Refusal to take a breathalyzer test: Criminal consequences according to the Penal Code 383
Refusing to take a breathalyzer or drug test during a traffic stop is not a simple administrative infraction. In fact, it can constitute a serious criminal offense , as defined in Article 383 of the Spanish Penal Code (383 CP) . This conduct falls under the category of crimes against road safety , and its prosecution is necessary to ensure the effective enforcement of traffic regulations and to uphold the authority of law enforcement officers.
In this article we analyze what refusing a breathalyzer test entails, when it is considered a crime, what legal consequences it involves, and how to face charges for this offense.
When is the crime of article 383 of the Penal Code committed?
The crime of refusing to submit to breathalyzer tests occurs when a driver, requested by an officer of the law, unjustifiably refuses to perform the legally required tests for the detection of alcohol or drugs .
This requirement can be made in the following cases:
- After a traffic accident.
- When the driver shows symptoms of being under the influence of a substance.
- During preventive alcohol or drug tests.
- After committing a traffic violation.
It is not necessary for the driver to have consumed alcohol or drugs. The voluntary refusal to submit to the test , whether actively (verbal refusal) or passively (non-cooperation), is sufficient to constitute the offense under Article 383 of the Penal Code .
You can find more information on our page about traffic offenses to understand the full legal framework and applicable penalties.
What penalty does Article 383 of the Penal Code establish?
Refusal to submit to alcohol and drug testing has significant criminal consequences. Article 383 of the Penal Code stipulates:
- Prison sentence of 6 months to 1 year.
- Deprivation of the right to drive motor vehicles and mopeds for 1 to 4 years.
This is an offense that is punishable regardless of whether the driver has committed another criminal offense (such as driving under the influence of alcohol). In other words, it can be applied in isolation, solely for the act of failing to take the required test.
What requirements must be met for this crime to exist?
For conduct to be criminally relevant under Article 383 of the Penal Code , the following elements must be present:
- Valid and clear request from a law enforcement officer to perform the test.
- Legally required test (blood alcohol level, drugs, psychotropic substances).
- Express or tacit refusal to perform the test.
According to case law, it is not necessary for the driver to refuse verbally. Refusal can also be understood if they are passive, avoid cooperating, or prevent the proper administration of the test.
Is refusing the second test also a crime?
Yes. The General Traffic Regulations require that if the result of the first test exceeds the legal limits, a second measurement must be taken. The Supreme Court has established that refusing to take this second test can also constitute the crime of refusing to submit to breathalyzer tests , as it prevents guaranteeing the reliability of the procedure.
How can someone defend themselves against a crime of refusing a breathalyzer test?
Each case must be analyzed individually, but there are several possible lines of defense:
- Verify if the police request was clear and legally formulated .
- Claiming lack of intent (confusion, physical problems, anxiety, etc.).
- Questioning compliance with procedural guarantees in detention.
- To explain that there was no real refusal , but a justified difficulty.
The intervention of a criminal lawyer specializing in traffic offenses is key to analyzing the facts, studying the police report, and preparing an appropriate legal strategy.
Relationship with other traffic safety offenses
This offense is part of the group of crimes against road safety , along with others such as:
- Driving under the influence of alcohol or drugs (art. 379.2).
- Serious speeding (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 traffic offense and require the assistance of a criminal lawyer in Barcelona , at NIETO ENRIQUEZ CRIMINAL LAWYERS we have a team of criminal lawyers specializing in this type of crime, ready to protect your interests and assist you in everything you require.
