Specialist Failure to Assist Attorneys

The summons usually arrives weeks after the events, once the police report or the injured party's complaint reaches the investigating court for the area. Arrest is uncommon in these matters: the usual course is a summons as a formal suspect, with the notice of rights under Art. 118 LECrim, and a first appearance before the investigating judge (Art. 775 LECrim). What determines the gravity is not the omission itself but its relationship with what happened beforehand. If you had no involvement in the accident, the conduct falls under paragraphs 1 and 2 of Art. 195 CP, punished with a fine of 3 to 12 months. If you caused the accident, Art. 195.3 CP raises the penalty to 6 to 18 months in prison where the accident was fortuitous and 6 months to 4 years where it was due to negligence. And if you were driving and left the scene after an accident with fatalities or seriously injured persons, Art. 382 bis CP may also come into play.

As to procedure, where the traffic report arrives complete the matter may be resolved through urgent proceedings (Arts. 795 et seq. LECrim); if the accident has to be reconstructed or the injuries are still healing, it proceeds as ordinary preliminary proceedings and the case cannot be closed until the victims' condition has stabilised, which stretches the investigation over months. In traffic cases the court may order the seizure of the driving licence as a precautionary measure. And the underlying argument is always the same: whether the danger was manifest and serious, whether you could have assisted without risk to yourself or others, whether you urgently called for outside help — the 112 call, with its exact time and recording, is the objective evidence that settles this point — and whether you knew there were victims. Almost every record supporting those answers is kept for a short time, so the urgent task is not preparing the statement but stopping that evidence from disappearing.

• Do not make a statement without a lawyer you trust. Arts. 118 and 520 LECrim give you the right to remain silent, not to incriminate yourself and to hold a confidential meeting with your lawyer beforehand. That prior meeting matters particularly here: the first statement fixes your account of what you saw and what you knew, and a nuance about whether you noticed injured people decides the legal classification.
• Do not contact the injured party, their family or the witnesses. Offers of help or attempts at settlement made on your own are later produced in the proceedings as an admission, and the emotional weight of these episodes means any conversation ends up recounted in a witness statement.
• Gather the records specific to an assistance incident. The record of your 112 call with its exact time and recording; the police report and the sketch plan; the damage to your vehicle and your phone's location history; the emergency-room or psychologist's report if you suffered shock; and the identity of those who did assist, because proving the victim was already receiving effective help dilutes the individual duty.
• Do not delete the call log, the messages or the photographs of the scene. Deletion is read as concealment and the data is usually recovered from the handset or the network operator. That same log is also the best proof that you called for outside help, which is precisely what Art. 195.2 CP requires of someone unable to assist in person.
• Do not repair the vehicle before its condition has been documented. The state of the bodywork, the lights and the windscreen is the central evidence on whether you could have perceived the impact and realised people were injured. Repairing it before the expert examination destroys what is usually the strongest defence in these cases: a genuine mistake as to the existence of victims.

The crime of failure to assist, typified in Arts. 195 and 196 of the Spanish Criminal Code, is one of the few cases in which the criminal legal system sanctions the mere inaction of those morally obliged to act. The protected legal interest is human solidarity understood as a legal duty of minimum assistance: when a person is helpless and in manifest and serious danger, every citizen able to assist without personal risk is obliged to do so, either directly or by requesting help from others (Emergency Services 112). Supreme Court case-law has developed a rigorous canon distinguishing simple civic unsolidarity — not punishable — from genuinely typical conduct.

The Code articulates three differentiated modalities. The common modality of Art. 195.1 sanctions those who do not assist a helpless person in manifest and serious danger when they could do so without risk to themselves or third parties. Art. 195.2 equates the omission of those who, being unable to provide personal assistance, fail to urgently request help from others. Art. 195.3 contemplates the aggravated modality of fleeing the accident scene: it punishes those who, having caused an accident with risk or danger to the victim — whether by negligence or by fortuitous event —, leave the scene without assisting. Art. 196 typifies the special crime of denial of healthcare: healthcare professionals (doctors, nursing staff, technicians) who, being obliged by their guarantor position, deny or abandon healthcare services when this results in serious risk to health.

Penalties are graduated according to the modality. The common omission of Art. 195.1 carries a 3 to 12 months' fine; the omission to request help from others (Art. 195.2) follows the same regime. Art. 195.3 imposes 6 to 18 months' prison when the victim is in danger due to an accident caused fortuitously by the omitter, and 6 months to 4 years' prison if the accident was due to negligence. In addition, leaving the accident scene as a driver may be punished under Art. 382 bis CP, which in its negligent modality provides 6 months to 4 years' prison and driving disqualification of 1 to 4 years (3 to 6 months' prison and disqualification of 6 months to 2 years if the origin was fortuitous). The denial of healthcare under Art. 196 imposes the penalties of Art. 195 in their upper half and, additionally, special disqualification from employment or public office, profession or trade for 6 months to 3 years. On all these penalties, civil liability operates for the consequences derived from the omission (lost income, moral damage, sequelae, medical care), which in cases of victims with permanent injuries reaches very significant amounts under the scale of Law 35/2015.

Technical defense relies on several consolidated axes. The first is own or third-party risk: the criminal type requires that the omitter could assist "without risk to themselves or third parties"; when assistance entailed real and serious danger (entering a burning vehicle, jumping into torrential waters, exposing oneself to armed aggression of the aggressor), the exemption operates. The second is the invincible mistake of fact: if the subject could not reasonably perceive the danger (minor impact with no visible victims, absence of signs of gravity), it excludes the type (Art. 14 CP). The third is fulfilment of duty by requesting help from others: case-law is clear that calling 112 immediately and effectively covers the legal duty when the subject lacks training or means to intervene directly. The fourth is the concurrence of prior effective assistance: when other witnesses have already provided sufficient assistance, the individual duty dilutes. And the fifth is the post-traumatic shock state certified by expert, which may give rise to the exemption of Art. 20.6 (insurmountable fear) or, at least, to a mitigating factor of transient mental disorder.

In current forensic practice, failure-to-assist proceedings concentrate in two major contexts. The first are traffic accidents with flight: the integration of the Art. 195.3 type with the underlying negligent crime (negligent injuries or homicide) generates a particularly burdensome real concurrence of crimes, aggravated after the reform of Law 6/2014; prosecution increasingly pursues those who flee the accident scene with rigour, even where victims show no obvious injuries. The second context is the healthcare scenario: strikes with insufficient minimum services, abandonment of hospital shifts, denial of assistance in emergency triage, omissive malpractice in home emergencies. The most recent case-law has reinforced the guarantor position of healthcare personnel and the criminal liability of service managers. At Alonso Sala we intervene with forensic medical experts to prove causality between omission and outcome, psychological experts to support the shock state where appropriate, and chronological reconstructions supported by cameras and geolocation. We treat each file with the conviction that in these crimes — where prison often depends on a single subjective element: could and should the subject act? — the difference between conviction and acquittal is built in the first moments of the investigation.