Drink-Driving & DUI Accident Defence in Spain

This page covers drink-driving (DUI) under Spanish criminal law (Art. 379 of the Spanish Penal Code), for offences committed in Spain and tried before Spanish courts. If your incident happened in another country, the applicable law and penalties will be different — please consult a lawyer qualified in that jurisdiction.

When a traffic accident occurs while the driver is under the influence of alcohol, the legal consequences multiply exponentially. The driver faces not only the DUI charge under Article 379.2 of the Criminal Code, but also potential charges for reckless injuries (Art. 152) or even reckless homicide (Art. 142) if there are fatalities. The concurrence of offenses can lead to combined sentences of several years.

Legal Framework

A DUI accident typically involves a medial concurrence (concurso medial) of offences: the DUI of Art. 379.2 CP is the means through which the injuries (Art. 152 CP) or the death (Art. 142 CP) are caused. Under this concurrence regime, the applicable penalty is that of the most serious offence increased by half. The decisive legal point is the causal link between the intoxication and the harmful result: it is not enough that the driver was over the limit; the prosecution must connect that state with the accident and its consequences.

Defense Strategies

Our defense focuses on: breaking the causal link between the intoxication and the accident (proving the accident would have occurred regardless—mechanical failure, road conditions, third-party fault), challenging blood alcohol calculations (retrograde extrapolation from hospital blood draws taken hours later), negotiating civil reparation agreements with victims (which serve as a powerful mitigating circumstance), and presenting expert accident reconstruction to establish shared fault or exclusive third-party liability.

Criminal Consequences

The consequences combine the penalties of the concurring offences. Serious injuries can reach prison of 1 to 4 years, and a reckless homicide committed while intoxicated, up to 4 years, together with the deprivation of the right to drive of 1 to 4 years. Whether actual prison is served depends on the total sentence and the criminal history: where it does not exceed two years and there is no record, suspension is possible, and the civil reparation of the victim is, in these cases, a particularly powerful mitigating factor that can make that suspension viable even in serious scenarios.

The Article 382 CP concurrence rule: when a harmful result is added to the drink-driving offence

Driving with a criminally relevant blood-alcohol level is already an endangerment offence under Article 379.2 of the Criminal Code. But if that driving causes an accident with a death or injuries, the conduct no longer stops at abstract danger. Added to the Article 379.2 offence is either reckless homicide under Article 142 or reckless injury under Article 152, depending on the result. To avoid punishing the same wrong twice, Article 382 CP sets a specific concurrence rule: the court appreciates only the more seriously punished offence and imposes its penalty in the upper half, while always ordering compensation for the civil liability caused.

In practice the reckless homicide or injury is usually the more serious offence, so the prison term and the driving ban are imposed in their upper half. Defending an endangerment offence with no victim is not the same as defending a concurrence with a result: the sentencing framework changes, the civil liability changes and there is frequently a private prosecution. It is therefore essential to separate, from the police report onward, exactly what is charged, whether the recklessness is gross or less serious, and whether the causal link between the alcohol level and the accident is genuinely proven.

How the evidence is challenged: breathalyser, metrological control and the right to a blood test

A conviction under Article 379.2 in its objective form normally requires two breath measurements, both above 0.60 mg/l, taken with the timing and the evidential breathalyser the regulations prescribe. The defence checks that the device holds a valid metrological control (periodic verification), that the waiting time between the last intake and the test was respected, and that the instrument's margin of error was applied. If, once that margin is deducted, the reading falls below the threshold, the objective form fails and conviction is only possible by proving driving under the influence.

The driver has the right to contrast the breathalyser result with a blood analysis; denying that right, or failing to inform of it, can taint the evidence. Where the influence of drugs is alleged, the roadside saliva test is merely indicative: it needs confirmation by laboratory analysis of a second sample and, above all, proof that the substance actually impaired the ability to drive, not its mere presence. If a radar or speed meter was involved in the accident, its verification and the margin of error that must be deducted before asserting excess speed are also examined.

Procedure: police report, fast-track trial, plea agreement and competent court

These road-safety offences are the typical channel for fast-track trials under Articles 795 and following of the Criminal Procedure Act. The investigation is conducted by the Investigating Court or the Duty Court on the basis of the police report, which records the alcohol test, the external signs, the accident sketch and the statements; the trial falls to the Criminal Court (Juzgado de lo Penal). The police report is not evidence in itself but a complaint: its content must be reproduced and tested through cross-examination at trial to ground a conviction.

A plea agreement (conformidad) is a frequent option and, within the fast-track framework, allows a reduction of the penalty, but it should not be accepted automatically. Before pleading, it is worth weighing the strength of the evidence, the classification of the recklessness, any mitigating circumstances and the scope of the civil liability, especially where there is a harmful result and an insurer involved. A poorly measured plea can lock in an avoidable driving ban and a criminal record; a well-negotiated one can contain the risk. The decision is strategic and must be taken with the full case file in view.

Penalties, loss of licence, mitigating factors and the five-year prescription period

Article 379.2 provides alternative penalties of three to six months' imprisonment, a fine of six to twelve months, or community service of thirty-one to ninety days, and in every case the deprivation of the right to drive motor vehicles and mopeds under Article 47 CP for more than one year and up to four. When the result-based concurrence of Article 382 applies, the framework shifts to that of reckless homicide or injury in its upper half, raising both the custodial penalty and the duration of the licence ban.

Modifying circumstances bear on the sentence: recidivism or particularly dangerous driving may aggravate it, while repairing the harm, confession, or intoxication that affects criminal responsibility without excluding it may mitigate it. As to prescription, under Article 131 CP these offences, whose maximum penalty does not exceed five years, prescribe after five years; there is no longer an intermediate three-year band. Finally, the criminal offence must always be distinguished from the administrative breach under the Road Traffic Act (RDL 6/2015): below the criminal threshold and without proven influence, the conduct is an administrative infraction (0.25 mg/l as a general rule; 0.15 for novice and professional drivers), not a crime.