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The Spanish Lawyer Online

Drunk Driving Offence in Spain

Antonio Flores
1st of March 2001

Spain is no exception as far as drunk driving is concerned. The consequences of driving a motor vehicle under the effects of alcohol are severe and comparable to other EU countries, whose legislation may vary in the limit over which driving is an offence or the length of driving licence suspension and imprisonment terms. In Spain, a normal penalty for driving with excess of alcohol includes a statutory minimum period of 12 months driving licence suspension and a fine or weekend arrest. You do not need to have commited a moving traffic offence.

Concisely, this is what the Spanish Crimes Act provides for:

Artícle 379.

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.

Artícle 380.

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.

Article 381

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.

Article 556

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.

The accused contended that although the ethilometer reading marked over the limit, he reeked alcohol, his answers were confused and had a slurred speech, he behaved normally when the traffic police compelled him to pull his car to the side of the road, had good reasoning when expressing his ideas and would physically wander with normality (as declared by the police officers in their denounciation). The Provincial Audience accquited him on these grounds.

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.
On review of the factual evidence, the PA found that a smell of alcohol was a logical circumstance since the appellant had admitted to drinking. ¿? Moreover, a bloated aspect and an unstable wandering to be connected to the time and date of the test (early hours in the morning) leads the PA to infer a reasonable doubt and therefore acquitts.

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:
  • In the event of being pursued for drunk driving, if the accused denies having drunk alcohol beverages or drugs, reiterate this aspect for the record. Likewise, if the accused was stopped on a routine check.
  • In case the offender is so for 380 C.P., where the accused was not informed of the consequences of refusal to submit to the test, it should also be highlighted. Likewise, if the accused was not able to voluntarily refuse to the test, or was prevented from doing so (e.g. a friend persuading him not to test).

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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Discuss this Article

  • saraheric Says:

  • mike Says:

    On being taken to a police station are you informed the results of any breath tests ,how many have you to give? do you also have to give Urine/blood samples? Is your vehicle impounded until the court case?
  • Tony Says:

    I was stopped and found to have 0.88mg after a breath test. Does anyone know the likely penalty in a Spanish court?
  • Unregistered Says:

    I was stopped and found to have 0.88mg after a breath test. Does anyone know the likely penalty in a Spanish court? Tony , you are likely to get a fine of between 300 and 1000 euros depending on the circumstances and a driving ban is usually applicable. Of course this ban is not valid in the UK.
  • Forum Guest Says:

    Is a drink drive ban valid in the uk for definite ???????
  • lovingman Says:

    well I think this drunk driving thing has to be punished so hard !
  • Jackie Says:

    How long does a drink driving offence stay on your records in Spain.
  • Gary newsham Says:

    How long does a drink driving offence stay on your records in Spain. Dear Jackie, it all depends on the length of the ban, for example…… if the ban was upto 12 months it would show on record for 6 months, however it was over 12 months it would show for 3 years and finally if the ban was over 3 years it would show on record for 5 years. i trust this helps.
  • Tom Patent Says:

    I was fined €2,200, 180 hours community service and nine month ban in 2010 for drink driving in Spain. I decided to leave the country to live in Portugal as I couldn’t afford to pay the fine. Would this conviction still be pending after 13 years or would no longer exist? I thank you and I look forward to hearing from you.
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