Caught at a Breathalyser 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?

Above 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 0.60 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 breathalyser. It comes back positive.
2. Ten-minute wait: The officer must tell you that you are entitled to check that at least 10 minutes pass between the first and the second test (Art. 23.2 of the General Traffic Regulations, RGC).
3. Second test: You blow again, as a further safeguard and for comparison purposes (Art. 23.1 RGC). The Regulations do not say which reading prevails: they link the officers' next steps to the result of this second test or of any analysis you request (Art. 24 RGC).
4. If it is a crime (> 0.60): The police draw up a report, may immobilise the vehicle (art. 25 of the General Traffic Regulations) and summon you to a juicio rápido (Spanish fast-track trial) before the duty court on the day and at the time they set in coordination with the court (Arts. 796.1.3 and 796.2 LECrim). Any precautionary withdrawal of the licence is ordered by the judge (art. 764.4 LECrim).
5. If it is an administrative infraction (0.25-0.60): A fine of EUR 500, or EUR 1,000 if the reading exceeds twice the permitted rate or you were already fined for alcohol in the previous year (Arts. 77(c) and 80 of the Traffic Act, Royal Legislative Decree 6/2015); you lose 4 points, or 6 above 0.50 mg/l (Annex II), but there is no judicial licence withdrawal.

The breathalyser margin of error: your best defence

Breathalysers are not perfect. Order ICT/155/2020 does not set the Maximum Permitted Error (MPE) as a figure: for periodic verification it refers to the maximum errors that OIML Recommendation R 126 sets for instruments in service (Annex XIII, Appendix IV): ±0.030 mg/l up to 0.400 mg/l and ±7.5% above (OIML R 126-1:2021, clause 6.6.2). If your reading is only just above 0.60 mg/l, deducting the MPE may bring it below that threshold, which means you fall outside the criminal threshold for the reading and into the administrative one, unless there are signs that alcohol affected your driving (Art. 379.2 CP). That small margin can spare you a criminal record.

At Alonso Sala, the first thing we do is request the breathalyser 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 plea-agreement trap

If your case qualifies as a crime, the police summon you to the duty court on the day and at the time they set in coordination with the court; the law sets no number of hours or days (Art. 796.2 LECrim). There, if the prosecutor brings charges, you can enter a plea agreement: you admit the facts and receive the penalty sought reduced by one third (Art. 801 LECrim). 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 until it is cancelled within the periods of Art. 136.1 CP (explained below).
• 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 (if it is your first offence, the judge may suspend it: Art. 80 CP).
• Fine of 6 to 12 months (daily rate multiplied by days, Art. 50 CP).
• Community Service (TBC) from 31 to 90 days.
• Licence withdrawal: from 1 year and 1 day up to 4 years (a plea agreement reduces the penalty sought by one third, Art. 801.2 LECrim: from the minimum, about 8 months).

Frequently Asked Questions

Can I refuse to blow?

DO NOT EVEN CONSIDER IT. Refusing the test is a specific criminal offence of refusing to be tested (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 breathalyser result. The officer must inform you of this right (Art. 23.3 RGC).

Will the criminal record be cleared?

Yes, but not after 6 months: the 6 to 12-month fine and the 31 to 90 days of community service under Art. 379 CP are less serious penalties (Art. 33.3 CP). Under Art. 136.1 CP, the fine, community service and imprisonment (even if suspended) are cancelled 2 years after they are extinguished; a driving ban of more than one year, after 3 years if it is under three years and after 5 years if it is three years or more, provided you do not reoffend.