Lawyers for Drug Test Refusal
Defense against criminal charges for refusing to submit to roadside drug testing.
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Refusing to submit to drug testing at a traffic control is treated as the same criminal offense as refusing a breathalyzer: 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 defense.
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 offense 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.
Defense Strategies
Our defense 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.
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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