Is the misdemeanor of Article 32 of the Misdemeanor Law of abstract or concrete danger?

The question of the unconstitutionality of abstract or presumed danger

Abstract

The article discusses the nature of the misdemeanor of driving without a license (art. 32 of the Misdemeanor Law), questioning the majority judicial understanding that classifies it as an offense of abstract or presumed danger. The author argues that this interpretation violates the principles of offensiveness (nullum crimen sine iniuria) and the presumption of innocence (art. 5, LVII, of the Federal Constitution), as it allows conviction without proof of actual danger to the protected legal interest (public safety). He argues that the misdemeanor is of indeterminate concrete danger, requiring proof that the concrete conduct was capable of harming individual legal interests, based on art. 13 of the Penal Code and modern legal interest doctrine. He concludes that, in the absence of concrete danger, the conduct constitutes a mere administrative offense (art. 89, I, of the Brazilian Traffic Code).