Article 379 Spanish Criminal Code: Driving under the influence of alcohol or drugs

Article 379 of the Spanish Criminal Code makes it a criminal offence — not a mere administrative infringement — to drive with a blood alcohol concentration above 1.2 grams per litre, or the corresponding 0.60 milligrams per litre of breath. Below that threshold the conduct may still be criminal if actual impairment is proved. This is by far the most common criminal charge faced by foreign residents and visitors in the province of Alicante.

Wording of Article 379 of the Spanish Criminal Code

Elements of the offence

1. Driving a motor vehicle or moped on a road open to general traffic.
2. A blood alcohol concentration exceeding 1.2 grams per litre or a breath concentration exceeding 0.60 milligrams per litre, which triggers liability automatically.
3. Below those figures, proof of actual impairment of driving ability.
4. Intent, which is satisfied by knowingly driving after consuming alcohol.
5. No requirement of any accident, danger or harm: the offence is one of abstract endangerment.

Defence strategy

Reliability of the breath-testing device. The evidential device must hold a current verification certificate and have undergone periodic metrological checks. Requesting the verification certificate and the calibration record is the first step. Where the certificate is missing or out of date, the reading loses evidential value and the prosecution is left without its principal evidence.

The mandatory second test and the waiting interval. The regulations require two breath samples separated by at least ten minutes, and the officer must offer a contrasting blood analysis. Where the interval was shorter, where the second test was not carried out, or where the offer of a blood test was not recorded, the procedure is defective and the result is open to challenge.

Information given in a language the driver understands. This is the point of greatest practical importance for foreign nationals. A driver who does not speak Spanish must be informed of the right to a second test and to a blood analysis in a language he understands, and is entitled to an interpreter. Where the record does not evidence that this occurred, the safeguards were not observed and the defence has a solid ground of challenge.

Proof that the accused was driving. Identification must be direct. Attribution based on registered ownership of the vehicle, on the position in which the vehicle was found, or on indirect testimony is insufficient where other occupants were present.

Choosing the least damaging penalty. Because the three principal penalties are alternatives, the objective is normally a fine or community service rather than imprisonment. Evidence of employment, family circumstances and financial means directs the negotiation, and matters greatly where the client resides abroad and cannot readily perform community service in Spain.

Consequences for residence and for the driving licence. A conviction is entered on the Spanish criminal record and may affect residence applications and the recognition of the licence in the country of origin. Where the client holds a licence issued by another Member State, the disqualification is communicated through the relevant channels. These consequences must be explained before any guilty plea is entered.

• Drink-driving defence in Spain
• Spanish Criminal Code by article
• Spanish Criminal Procedure Act by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.