November 11, 2000

Anatomy of an Accident

The major difference between US and Mexico traffic laws is that an automobile accident in Mexico is considered a criminal offense, and that Mexican laws are based on the "Napoleonic Law," which presumes guilt over the presumption of innocence. In the US, only Louisiana applies Napoleonic Law*.

Contrary to popular belief of Americans, Mexican laws apply to its citizens as well as to foreigners. There are not two sets of laws. Reality, however, is that the local citizen has the advantage by virtue of being a local. A Mexican resident of Mexico City involved in an accident with a local in Ciudad Juarez, is at a disadvantage, as would be a California resident involved in an accident with a local in Butte, Montana. This does not mean that a visitor forfeits rights under the law, simply that the "local" gets more attention.

Accidents generally fall into categories: 1. property damage, 2. bodily injury, 3, death. Some accidents may have one or more of these categories with varying degrees of seriousness in the first two categories.

Typically, a little fender-bender can be resolved by the parties involved at the scene without need of bringing the authorities into it. Particularly if there is no question as to culpability and both parties wish and are able to resolve the matter. Even when authorities are brought into the case, minor accidents are usually left to the drivers to reach their own resolution.

A property damage accident wherein one or both (or more) cars are incapacitated, but there is no bodily injury or death, will bring the authorities into play. Assume that no one involved admits culpability, but in fact each party blames the other sets in motion legal ramifications.

The law sees this not as the scene of an accident, but rather as the scene of a crime. Thus the crime must be investigated. Since no party steps forward accepting responsibility, the authorities bring in an expert accident investigator (perito). The perito takes statements from the drivers, witnesses, takes pictures, makes drawings, and reaches conclusions. Time wise this can be fast, or it may take some time due to individual circumstances and testimony.

The cars are impounded and all drivers involved in the accident are detained while the investigation is carried out. They can file a bond (amparo) and be released.

Matters get far more complicated when there is bodily injury or death, more so when the injured or dead are innocent. If the injury or death occurs due to negligence or breaking traffic laws, or caused by a driver under the influence of alcohol or other drugs, criminal charges will be filed against the driver, and the driver detained during the process.

What disturbs Americans on reading about other Americans detained in Mexico because of an involvement in a serious accident, is the presumption that the same wouldn't happen in the US. They are wrong. A Mexican visitor to the US will be detained if involved in an accident as a driver wherein bodily injury or death resulted to others. If the driver is then found to be responsible, charges are filed and it will then depend on the court to either set or deny bail while awaiting trail.

*(Note: recent Constitutional changes have dramatically altered the above. Under the recently passed and approved changes, the burden of proving guilt has been transferred to the prosecutors.)