicit act. While, from
the perspective of public management, one of the best solutions is adequate access to
information, to know the risks and consequences of excessive consumption of alcoholic
beverages, and thus reduce their acquisition and excessive consumption. In addition, it has
been proposed, based on the inefficiency of management, that more be invested in not only
trained personnel, but also people who are neat and transparent when carrying out their
duties. Without a doubt, corruption in public officials continues to be one of the worst
problems at the national level, which not only affects the State's assets, but has also been
an important factor under which every day the population loses more credibility and
confidence in its government. State.

VIII. CONCLUSIONS
One of the first conclusions we reached is the importance of the integration of law, in the
present case we have tried to develop a problem about the state of intoxication applied from
the criminal, civil and public management perspective, which has allowed us to have a
broader vision of our problem, and also propose more exact and effective solutions. From a
criminal perspective , we see that the regulations are not sufficient to cover the figure of
drunkenness applied in the cause of art. 20 numeral 1 of the Penal Code, applying the
serious alteration of consciousness as a cause to achieve exemption from criminal liability.
Furthermore, with respect to doctrine and jurisprudence, it is not very recurrent regarding
our problem, which is why a plenary agreement on the exemption from criminal
responsibility would be the most advisable. From a civil perspective , resorting to
compensation for damages is usually the
most recommended to compensate for the damage caused. However, from the work carried out we
can understand the severity of the damage, based on the analysis of compliance with all its
elements. In the case raised from the civil perspective, we determine that if it is feasible, civil
reparation is requested for the damage caused by a specific subject exempt from criminal
responsibility due to the state of serious alteration of consciousness. Furthermore, the damage
caused must be reliably demonstrated, both at the patrimonial level, for example, in loss of profits
and consequential damage, as well as extra-patrimonial damage, which is attributed as direct
damage to the person and moral damage. Likewise, some aspects of our justice system are
evaluated, under which low efficiency or the presence of errors in judicial processes is still evident.
Some examples of this are when we are faced with the procedural burden, as well as the delay in
the process, significantly affecting the victim when requesting compensation. Finally, from the
perspective of public management we determined that the public management of our country is
not very efficient. Regarding the problem regarding state intervention against excessive alcohol
consumption, this is rated as low. The main factors for the failure of our public management are
summarized, based, on the low budget or the poor administration of the budget, we see that there is
no concordance between the need of public entities and the amount of the allocated budget.
Therefore, to improve the quality of our state system, it is important to promote institutionality, that
is, each entity has its own rules and procedures, so that, as compliance with the processes exists, it
is an efficient way to respect democracy.

IX. ANNEXES

A) CORRELATIONAL MATRIX ON THE STATE OF DRUNKNESS

 CORRELATIONAL MATRIX ON THE STATE OF
DRUNKENNESS
—

Perspective Criminal law Civil law Public Management

Problem Statement

Since the last growing trend of excessive alcohol consumption, not only has it caused
very harmful consequences for our health, but this drink has also unleashed various
Background problems, which will have implications for the law and will require the intervention of
the State to stop it. Given this, we will evaluate the figure of the state of intoxication
applied to the perspectives of Criminal Law, Civil Law and from Public Management.

Is viable that he Is enough the

declared unimpeachable regulatory existence to
Identification of How is the figure of due to serious curb alcohol consumption
the main legal drunkenness applied in state of and commit a
Criminal Law? unconsciousness have crime
problems from the
civil liability? acting under the status of
perspectives of What is the problem of to
Criminal, Civil Law declare the As repair he these drinks?
non-imputability after unimpeachable by Is state intervention
and Public
meet low the serious effective in reducing the
Management effects of alcohol? state of unconsciousness alcohol problem in our
caused by alcohol country? How should it
consumption? improve?
I think so, so HE
The figure of the
discard a The answer is no, not only
non-imputability HE HE
criminal sanction, it is HE requires of
applies if it complies with the
possible to resort to civil regulations that sanction
established in he CP
proceedings, with the aim of inappropriate conduct or
article 20, paragraph 1,
repairing the damage that in the long term affect
Hypotheses raised referring to theserious
caused to a third party. public order. That is why
from the three state of unconsciousness. Furthermore, through a the State is called upon to
Its problem begins from the
perspectives repair civil be through of their
moment that the level of
can reduce the institutions and public
alcohol in the blood must be
chances that the criminal act policies are responsible for
accurately identified at the
will not be repeated,affecting stopping problems in favor
time of commit a
he of the needs of the
crime (Deficient
heritage of the population.
Widmark method).
responsible.
Analysis of legal problems
Code Penal: Art. 20 Law No. 28681 that
Civil Code, article 1985,
subsection 1 :"HE regulates the
establishes the content of
declares commercialization
the compensation: “(…)
unimpeachable …He consumption and
understands the
Normative that, advertising of beverages
consequences that
…due to a serious alteration alcoholic
derived from the action or
of consciousness, he does (2008), whose regulation
omission that generated
not have the ability to aims to ensure correct
damage, including profit
understand the criminal consumption
nature.” of
 unemployment, damage to
the person and moral
damage”

Cassation No. 2039-2019:

Annulment appeal No. 1377- Municipal Ordinance No.
Civil reparation to man who
2014 (Board of 0551-2020-MDB:
Relevant case law alcoholemia) inappropriately touched his
Regulation of the sale of
minor
CAS. No. 697-2017 alcoholic beverages in the
niece in state of
R.N. No. 2103-2018 district of Breña.
drunkenness.

The WHO recommends

Chili: The normative
Uruguay: The mere increase the prices of
Chilean HE concentrate
Comparative law consumption of alcohol is alcoholic beverages, from
mostly in
enough to alter your mental taxes, as in the case of the
prove the fraud or fault of
faculties. tax selectiveto the
the active agent.
consumption and thus
reduce its consumption.
Jorge Mosset (2010) Carlos Houses (2012)
Velasquez (2002)
Definition of About public management
Definition of action
Doctrine Civil Liability and public policies.
Welzel (1956) Definition of
Visser of the Pine (2009) Andrádez (1987)
illegality
Civil Liability Definition of State
Conclusions and proposals
In accordance with the We conclude that the
From the civil perspective,
cause of art. 20 numeral 1 of main factors for the failure
we conclude regarding the
the Penal Code, applying of our public management
suitability of requesting civil
the serious alteration of are he low
compensation for the
consciousness as budget, the bad
damage caused, even
a administration of
though the active subject
Conclusions cause to achieve exemption the
has been declared
from criminal liability. budget, in addition to the
exempt of
However, its deficiency in presence of
criminal liability for state
application lies in the inconsistency between the
of serious
absence of enough need of the
disturbance of the
criminal regulations on the public entities and the
consciousness.
state of drunkenness. amount of the allocated
We request elderly Regarding the civil route, budget. We consider that he
jurisprudence of one of the most recurrent Access to information will
observance mandatory inconveniences is the delay open the doors for us to
to be a model and guide for and procedural burden, as know the risks and
similar cases. In addition, I well as the low consequences of
Proposals or recommend amounts of consumption of
drinks
recommendations update the doctrine civil reparations, after
regarding alcohol causing damage to a third alcoholic in excess.
yes consumption and its link as party. Given this, I request
In addition, HE ha
an defense or mitigation of the implementation of
proposed allocating a
punishment, setting policies that allow better
larger budget to the
differences when he quality of access to justice,
entities
alcohol consumption is ensuring immediacy and
established as a efficiency before, during and
already
 aggravating, for example, after the execution of in charge of facing our
when consumption is on the problem.
purpose. process.

X. BIBLIOGRAPHY

• Andrade Sánchez, Eduardo. General Theory of the State. Editorial Collection of

University Legal Texts. Year 1987
• Puig, M. (2003) Introduction to the bases of Criminal Law. IBF
• Roxin, C. (1979) De Palma Penal Type Theory
• Visser del Pino, Diana Cristina (2009): “On Contractual Civil Liability and
Extracontractual for the Act of Another”

• Welsel,H. (1956) Criminal Law General Part. Palm Roque

• Zaffaroni, E. (1998) Treaty on Criminal Law. Editorial Ediar