Drunk Driving Offence in Spain
Concisely, this is what the Spanish Crimes Act provides for:
A person who is found driving a motor vehicle under the influence of toxic drugs, psicotropic substances, narcotic substances or alcoholic beverages will be sentenced from 8 to 12 weekends arrest or a fine from three to eight months and, in all cases, a driving licence suspension from one to four years.
A person who, upon request by a police officer, refuses to submit to legally established tests for the purpose of verifying the facts of the preceding article will be charged with an offence of grave disobedience, contemplated in article 556 of this Act.
A person who driving a motor vehicle with blatant carelessness causes a serious danger to the lives of people will be sentenced from six months to two years, and a driving licence suspension from one to six years.
Those persons who, not qualifying for the offence contemplated in article 550, oppose the authority or its agents, or disobey them gravely, will be sentenced from six months to one year imprisonment.
Having read what the law says, it would be interesting to see what a skilled lawyer can achieve. These are a few acqittal rulings passed on appeal by some Provincial Audiences in Spain.
Provincial Audience of Cantabria (Santander) 6-2-98
0.77 and 0.78 mg of alcohol per litre of breath might not constitute a punishable offence under the Spanish Crimes Act. At least, according to the Provincial Audience of Cantabria, who acquitted a driver who was found guilty by the criminal court of an offence against the security of traffic, and sentenced accordingly.
Provincial Audience of Las Palmas (Gran Canaria) 20-4-99
More recently, this Audience acquitted, on appeal, a driver found guilty of an offence against the security of traffic by the First Instance Tribunal of Las Palmas for driving with alcohol limits of 0.88 and 0.80 per litre of breath.
What to do if caught drunk while driving
These rulings prove the importance of the traffic police report of events and circumstances when being pulled over, and indeed, their role as accusers but also witnesses.
If you are involved in a drink test, you will want to behave appropriately and appear to be as sober as possible. Let the officers to their job and show respect. They will be declaring in the hearings, and although they could incur in false testimony (perjury) if they were to lie as witnesses, common sense shows that an officer´s (on duty) testimony is stronger than a lush´s declaration.
Your lawyer will then analyse issues such as procedural defects, suppressed evidence, checking thing such as calibration and maintenance records for the breath machine, have blood samples independently analyzed (if that is the case), negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
And never forget that, however good the outcome of this appeal against the decision of the criminal court has proved to be, we still recommend alcoholic abstinence when driving. Take no chances, since the least that can happen is to be convicted of a drunk driving offence. The worst, you can be responsible of the death of someone, and then, no matter how good your legal assistance might be, a homicide charge will be brought against you succesfully.
Now if unfortunately you have been arrested and taken before a Judge, here are some key questions your lawyer should ask you to improve your position on a further hearing. The accused should be aware that he has the right not to declare against himself, since perjury/false testimony is not applicable to a confession. In other words, and as a judge once put it, the accused has the right to lie as much as he pleases. This should, however, not preclude a lawyer from putting across exculpatory questions connected to the offence the accused is being pursued for.
The most sensible questions are those of which the lawyer knows the accused will answer exculpating his actions, since replies to the lawyers questions could backfire on his innocence if these are self-incriminating.
Every case is different, as well as each individual sitting before a judge, and moreover, his reactions are mostly unpredictable. Therefore, the undersigned unvariably recommends the following to be asked on interrogation:
It also should be highlighted the fact that the accused was not examined by a general practitioner.
Refusing to submit to drunk driving test
Interestingly, the Provincial Audience of Cantabria 10-2-1999 acquitts, in my opinion, quite rightly and sensibly, a driver convicted for refusing to submit to drunk driving test, on grounds that the conduct of the driver falls outside the of scope of the offence. The PA audience contended that only the refusal to submit to the test is an offence if it comes together with evident external signs of being under the effects of alcohol.
In words of the PA, the accused was conscious of having not drunk alcohol at all, and therefore politely refused to submit to the test.
This court attitude departs considerably from the ruling of the Spanish Constitutional Tribunal in that this high court deems the refusal to submit to the alcohol test as an offence itself, provided there is a deliberate and noticeable intention to avoid the test. Having said this, it should be pointed out that a minority of the votes of the magistrates expressed their dissent and opined disfavourably with regards to the legality of article 380 of the Spanish Crimes Act.
My question is the following: should police agents always and under any circumstance be entitled to force any driver to submit to a test, amounting a refusal to do so to an offence punished with an imprisonment term? The answer is openned to discussion.
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