Refusing a Drug Test in Spain: the Article 383 CP Offence

At a drug checkpoint, some drivers believe that refusing the test is the "smart" move: if no substance is measured, they reason, there will be no proof of use. It is exactly the opposite. Refusing to take the drug-detection tests legally required by an officer is a separate offence, that of Article 383 of the Criminal Code (CP), which is punished regardless of whether the driver had consumed anything or not. In this article we explain what the offence actually requires, how the two-stage drug test works, why refusing is usually more serious than testing positive, which grounds exclude the offence and how it is defended. You can read more on our page about refusing the drug test.

What Article 383 CP actually says

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

The interest protected is not road safety as such, but the duty to cooperate with the officers' checkpoint activity. That is why the offence exists even if it is later shown that the driver was perfectly sober: what is punished is the aggravated disobedience to a lawful request, not the result of the analysis. The provision covers both refusal of the breath test and refusal of the drug test, which is the one that concerns us here.

The two-stage drug test

Unlike the breathalyser, roadside drug detection has its own structure, which is worth knowing because it determines which test the driver may have refused:

• Indicative saliva screening: at the roadside, the officer carries out a rapid saliva test that gives a result that is merely indicative of possible use. It is not conclusive evidence.
• Confirmatory analysis: if the screening is positive or there are signs of impairment, a second saliva sample is taken and sent to an accredited laboratory for confirmation. The driver also has the right to request a confirmatory blood analysis.

This structure matters for the defence: refusing the initial screening is not the same as refusing the confirmatory test, nor is declining the sample the same as waiving the contrast analysis. Pinpointing exactly which test the driver refused — and whether the officer followed the protocol at each stage — is one of the first lines of analysis in the case.

Why refusing is more serious than testing positive

The paradox of Article 383 CP is that it punishes the person who refuses more harshly than the person who actually drove under the influence of drugs. It is worth comparing it with the offence of driving under the influence of drugs (Art. 379.2 CP):

Conduct	Penalties
Refusing the test (Art. 383 CP)	Prison of 6 months to 1 year (no fine as an alternative) + disqualification from driving for 1 to 4 years
Driving under the influence of drugs (Art. 379.2 CP)	Prison of 3 to 6 months, or a fine of 6 to 12 months, or community service of 31 to 90 days + disqualification from driving for 1 to 4 years

The difference is decisive: Article 383 CP does not allow a fine as an alternative to prison, whereas the drug-driving offence does allow lighter penalties. Refusing therefore does not reduce liability but increases it, and it closes off options such as a fine or community service. The idea that "no substance measured means no offence" is false: the refusal is, in itself, the offence.

Differences from refusing the breathalyser

Although Article 383 CP covers both refusals, refusing the drug test has practical features that set it apart from the classic refusal of the alcohol test:

• Less frequent checks: drug-detection devices are less common than breathalysers, which reduces the officers' routine and increases the risk of defects in the procedure.
• More room for justified grounds: producing enough saliva can be impossible because of genuine dry mouth, anxiety, dehydration or the effect of certain medicines, which opens up room to argue whether there was a true refusal.
• More recent protocols: saliva detection is relatively modern and its treatment in case law is less settled than that of the breathalyser, which leaves scope to challenge the regularity of each stage.

These differences do not change the penalty, but they do widen the possibilities for the defence when the procedure has not been followed rigorously.

Grounds excluding the offence and intent

Not every failure to give a sample amounts to the Article 383 CP offence. For a punishable refusal to exist, the driver must have had the conscious will not to cooperate with a lawful and properly explained request. Among others, the following fall outside the offence:

• Physiological impossibility: where the driver cannot produce enough saliva because of genuine dry mouth, an illness or the effect of medication. There is no refusal where there is material impossibility, not an unwillingness to comply.
• Defective request: if the officer does not make the request correctly or the steps of the protocol are not followed, the basis for the offence is weakened.
• Lack of information: the driver must be informed of the nature of the test and of the criminal consequences of refusing. Without that warning, an intent to disobey can hardly be established.

The settled case law of the Supreme Court stresses that the duty to inform and the lawfulness of the request are preconditions of the offence: without them, the conduct may not be punishable at all.

Immediate practical consequences

Beyond the penalty, refusal triggers immediate effects that are worth anticipating:

• Loss of six licence points through the administrative route.
• Arrest for an offence in the act: the refusal is observed on the spot, so arrest and being brought before the court are common.
• Fast-track trial: these matters are usually handled through the fast-track procedure, with very short deadlines to prepare the defence or weigh up a guilty plea.
• Limitation period: as a less serious offence (maximum penalty of one year), it becomes time-barred after five years under Article 131 CP.

The speed of the fast-track procedure makes it especially important to obtain legal assistance early, before the window to challenge the regularity of the checkpoint closes.

Lines of defence

The strategy depends on each case, but in drug-test refusal the most effective defences turn on the regularity of the request and the genuine voluntariness of the refusal:

• Identify which test was refused: separate the indicative screening from the confirmatory analysis and the contrast test, because they do not all fit the offence in the same way.
• Physiological impossibility: establish, with a medical report, the dry mouth or illness that prevented the driver from providing saliva, ruling out an intent to disobey.
• Defects in the request and the information: review the police report to check whether the driver was informed of the nature of the test and of the consequences of refusing, and whether the protocol was followed at each stage.
• Exclusion of evidence: detect irregularities that affect the validity of the procedure and may lead to its exclusion.
• Weighing a guilty plea: where the refusal is well supported, assess whether a negotiated plea is worthwhile given the risk of prison that Article 383 CP entails.

For the other road-safety offences (drink-driving, driving under the influence of drugs, reckless driving or driving without a licence) you can consult our road safety offences area.

Specialist criminal defence in road-safety cases

If you are facing a charge of refusing the drug test, it pays to act early and to start from the correct facts, not from the mistaken idea that refusing "avoids the problem". Studying the police report, the information given at the stop and how each stage of the test was carried out usually marks the difference between a conviction and an acquittal.

Alonso Sala is a firm dedicated exclusively to criminal law, based at calle Velázquez 27 in Madrid and covering the whole of Spain. We analyse each traffic stop and the regularity of the request before taking any defence or guilty-plea decision.