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The Criminal Chamber of the Supreme Court (TS) has

filed by a person convicted of running over a cyclist in Alcázar de San Juan (Ciudad Real) in 2016 and not stopping to assist him, since he understands that there was a crime of omission of the duty of assistance because the death was instantaneous.

Thus,

for reckless homicide.

The sentence, presented by magistrate Carmen Lamela, has the

, who maintains that the defendant should have been sentenced as the author of a crime of omission of the duty to provide assistance to an attempted degree because he tried to commit it but "he did not It was consummated as a consequence of the fact that, fatally, the victim died instantly".

The proven facts contained in the resolution explain that the fatal outrage took place at 6:15 a.m. on June 5, 2016, when the defendant

"with his faculties diminished as a result of previous

."

It hit the back of the bicycle of a man who was traveling on the right shoulder and despite being aware of the outrage, in order to ensure his impunity, "he decided not to stop and get out of the vehicle but to

without ascertaining the state in which the person hit was or if he was being attended by third parties.

The cyclist was thrown into the ditch and remained there until

by another cyclist who was traveling on the road.

"He died, practically immediately after the blow or at most in the following twenty minutes, due to head, cervical, thoracic and pelvic trauma," the sentence reads.

The 6 years and 6 months in prison

The defendant was

and continued to give high rates in the alcohol intake test, and also presented, among other symptoms, that of a slightly hemorrhagic conjunctival gaze and somewhat dilated pupils.

He was sentenced in the first instance as the author of a crime of driving under the influence of alcoholic beverages - concurring in the aggravating circumstance of recidivism - and of a crime of reckless homicide, to three years and six months in prison.

And as the author of a crime of omission of the duty of assistance to the penalty of three years in prison.

In total 6 years and 6 months.

But the defendant appealed to the Supreme Court in cassation when he understood that there was a

.

He also alleged that there was an error in the assessment of the evidence and that the proven facts were not stated "clearly and conclusively" in the judgment.

Now, the High Court looks at the crime of omission of the duty of assistance and notes that the appellant maintains that

and, despite the strong impact, he considered continuing the march to prevent a greater evil.

He points out that the defendant also believes that his actions are not reprehensible from a criminal point of view "because the almost instantaneous death" of the cyclist made any kind of help impossible.

The Supreme Court states that the thesis is that once the death has occurred, it is no longer possible to provide any assistance, and adds that the Prosecutor's Office supports this reason because in the specific case "there is talk of a death practically immediately after the coup or at the most that occurred within twenty following minutes, and the crime is classified as consummated".

in favor of prisoner

The Criminal Chamber indicates that article 195 of the Penal Code punishes the omission of the duty of assistance and mentions that the reform through Organic Law 2/1919, March 1, introduces the so-called 'crime of escape', which is described as the attitude of the driver who, without his own risk or that of third parties, leaves the scene of the accident with the death of one or more people or injuries.

However, in the present case, the court emphasizes that there are two possibilities, that the bicycle driver died practically immediately after the blow or that he died within the next twenty minutes at most.

And he says that given these two possibilities,

Thus, it understands that the victim died "practically immediately after the blow" so "it cannot be stated that she was in a situation of helplessness and in manifest and serious danger, which should lead to the estimation of the appeal" of the accused and therefore absolves the drunk driver of that crime.

the attempt

However, and despite the fact that the sentence is partially nullified by issuing a new one, the resolution has the dissenting opinion of a magistrate who emphasizes that the defendant should have been sentenced for omission of the duty of relief to an attempted degree.

"In my opinion (...) the crime is attempted, valued ex ante, in a way that is objectively suitable to cause damage to the legal asset (depreciation of the action); although, after ex post verification, we observe that there is no it comes to fruition," he stresses.

In other words, it understands that when the driver flees from the place of the accident , he

because he does not know if the cyclist was alive or dead, and points out that since he died on the spot, that crime "does not it came to fruition", hence the attempt.

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