Caught at a Breathalyzer Checkpoint in Madrid: Legal Steps (2026)

It was 3 a.m., you were coming back from dinner and the Municipal Police pulled you over at a routine checkpoint. You blew into the device. Positive. Your heart races. What just happened? Is this a crime? Will I go to prison? Will I lose my licence? As specialist criminal lawyers in road-safety offences, we handle this scenario every day. This guide answers every question.

When is it a criminal offence and when is it an administrative fine?

From 0.60 mg/l of exhaled breath (equivalent to 1.2 g/l in blood) it is automatically a criminal offence (Art. 379.2 CP, Spanish Criminal Code). Below that figure but above 0.25 mg/l, it is an administrative infraction (fine plus loss of licence points, but no judicial licence withdrawal).

There is one important exception: if you blow between 0.25 and 0.59 but show clear signs of intoxication (erratic driving, glazed eyes, slurred speech), the police can treat the driving as "impaired" and still classify it as a criminal offence.

Step by step: what happens after a positive reading?

1. First test: You blow into the evidential roadside breathalyzer. It comes back positive.
2. Ten-minute wait: The law requires a second test no sooner than 10 minutes later.
3. Second test: You blow again. The lower of the two readings is the one that counts.
4. If it is a crime (≥ 0.60): The police draw up a report, withdraw your licence on a precautionary basis and summon you to a juicio rápido (Spanish fast-track trial) within roughly 48 hours.
5. If it is an administrative infraction (0.25-0.59): Financial fine (500-1,000 EUR), loss of points (4-6), but no judicial licence withdrawal.

The breathalyzer margin of error: your best defence

Breathalyzers are not perfect. The Maximum Permitted Error (MPE) varies by model and calibration. If you blew 0.64 mg/l, applying the MPE (usually 5-7.5%) the figure could drop to 0.59 mg/l, which means you fall outside the criminal threshold and into the administrative one. That tiny margin can spare you a criminal record.

At Alonso Sala, the first thing we do is request the breathalyzer calibration certificate and calculate the MPE in your favour. If we can pull you out of the criminal range, the case file is closed.

The fast-track trial: the 48-hour trap

If your case qualifies as a crime, the summons arrives in under 48 hours. At trial, the Prosecutor's Office will offer you a plea agreement: admit the facts and the penalty is reduced by one third. It sounds tempting, but accepting without a lawyer who has reviewed the evidence is a very serious mistake.

Why? Because if you accept the plea agreement:

• You will carry a criminal record for 2-3 years.
• You will not be able to appeal the judgment (it becomes final).
• Your licence will be withdrawn for a minimum of 8 months.

If your lawyer uncovers a flaw (margin of error, expired calibration, breach of protocol), the case can result in a complete acquittal or be downgraded to an administrative infraction. It is worth waiting.

What penalty can I face?

For the basic offence of criminal drunk driving (≥ 0.60 mg/l), the penalties are alternative:

• Prison: 3 to 6 months (rarely enforced if you have no record).
• Fine of 6 to 12 months (the most common option; daily rate multiplied by days).
• Community Service (TBC) from 31 to 90 days.
• Licence withdrawal: from 1 year and 1 day up to 4 years (with a plea agreement, it usually stays at 8-10 months).

Frequently Asked Questions

Can I refuse to blow?

DO NOT EVEN CONSIDER IT. Refusing the test is a specific criminal offence of serious disobedience (Art. 383 CP) punished by prison of 6 months to 1 year. It is worse than testing positive.

Will it affect my job?

If you need your licence for work (lorry drivers, couriers, sales reps), the withdrawal can be devastating. We fight to reduce it to the legal minimum.

Can I request a blood test?

Yes. You have the right to request a contrast test (a blood analysis at a hospital) if you disagree with the breathalyzer result. Many drivers do not know about this right, and the police do not always inform them of it.

Will the criminal record be cleared?

Yes. If the penalty was a fine or community service, the record is cancelled 6 months after the sentence has been served. If it was suspended imprisonment, after 2 years.