Driving under the influence of alcohol or drugs

The Penal Code also punishes driving a vehicle under the influence of alcohol or drugs, through art. 379.2. Specifically, this precept punishes driving a vehicle under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic beverages, establishing, in addition, that the person who drives with an alcohol level in exhaled air higher than 0.60 milligrams per liter or with a blood alcohol level higher than 1.2 grams per liter will be sentenced in any case.

As with the offense of speeding, driving under the influence of drugs, without reaching the thresholds established in the Penal Code, can be sanctioned administratively.

To appreciate the commission of this crime, it is not enough that the driver has consumed drugs before driving, but it is required that the perpetrator drives under the influence of such substances, i.e., it is necessary that the consumption of drugs diminishes the psychophysical faculties used while driving. However, in relation to alcohol, if the rates foreseen in art. 379.2 are exceeded, there is a presumption of influence of said substance on driving, so the finding that the rate foreseen in the Penal Code has been exceeded is sufficient to convict for this crime. Therefore, the results of the breathalyzer test are of great relevance in this crime. However, as with radars, breathalyzers have a certain margin of error, a circumstance that can be a determining factor in determining whether or not this crime is committed.

On the other hand, we must take into account that it is not necessary that the driver reaches the rates indicated in art. 379.2 to be convicted of this crime, since driving under the influence of drugs can be proven through other means of proof, such as the testimony of those persons who have witnessed the behavior of the driver, especially the agents of the authority. In this sense, it is possible to base the conviction for this crime on the realization of dangerous maneuvers or causing an accident, when in addition the perpetrator drives exceeding the rates of alcohol established in the administrative regulations.

What happens if the driver tests positive in the breathalyzer test performed in a preventive control, but without exceeding the rate provided for in art. 379 of the Penal Code? Can he/she still be convicted of this crime? In these cases, the symptomatology report drawn up by the traffic officers is of great relevance, where the symptoms of impairment due to the consumption of drugs are recorded, which can range from the way the driver speaks, to the difficulties in coordinating his movements or the breath of alcohol.

Refusal to submit to breathalyzer tests

Art. 383 of the Penal Code punishes the driver who, being required by an officer of the authority, refuses to submit to the legally established tests for the verification of the rates of alcohol and the presence of toxic drugs, narcotics and psychotropic substances. This crime is punishable with imprisonment from 6 months to 1 year and deprivation of the right to drive motor vehicles and mopeds for a period of 1 to 4 years. We are dealing with a crime that protects the principle of authority and, indirectly, road safety (STS no. 794/2017 of December 11).

The first question that arises is the following: when can the authorities carry out this type of tests on drivers? Pursuant to art. 21 of the Traffic Regulations, officers may subject to such tests drivers responsible for a traffic accident, those who drive with obvious symptoms of being under the influence of alcohol, those who have been reported for a traffic violation and, finally, drivers who are required to take such a test as part of a preventive alcohol control program.

If in any of the above circumstances, the driver of the vehicle refuses to submit to the test, his behavior may constitute a crime. What are the requirements of the Courts to appreciate this crime?

• First, there must be a clear request from the officer to perform a breathalyzer or drug test.
• Secondly, that the requested person refuses to take the test.

We must bear in mind that, according to art. 22 of the Traffic Regulations, the officers must submit the driver to a second test if in the first test he/she exceeds the alcohol rates established in the administrative regulations. What happens if the driver refuses to take this second test? Does this behavior constitute a crime? According to the recent case law of the Supreme Court, set out in STS No. 210/2017 of 28 March, this refusal may constitute a crime, since otherwise it would imply legal fraud, as the result obtained with the ethylometer may be questioned because a second screening test was not carried out.

Excessive speed

Article 379.1 of the Penal Code punishes a person who drives a vehicle at a speed of 60 kilometers per hour in urban roads or 80 kilometers per hour in interurban roads in excess of the speed allowed by law. These acts are punishable with a prison sentence of 3 to 6 months, a fine of 6 to 12 months or community service of 31 to 90 days. In addition, the penalty of deprivation of the right to drive motor vehicles and mopeds for a period of 1 to 4 years is always imposed.

Driving above the regulatory limits, but without reaching the speeds established in this precept, is a conduct that may be subject to administrative sanction. This is a crime of mere activity, which is consummated at the moment in which driving begins, and does not require causing damage or an accident.

Finally, it should be noted that, in this type of crime, one of the most important pieces of evidence is radar, which makes it possible to measure the speed of a vehicle in real time. However, the data contained in this device are not completely reliable and accurate, but have a margin of error, which varies depending on the type of radar and the speed at which the vehicle is driving.

Reckless driving

Article 380 of the Penal Code punishes the driving of a vehicle with manifest recklessness, specifically endangering the life or integrity of persons, with a prison sentence of 6 months to 2 years and deprivation of the right to drive motor vehicles and mopeds for a period of 1 to 6 years. For the action to constitute a crime, there must be a notorious and abnormal disregard of the traffic regulations (STS no. 363/2014).

This is a crime of specific danger, which requires that the driving has generated a specific danger to the life or physical integrity of persons (STS No. 536/2021 of June 17), as occurs, for example, when a driver drives at high speed in the opposite direction, forcing other vehicles to avoid him, without causing any damage.

Finally, the Penal Code itself establishes that, in any case, we find ourselves before a manifestly reckless driving when the perpetrator drives exceeding the speed limits foreseen in art. 379.1 (previously mentioned) and, in addition, does so exceeding the rate of alcohol indicated in art. 379.2 (which we have also previously mentioned).

Reckless driving with manifest disregard for the lives of others

Article 381 of the Penal Code punishes the cases known as suicidal or homicidal driving. Specifically, it punishes the same conduct as Article 380, but also requires that the manifestly reckless driving must show a manifest disregard for the lives of others. According to the Courts, this requirement demands, on the one hand, that the perpetrator acts with indifference to the harm that could be caused to others and, on the other hand, that the conduct is extremely dangerous.

The penalty applicable to this offense varies according to the danger created:

1. When the life or integrity of persons is specifically endangered, the penalty to be imposed is imprisonment of 2 to 5 years, a fine of 12 to 24 months and deprivation of the right to drive motor vehicles and mopeds for a period of 6 to 10 years.
2. If the conduct does not specifically endanger the life or integrity of persons, the penalties are imprisonment of 1 to 2 years, a fine of 6 to 12 months and deprivation of the right to drive motor vehicles and mopeds for a period of 6 to 10 years.

If the facts described so far, in addition to causing a risk, produce an injurious result that constitutes a crime (for example, if an accident with several injured persons is caused), the Judge will only appreciate the offense punished with the most serious penalty, applying said penalty in its upper half and sentencing, in any case, to the payment of civil liability.

Driving without a license

Article 384 of the Penal Code punishes driving a motor vehicle or moped without a license or permit with a prison sentence of 3 to 6 months, a fine of 12 to 24 months or community service of 31 to 90 days. However, the facts only constitute a crime in the following cases:

1. When the license or permit has lost its validity due to total loss of points. The total loss of points is produced by the infraction of several administrative infractions and requires obtaining a new license to be able to drive again, obtaining which requires, in the first place, the passing of a certain period of time since the administrative declaration of the loss of validity and, in addition, the passing of an awareness and social reeducation course.
2. If the driver has been preventively or definitively deprived of said license by judicial decision, for example, for having been convicted of a crime against road safety.
3. When the driver has never obtained a driving license or permit. In principle, driving with an expired license does not constitute a crime (without prejudice to the possibility of administrative sanctions). One of the most problematic cases is when the driver has a foreign license that has not been homologated in Spain. According to the Supreme Court, in STS No. 507/2013, cases in which the driver has a foreign license are excluded from this crime.

Other road safety disturbances

A prison sentence of 6 months to 2 years or a fine of 12 to 24 months and community service of 10 to 40 days is imposed on anyone who creates a serious risk to traffic by placing unforeseeable obstacles on the road, spilling slippery or flammable substances, modifying or annulling the signaling or failing to reestablish the safety of the road when obliged to do so (art. 385 of the Penal Code).

Privileged subtype

In the crimes of driving at excessive speed or under the influence of drugs, refusal to submit to drug or alcohol tests, driving without a license or license and alteration of road safety, the judge may reduce the prison sentence by one degree, taking into account the lesser degree of risk caused and the other circumstances of the crime.

Crime of abandonment of the accident site

The crime of leaving the scene of an accident was introduced in 2019, through art. 382 bis of the Penal Code, a precept that punishes the driver of a vehicle who, voluntarily and without risk to himself or others, leaves the scene after causing an accident in which one or more persons have died or have been injured. This crime was introduced with the purpose of punishing cases that were not included within the crime of omission of the duty to provide assistance, which we will see below, since there was no helpless subject or in serious and manifest danger (STS no. 167/2022 of February 24). Thus, the driver involved in an accident has the duty to remain at the scene of the accident.

The penalty assigned to this behavior varies depending on the origin of the accident:

1. If the accident is caused by recklessness of the driver, the penalty is imprisonment from 6 months to 4 years and deprivation of the right to drive from 1 to 4 years.
2. If the accident is fortuitous, the penalty shall be 3 to 6 months imprisonment and deprivation of the right to drive from 6 months to 2 years.

Crime of omission of the duty to provide assistance

The crime of omission of the duty to assist is regulated in articles 195 and 196 of the Penal Code, which punishes the person who does not assist another person who is helpless and in manifest and serious danger, as long as the perpetrator could have helped him without risk to himself or others. Although it is a crime that can occur in many different cases, it is mostly seen in cases of traffic accidents.

It is a crime of omission, which is characterized by punishing a passive conduct or “not doing”. These acts are punished with a fine of 3 to 12 months, a penalty that is also applicable to whoever, being unable to render assistance, does not urgently request help from others.

In relation to this crime, the Supreme Court has specified that we find ourselves before a crime of omission of the duty to render assistance when the following elements concur (STS No. 761/2022 of September 15):

• That the person in need of assistance is in a situation of manifest and serious danger.
• Who is homeless.
• That the obligated person knows that such a situation exists.
• That he/she has the capacity, without risk to himself/herself or others, to provide assistance personally or to request assistance from third parties.

In addition to the basic criminal modality, the Penal Code provides for two aggravated modalities for the following cases:

195. When the victim is the victim of an accident caused fortuitously by the person who omitted to help, as occurs, for example, when the perpetrator runs over the victim and then flees the scene without helping him or asking for help from third parties. In this case, the penalty is imprisonment of 6 to 18 months, and if the accident is due to recklessness, imprisonment of 6 months to 4 years (art. 195.3 of the Penal Code). This aggravated modality is applicable, for example, in those cases in which, after a traffic accident caused by the driver of a vehicle, the latter flees the scene without helping the injured.
196. When a professional, being obliged to do so, denies health care or abandons the health services, thus generating a serious risk to the health of persons. In this case, the corresponding penalty is imposed in its upper half and, in addition, it is accompanied by the penalty of special disqualification for employment or public office, profession or trade, for a period of 6 months to 3 years (art. 196 of the Penal Code).