Criminal Lawyers for Hit-and-Run

Leaving the scene of an accident (hit-and-run) can constitute several criminal offences under Spanish law: the autonomous offence of leaving the scene of the accident (Art. 382 bis CP, introduced by Organic Law 2/2019), the classic offence of failure to assist (Art. 195 CP), the driving offence that caused the accident (Arts. 379-380 CP) and, where the driver later files a false stolen-vehicle report, the simulation of an offence. These offences can concur, leading to significant prison sentences.

Leaving the Scene (Art. 382 bis CP)

Art. 382 bis CP punishes the driver who, outside the cases of Art. 195, voluntarily and without any risk to themselves or to others, leaves the scene after causing an accident in which one or more people are killed or seriously injured (Art. 152.2). Where the accident arose from the driver's negligence, the penalty is prison of 6 months to 4 years and a driving ban of 1 to 4 years; where its origin was fortuitous, prison of 3 to 6 months and a driving ban of 6 months to 2 years.

Failure to Assist (Art. 195 CP)

The classic offence of Art. 195 CP punishes failing to help a person who is helpless and in manifest and serious danger, where this can be done without risk to oneself or to others, with a fine of 3 to 12 months. If the victim was so as a result of an accident fortuitously caused by the person failing to help, the penalty rises to prison of 6 months to 1 year; if the accident was caused by negligence, prison of 6 months to 2 years. Where Art. 195 and Art. 382 bis both apply, the more specific offence prevails (Art. 8 CP).

Defense Strategies

Our defense examines: whether the driver was aware of the collision (minor impacts may go unnoticed), whether there was a legitimate reason to leave (fear for personal safety, seeking help), establishing that the driver returned to the scene or reported the incident shortly after, and challenging vehicle identification evidence (witness descriptions, camera footage quality) when the driver's identity is disputed.

Criminal Consequences

The consequences derive from the combination of offences: the failure to assist (Art. 195 CP), the underlying driving offence that caused the accident and, where it occurs, the false report of a stolen vehicle. Their accumulation can result in substantial sentences, together with the deprivation of the right to drive and the criminal record. A powerful mitigating factor runs in the opposite direction: returning to the scene or reporting to the police shortly after demonstrates good faith and can significantly reduce the penalty, which is why the conduct after the accident is as important to the defence as the accident itself.

The procedure: from the police report to the fast-track trial and the guilty plea

Leaving the scene of an accident under Article 382 bis of the Criminal Code is, in practice, channelled through the urgent proceedings and fast-track trials of Articles 795 and following of the Criminal Procedure Act. Everything begins with the report drawn up by the judicial police or the traffic unit, recording how the collision occurred, the identification of the vehicle and its registered keeper, witness statements and the indications pointing to the driver who left. That report has the value of a complaint, not of conclusive evidence: every one of its assertions can and must be tested before the court.

The investigation falls to the Investigating Court or the Duty Court, which carries out the essential steps, takes the suspect's statement and rules on his situation. As a general rule the trial and judgment fall to the Criminal Court (Juzgado de lo Penal), since the maximum penalty does not exceed five years' imprisonment. The separation between the investigation phase and the trial is a safeguard: no fact is treated as proven until it has been subjected to challenge at the oral hearing.

Within this route the guilty plea plays a central role. In urgent proceedings the Criminal Procedure Act allows a one-third reduction of the penalty sought if the accused pleads guilty before the duty court, within the legal limits. Whether or not to plead is a strategic decision that should only be taken after analysing the real strength of the evidence, any mitigating circumstances and the scope of the driving disqualification; never simply because of the haste of the listing. That is why legal assistance from the very first statement is decisive.

Drawing the line between the criminal offence and the administrative one

Not every conduct connected with an accident or with driving is a crime. It is essential to draw a clear line between the criminal reproach of the Criminal Code and the administrative reproach of the Traffic, Motor Vehicle Circulation and Road Safety Act, approved by Royal Legislative Decree 6/2015. These are two distinct planes, with different authorities, procedures and consequences, which sometimes overlap on the same facts. Confusing them leads to treating a mere infraction as a crime, or to underestimating conduct that has indeed crossed the criminal threshold.

The line is clear in the conducts neighbouring a hit-and-run. Driving with an alcohol level above 0.60 milligrams per litre of expelled air, or above 1.2 grams per litre in blood, is an offence under Article 379.2 of the Criminal Code; below that threshold, and absent proven influence, the matter is an administrative infraction sanctioned by the traffic authority. Excess speed is only an offence under Article 379.1 when the limits are exceeded by more than 60 km/h on urban roads or more than 80 km/h on interurban roads; any lesser excess is an administrative penalty. Refusing the legally established testing is the separate offence of Article 383.

The hit-and-run of Article 382 bis requires the voluntary abandonment of the scene by the person who caused the accident, outside the cases of the duty to assist under Article 195, where there is no risk to the driver or to others. Simply leaving is not enough: the conduct must fit that specific offence. Leaving the scene through force majeure, to seek help, or in the face of a real danger does not complete the offence. Distinguishing criminal from administrative liability, and within the criminal sphere the precise provision that applies, is the first step of any rigorous defence.

The evidence and how to challenge it: breathalyser, radar and drug tests

Although the hit-and-run of Article 382 bis is an offence of mere activity completed by the act of leaving, it often concurs with other driving conducts whose evidence deserves close examination. Alcohol measurement by an evidential breathalyser requires the device to be subject to the legal metrological control, with periodic verification and a current certificate; an instrument without its mandatory verification up to date, or used without respecting the waiting period and the second measurement, loses reliability. The driver also has the right to request a blood test as a counter-check, a right that must be communicated and respected.

In speed cases, the speed radar must likewise be verified in accordance with metrological regulations, and the recognised margin of error must be deducted from the reading before asserting that the criminal threshold of Article 379.1 has been exceeded. A radar that is out of date, badly positioned, or whose reading ignores the margin of error may leave the conduct below the criminal limit and redirect it to the merely administrative sphere. Checking the device's verification chain is a technical task that frequently decides the outcome.

Drug detection has its own rules. The roadside saliva test is merely indicative: on its own it does not prove the offence and requires laboratory confirmation. Moreover, Article 379.2 requires, save in the set cases, driving under the influence of the substance, not the mere presence of traces; the influence must be established through external signs and the body of evidence as a whole. Challenging in an orderly way the reliability of each instrument, its verification and the margins of error is not a delaying tactic but the exercise of the right of defence against evidence that the law subjects to strict requirements.

Penalties, driving disqualification, circumstances and prescription

The penalty under Article 382 bis depends on the origin of the accident that the driver fled. If the accident was caused by imprudence, the penalty is imprisonment from six months to four years. If it was fortuitous, the penalty is imprisonment from three to six months. To the custodial penalty is added, in every case, the disqualification from driving motor vehicles and mopeds under Article 47 of the Criminal Code, an autonomous penalty that bars driving for the period set in the judgment and whose breach may, in turn, constitute the offence of Article 384.

The circumstances of the case significantly modulate the criminal response. Mitigating factors may operate, such as making good the harm to the victim before trial, confessing the facts when the proceedings were not yet directed against the perpetrator, or an extraordinary and undue delay in the process. The voluntary nature of the departure and the absence of risk to oneself or to others are, by contrast, elements of the offence itself that the defence must examine one by one: if the driver left because of a real danger, to seek help, or through force majeure, the conduct may fall outside Article 382 bis. The hit-and-run may also concur with the failure to assist under Article 195 where a person who needed help was left without it.

As for prescription, the road-safety offences of Articles 379 to 385 of the Criminal Code, including the hit-and-run of Article 382 bis, carry a maximum penalty that does not exceed five years' imprisonment. Under Article 131 of the Criminal Code, those offences prescribe after five years. There is no three-year limitation period for them. Time runs from the commission of the act and is interrupted when the proceedings are formally directed against the person under investigation, so verifying the dates and the acts of interruption is a mandatory check in any defence.