Cocaine Drug-Driving in Spain: When It Is a Crime (Art. 379.2 CP)

A roadside drug check returns a positive result for cocaine, and the immediate question is: is this a crime? The answer is not automatic. Article 379.2 of the Spanish Criminal Code (CP) does not punish drug use, nor even the presence of the substance in your body: it punishes driving "under the influence" of toxic drugs, narcotics or psychotropic substances — that is, with your driving faculties genuinely impaired. That distinction — presence versus influence — is the line between an administrative traffic offence and a crime that can carry a prison sentence. As criminal defence lawyers specialising in cocaine drug-driving, in this article we explain when a positive test is a crime, what penalty it carries, and where the lines of defence lie.

Presence versus influence: the key to the offence

The offence in Art. 379.2 CP, in its first limb, requires the driver to be "under the influence" of the drug. It is not enough to have used cocaine hours earlier, nor for the test to detect traces of the substance: what matters is that the substance is genuinely impairing the ability to drive safely. Unlike drink-driving — where the legislator set an objective threshold of 0.60 mg/l of breath which, on its own, is already a crime — for drugs there is no automatic quantitative level: actual impairment must be proven.

This has a major practical consequence. The mere presence of cocaine in saliva or blood, with no signs that driving was affected, is not a crime: it is an administrative offence under traffic regulations, penalised by the DGT with a fine and loss of licence points, but outside the criminal courts. The dividing line between the administrative penalty and a criminal conviction lies precisely in whether or not that influence is established.

• Presence (administrative route): the test detects the substance, but there is no record of impaired driving. Traffic penalty, no criminal record.
• Influence (criminal route): the drug genuinely impairs the faculties, and this is shown by external signs and analytical evidence. Offence under Art. 379.2 CP.

What penalty the Art. 379.2 CP offence carries

Where driving under the influence of cocaine is established, Art. 379.2 CP provides three alternative penalties from which the court chooses:

• Prison of 3 to 6 months, or
• A fine of 6 to 12 months (under the day-fine system, set according to financial means), or
• Community service of 31 to 90 days.

And, alongside any of these, in every case, the court imposes a ban on driving motor vehicles and mopeds for more than one and up to four years. This ban is not optional: it always accompanies the conviction. For a driver with no criminal record, a common strategy is to steer the outcome towards the fine or community service, avoiding prison, and to argue over the exact length of the driving ban, which is usually what most affects the client's working and personal life.

It is also worth remembering that driving despite a court-imposed driving ban is a fresh offence (Art. 384 CP), so respecting the prohibition throughout the period is essential.

How driving under the influence of cocaine is proven

In practice, proof of the offence rests on three pillars that must be assessed together. None of them alone is usually enough to convict:

The indicative saliva test

At the roadside, an oral fluid (saliva) test is used, and it is indicative: it detects the presence of the substance but does not measure the degree of impairment and does not always provide a reliable concentration. A positive result is the starting point of the investigation, not conclusive proof of the offence. A positive saliva test is therefore not, on its own, the same as a conviction.

The confirmatory analysis

After the indicative test, a confirmatory analysis must be carried out, usually of blood, in an accredited laboratory. This evidence must respect the chain of custody — correct identification, preservation and traceability of the sample — and allow, where appropriate, a counter-analysis. Defects in obtaining, preserving or documenting the sample are an important line of defence: if confirmation is missing or unreliable, the evidential basis of the offence is weakened.

External signs and the police report

Actual impairment is established, above all, through the external signs that officers record in the police report: driving pattern (weaving, sudden braking, lane drifting), the state of the pupils, speech, balance, coordination and behaviour. The more detailed and specific the report, the greater its evidential weight. A generic or boilerplate report, limited to set phrases without describing concrete conduct, is far more open to challenge as a basis for "influence".

Refusing the tests: the offence under Art. 383 CP

A dangerous belief is to think that "if I don't take the test, they can't prove anything". This is a serious mistake. Refusing to undergo the tests legally established to check for drug (or alcohol) consumption is a standalone offence under Article 383 CP, punishable by six months to one year in prison and a driving ban of more than one and up to four years.

Two important consequences follow:

• The penalty for refusal can be harsher than that for the positive test itself, since its maximum prison term is one year.
• Refusing does not guarantee impunity: the court can still convict under Art. 379.2 CP by relying on the external signs of impairment, even without an analysis, because refusal does not prevent influence from being proven by other means.

For that reason, when faced with a police request, the prudent course is to cooperate and reserve the defence for the technical examination of the evidence, rather than refuse and open up an additional criminal front.

The difference with drink-driving (the second limb of 379.2)

The same Article 379.2 CP contains a second limb dealing with alcohol, which works differently. Whereas, for drugs, influence must be proven case by case, for alcohol the legislator set an objective threshold: driving with a reading above 0.60 mg/l of breath or above 1.2 g/l of blood is a crime in every case, with no need to demonstrate additional impairment. Below that figure, alcohol is only a crime if actual influence is proven.

The distinction matters because it shapes the strategy: with cocaine, the defence focuses on challenging impairment and the reliability of the analytical evidence; with alcohol above the threshold, the debate shifts to the margin of error of the breathalyser, the second reading and the device's chain of guarantees.

What to do after a positive cocaine test

How you act in the first few hours shapes much of the defence. Some sensible steps:

• Undergo the tests. Refusing opens a standalone offence (Art. 383 CP). It is better to cooperate and reserve the argument for the technical examination of the evidence.
• Request the confirmatory analysis and counter-analysis. Where there is a right to a second sample, it is worth exercising it: it strengthens the reliability check.
• Do not sign anything you do not understand. These cases are usually handled as fast-track proceedings and a guilty plea is offered "on the spot"; accepting it means a criminal conviction and a record.
• Keep the paperwork. A copy of the police report, the test record and any relevant medical report.
• Seek criminal defence as soon as possible. Early intervention makes it possible to assess whether the case is one of mere presence (administrative route) or a crime.

Lines of defence against a positive cocaine test

A positive saliva test does not make a conviction inevitable. These are the lines we examine in every case:

1. Challenge "influence", not just presence. This is the heart of the defence. If the police report does not describe concrete signs that driving was impaired, it can be argued that the case is one of mere presence — the administrative route — and not a crime.

2. Attack the reliability of the analytical evidence. Validity and accreditation of the device, correct conduct of the indicative test, the existence and validity of the confirmatory analysis, respect for the chain of custody and the right to a counter-analysis. Any breakdown can be decisive.

3. Review the procedural safeguards. Notification of rights, access to a lawyer and, where appropriate, an interpreter; correct documentation of the steps taken. Breaches of safeguards can strip the evidence of its value.

4. Steer the penalty. For a driver with no record, direct the outcome towards a fine or community service and negotiate a measured driving ban, avoiding the most damaging effects on working life.

The settled case law of the Supreme Court on road-safety offences insists that driving "under the influence" of drugs requires proof of actual impairment of the driver's faculties, and is not satisfied by simply confirming consumption. That requirement is, at the same time, a safeguard for the citizen and the main avenue of defence.

Specialist defence in Madrid and throughout Spain

At Alonso Sala we are a firm dedicated exclusively to criminal law, based at Velázquez 27, Madrid and covering the whole of Spain. We examine the police report, how the saliva test and the confirmatory analysis were carried out, and whether actual impairment of driving has been established, in order to build the defence from the very first statement. If you are facing a charge for driving under the influence of cocaine — or for refusing the tests under Art. 383 CP — having criminal defence from the outset of the proceedings is decisive, particularly because these matters are usually handled as fast-track proceedings and resolved within a few days.