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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:
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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)
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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)
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
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