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Republic of the Philippines

REGIONAL TRIAL COURT


Third Judicial Region
BRANCH 8
Malolos City, Bulacan
PEOPLE OF THE PHILIPPINES
-versus-

CRIM. CASE No. 4338-M-2003


For: Violation of Section 15, Article II
of Republic Act No. 9165

CRISANTO CALMA y MALASPINA,


Accused.
x-----------------------------------x

DEMURRER TO EVIDENCE
The Accused, assisted by the Public Attorneys Office and unto this
Honorable Court, respectfully moves to dismiss the above-entitled action for
insufficiency of evidence.
The accusatory portion of the information filed in this Honorable Court
read as follows:
Crim. Case No. 4338-M-2003
(For: use of marijuana and shabu)
That on or about the 8th day of November, 2003, in the municipality of
Calumpit, province of Bulacan, Philippines, and within the jurisdiction
of the Honorable Court, the above-named accused, without authority
of law and legal justification, did then and there willfully, unlawfully
and feloniously use methylamphetamine hydrochloride (shabu) which
is a dangerous drug, and found to be positive for use of said
dangerous drug.
Contrary to law.
The accused pleaded Not Guilty to the charge. The prosecution
presented on trial the testimonies of PO3 Nestor Almazan and SPO2 Manuel
Clemente.
STATEMENT OF THE FACTS
The facts upon which the prosecution based the indictment of the
accused are as follows:
On November 8, 2003 at about 10:40 in the evening, while PO3 Nestor
Almazan and SPO2 Manuel Clemente were performing their regular duties at
the police station of Calumpit, Bulacan, a telephone call was received by

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their radio operator reporting a stabbing incident and that the victim thereof
was brought to the Calumpit District Hospital, where said police officers were
being requested to respond. While PO3 Nestor Almazan and SPO2 Manuel
Clemente were about to leave the police station to respond to the victim of
the stabbing incident, a woman arrived at the Calumpit Police Station and
reported that his nephew was stabbed in Brgy. Gatbuca. Said woman
identified the suspect as one @Udik.
Having received the above reports, PO3 Nestor Almazan and SPO2
Manuel Clemente first went to Brgy. Gatbuca to effect the arrest of @Udik.
At the barangay hall, they were informed by some barangay tanods that
@Udik was in the residence and under the custody of Brgy. Captain
Fortunato Pangan. The police officers proceeded to the residence of the
aforementioned barangay captain and upon arrival thereat, arrested @Udik
and brought him to the Calumpit Police Station for further investigation.
In the course of the investigation, the suspect was identified as
Crisanto Calma y Malaspina, and was found out to be included in the Drug
Watch List of Barangay Gatbuca.1 The above police officers brought the
suspect to the PNP Crime Laboratory in Malolos, Bulacan to have him
subjected to drug examination where he tested positive for use of marijuana
and shabu.
ISSUE
Whether or not the drug test result finding accused positive for use of
dangerous drugs is admissible in evidence.
Whether or not the evidence of the prosecution is sufficient to prove
the guilt of the accused beyond reasonable doubt.
ARGUMENTS
The operative concepts in the mandatory drug testing are
randomness and suspicionless. In the case of persons charged with a
crime, a mandatory drug testing can never be random or suspicionless.
Mandatory drug testing on an accused is a blatant attempt to harness a
medical test as a tool for criminal prosecution. Drug testing in this case
would violate a persons right to privacy guaranteed under Sec.2, Art. III of
the Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.2 (italics ours)
The indictment of the accused for violation of Section 15 (Use of
Dangerous Drugs) of Article II of the Comprehensive Dangerous Drugs Act of
2002, proceeded in relation to Section 36 of said act, which provides as
follows:

1 Sinumpaang Salaysay of SPO2 Manuel Clemente, par.5


2 Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug
Enforcement Agency, G.R. No. 158633, 3 November 2008

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SEC. 36. Authorized Drug Testing.Authorized drug testing
shall be done by any government forensic laboratories or by any of the
drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The following shall be
subjected to undergo drug testing:
(f)
All
persons
charged
before
the
prosecutors office with a criminal offense having
an imposable penalty of imprisonment of not less
than six (6) years and one (1) day shall undergo a
mandatory drug test;
In addition to the above stated penalties in this
Section, those found to be positive for dangerous
drugs use shall be subject to the provisions of
Section 15 of this Act.(emphasis ours)

Section 36(f) of R.A. 9165 has been struck down as unconstitutional in


the case of Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and
Philippine Drug Enforcement Agency, G.R. No. 158633, 3 November 2008. In
the said case, the Supreme Court held that the operative concepts in the
mandatory drug testing are randomness and suspicionless. In the
case of persons charged with a crime before the prosecutors office, a
mandatory drug testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither
are they beyond suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled before the
prosecutors office and peaceably submitting themselves to drug testing, if
that be the case, do not necessarily consent to the procedure, let alone
waive their right to privacy. To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165. Drug testing in
this case would violate a persons right to privacy guaranteed under Sec. 2,
Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves. (emphasis ours)
The elements of randomness and suspicionless are wanting in the
instant case by the mere fact that the accused was subjected to drug test on
the basis of a report that he allegedly stabbed a person. The records of the
case indicate as follows:
Q: Mr. Witness, why did you file this case for Section 15
against this accused?
A: Because of the information from the informant
and we caused him to be drug tested, Sir.3 (emphasis
ours)
xx

3 TSN, 7 May 2008, Testimony of SPO2 Manuel Clemente on Direct Examination,


page 6

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Q: What were you able to observe on his demeanor or
behavior at the time of the apprehension?
A: He was restless and appeared pale and I knew him
already for a long time, Sir.
Q: And you said that he (sic) knew him already for a long
time prior to that apprehension, what sort of a person is
this alias Udik?
A: He is known as drug user and a thief, Sir.4
(emphasis ours)

Further, the Sinumpaang Salaysay of SPO2 Manuel Clemente provides


as follows:
xx

Na, siya ay aking nakilala sa pangalang CRISANTO


CALMA y MALASPINA, alias Udik, 21 taong gulang,
binata, elem grad, ahente, tubo at residente ng Purok 3
Gatbuca, Calumpit, Bulacan at nalaman ko rin na siya
ay kasama sa aming Brgy. Drug Watch List sa
nasabing Brgy at sa mga impormasyon narin ng ilang
residente doon kayat siya ay aming pinadala sa PNP
Crime Laboratory sa Malolos Bulacan upang siya ay
maeksamen at sa nasabing pagsusuri ay lumabas
na positibo si Crisanto Calma alias Udik sa
paggamit ng ipinagbabawal na gamut (shabu at
marijuana) kayat sinabi kong muli sa kanya ang batas
na kanyang nilabag at ang kanyang mga karapatan na
umiiral sa ating saligang batas. (emphasis ours)
x

In view of the above, the defense respectfully maintains that the drug
testing conducted on herein accused cannot be said to have been
undertaken randomly and without suspicion. The records of the case
palpably indicates that he was particularly singled out with high suspicions of
his being engaged in dangerous drugs.
Further, while Section 36(f) of R.A. 9165 has already been struck down
as unconstitutional, thereby rendering discussions on whether there really
exists a basis for the drug testing of the accused trivial, the defense will
nevertheless take this opportunity to posit that the prosecutions
evidence/testimonies of its witnesses are insufficient to prove that the
accused was the perpetrator in the stabbing incident, nor has he been
charged for the same. The records show as follows:
Q: The woman with whom you personally met outside
the police station, as you were going out of your police
station, did she tell you the name of the person who
stabbed your (sic) nephew?
4 TSN, 7 May 2008, Testimony of SPO2 Manuel Clemente on Direct Examination,
page 5

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A: Yes, maam.
Q: What was the name given?
A: Crisanto Calma alias Udik, Maam.
Q: So you were able to personally talk with this woman?
A: No, I only overheard it when she was speaking to my
companion, Maam.
Q: Your companion was Officer Clemente?
A: Yes, Maam.
Q: How far were you when they were talking?
A: Very near, Maam, we were just beside each other.
Q: Did she tell you the name of her nephew?
A: No, Maam.
Q: Did she tell where her nephew was brought after the
stabbing incident?
A: She doesnt know, Maam. She doesnt know yet that
her nephew was already brought to the District Hospital.
Q: What eventually happened to
stabbing?

this case of

A: It was filed, Maam.


Q: Are you telling us that the victim pursued the case
against his attacker?
A: Yes, Maam.
Q: Where is it pending?
A: I dont remember, Maam, maybe as (sic) if (sic)
it is also in this branch.
Q: You havent been called upon to testify as one of the
responding police officer?
A: No, Maam.
Q: How did you come to know that it was really filed?
A: Im not only sure because the incident happened a
long time ago, Maam.
Q: So, you are not sure it was filed, it may or may not
have been filed?
A: Im really sure that the case was already filed, I just
dont know in what sala is it pending right now, Maam.

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Q: You havent received any subpoena from 2003


up to the present to testify before the court where
the case is pending?
A: This is the only subpoena I received.5 (emphasis
ours)
xx

Court: Considering that you are one of the arresting


officers of accused Crisanto Calma, and you arrested him
for stabbing the nephew of the woman who went to your
office, I suppose you went to the District Hospital wherein
they brought the nephew who was stabbed?
A: Yes, Your Honor.
Court: So, you went to the hospital?
A: Yes, Your Honor.
Court: So, what is the name of the person?
A: I apologize, Your Honor, because it happened quite a
long time ago xxx.
Court: But you are sure that there was really a
stabbing incident?
A: Yes, Your Honor.
Q: Because it seems that the basis of the laboratory
examination is the fact that you arrested the
accused without the stabbing incident, there would
be no reason to bring the accused to the.
Fiscal: There was a report, Your Honor please, of a
stabbing incident.
Court: If there is no stabbing incident, what will be
your basis?6 (emphasis ours)

Thus, the chemistry report7 indicating the use of drugs by herein


accused is inadmissible in evidence, the same having been derived in
violation of the right of the accused to privacy guaranteed under Sec. 2, Art.
III of the Constitution in the light of the ruling in Atty. Manuel J. Laserna, Jr.
5 TSN, 7 May 2008, Testimony of PO3 Nestor Almazan on Cross Examination, pages
16-19
6 TSN, 7 May 2008, Testimony of PO3 Nestor Almazan on Clarificatory Questions,
pages 23-24
7 Exh. B

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v. Dangerous Drugs Board and Philippine Drug Enforcement Agency.


Additionally, it is respectfully maintained that the testimonies of the
prosecution witnesses as to the basis of the laboratory examination and
upon which the indictment of the accused for violation of Section 15, Art. II,
R.A. No.9165 was based, are insufficient.

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