Drink driving · Alicante · Costa Blanca · All Spain
A positive breath test on the way back from dinner, a refusal to blow at a night-time checkpoint or a minor collision after a long lunch are, in Spain, criminal matters rather than administrative ones. For the national picture, read our guide to drink driving offences in Spain.
Above a fixed breath-alcohol figure, driving is an offence under the Spanish Criminal Code. It is tried by a criminal court, it carries a driving ban of years rather than months, and it leaves a criminal record.
In brief. English-speaking criminal defence for drink driving and refusal to blow in Alicante: thresholds, penalties, driving bans and the fast-track hearing.
At a glance
British and Irish drivers arriving in the province of Alicante are used to a system in which most drink driving cases are dealt with by a magistrates’ court but are still, in everyday language, a motoring matter. Spain draws the line differently. Below a fixed figure the conduct is an administrative infringement handled by the traffic authorities with a fine and licence points. Above it, the same conduct becomes a criminal offence under Title XVII of the Criminal Code, is investigated by the police as a crime, is put before an juzgado de instrucción sitting as the duty court, and ends in a criminal sentence that goes on your record. Nothing about the roadside procedure tells you which side of the line you are on, which is why so many people sign documents at the roadside without understanding what has just happened. It is worth being clear about one further difference. In Spain the criminal case and the loss of the licence are decided by the same court in the same sentence, so there is no separate appeal to a licensing body afterwards. What is agreed or contested in the hearing room is the whole outcome.
The distinction between article 147.1 and article 147.3 is decided by the forensic medical report, not by how serious the incident felt. Whether stitches, immobilisation or a course of physiotherapy amount to medical treatment is a genuinely contested question in Spanish case law, and it is often the whole case.
Drink driving offences detected in Alicante and its metropolitan area are almost always processed as a juicio rápido, the fast-track procedure, before the duty court at the Ciudad de la Justicia in the Benalúa district. The atestado prepared by the local police or by the traffic division of the Guardia Civil is sent straight to the court, and the summons can be for the days immediately following the stop. There is no comfortable interval in which to think it over from home. Foreign drivers are often surprised that the file already contains a summons before they have spoken to anyone about representation.
That compressed calendar has a very practical consequence. The most important decision in the whole case, whether to accept a conformidad with the reduction of one third under article 801 of the Criminal Procedure Act or to contest the case, has to be taken within hours, in a language most defendants do not speak, with the police file in front of you for the first time. Defendants who attend without a lawyer regularly discover afterwards that they agreed to a driving ban measured in years. An interpreter will be provided for the hearing, but an interpreter translates what is said in the room; nobody in that room is under a duty to explain to you what the alternatives were worth. That is the gap a lawyer instructed in advance is there to close.
The same pattern repeats across the other judicial districts of the province. Cases arising in Benidorm, Elche or Torrevieja are dealt with by their own duty courts on the same fast-track basis. Wherever the stop happened, the file moves faster than the post, and a foreign address is not treated as a reason to slow it down. If you have already returned to the United Kingdom or Ireland, a Spanish lawyer can appear on your behalf under a power of attorney in most stages of the procedure, which is usually far better than having the case decided in your absence. Distances matter here too: a stop on the coast road near Torrevieja and a stop in the centre of Alicante lead to different duty courts, different calendars and, in practice, different waiting times for the file to be released to the defence.
A breath reading looks like a fact and is often treated as one. It is not: it is the output of a device operating under a regulatory regime, and that regime has requirements. Before advising anyone to accept a conformidad it is worth confirming the periodic verification of the breathalyser used, the interval observed between the two readings, whether the margin of error was applied to the result, and whether the driver was offered the contrasting blood test to which the law entitles him. It is also worth reading the atestado itself with care. Officers write it at the end of a shift, and the description of the driving, of the reason for the stop and of the signs observed is frequently thinner than the charge assumes.
Each of those points can move a case, and some of them move it across the threshold that separates a criminal offence from a traffic fine. They can only be examined while the file is still open, which in a fast-track case means in the first days. Once the conformidad is signed before the court there is no way back; the sentence is final and the ban starts running. Where the case involves drugs rather than alcohol the position is different again: the roadside saliva test is a screening device, and the confirmatory laboratory analysis, its chain of custody and its timing all have to be examined before anyone concedes the point. None of this is about finding a technicality for its own sake. It is about establishing what the file actually proves before a defendant accepts a sentence that will govern the next several years of his driving life.
The driving disqualification is the part that changes daily life most. For residents in the province who rely on a car to reach work, a school or a clinic outside the towns, a ban of one to four years is a far heavier sanction than the financial penalty. Its length is set within the statutory range by reference to the reading, the circumstances of the driving and any previous convictions, and it is one of the elements a defence can properly argue about. Where a genuine hardship arises from the ban, that is something to raise with the court while the sentence is being decided, not afterwards.
A first prison sentence within the ranges set by article 379 will not normally be served in custody, since Spanish law allows short sentences to be suspended for defendants without previous convictions on conditions the court sets. But the conviction itself remains on the record, and where the stop followed a collision the criminal case sits alongside the civil claim and the insurer’s position on cover. Those two tracks influence one another, and it is a mistake to deal with either of them in isolation. Insurers commonly reserve their position, and a driver who has admitted the offence in the criminal case has, in practice, admitted a good deal in the civil one as well. That interaction is the reason we prefer to see a file before anything has been signed rather than after.
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