Refusing a Breathalyzer: The Offence Under Article 383 CP

Many people believe that refusing to blow at a checkpoint is "the smart move": if no reading is taken, they reason, there is no evidence and no crime. The truth is exactly the opposite. Refusing to take the alcohol or drug tests required by a police officer is a separate criminal offence — the one set out in Article 383 of the Spanish Criminal Code (CP) — and its penalty is usually harsher than that of the drink-driving offence itself. In this article we explain why refusal is a crime even where the actual reading would have been low, what requirements the police request must meet, how this offence differs from a mere administrative penalty, and the lines of defence we examine before any guilty plea. If you are facing a charge of this kind, you should start from the correct facts rather than from the mistaken idea that staying silent or refusing "always pays off". You can read more on our page about refusing a breathalyzer test.

What exactly Article 383 CP punishes

Article 383 CP punishes the driver who, when required to do so by a police officer, refuses to submit to the tests legally established to check blood-alcohol levels and the presence of toxic drugs, narcotics and psychotropic substances. The penalty is imprisonment of six months to one year and disqualification from driving motor vehicles and mopeds for more than one year and up to four years.

The key word is the verb: what is punished is refusing, not producing a high reading. The protected interest is not only road safety but also the duty to cooperate with officers and the principle of authority. This is therefore a so-called disobedience offence in the road-safety field: a driver who refuses frustrates a power of control that the law places in the hands of the traffic police, and that frustration is, in itself, the punishable conduct.

Why it is a crime even if your actual reading was low

This is the most counter-intuitive point and the one that causes the most avoidable convictions. Because Article 383 CP requires no reading at all, the offence is completed by the refusal, regardless of how much alcohol the driver actually had in their blood. Even if it could later be shown that the reading was zero, or well below the criminal threshold, that does not erase the refusal: the punishable act has already taken place.

The practical consequence is paradoxical. A driver who blew, say, 0.30 mg/l in exhaled air would have faced a mere administrative penalty (a fine and loss of points, with no criminal record). If, instead, they refuse to blow, they move from a traffic infringement to a criminal offence carrying a prison sentence and a driving ban. Refusing is not a way out: in most cases it is a voluntary worsening of one's own position.

The police request and the warning about consequences

The offence does not arise from just any refusal, but from refusing a valid request. For the conduct to be punishable, two elements must be present, in line with the settled case law of the Spanish Supreme Court:

• A lawful request: the officer must be acting in the exercise of their duties and the test must be one of those legally established. The checkpoint or stop on which the request is based must be regular; if the checkpoint were unlawful, the refusal might not be punishable.
• Information about the duty and the consequences: the driver must have been informed, in an understandable way, that they are obliged to take the test and that refusing constitutes a crime. It is not enough to ask the driver to blow; the criminal consequences of refusal must be made clear.

This second requirement is one of the most significant lines of defence. If the record of the warning does not appear in the police report, is unclear, or was given in conditions that prevented the driver from understanding it (a language barrier, the state after an accident, the absence of an express warning that refusing is a crime), it may be possible to argue that the refusal is not punishable or that the evidence is null. This is why a careful review of the police report and of the documentation of the police action is decisive.

How it differs from the administrative penalty and from drink-driving

It is worth separating three levels that are often confused:

Situation	Route	Consequence
Reading between 0.25 and 0.60 mg/l	Administrative	Fine and points, no criminal record
Reading above 0.60 mg/l or driving "under the influence"	Criminal (Art. 379.2 CP)	Prison, fine or community service + driving ban
Refusing the required test	Criminal (Art. 383 CP)	Imprisonment of 6 months to 1 year + driving ban

The boundary matters. Refusal is not an administrative infringement: it is directly a crime, and one of the most serious within road safety, because it does not allow a fine as an alternative to prison, unlike the drink-driving offence under Article 379.2 CP. Moreover, refusal and drink-driving are alternative charges: a person convicted of refusing is not also convicted on the reading — among other reasons because, by refusing, they prevented it from being measured — but that does not offset the greater severity of the Article 383 penalty. You can see the detail of the reading-based offence in our analysis of the drink-driving limits in force in 2026.

Lines of defence against Article 383 CP

Our firm studies each police report before deciding between a negotiated plea and a contested trial. The main lines of work are:

• Validity of the request and of the warning: if there is no clear warning that refusing is a crime, or if the information was not understandable, an essential element of the offence falls away.
• Absence of a conscious and unequivocal refusal: not every reluctance amounts to a refusal. Doubts, confusion, questions or an initial reluctance later overcome do not make up the offence; nor, in itself, does a technically insufficient blow where no deliberate obstruction is established.
• The driver's condition and physical impossibility: a documented respiratory illness, injuries after an accident or a state of shock may make it physically impossible to blow. If the impossibility is established and the driver offered a contrast test, the criminal nature or the intent of the refusal may be excluded.
• Regularity of the procedure: the lawfulness of the checkpoint or stop, the correct identification of the driver (only the driver is obliged, not a passenger) and the documentation of the police action all condition the validity of the charge.

Alongside these substantive lines, we always assess the procedural safeguards and, where the evidence of refusal is clear and established, the merits of a negotiated plea that allows the penalty and the suspension of the sentence to be adjusted within the legal limits. Early legal assistance — from the checkpoint itself or from the arrest, since refusal is an offence that allows on-the-spot arrest and fast-track proceedings — is therefore decisive. You can visit our page on road safety offences or our analysis of the breathalyzer's margin of error as a defence.