Sin categoríaDrink-driving and drugs at the wheel: when a traffic infringement becomes a crime in Spain

Every weekend, alcohol and drug checks multiply on Spanish roads. For most drivers, a positive result ends in an administrative penalty: a fine and the loss of points. But above certain thresholds, or when certain circumstances concur, the conduct ceases to be a mere traffic infringement and becomes an offence under the Criminal Code, with very different consequences: a criminal record, disqualification from driving for a much longer period and, in the most serious cases, prison.

The offence under Article 379 of the Criminal Code

Article 379.2 of the Criminal Code punishes anyone driving a motor vehicle with a breath alcohol level above 0.60 milligrams per litre, or a blood alcohol level above 1.2 grams per litre. Once these thresholds are exceeded, the law presumes an abstract risk to road safety that in itself justifies the criminal penalty, without any need to prove that the driver drove recklessly or placed other road users in concrete danger. Below those figures, the conduct can still constitute an offence if it is proven that the driver drove with manifest recklessness, placing people’s life or integrity in concrete danger, under Article 380 of the Criminal Code. The same Article 379 also punishes driving under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic beverages; in this case the law sets no quantitative threshold equivalent to that for alcohol: it suffices to prove that the substance actually affected the person’s ability to drive, which is usually established through saliva tests, toxicological analyses and the joint assessment of external signs observed by the officers.

Refusing to take the tests: a separate offence

One of the aspects that most often surprises drivers is that refusing to take the alcohol or drug detection tests constitutes, in itself, an independent offence, defined in Article 383 of the Criminal Code and punished with prison of six months to one year and disqualification from driving for one to four years. In other words, refusing to blow does not avoid the criminal problem: in practice it usually aggravates it, because this offence carries penalties equal to or higher than those of the drink-driving offence itself, and it is independent of whether the driver’s actual level is ever established.

Thresholds to know: administrative penalty from 0.25 mg/l in exhaled air (0.15 mg/l for novice and professional drivers); the offence of Article 379.2 CP from 0.60 mg/l in exhaled air or 1.2 g/l in blood; for drugs there is no quantitative threshold, it suffices to prove actual impairment of driving; refusing the test is a separate offence under Article 383 CP with its own penalty.

When there is an accident: negligent homicide and injuries

The seriousness increases considerably when driving under the effects of alcohol or drugs causes an accident with victims. In these cases the offences of negligent homicide (Article 142 of the Criminal Code) or negligent injuries (Article 152) come into play, which can apply in their aggravated form when the negligent person was driving a motor vehicle under the influence of such substances, something the case law usually treats as a decisive factor of gross negligence. Penalties in these cases can reach several years of prison, in addition to the civil liability arising from the offence, which in practice is usually borne by the vehicle’s compulsory insurance, without prejudice to the recovery actions the insurer may bring against the driver.

Criminal and ancillary consequences

The penalties provided in Article 379 combine, in the alternative, prison of three to six months, a fine of six to twelve months or community work of thirty-one to ninety days. To this is added, in every case, disqualification from driving motor vehicles for a period of one to four years. Conviction for these offences creates a criminal record, which can condition access to certain jobs, licences or administrative authorisations, although it can be expunged after the corresponding statutory period if there is no reoffending.

Keys to the defence

The defence against a charge for these offences usually focuses on questioning the reliability of the evidence taken: whether the breathalyser was duly approved and calibrated, whether the minimum waiting time before the first measurement was respected to avoid false positives from alcohol residue in the mouth, whether the two required measurements were carried out with the regulatory time margin and whether the driver was properly informed of the right to request a contrast test, normally a blood analysis. It is also relevant to verify whether the right to legal assistance was respected from the moment of arrest, where an arrest takes place, and whether the police report records completely and coherently the external signs observed by the officers. Each of these elements can prove decisive for the final classification of the facts and, at times, for the very validity of the prosecution evidence. Faced with a summons for an alleged road safety offence, it is advisable not to downplay the matter or attend without advice: the consequences, both criminal and for the professional and personal life of the person affected, can far exceed those of a simple traffic fine.

Related: drink-driving and other areas FAQ and the criminal process step by step.