Article 383 Spanish Criminal Code: Refusal to submit to breath or drug testing

Article 383 of the Spanish Criminal Code penalises a driver who, on being required to do so by an officer, refuses to submit to the tests established by law for determining alcohol concentration or the presence of drugs. Its penalty is higher than that of Article 379 itself, so refusal is a decision with graver consequences than the offence it seeks to avoid.

Wording of Article 383 of the Spanish Criminal Code

Elements of the offence

1. The person required is the driver, or a person involved in an accident under the road traffic regulations.
2. A requirement made by an agent of the authority acting in the exercise of his functions.
3. Prior information to the person required as to the obligation to submit and as to the criminal consequences of refusal.
4. An express refusal, or conduct objectively equivalent to refusal.
5. Intent, which requires knowledge of the requirement and of its consequences.

Defence strategy

Absence of warning as to the consequences. This is the most effective line. Spanish case law requires the officer to inform the driver that refusal constitutes a criminal offence. Where that warning is absent, or is recorded only in generic terms, intent cannot be established. The literal terms of the police record and the officers evidence on this point are decisive.

Information in a language the driver understands. For a foreign driver the warning must be comprehensible. Where the record does not show that the driver was informed in a language he understands, or that an interpreter was available, the requirement was not lawfully made and refusal cannot be established.

Physical inability to perform the test. Insufficient lung capacity, chest injury, post-traumatic shock and documented respiratory conditions prevent a valid sample without amounting to refusal. A contemporaneous medical report is the central evidence.

Offer and conduct of the second test. The regulations require a second breath sample to be offered and a contrasting clinical analysis to be made available. Omission of those steps vitiates the procedure and removes the basis for characterising a failed first attempt as refusal.

Failed attempt as against refusal. An insufficient blow through poor technique, repeated unsuccessful attempts and cooperation demonstrated in other ways do not amount to refusal. The distinction between being unable and being unwilling is the heart of the case.

Plea and sentence. Where refusal is established, the objective becomes the minimum period of disqualification and suspension of the custodial sentence. Evidence of personal and employment circumstances is decisive, particularly where the client depends on the licence in his country of residence.

• Drink-driving defence in Spain
• Spanish Criminal Code by article
• Spanish Criminal Procedure Act by article
• 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.