Second DUI: how recidivism aggravates the penalty (Art. 379.2 CP)

For a driver with no prior record, a first DUI conviction is usually resolved with a fine or community service and a temporary driving ban, normally without imprisonment. A second one is a different scenario. When an already-convicted driver again crosses the criminal threshold of Article 379.2 of the Spanish Criminal Code (CP), the recidivism aggravation comes into play, toughening the criminal response on three fronts: the penalty, the prospect of avoiding prison and the length of the licence ban. As criminal lawyers specialised in repeat DUI defence, we explain how that aggravation works and which defence lines remain open. We assume familiarity with the thresholds and the breathalyzer evidence, which we cover in depth in our general DUI defence guide; here we focus on what changes when there is a prior record.

What recidivism means in road-safety offences

Recidivism is not just any prior conviction. Article 22.8 CP defines it precisely: there is recidivism when, at the time of the offence, the offender had already been convicted by a final judgment of an offence included in the same title of the Criminal Code and, in addition, of the same nature. DUI offences sit within the title of offences against collective safety, in the road-safety chapter, alongside reckless driving, criminal speeding, driving without a licence and refusal to undergo the tests.

In practical terms, an earlier conviction for another road-safety offence —and certainly for a previous DUI— can trigger the aggravation in the new DUI offence. Three nuances established by the provision itself are worth keeping in mind:

• The prior record must be in force. Criminal records that have been expunged or ought to have been are not counted. This is the point on which the defence most often turns.
• Minor offences do not count. Recidivism is built on offences, not on administrative traffic infractions: a prior DGT penalty for a positive reading below the criminal threshold does not generate recidivism.
• EU convictions also count. Final judgments handed down in other EU Member States produce recidivism effects, unless the record was expunged or would be expungeable under Spanish law.

How the 22.8 aggravation raises the penalty

Recall the starting framework. Article 379.2 CP punishes driving with an alcohol level above 0.60 mg/l in breath or 1.2 g/l in blood with one of these penalties, in the alternative: imprisonment of 3 to 6 months, a fine of 6 to 12 months or community service of 31 to 90 days, and, in all cases, deprivation of the right to drive for more than one and up to four years.

When the recidivism aggravation applies with no mitigating circumstances to offset it, the sentencing rules of Article 66.1.3 CP require the penalty to be imposed in its upper half. This translates into harsher penalties within each range —a longer fine or a longer driving ban— and narrows the room for negotiation. In cases of multiple recidivism (where the offender has accumulated several prior convictions for offences under the same title), the law even allows the penalty one degree higher to be imposed, substantially raising the ceiling.

In a repeat DUI, however, the increase in the amount is usually not the client's main concern. What is decisive is the effect on the prospect of avoiding prison.

The effect on sentence suspension and the risk of actual prison

The reason why a first-time offender sentenced to a short prison term for DUI rarely goes to jail is the suspension of enforcement. Article 80.2 CP allows prison sentences of no more than two years to be suspended, but requires a number of conditions to be met; the first and most relevant here is that the convicted person be a first-time offender.

Recidivism collides head-on with that requirement. For suspension purposes, prior convictions for negligent or minor offences are not taken into account, nor are expunged or expungeable records; but a prior conviction in force for an intentional road-safety offence does bar recourse to ordinary suspension. The result is that, if a prison sentence is handed down, the recidivist driver faces a real risk of enforcement.

It is not, however, a dead end. The system retains several exits that we work on depending on the case:

• Exceptional suspension (Art. 80.3 CP). Even where the ordinary conditions are not met, and provided the offender is not a habitual offender, the court may suspend sentences that individually do not exceed two years, having regard to the personal circumstances, the nature of the act and, in particular, the effort to repair the harm. This route is conditioned on reparation and additional measures.
• Choosing the non-custodial penalty. Since Art. 379.2 CP offers alternative penalties, a central strategy is to steer the conviction towards the fine or community service rather than imprisonment, removing the suspension problem at the root.
• Negotiated plea. In the rapid trial, a guilty plea with a one-third reduction (Art. 801 LECrim) makes it possible to close the penalty on predictable terms and to discuss the form and exact length of the driving ban.
• Suspension for treatment of dependence (Art. 80.5 CP). Where the offence is committed because of a proven dependence on alcohol, there is a specific suspension route conditioned on treatment, even for longer sentences.

The prolonged loss of the driving licence

The driving ban is the only penalty that Art. 379.2 CP imposes in all cases, and with recidivism it tends to be set at the high end of the range (which runs from more than one to four years). Here a threshold worth bearing firmly in mind appears: under Article 47 CP, when the ban is imposed for a period exceeding two years, it entails the loss of validity of the licence.

The difference matters. If the ban is two years or less, the licence is recovered automatically once the penalty is served. If it exceeds that, the driver loses the licence and, to drive again, must obtain it anew by passing the corresponding tests. For someone who depends on a car for work or family reasons, negotiating that the ban does not exceed that threshold can be as important as avoiding prison.

Defence lines against recidivism

The existence of a prior record does not mean the aggravation must be applied without more. These are the lines we examine in each case:

1. Check the expungement of the record. This is the most effective defence and often the most overlooked. Article 22.8 CP excludes records that have been expunged or ought to have been. One must verify when the earlier sentence was fully served and apply the expungement periods of Article 136 CP. If, on the date of the new facts, the record was already expunged or expungeable, recidivism does not arise and the penalty must be set without the aggravation.

2. Verify the identity and nature of the prior record. Not every earlier conviction qualifies: it must belong to the same title and be of the same nature. A prior conviction for an offence unrelated to road safety does not ground specific recidivism.

3. Challenge the evidence of the new offence. Before arguing the aggravation, we argue the offence. The validity of the breathalyzer remains central: a current metrological verification certificate, the margin of error applied to results near the threshold (a 0.61 or 0.62 mg/l may fall below 0.60 once the tolerance is deducted), the mandatory second measurement, the chain of custody of the report and the right to a blood counter-analysis. If the evidence falls, there is no conviction —and without a conviction, recidivism is irrelevant.

4. Seek mitigating factors that offset the aggravation. The presence of mitigating circumstances —reparation, undue delay or, most notably, the mitigating factor of serious addiction where alcohol determined the driving— may offset the aggravation in sentencing and even open the door to suspension for treatment of dependence.

The settled case-law of the Supreme Court further requires recidivism to be stated, with all its particulars, in the account of proven facts; a generic reference to the prior record is not enough. Any shortfall in establishing the prior record is an additional defence avenue.