Article 382 Spanish Criminal Code: Concurrence of Road Safety Offences with Injury or Death

Article 382 of the Spanish Criminal Code resolves what happens when dangerous driving under articles 379, 380 or 381 also produces injury or death. The courts do not add the sentences: they take only the more severely punished offence and impose its penalty in the upper half, while ordering in every case the payment of the civil liability arising. Where the harmful result concurs with the offence of manifest disregard for life in article 381, the driving disqualification of that article is imposed in its upper half. For a driver facing both a drink-driving charge and a negligent injury charge, this article determines the total exposure.

Wording of Article 382 of the Spanish Criminal Code

Elements of the offence

1. An offence under article 379, 380 or 381: driving under the influence or at excess speed, reckless driving creating a concrete danger, or driving with manifest disregard for life.
2. A harmful result constituting an offence, of any gravity, which includes negligent injury under article 152 and negligent homicide under article 142.
3. A causal connection between the driving penalised and the result, since without it the two offences are simply separate.
4. Identification of the more severely punished infringement, which requires the comparison to be made on the penalties applicable in the concrete case.

Defence strategy

Identifying the more severely punished offence. The comparison determines the entire sentence and it is frequently made carelessly. A negligent homicide under article 142.1 carries one to four years, which exceeds every road safety offence except article 381.1; a negligent injury under article 152.1.1 carries three to six months, which is below article 380. The defence performs the comparison in writing on the classification actually sustainable, since the result governs which penalty is then raised to its upper half.

Resisting the addition of penalties. The article excludes the accumulation of sentences for the danger and for the result. Prosecutors nevertheless charge both and seek both penalties. The submission is made in the pleadings on classification rather than at sentencing, because it also affects the total for the purposes of suspension and of any trial in absentia.

Breaking the connection between the driving and the result. The article applies only where the result arose from the conduct penalised. Where the collision was caused by the manoeuvre of another road user, by the condition of the road or by the victim’s own conduct, the harmful result is not attributable to the driving penalised, and the two offences do not concur. Reconstruction evidence is what establishes this, and it also bears on the grading of the negligence under articles 142 and 152.

Civil liability and the insurer. The article requires the payment of the civil liability in every case, and in practice the compulsory motor insurance meets it. Early quantification and payment through the insurer founds the mitigating circumstance of reparation and is the most reliable route to keeping the sentence within the range at which suspension is available, which for a foreign driver is the outcome that matters.

• Article 379: drink driving
• Article 381: manifest disregard for life
• 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.