Lawyers for Drug Test Refusal

Refusing to submit to drug testing at a traffic control is treated as the same criminal offence as refusing a breathalyser: Article 383 of the Criminal Code, carrying imprisonment of 6 months to 1 year. However, drug testing involves different procedures (saliva swabs, physical coordination tests) that create additional grounds for defence.

You have been reported for refusing a drug test: what it means and what happens next

Refusal is punished as an autonomous offence under Art. 383 CP, separate from any drug-driving charge, and it carries a heavier penalty than the offence it was meant to avoid. The first question is therefore always whether there was a genuine refusal: an incomplete instruction, a device that failed, a medical impossibility or an ambiguous exchange are not the same as refusing an order that was lawfully given and properly explained.

What to do (and what not to do) before making a statement

• Do not make a statement without a lawyer of your own choosing. Articles 118 and 520 of the Criminal Procedure Act (LECrim) give you the right to remain silent, not to incriminate yourself and to speak with your lawyer in private before the statement. What is said in the first appearance conditions the whole case.
• Reconstruct exactly what you were told and what happened with the device, including how many attempts there were and whether the officers explained the consequences of refusing. That warning is a requirement, not a formality.
• Gather any medical evidence that made the test impossible or unreliable at that moment.
• Weigh up the plea agreement (conformidad) with your lawyer, not in the corridor. In the fast-track route (Arts. 795 ff. LECrim) it is offered at the duty court itself and Art. 801 LECrim reduces the sentence by one third — but once given it cannot be undone, and it is a final conviction with all its consequences.

Testing Procedures

Roadside drug screening involves a two-stage process: first, a preliminary saliva swab (screening test), and if positive, a confirmatory test or blood sample at a medical facility. Refusing either stage can constitute a criminal offence under Art. 383 CP, but the legal requirements for each are different, and the officer must have duly informed the driver of the obligation and of the criminal consequences of refusal. Officers must also conduct physical coordination tests and note clinical signs of impairment.

Defence Strategies

Our defence focuses on: challenging whether the driver was properly informed of the obligation and consequences of refusal, arguing that the driver cooperated partially (submitted to saliva test but refused blood draw), proving the stop was not lawful (random testing without reasonable suspicion), and demonstrating physical or medical reasons that prevented cooperation (needle phobia for blood tests, dry mouth preventing adequate saliva sample).

Criminal Consequences

The refusal of Art. 383 CP carries prison of 6 months to 1 year and the deprivation of the right to drive for 1 to 4 years —a penalty that, paradoxically, is heavier than that of testing positive for drugs. To this are added the criminal record and the administrative requirements to recover the licence. Because the offence depends so heavily on the formal correctness of the requirement, a meticulous review of the police report and of the information given to the driver is often the difference between a conviction and an acquittal.

The criminal procedure: from the police report to the fast-track trial and the plea agreement

Refusal to undergo the lawfully required drug-detection tests is documented in a police report that records the demand made by the authority agent, the information given about the criminal consequences of not taking the test, and the driver's response. That report, together with the formal complaint, is the basis on which proceedings are opened. The investigation falls to the Investigating Court or the Duty Court, and the trial to the Criminal Court of the judicial district where the events took place.

These road-safety offences are a typical channel for the fast-track trials governed by Articles 795 and following of the Criminal Procedure Act: given the simplicity of the evidence and the penalty range, they are usually processed quickly, sometimes from the Duty Court itself. Within that framework a plea agreement is available, allowing the matter to be resolved early with a one-third reduction of the penalty sought. Whether or not to plead is a strategic decision that requires first examining the soundness of the demand, the information conveyed to the driver, and the regularity of the entire police action.

How the evidence is challenged: from the demand to metrological control and laboratory confirmation

Unlike the offence of driving under the influence of drugs under Article 379.2, in the refusal offence of Article 383 the issue at trial is not whether the driver was impaired, but whether the demand to take the test was legitimate and whether the driver knowingly refused after being informed. The defence examines whether the agent expressly warned of the criminal consequences of refusal, whether the demand was justified by an objective sign or a preventive checkpoint, and whether the driver's opposition was a genuine refusal or merely a delay or a request for clarification.

The two tests must be kept distinct. The saliva test is only indicative: the roadside screening device detects the possible presence of substances, but the result must be confirmed by laboratory analysis of a second saliva sample or of blood. In alcohol testing, the evidential breathalyser is subject to metrological control, with periodic verifications, and the driver is entitled to contrast the result through a second reading and to request a blood test. Where impairment by drugs is alleged, the mere presence of the substance is not enough: the prosecution must prove a real effect on the driver's faculties.

The criminal versus administrative threshold: two distinct regimes

Not every incident with the detection tests leads to a crime. The refusal covered by Article 383 of the Criminal Code requires a legitimate demand from an authority agent and a knowing refusal by the driver to undergo the lawfully established tests; where those elements are present, the offence exists regardless of the result the test would have produced. It is an autonomous criminal offence, tried before the Criminal Court with the penalties set out in the provision itself.

A different matter is the administrative regime of the traffic legislation, now contained in Royal Legislative Decree 6/2015, which sanctions certain conduct with a fine and the loss of points through the Directorate-General for Traffic, without any criminal judge involved. Correctly delimiting whether the facts are criminal or administrative is decisive: it determines the competent body, the type of sanction, the procedural safeguards and the time limits. A formal refusal before the agent, duly informed, lies in the criminal sphere; a minor incident or a traffic fine does not, by itself, turn the conduct into a crime.

Driving-disqualification penalty, modifying circumstances and prescription

A conviction under Article 383 carries, in addition to the prison term of six months to one year, the deprivation of the right to drive motor vehicles and mopeds for a period of more than one and up to four years. This deprivation, governed by Article 47 of the Criminal Code, is a principal penalty and not a mere accessory: driving during the disqualification period may constitute an autonomous offence under Article 384. Its precise length is fixed within the legal range according to the circumstances of the case.

Modifying circumstances of liability operate on that range: a prior record or the concurrence of other road-safety offences may aggravate the penalty, while the absence of a record, reparation or cooperation may mitigate it. As to prescription, under Article 131 of the Criminal Code, and given that the three-year bracket no longer exists, the road-safety offences of Articles 379 to 385, whose maximum penalty does not exceed five years, become time-barred after five years. Verifying the calculation of that period and the acts that interrupt it is part of the analysis of any defence.