Hit and Run Defence (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 the failure to assist of Art. 195 CP and subsidiary to it: it only applies outside the cases covered by that article.

The criminal type contemplates two modalities depending on the cause of the prior accident. The first modality (Art. 382 bis.2) 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.3) 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. Art. 382 bis only applies outside the cases of failure to assist under Art. 195 CP, which displaces it where the victim is left helpless and in manifest and serious danger; and, if the accident was negligently caused, it may concur with 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 and driving disqualification from one to four years. The modality of fortuitous accident is sanctioned with prison from three to six months and driving disqualification from six months to two years. If the conduct amounts to failure to assist, it is punished under Art. 195 CP and not under Art. 382 bis, which only applies outside those cases. 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 defence 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, placing the penalty in the lower half of its range or, if treated as highly qualified, lowering it 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 suspension of the prison sentence.