Lawyers for Breathalyzer Refusal
Defense against criminal charges for refusing to submit to a breathalyzer test.
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Refusing to submit to a breathalyzer test is a separate criminal offense under Article 383 of the Criminal Code, punishable by imprisonment of 6 months to 1 year. Paradoxically, the penalty for refusal can be more severe than the penalty for a positive DUI result. This creates a strategic dilemma for drivers who believe they may test positive.
Legal Framework
The offence protects the effectiveness of the controls and the duty of cooperation with the authority, rather than traffic safety in itself. For the refusal to constitute a crime, the police request must comply with strict requirements: the officer must be duly authorized (Traffic Police, not any officer), the request must occur during a lawful traffic check or after an accident, the driver must be clearly informed that refusal is a criminal offence, and the request must be proportionate (there must be some basis for suspicion). The legal obligation falls on the evidential breathalyser; the driver may request a blood test as a contrast, but after blowing, not in substitution. Refusal and drink-driving are alternative types: a conviction for refusal excludes a separate conviction for the alcohol level.
Defense Strategies
Our defense examines: whether the police request was formally correct (failure to warn about criminal consequences invalidates the charge), whether the driver was physically unable to perform the test (hyperventilation, asthma, panic attack), whether the refusal was categorical and unequivocal (mere hesitation or requesting a delay is not a crime), and whether there was an alternative request for blood test that the driver accepted (demonstrating willingness to cooperate). A meticulous examination of the police report and of the record of information is decisive, because small formal defects in a necessarily rapid procedure may prove determinative.
Criminal Consequences
The most striking consequence is that the refusal is punished with a penalty higher than that of the drink-driving offence itself: while the latter admits a fine as an alternative, the refusal carries prison of 6 months to 1 year, plus deprivation of the right to drive for 1 to 4 years. To this are added the collateral effects common to road safety offences: the criminal record, the DGT's requirements to recover the licence (psychotechnical and, where applicable, courses) and the occupational impact where the profession depends on the licence. Because of the seriousness of these consequences and the weight of the formal requirements, early legal assistance and a thorough analysis of the police action are determinative.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Imprisonment | Prison sentences from 3 months to 6 years depending on severity and concurrence of offenses. |
| License Revocation | Revocation of driving privileges from 1 to 4 years. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Evidence Review
Comprehensive review of the prosecution evidence to detect procedural irregularities.
Negotiation
Limited plea agreement when the evidence is strong, to minimize consequences.
Road Safety Offences in Spain: DUI, Reckless Driving and Traffic Crimes — Defence Guide
Road safety offences (Arts. 379-385 CP) are among the most prosecuted in Spain. Driving under the influence (DUI), dangerous driving, unlicensed driving, and driving while disqualified carry not only prison sentences and fines, but also driving licence disqualification that can last up to 10 years.
Penalty Table: Road Safety Offences
| Offence | Article | Threshold | Penalty |
|---|---|---|---|
| DUI (alcohol) | Art. 379.2 | > 0.60 breath / 1.2 blood | 3-6 months prison or fine + 1-4 yr disqual. |
| DUI (drugs) | Art. 379.2 | Any detectable amount | 3-6 months prison or fine + 1-4 yr disqual. |
| Excessive speed | Art. 379.1 | +60 km/h urban / +80 km/h interurban over the limit | 3-6 months prison or fine + 1-4 yr disqual. |
| Reckless driving (Art. 380) | Art. 380 | Manifest disregard for life | 6 months – 2 years + 1-6 yr disqual. |
| Unlicensed driving (never held) | Art. 384 | No licence ever held | 3-6 months prison or fine |
| Driving while disqualified | Art. 384 | Lost by judicial/admin order | 3-6 months + 1-4 yr further disqual. |
| Hit and run (Art. 382 bis) | Art. 382 bis | Leaving accident scene | 6 months – 4 years |
Key Defence Strategies
Challenge the Breathalyser Result
Breathalyser devices must be calibrated and certified. Challenge: calibration records out of date, device malfunction, improper administration protocol (required 15-minute observation period before test).
Drug Test Challenge (Saliva/Blood)
Roadside saliva tests are presumptive, not conclusive. Request the blood confirmatory test. If the confirmatory test was not performed or the result is contested, the evidence may be insufficient.
Reckless Driving: subjectivising the risk
Art. 380 requires manifest, concrete endangerment of road users. Driving fast on an empty road at night may not constitute the 'manifest danger to life' required.
Disqualification Computation
If the accused drove believing the disqualification had expired (administrative error, incorrect notification), the subjective element of Art. 384 may be absent.
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