Article 142 Spanish Criminal Code: Death by Negligence and Fatal Road Accidents

Article 142 of the Spanish Criminal Code deals with causing the death of another by negligence, and in practice it is the article applied to fatal road accidents. Spanish law divides negligence into two grades with radically different consequences: gross negligence, which carries imprisonment of one to four years, and less serious negligence, which carries only a fine. Where the driver is a foreign national, the article also determines whether a driving disqualification will be recorded and for how long. The grading of the negligence, and not the fact of the death, is what the defence is built around.

Wording of Article 142 of the Spanish Criminal Code

Elements of the offence

1. A death causally attributable to the conduct of the accused. Where a pre-existing condition, the conduct of the victim or the intervention of a third party broke the causal chain, the offence is not made out.
2. Breach of a duty of care. In road traffic cases that duty is defined by the traffic regulations, so the specific infringement relied on must be identified.
3. The grade of the negligence. Gross negligence means the omission of the most elementary precautions; less serious negligence occupies the space between gross negligence and mere civil fault, and is presumed where a serious traffic infringement was determinative of the accident.
4. Foreseeability and avoidability of the result. An unforeseeable event, however tragic, is not negligence in the criminal sense.

Defence strategy

Downgrading the negligence. The distance between paragraph 1 and paragraph 2 is the distance between a prison sentence and a fine, and it is where the case is won or lost. The defence attacks the characterisation of the breach: whether the infringement relied on is classified as serious in the traffic legislation, whether it was truly determinative of the collision, and whether the reasoned decision the statute requires on that point has actually been made. Reconstruction evidence on speed, braking distances and points of impact is normally commissioned by the defence rather than left to the official report.

Contribution of the victim or of a third party. In accidents involving pedestrians, cyclists and motorcyclists in the coastal towns of the province of Alicante, the file frequently shows conduct by the victim, such as crossing outside a designated point, absence of a helmet or lighting, or an unsignalled manoeuvre, which either breaks the causal link or substantially reduces the degree of fault. Defective road layout, absent signage or the state of the surface engage the liability of the road authority and are documented through the municipal and provincial records.

Challenging the intoxication finding. Because the presence of one of the circumstances of article 379 converts the negligence into gross negligence by operation of law, the validity of the alcohol or drug analysis becomes decisive. The chain of custody of the blood sample, the calibration and verification records of the breath device, the interval between the two readings and the information given to the driver about the right to a second test are examined in detail, since the exclusion of the reading returns the case to paragraph 2.

Compensation, insurance and the sentence. Full payment of the compensation before trial is a statutory mitigating circumstance and, in this class of case, is the most reliable route to a suspended sentence. Coordination with the motor insurer is essential, and so is early quantification under the statutory scale, because a settlement reached before the indictment is filed carries greater weight than one reached at the door of the court. For a foreign defendant the practical objective is a sentence that avoids imprisonment and a disqualification period compatible with returning home.

• Homicide and manslaughter: defence service
• Negligent driving and road accidents
• Article 152: bodily harm by negligence
• 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.