Refusing a breathalyzer test: Criminal consequences under penal code Article 383

Refusing to undergo a breathalyzer or drug test during a traffic stop is not merely an administrative infraction. In fact, it can constitute a serious criminal offense, as defined in Article 383 of the Spanish Penal Code (383 PC). This behavior falls under offenses against road safety, and its prosecution aims to ensure effective compliance with traffic laws and uphold the authority of law enforcement officers.

In this article, we analyze what refusing a breathalyzer test entails, when it is considered a crime, the legal consequences involved, and how to respond to an accusation for this offense.

When is the crime defined in Article 383 of the Penal Code committed?

The crime of refusing to undergo breathalyzer testing occurs when a driver, upon being lawfully required by a law enforcement officer, unjustifiably refuses to take the tests legally established for detecting alcohol or drugs.

This requirement may arise in the following situations:

• After a traffic accident.
• When the driver shows signs of being under the influence of substances.
• During preventive alcohol or drug checkpoints.
• After committing a traffic violation.

It is not necessary for the driver to have consumed alcohol or drugs. A voluntary refusal to take the test either actively (verbal rejection) or passively (non-cooperation) is enough to be charged with the offense under Article 383 PC.

You can find more information on our page about road safety offenses to understand the full legal framework and applicable penalties.

What penalty does Article 383 of the Penal Code establish?

Refusing to take a breathalyzer or drug test carries significant criminal penalties. Article 383 of the Penal Code provides:

• A prison sentence of 6 months to 1 year.
• Disqualification from driving motor vehicles and mopeds for 1 to 4 years.

This offense is punishable regardless of whether the driver has committed another criminal offense (such as driving under the influence). In other words, it may apply independently, solely for refusing to take the test.

What requirements must be met for this crime to exist?

For conduct to be criminally relevant under Article 383 PC, the following elements must be present:

1. A valid and clear requirement from a law enforcement officer to take the test.
2. A legally established test (alcohol, drugs, psychotropic substances).
3. An explicit or implied refusal to take the test.

According to case law, a verbal refusal is not required. Refusal may also be inferred if the driver is passive, avoids cooperation, or prevents the test from being properly carried out.

Is refusing the second test also a crime?

Yes. The Spanish General Traffic Regulations require a second test if the first test exceeds administrative limits. The Supreme Court has ruled that refusing to undergo this second test may also constitute the offense of refusing to submit to breathalyzer tests, as it compromises the reliability of the procedure.

How to defend against a charge of refusing a breathalyzer test

Each case must be evaluated individually, but various defense strategies may apply:

• Verifying whether the police request was clear and legally made.
• Claiming lack of intent (confusion, medical issues, anxiety, etc.).
• Challenging procedural guarantees during the arrest.
• Arguing that there was no real refusal, but a justified difficulty.

The involvement of a criminal lawyer specializing in traffic safety offenses is essential to analyze the facts, review the police report, and prepare an appropriate legal strategy.

Relation to other road safety offenses

This offense is part of the broader category of road safety crimes, along with others such as:

• Driving under the influence of alcohol or drugs (Art. 379.2).
• Serious speeding violations (Art. 379.1).
• Reckless driving (Art. 380).
• Driving without a license (Art. 384).

If you find yourself in a situation where you need legal advice regarding a road safety offense and require assistance from a specialized lawyer, NIETO ENRÍQUEZ CRIMINAL LAWYERS has a team of experts ready to protect your interests and provide support in whatever you may need.