Drink-Driving Accident with Injuries in Spain: Defence under Arts. 379 and 152/142 CP

This page deals with one specific scenario: a drink-driving accident that injured or killed someone in Spain, tried before Spanish courts. If nobody was hurt, the charge is the plain drink-driving offence and the page you need is our DUI defence page (Art. 379.2 CP). If the accident happened in another country, the applicable law and penalties are different — please consult a lawyer qualified in that jurisdiction.

What changes everything in these cases is the result: someone was injured or died. The endangerment offence of Article 379.2 CP no longer stands alone, because reckless injuries (Art. 152 CP) or reckless homicide (Art. 142 CP) are added to it — and both articles state that driving in the circumstances of Article 379 is, in every case, deemed gross recklessness. The specific rule of Article 382 CP then applies: the court appreciates only the more seriously punished offence and imposes its penalty in the upper half, always ordering compensation for the harm caused. That is why a case with victims moves from months to years, from a fine to a real risk of prison, and why a private prosecution and an insurer are usually involved. This page explains how that rule works, how the causal link between the alcohol level and the accident is challenged, and how civil liability towards victims is handled. If you were charged with no accident involved, see our DUI defence page; if what worries you is how the Spanish court procedure works from abroad, see drivers who live outside Spain.

Legal Framework

Road safety has its own concurrence rule, and it is not the general one. Where the conduct punished by Arts. 379, 380 or 381 CP also produces a harmful result amounting to an offence, Art. 382 CP orders the court to appreciate only the more seriously punished offence and to impose its penalty in the upper half, together with full compensation of the civil liability caused. In practice the more serious offence is the result-based one: reckless injuries under Art. 152 CP (from 3 to 6 months' prison or a fine of 6 to 18 months for the injuries of Art. 147.1, 6 months to 2 years for those of Art. 150, and 1 to 3 years for those of Art. 149, plus a driving ban of 1 to 4 years) or reckless homicide under Art. 142 CP (1 to 4 years' prison and a driving ban of 1 to 6 years). Both articles add that driving in the circumstances of Art. 379 is deemed gross recklessness whenever it determined the result. The decisive legal point is therefore the causal link: it is not enough that the driver was over the limit; the prosecution must connect that state with the accident and its consequences.

Defence Strategies

Our defence 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 are those of the result-based offence, raised to its upper half. The gravest injuries of Art. 149 CP carry 1 to 3 years' prison (upper half: 2 years to 3 years), and reckless homicide 1 to 4 years (upper half: 2 years and 6 months to 4 years), together with a driving ban of 1 to 4 years for injuries and 1 to 6 years for homicide. 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.

Proving the injuries: the medical report and the grades of Art. 152 CP

Once the concurrence of Art. 382 CP applies, the sentence is calculated on the result-based offence, so the whole case turns on how the injuries are classified. Art. 152 CP grades them: reckless injury of the kind described in Art. 147.1 CP carries 3 to 6 months' prison or a fine of 6 to 18 months; the injuries of Art. 150 CP carry 6 months to 2 years; and those of Art. 149 CP, 1 to 3 years — always with a driving ban of 1 to 4 years. Where a victim dies, Art. 142 CP applies instead: 1 to 4 years' prison and a driving ban of 1 to 6 years. That is why the forensic medical report, the healing time, the sequelae and the treatment actually required are litigated as hard as the alcohol reading itself: a difference of one grade moves the whole sentencing frame, and the upper half of Art. 382 CP is applied on top of it.

The other decisive question is causation. Both Arts. 142 and 152 CP provide that driving in the circumstances of Art. 379 is deemed gross recklessness where it determined the result; the defence therefore works on whether it did. Accident reconstruction, the mechanical condition of the vehicles, the state and signage of the road, the conduct of the other driver or of a pedestrian, and the timing of the readings are all used to show that the collision would have happened in the same way sober. Breaking that link does not erase the drink-driving offence, but it removes the concurrence, and with it the years of prison.

The victim, the private prosecution and the insurer's recovery action

A file with victims is not litigated only against the public prosecutor. The injured party usually appears as a private prosecution with its own pleadings and its own sentencing request, and the compulsory motor insurer is joined as civil liability party. Compensation is quantified on the scale of Law 35/2015 — a technical exercise over days of healing, sequelae, moral damage and loss of earnings — and the insurer, having paid the victim, can then bring a recovery action against the intoxicated driver for what it paid out. Own-damage cover, by contrast, may simply not apply.

Handled early, that same civil liability becomes the strongest card the defence holds. Repairing the harm before trial is a mitigating circumstance with real weight in these cases, and it is frequently what makes a suspended sentence viable where the penalty, raised to its upper half, would otherwise mean prison. Negotiating the compensation with the victim and the insurer is therefore part of the criminal strategy, not an afterthought to it.

Where the general drink-driving questions are answered

This page deliberately stops at the accident. The 0.60 mg/l threshold, the metrological control and calibration of the evidential breathalyser, the two required readings, the right to a confirmatory blood test, the fast-track trial and the plea agreement, the length of the driving ban and the five-year prescription period are the same here as in any drink-driving file, and they are set out on our drink-driving defence page (Art. 379.2 CP). If you were charged in Spain but live abroad, the procedural side — the address for notifications, trial in your absence and paying the fine — is covered on charged as a foreign driver in Spain. And because a file with victims quickly stops being a traffic matter — pre-trial measures, a private prosecution, an appeal — the general framework of a Spanish criminal case is set out by our English-speaking criminal defence practice in Spain.