Criminal Lawyers in Drug Driving

The offence of driving under the effects of toxic drugs, narcotics or psychotropic substances (Art. 379.2 CP, first part) protects road safety and, mediately, the life and integrity of road users. Unlike DUI, this offence does not contemplate objective rates: the legislator always requires proof of the effective influence of the substance on the driver's abilities. Consolidated Supreme Court case-law clearly distinguishes between presence of the substance in the organism —detectable by saliva test and sufficient for administrative infraction— and influence on driving —indispensable typical element for the criminal offence—. This distinction is the cornerstone of any technical defense.

The technical-procedural modalities are three. The indicative saliva test (DrugWipe, Dräger DrugTest 5000) carried out by Traffic Civil Guard on the road provides results in minutes but only detects presence, not concentration. The laboratory contrast analysis performed through blood or saliva extraction with "tube B" is sent to the National Institute of Toxicology and Forensic Sciences for chromatography and quantification: only this analysis offers criminal evidential value. The refusal to undergo tests (Art. 383 CP) configures an autonomous offence more serious than the positive itself, with 6 months to 1 year of prison, fine and disqualification. The most frequently detected substances are cannabis (THC and THC-COOH metabolite), cocaine and benzoylecgonine, amphetamines/methamphetamines, MDMA, opioids and benzodiazepines; the latter raise specific issues due to therapeutic use with prescription.

The penalties of Art. 379.2 CP are alternative: 3 to 6 months' prison, or 6 to 12 months' fine, or community service of 31 to 90 days. In all cases the deprivation of the right to drive motor vehicles and mopeds is added for more than 1 year and up to 4 years, constituting the most relevant practical consequence. The vehicle forfeiture in Art. 385 bis CP applies especially in recidivism or extremely reckless driving cases. Administratively, the very serious infraction of Art. 77 Traffic Act is sanctioned with €1,000 fine and 6-point loss. When injurious or fatal results concur, civil liability arises from compulsory insurance with the insurer's right of recourse against the drugged driver, under RDL 8/2004 and the Compensation Schedule of Act 35/2015.

Technical defense is articulated on four axes. First, the presence/influence distinction: the offence requires proving real impairment of abilities at the driving moment; mere detection of cannabis metabolites after prior consumption does not integrate the type. Second, the sample chain of custody: Order JUS/1291/2010 regulates protocols for collection, transport, refrigeration and analysis; any defect in sealing, in submission deadline to the lab, or in conservation temperatures determines nullity of evidence. Third, false positives: medications with medical prescription (benzodiazepines, opioids, codeine), cough syrups, ibuprofen and poppy seeds can generate positives in the indicative saliva test; medical prescription documented with prescription and leaflet excludes typical intent or fault. Fourth, documented external symptomatology: viewing the police video, motor coordination, speech coherence and absence of physical signs (dilated pupils, injected conjunctivae, tremor) allows dismantling subjective police-report appreciation and degrading the offence to administrative infraction.

In current forensic practice, the intensification of preventive drug controls on the road by the DGT and the Traffic Civil Guard has multiplied proceedings, especially for cannabis positives. Organic Law 1/2025 on Justice Service Efficiency and procedural reforms have expanded guarantees on electronic evidence and chain of custody, but have also accelerated the procedure through expedited trial (Art. 795 Criminal Procedure Act). Constitutional case-law on presumption of innocence and Supreme Court doctrine on toxicological expert evidence oblige rigorous control of analytical reliability. At Alonso Sala, our criminal lawyers specialized in drug driving intervene from legal assistance to the detained driver, guarantee the right to contrast analysis, demand complete documentation from the National Toxicology Institute, articulate independent pharmacological expert reports, and build defenses that precisely distinguish metabolic presence of consumption from the typical state of influence. The objective is to preserve the defendant's liberty, driver's license and criminal record, substituting where appropriate prison for work or fine and modulating the duration of license deprivation.