Hit and Run Defense (Art. 382 bis CP)

The offence of hit and run, introduced by Organic Law 2/2019 of 1 March and typified in Art. 382 bis of the Spanish Criminal Code, was a major legislative reform motivated by the social response to high-profile cases. Its protected legal interest is twofold: the safety of victims of the accident and the proper functioning of the Administration of Justice, since the flight of the causing driver severely hinders the investigation of facts and determination of responsibilities. Consolidated jurisprudence configures this offence as an autonomous infringement of the legal duty of permanence at the incident site, distinct from and compatible with the failure to assist of Art. 195 CP.

The criminal type contemplates two modalities depending on the cause of the prior accident. The first modality (Art. 382 bis first clause) reproaches the driver who, after causing an accident with result of death or injuries constitutive of negligent offence, voluntarily abandons the scene. The second modality (Art. 382 bis second clause) typifies identical flight conduct when the accident was caused fortuitously, without prior negligence by the driver. The distinction is crucial because penalties are graduated according to the attributability of the original incident. The offence is consummated with mere voluntary abandonment, without need for an additional injurious result as a consequence of the flight. Alongside Art. 382 bis there may concur, in ideal medial concurrence, the offence of failure to assist of Art. 195 CP and, if the accident was negligently caused, the offence of negligent homicide or injuries of Arts. 142 and 152 CP.

The penalties are severe and reflect the legislative will to avoid impunity in flight scenarios. The modality of accident caused by negligence carries prison from six months to four years, fine from six to twelve months and driving disqualification from one to four years. The modality of fortuitous accident is sanctioned with prison from three to six months, fine from three to six months and driving disqualification from six months to two years. When failure to assist also concurs the penalties accumulate in real concurrence, potentially reaching six effective years of prison. The conviction also imposes direct civil liability for material and moral damages, with the insurer's right of recovery against the fled driver in accordance with Art. 10 of the Law on Civil Liability and Insurance in Motor Vehicle Circulation.

The technical defense is built attacking the typical elements of Art. 382 bis. First, the absence of knowledge of the accident: in low-intensity scrapes or imperceptible impacts from the cabin, the reconstruction expert can accredit that the driver did not notice the incident, eliminating intent and, with it, the voluntariness of abandonment. Second, the justified cause of departure: jurisprudence admits the state of necessity (Art. 20.5 CP), insurmountable fear (Art. 20.6 CP) and urgent search for help when there is no mobile coverage, as causes of exclusion of unlawfulness. Third, the voluntary return: when the driver returns to the scene before the authority's arrival and identifies himself spontaneously, the analogous mitigating circumstance of Art. 21.7 CP in relation to confession operates, potentially reducing the penalty by one or two degrees. Fourth, the absence of causal link: if it is expertly accredited that the accident was not caused by the client's vehicle, the type fails for lack of typical presupposition.

Current forensic practice evidences a sustained growth of hit-and-run proceedings since 2019, driven by the generalization of traffic cameras, dashcams, urban video surveillance and toll data that allow reconstructing the route of the fled vehicle. Provincial Courts have consolidated strict criteria on the voluntariness of abandonment, demanding clear proof of the driver's subjective knowledge of the accident. At Alonso Sala, with over fifteen years of experience in road safety offences, we intervene from the first proceeding to preserve exculpatory digital evidence (toll records, GPS data, camera recordings), articulate accident reconstruction expert opinions challenging the causal link and design procedural strategies oriented to acquittal, significant attenuation of the penalty or conversion of prison into non-custodial forms.