How to Avoid Prison After a Positive Breathalyser in Spain

Exceeding the rate of 0.60 mg/l in exhaled air constitutes an offence against road safety (Art. 379.2 CP). Although a first conviction does not usually involve entering prison, the situation becomes far more complicated with a criminal record or a refusal to undergo the tests.

The Importance of Immediate Action

In the fast-track trial for drink-driving, a rewarded guilty plea (accepting the facts and the penalty) carries a one-third reduction of the sentence. However, before pleading guilty, a lawyer should review the certification and calibration of the breathalyser, the device's margin of error, and the external symptoms described by the officers. If the rate is borderline, there is room to fight for a full acquittal.

Why a First Conviction Does Not Usually Mean Prison

The fact that Article 379.2 of the Criminal Code includes prison among its penalties does not mean every convicted driver ends up in a penitentiary. When the accused has no criminal record, the law allows, under certain requirements, the execution of short prison sentences to be suspended, on condition that the convicted person does not reoffend within the period set by the judge. That is why, in practice, a first criminal-level positive usually ends without actual imprisonment.

The scenario changes when the factors this post anticipates concur: a relevant criminal record, a refusal to undergo the tests or an accident with consequences for third parties. In those cases the prosecution hardens its position and suspension stops being automatic, so the defence strategy must be planned from the first minute.

The Fast-Track Trial Step by Step

Most drink-driving cases are processed as fast-track trials: after the positive result, the officers draw up a report and summon the driver before the duty court within days. Almost the entire procedure is concentrated in that appearance: statement, examination of the evidence and, where applicable, a guilty plea.

The rewarded guilty plea — accepting the facts and the penalty with the one-third reduction — is decided at that moment, with very little room for reflection. Hence the importance of arriving at the duty court with a lawyer who has already examined the police report: a plea signed blindly is irreversible, and a well-negotiated plea can make the difference between a manageable penalty and an unnecessarily burdensome one.

What to Review Before Pleading Guilty

• Certification and calibration of the breathalyser: the device must have its certificates in force; an expired calibration compromises the reliability of the reading.
• Margin of error: applied to rates at the edge of 0.60 mg/l, it can place the result below the criminal threshold and take the matter outside the offence.
• External symptoms: the police report describes signs such as slurred speech or glassy eyes; if that description contradicts other objective or witness evidence, the prosecution case weakens.
• Actual driving: the offence requires driving; doubts about who was driving or whether the vehicle actually moved open an additional line of defence.

The Strategy: Deciding With the File in Front of You

Avoiding prison after a positive test comes down to an informed decision between two paths: fighting for acquittal when the evidence shows cracks — a borderline rate, defects in the measurement, a contradictory police report — or securing through a guilty plea a reduced penalty that may, where applicable, be suspended. There is no single answer: it depends on the report, the record and the driver's personal circumstances. What is constant is that the decisions taken in the first forty-eight hours condition the entire outcome. Appearing before the duty court without having analysed the police report means giving up, without knowing it, most of the available defence options.