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The Spanish Lawyer Online
The Spanish Lawyer Online

Antonio Flores’ Blog

Thoughts about laws and regulations which affect foreigners in Spain


Archive for February, 2013

Questions on Tenancy Agreements in Spain Answered

February 19th, 2013

Notes on Drunk Driving in Spain

February 15th, 2013

By now, most people should be aware that drinking alcohol and driving are two incompatible activities that, when mixed, can put people’s lives in dangerous risk. But alcohol-impaired driving will also get the driver into serious trouble with the authorities, particularly when alcohol breath readings exceed 0, 25 mg/liter and blood levels 0, 5 gr/liter, and will become a criminal offence if the quantum of alcohol exceeds 0, 6 mg/liter in a breath test and 1, 2 mg/liter in blood.

Additionally, one faces an automatic driving ban and a fine and where there is careless driving, refusal to provide a specimen for analysis or an accident causing injury or death to other people, prison terms.

Statistically, 98% of cases end up with the Court passing a guilty verdict and it for this reason that most lawyers will advise their clients to plead guilty to benefit from a “slap on the wrist” reduced sentence (one third off, which translates normally in a 8-12 month ban and a €800-€1,000 fine), avoiding more severe consequences, after negotiating with the State Prosecutor.

But then, there is always a departure from the norm. The remaining 2% of drivers will pluck up courage, challenge the Prosecutor’s offer and win! This is how some did it:

  • A driver who had been charged with criminal drink driving provided a medical report certifying that, whilst under the effects of a drug called Manidon, a breath test reading of 0, 63% mg/liter should read 0, 53% mg/liter. This meant that he fell under the threshold to be criminally prosecuted and so, the Court had to acquit him, even though the certificate was issued 2 days after the event and did not certify that the driver had taken the prescription drug on the day, only that he was being treated for it!
  • A driver was found in a vehicle that happened to be diagonally parked (incorrectly as it happened). When the police ordered him to come out of the car, he stumbled and fell right down, being subsequently tested positive for alcohol consumption. Against the Prosecutor’s opinion, the lawyer acting in this instance argued that there was no evidence that he was driving and thus, the Court acquitted.
  • A driver that was found guilty of driving while intoxicated and had been banned from driving by the criminal Courts was later stopped by the police, who noticed he was already disqualified. The Courts acquitted him of a further criminal charge because the lawyer successfully argued that formal notification of the ban, by the Traffic Authorities, was not conducted properly, but by means of ordinary registered post.
  • A driver who had had an accident left the scene and went home. Later, he returned drunk and invoked that the alcohol had been ingested after the accident. The Prosecutor was not able to demonstrate, beyond reasonable doubt, that the driver had been drunk whilst causing the accident and the Court had no option but to pass an acquittal sentence.

Still, better not drink and drive.

Litigation , , , , , ,

Suing for Failed Financial Contracts in Spain

February 9th, 2013

Losses sustained on a financial investment that has not performed cannot always be attributed to the consumer. There are many instances where risks were not properly disclosed,where the consumer’s profile and an understanding of the complexities were incompatible, perhaps there was been misrepresentation or even fraud..

Of special importance are the timescales within which an action may be taken as, where there was mistake or misrepresentation, the contract can be rescinded within a period of 4 years since it was consummated but if, for instance, the contract is null and void because it violates public policy, or goes against moral or ethics, the contract is deemed to have never existed and so, there are no timescales to bring such an action.

The type of financial contract entered into may also determine when the 4-year rule elapses: as an example, claimants that sue for having been mis-sold “swaps” have 4 years since the contract was consummated (end of the term of the contract for both parties) whereas, those who wish to set aside a contract on a Unit-Linked Life Assurance product, pursuant to a recent ruling by the Appeal Court in Vizcaya (30-9-2011), can only bring an action within 4 years since the contract was signed.

It is worth noting that the 4-year term is for mistake or misrepresentation (viodability), but not for contractual default (15 years) or total voidness (no term).

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