The relationship between the crime of refusing a breathalyzer test and the crime of driving under the influence of alcohol
The relationship between the crime of refusing to submit to breathalyzer tests, regulated in art. 383 of the Penal Code, and the crime of driving under the influence of alcohol, typified in art. 379.2 of the Penal Code, is a highly controversial legal issue, which has generated contradictory rulings between different Courts for years.
What happens if a driver refuses to take a breathalyzer test?
The question is as follows. Imagine a driver who is driving under the influence of alcohol and who, when stopped by the police at a breathalyzer checkpoint and showing clear signs of being under the influence of alcohol, refuses to submit to the breathalyzer tests. Can a driver be penalized for committing the crime of refusing to submit to breathalyzer tests and, in turn, for the crime of driving under the influence of alcohol?
In this regard, some courts held that a conviction for both offenses violated the principle of double jeopardy , which prohibits a person from being convicted twice for the same acts. However, other courts opted to convict the driver for both offenses.
Difference between the offenses in articles 379.2 and 383 of the Penal Code
The issue was finally resolved by the Supreme Court, through Judgment 419/2017, of June 8, in which it establishes the following:
- First, it considers that the conviction for both offenses does not violate the principle of non bis in idem , insofar as, although both offenses punish the same subject, they do so for different acts: art. 379 punishes driving a vehicle under the influence of alcohol, while art. 383 punishes the refusal to submit to breathalyzer tests.
- Secondly, the Supreme Court understands that, although both crimes protect in some way the legal interest of road safety, the legal interest protected by both is not exactly the same : the crime of driving under the influence of alcohol directly protects road safety and, indirectly, the life and physical integrity of people, while the crime of refusing to submit to breathalyzer tests protects, in addition to road safety, the principle of authority.
Consequently, the Supreme Court concludes that the relationship between both crimes is one of real concurrence of crimes (that is, the penalties imposed for each of the crimes must be added together) and not of concurrence of laws (which would imply that one can only be convicted for one of the two crimes).
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