Failure to Assist After a Traffic Accident

The failure to assist, typified in Art. 195 of the Spanish Criminal Code, is a pure omission offence protecting an essential legal interest: the minimum human solidarity demandable towards those in manifest and serious danger. Supreme Court case-law has defined the type as an "infringement of the positive duty of assistance" not requiring an injurious result, but the mere voluntary disregard of a fellow human in a situation of need. In the field of road safety, this offence is habitually connected with traffic accidents, hit-and-runs and incidents with victims, where the driver or witness of the event waives the minimally demandable assistance.

The Criminal Code contemplates three differentiated modalities depending on the omitter's degree of involvement. The simple omission (Art. 195.1) sanctions whoever does not assist a helpless person in manifest and serious danger, without having created such danger and being able to do so without risk to self or third parties. The omission qualified by causal relation (Art. 195.3, first clause) reproaches the driver who, having fortuitously originated the accident, does not assist the victim. The omission qualified by negligence (Art. 195.3, second clause) elevates the reproach when the accident was negligently caused by the omitter. Alongside Art. 195 coexist related figures: Art. 196 CP typifies the denial of healthcare assistance by professionals, and Art. 382 bis CP regulates the abandonment of the accident scene as an autonomous offence independent of the duty to assist.

The foreseen penalties escalate according to the modality. The simple omission of Art. 195.1 carries fine from three to twelve months. The omission qualified by fortuitous accident of Art. 195.3 first clause is punished with prison from six months to eighteen months. The omission qualified by negligent accident of Art. 195.3 second clause raises the penalty to prison from six months to four years. When the victim dies as a direct consequence of the lack of assistance and a causal relationship is accredited, the penalties are imposed in the upper half, potentially reaching four effective years. To these sanctions is frequently added the driving disqualification from one to four years when the omitter is an involved driver, as well as civil liability for damages suffered by the victim or their legal heirs.

The technical defense is built on four axes consolidated by jurisprudence. First, the absence of knowledge of the danger situation: intent requires the omitter to actually perceive the helpless situation; when dealing with minimal scrapes in adverse conditions (rain, night, high speed) the reconstruction expert can accredit the subjective imperceptibility of the accident. Second, the inexistence of helplessness: if the victim was already being assisted by third parties, the typical element of "helpless person" required by the criminal type does not concur. Third, the fulfilment of the minimum duty: the 112 call with clear identification of the location has been consolidated in jurisprudence as sufficient fulfilment of the legal duty of assistance, especially when the omitter lacks healthcare training. Fourth, the state of self-necessity (Art. 20.5 CP): heroism is not required, and when stopping involved objective risk to the omitter's integrity (area without shoulder, high-density traffic, prior aggression), the justifying cause operates with full exonerating efficacy.

In current forensic practice there is an increase in proceedings for failure to assist linked to the generalization of video surveillance, mobile phone geolocation and traffic camera coverage. Provincial Courts tend to apply Art. 195.3 rigorously when the causality between the accident and the omitter is accredited, but also admit defense lines based on the subjective imperceptibility of the incident and the fulfilment of the minimum duty through the 112 alert. At Alonso Sala, with over fifteen years of experience in offences against road safety and personal integrity, we intervene from the first proceeding to preserve exculpatory digital evidence (telephone records of 112 calls, GPS geolocation, toll data), articulate the accident reconstruction expert opinion and design the most favourable procedural strategy to avoid effective imprisonment.