The relationship between the offense of refusal to undergo a breathalyzer test, regulated in Article 383 of the Penal Code, and the offense of driving under the influence of alcohol, defined in Article 379.2 of the Penal Code, is a highly controversial legal issue that has generated contradictory rulings among different courts for years.
The question that arises is the following. Let us imagine a driver who is driving under the influence of alcohol and who, when requested by the Police in a breathalyzer control and presenting obvious symptoms of being under the influence of alcohol, refuses to submit to breathalyzer tests. Can the driver be sanctioned for the commission of an offense of refusal to submit to breathalyzer tests and, in turn, for an offense of driving under the influence of alcohol?
In view of this issue, some Courts understood that the conviction for both offenses was a violation of the non bis in idem principle, a principle that prevents the same person from being convicted twice for the same facts. However, other courts decided to convict the driver for both offenses.
The issue was finally resolved by the Supreme Court, through Ruling 419/2017, of June 8, in which it states the following:
- First, it considers that the conviction for both offenses does not violate the non bis in idem principle, insofar as, although both offenses punish the same subject, they do so for different facts: Article 379 punishes driving a vehicle under the influence of alcohol, while Article 383 punishes the refusal to submit to alcohol tests.
- Secondly, the Supreme Court understands that, although both offenses protect in a certain way the legal right of road safety, the legal right protected by both is not exactly the same: the offense of drunk driving directly protects road safety and, indirectly, the life and physical integrity of persons, while the offense of refusal to submit to alcohol tests protects, in addition to road safety, the principle of authority.
Consequently, the Supreme Court concludes that the relationship between the two offenses is one of actual concurrence of offenses (i.e., that the penalties imposed for each of the offenses must be added together) and not of concurrence of laws (which would imply that only one of the two offenses can be convicted).
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