Article 382 bis Spanish Criminal Code: Leaving the Scene of an Accident

Article 382 bis of the Spanish Criminal Code creates a separate offence of leaving the scene of an accident. It applies where a driver voluntarily abandons the place after an accident in which a person has died or has suffered one of the graver categories of injury, and it applies even where the accident itself was purely fortuitous and the driver bore no fault for it. The provision is frequently invoked against foreign drivers who left the scene through panic, or in the mistaken belief that exchanging insurance details later would suffice, and it is punished independently of the accident itself.

Wording of Article 382 bis of the Spanish Criminal Code

Elements of the offence

1. An accident in which a person has died or has suffered injury falling under articles 147.1, 149 or 150. A collision with property damage alone, or with slight injury below that threshold, is outside the provision.
2. The status of driver of a motor vehicle or moped, and departure from the place of the events.
3. That the departure was voluntary. Leaving in order to seek help, being removed by the emergency services, or leaving because remaining exposed the driver or others to danger are expressly excluded.
4. Knowledge that the accident occurred and that a person may have been injured. A driver who did not perceive the impact, which is a real possibility with a cyclist or pedestrian struck at low speed, lacks the mental element.

Defence strategy

Absence of awareness of the accident. The offence presupposes that the driver knew a person had been struck. In night-time collisions with pedestrians or cyclists, in vehicles with high load lines, and in impacts against the rear or side of the vehicle, the defence relies on the reconstruction, the damage pattern, the noise environment inside the cabin and the driver’s subsequent conduct, including whether the vehicle was later presented voluntarily, to establish that the impact was not perceived as an accident involving a person.

The departure was not voluntary in the statutory sense. The provision itself excludes departures made where there was a risk to the driver or to third parties, and it operates outside the cases of article 195. Leaving in order to obtain assistance, moving the vehicle to a place of safety on a fast road, leaving because of a hostile crowd, and leaving under the direction of the emergency services are all outside the offence. The account given in the first police statement is decisive here, which is why the presence of a lawyer and of an interpreter at that stage matters so much.

The classification of the injuries. If the injuries actually suffered fall below the threshold of article 147.1, the offence does not exist at all. The defence obtains the forensic report and examines whether the treatment administered was necessary medical or surgical treatment or merely a first assessment and observation, since a substantial proportion of files opened under this article rest on an initial and unverified assumption about the severity of the injuries.

Fortuitous origin and the sentencing bracket. Where the driver bore no fault for the accident, paragraph 3 applies and the exposure falls to three to six months. Establishing that the collision was unavoidable, through reconstruction evidence and the conduct of the other party, is therefore valuable even where the departure itself cannot be defended. Combined with voluntary surrender, prompt compensation and an agreed disposition, this ordinarily produces a suspended sentence and a disqualification period at the lower end.

• Road accidents and negligent driving
• Article 142: death by negligence
• Article 379: drink driving
• 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.