Article 385 of the Spanish Criminal Code: serious risk to road traffic

The chapter on road safety offences is almost always associated with the driver: the alcohol reading, the speed, the recklessness, the lost licence. One provision breaks that pattern. Article 385 of the Spanish Criminal Code does not punish driving in a particular way but creating a serious risk to road traffic, and anyone can commit it: a pedestrian, a works operative, a protester, someone throwing an object from a bridge, or someone taking a road sign as a souvenir.

If you are accused of creating a serious road hazard: what article 385 CP says

Article 385 CP punishes anyone who creates a serious risk to road traffic in either of two ways it then lists: first, by placing unforeseeable obstacles on the road, spilling slippery or flammable substances, or altering, removing or nullifying signage, or by any other means; and second, by failing to restore the safety of the road where there is a duty to do so.

The structure is that of an endangerment offence: the result required is not an accident but a risk. And that risk carries an adjective that is both the gateway into the offence and the way out of it: serious. A remote, hypothetical or minor risk does not meet the statutory threshold, however objectionable the conduct may be.

What the prosecution has to prove

• Conduct of the kind described. Placing unforeseeable obstacles, spilling slippery or flammable substances, altering, removing or nullifying signage — or using any equivalent means — or else failing to restore the safety of the road.
• That a serious risk to traffic was created. The abstract dangerousness of the conduct is not enough: it must be shown that the risk actually materialised in relation to the traffic present or foreseeable on that road at that time.
• Intent. Article 12 CP provides that negligent acts and omissions are punishable only where the law expressly so provides, and article 385 CP contains no negligent form. The conduct must be willed and its capacity to create the risk known.
• In the omission form, a prior duty to act. Without a legal duty to restore the safety of the road there is no offence.

The first element is usually documented in the police report. The second and the third are, almost always, the real subject of the trial.

The active form: obstacles, substances and signs

The first limb groups three named forms of conduct and one open-ended clause. The obstacles must be unforeseeable: the adjective excludes items a driver can and should anticipate on a road — a signposted ramp, a stationary vehicle displaying the required warning devices — and places the reproach on what takes the driver by surprise. The substances must be slippery or flammable, which covers anything from an oil spill to leaked fuel.

Interference with signage appears through three verbs that are not synonyms: altering it (replacing it or changing what it says), removing it, and nullifying it (rendering it ineffective, for instance by covering it). Taking down the sign warning of a dangerous bend, or covering a give-way sign, falls squarely within this limb.

The closing words, "or by any other means", round off the list without making it unlimited: the means used must be equivalent in dangerousness to those expressly named and must create the same serious risk.

The omission form: failing to restore the safety of the road

The second limb punishes anyone who creates the risk by failing to restore the safety of the road where there is a duty to do so. It is an omission offence, and the first task is to identify where that duty comes from: it may arise from a works or maintenance contract, from a concession, from an administrative permit to occupy the road, or from having created the danger in the first place.

The practical consequence is that the defence in this form is fought on documents. Who was responsible for signposting the works, what the contract specification said, who had to remove the broken-down vehicle or clean the spill, and when the incident was reported to the road authority are the facts that settle liability long before any statement is taken.

The penalties under article 385 CP and the reduction in 385 ter

The provision offers two alternative routes: six months to two years in prison, or a fine of twelve to twenty-four months together with ten to forty days of community service. The exact reading matters. The alternative to prison is not a fine on its own but a fine and community service combined, so anyone negotiating a plea on that second option is also accepting days of work.

Article 385 ter CP is superimposed on that range. For the offences under articles 379, 383, 384 and 385, it allows the court, giving reasons in the judgment, to reduce the prison term by one degree in view of the lesser seriousness of the risk created and the other circumstances of the act. It is a specific route to mitigation that is lost if it is not asked for and argued.

Two absences are worth noting. First, article 385 CP does not provide for disqualification from driving motor vehicles and mopeds, unlike articles 379, 380, 381 and 383 CP. Second, the maximum penalty does not reach five years, so the general limitation period of article 131.1 CP applies, which sets five years for offences other than minor offences and offences of insult and slander, which become time-barred after one year.

Where a vehicle was used in the facts, article 385 bis CP comes into play: the motor vehicle or moped used in the acts covered by that chapter is treated as an instrument of the offence for the purposes of articles 127 and 128, which opens the door to confiscation.

Where the risk leads to an accident

There is a special rule on concurrence in road safety matters, but it does not cover this offence. Article 382 CP refers to the acts punished under articles 379, 380 and 381, and requires that, where a harmful result follows on top of the risk, the court apply only the more heavily punished offence, in its upper half, and order compensation for the civil liability arising in every case.

Article 385 CP is not on that list. So where the obstacle or the spill leads to an accident causing injury or death, the relationship between the two offences is resolved under the general rules on concurrence rather than under the special rule of article 382 CP. It is a technical difference with very concrete effects on the final sentence and on the charges, and it should be fixed from the defence pleadings onwards.

Boundaries with criminal damage and with the administrative route

Tampering with signage usually involves material damage as well. That brings in the offence of criminal damage under article 263 CP, whose paragraph 2.4 expressly covers damage affecting goods in public or communal ownership or use. Not every removal of a sign creates a serious risk to traffic, and not every serious risk comes with damage: these are separate assessments, and the correct charge depends on what is proved in each case.

Nor is every incident on the road a criminal offence. Road traffic and safety legislation penalises a wide range of conduct concerning occupation of the carriageway, signposting of works and objects left on the road through administrative channels, and that is the ordinary response where the serious risk required by the offence is missing. Arguing that the facts belong to the administrative sphere and not to the criminal one is, in many of these cases, the main line of defence.

Where the person was also driving, the case may overlap with reckless driving under article 380 CP, which does require driving with manifest recklessness and creating a concrete danger to the life or physical integrity of others. Our page on road safety offences covers that ground.

Situations that reach the courts

• Objects thrown onto the carriageway from footbridges, bridges or embankments.
• Spills of oil, diesel or other slippery liquids from a vehicle or an industrial activity, left uncleaned and unsignposted.
• Removal of vertical signs, bend mirrors or beacons, often without any awareness of the risk created.
• Interference with the signposting of roadworks: turning a sign around, removing cones, switching off warning lights.
• Obstacles placed on tracks and secondary roads in the context of neighbour or boundary disputes.
• Road closures using unsignposted items, where what is in issue is not the protest itself but the risk created to traffic.

What the defence looks at

• How serious the risk really was. Traffic volume at that point and hour, visibility, the speed of the road, how long the obstacle remained and the distance at which it could be seen. Without that substrate, "serious risk" is an assertion rather than a proven fact.
• Intent. Someone who removes a sign out of vandalism or for profit may never have contemplated the traffic risk; the absence of intent as to the danger excludes this offence, without prejudice to other charges.
• The source of the duty, in the omission form. Specifications, main contracts, subcontracts, incident reports and communications with the road authority.
• The reconstruction and the chain of custody. Photographs in the police report, sketch plans, the exact time and the state of the road when officers attended.
• The reduction under article 385 ter CP, which must be expressly requested and supported by the lesser seriousness of the risk.
• The choice of penalty. Choosing between prison and the combination of fine plus community service is not neutral, and it has to be reasoned in the judgment.

These cases are won or lost on the evidence of risk, not on the evidence of the act. To discuss a specific case, call us on 91 078 65 74 or see our page on road safety offences.