Drink-Driving With an Accident and Injuries: The Concurrence of Arts. 379.2, 142 and 152 CP

A road traffic accident with injured people in which the driver tests positive for alcohol is not resolved, as many believe, with a simple traffic fine. The situation is legally more complex and more serious: driving over the criminal alcohol limit and, in addition, causing injuries to others gives rise to two separate crimes under the Spanish Criminal Code (CP). On the one hand, the road-safety offence in Article 379.2 CP; on the other, the result offence, which will be negligent homicide (Art. 142 CP) or serious negligent injury (Art. 152 CP). As criminal defence lawyers specialising in drink-driving accidents with injuries, in this article we explain how the two offences fit together, what penalty applies, and where the lines of defence lie.

When alcohol at the wheel is a crime, not an offence

The first step is to distinguish an administrative penalty from a crime. Traffic regulations penalise relatively low alcohol readings with a fine and loss of licence points, but no criminal court is involved there. The crime appears once the objective thresholds in the second limb of Art. 379.2 CP are exceeded:

• A breath-alcohol reading above 0.60 mg/l, or
• A blood-alcohol reading above 1.2 g/l.

Above those figures, driving is a crime in every case, with no need to prove any further impairment: the legislator has set an automatic quantitative threshold. And the penalty for the driving itself, even without an accident, is already serious: prison of 3 to 6 months, or a fine of 6 to 12 months, or community service of 31 to 90 days, and, in every case, a ban on driving for more than one and up to four years.

The accident with injuries: two crimes in a single act

Where, in addition to exceeding the criminal limit, the driver causes an accident resulting in injuries, the road-safety offence does not absorb that result. Drink-driving and the injuries are separate legal realities protecting different interests: Art. 379.2 CP protects the collective safety of traffic (it is an offence of danger), while Art. 142 or 152 CP protect the life and physical integrity of the specific victim (they are result offences).

For that reason the conduct gives rise to a concurrence of offences. Depending on the gravity of the result produced, the result offence will be:

• Negligent homicide (Art. 142 CP), where the accident causes a person's death.
• Serious negligent injury (Art. 152 CP), where it causes injuries. Within this provision, the penalty depends on the severity of the injury: those under Art. 147.1 CP, the aggravated ones under Art. 150 CP and the most serious ones under Art. 149 CP (loss of an organ or limb, sterility, serious disfigurement) have different ranges.

Why the law deems drink-driving to be gross negligence

This is one of the technical keys to the matter. The Criminal Code provides that driving a motor vehicle in which any of the circumstances of Article 379 is present — that is, driving over the criminal alcohol limit — is deemed gross negligence. This is not a case-by-case assessment by the judge, but a classification imposed by the law itself.

The practical consequence is decisive. Negligence is graded into two levels — gross and less serious — with very different penalties: the gross negligence of Art. 152.1 CP can, depending on the injury, reach prison; the less serious negligence of Art. 152.2 CP is punished only with a fine and, moreover, can be prosecuted only on the victim's complaint. By the law deeming the negligence gross where alcohol is involved, the route of downgrading the conduct to less serious negligence and settling for a fine is, as a rule, closed off. That difference — prison versus fine — is one of the areas where the defence matters most.

Article 382 CP: how the penalties are combined

If there are two crimes, are the penalties added together? Not exactly. Article 382 CP contains a special rule to resolve the concurrence between the road-safety offence and the result offence where both stem from a single act: in that case, only the more seriously punished offence is applied, but in its upper half.

In practice, because the penalties for negligent homicide (Art. 142) or serious injury (Art. 152) are usually higher than those of Art. 379.2 CP, the result offence is normally punished in its upper half, with the driving offence absorbed. To that penalty is always added the ban on driving motor vehicles. It is worth bearing in mind that this rule in Art. 382 CP is what prevents double punishment, but it is also what raises the penalty for the result to its upper range precisely because of the additional dangerousness of having driven under the influence of alcohol.

The financial bill: compensation and the right of recovery

Beyond the penalty, every accident with injuries gives rise to civil liability: the obligation to compensate those harmed for personal and material damage. This compensation is quantified under the traffic compensation scale, the statutory system for valuing personal injury, which sets values for days of recovery, lasting sequelae, aesthetic harm and other heads of loss.

The vehicle's insurer initially responds to the victims, which guarantees that the compensation is paid. However, in drink-driving accidents the company may then exercise its right of recovery: having paid those harmed, it reclaims the amount paid out from the responsible driver. In this way, drink-driving can result not only in a criminal conviction but also in a direct and considerable debt owed to the driver's own insurer.

The breath-alcohol evidence: the first front of defence

A conviction rests, to a large extent, on the evidence of the alcohol reading, and that evidence must be obtained with full safeguards. It is the first point we examine in every case:

• The two breathalyser readings. The protocol normally requires two breath samples separated by an interval. The absence of a second reading, or material discrepancies between the two, can affect the value of the evidence.
• The device's margin of error. The breathalyser has a technical margin of error that must be deducted from the reading. Where the result is close to the criminal threshold, that margin can be decisive in placing it above or below the line of the offence.
• The chain of custody and calibration. The device must be verified and calibrated, and the test properly documented. Defects in calibration, verification or documentation open a route to challenge.
• The right to a blood analysis. The driver may request confirmation by blood test, a safeguard whose disregard or refusal can have consequences for the evidence.

The causal link: did the alcohol cause the accident?

A second front, often decisive, is the causal link between the alcohol reading and the injurious result. The fact that the driver tested positive and that an accident occurred does not, in itself, mean that alcohol was the cause of the crash. An accident may be due to a third party's conduct, a mechanical failure, the state of the road or an unforeseeable event unconnected to the influence of alcohol.

This distinction has legal relevance. The result offence by negligence requires that the breach of the duty of care — here, driving after drinking — be the one that creates or materialises the risk that leads to the injury. If the effective cause of the accident was entirely unrelated to the alcohol, the attribution of the result to the driver can be challenged, even though the standalone offence of Art. 379.2 CP for the driving itself remains. Establishing the actual mechanics of the accident, frequently through expert reconstruction evidence, is therefore a central plank of the defence.

Lines of defence against a drink-driving accident

A positive test and an accident with injured people do not make a conviction automatic, nor do they predetermine its extent. These are the lines we work on:

1. Challenge the breath-alcohol evidence. Chain of custody, the double reading, margin of error and calibration of the breathalyser. If the criminal limit is not solidly established, the classification of gross negligence that the law ties to Article 379 falls away.

2. Break or qualify the causation. Showing that the accident was due to a cause unrelated to alcohol can prevent the injurious result from being attributed to the driver and leave the matter, where appropriate, within the offence of danger in Art. 379.2 CP.

3. Contest the severity of the injuries and the negligence. The specific classification within Art. 152 CP — and, with it, the penalty — depends on the real gravity of the injury and its correct medical-forensic substantiation.

4. Steer the penalty and the civil liability. Work on individualisation within the framework of Art. 382 CP, the length of the driving ban and a measured quantification of the compensation scale, having regard too to the insurer's possible right of recovery.

The settled case law of the Supreme Court on road-safety offences requires rigorous proof of both the alcohol reading and the causal link with the result, and recalls that the concurrence rule in Art. 382 CP does not authorise double punishment, but a single criminal response that is proportionate to the act. That evidential rigour 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 how the breath-alcohol evidence was taken, the mechanics of the accident and its causal link with the result, as well as the specific classification of the injuries, in order to build the defence from the very first statement. If you are facing a charge for a drink-driving accident with injured people — with the concurrence of Articles 379.2 and 142 or 152 CP — having criminal defence from the outset of the proceedings is decisive, particularly because these matters usually begin as urgent proceedings and move quickly.