Criminal Lawyers for Repeat DUI Offenses

A repeat DUI offense is one of the most complex situations in road safety criminal law, because it shifts the centre of the problem from the penalty in the abstract toward the real risk of prison entry. What in a first conviction is usually resolved with a fine or community service may, for the repeat offender, become an effective custodial sentence.

Legal Framework

The base offence (Art. 379.2 CP) punishes driving with a level above 0.60 mg/l in exhaled air (or 1.2 g/l in blood) or, regardless of the level, under the influence of alcohol, with prison of three to six months, or a fine, or community service, and in all cases deprivation of the right to drive for 1 to 4 years. When prior final convictions for the same offence concur, the aggravating circumstance of recidivism (Art. 22.8 CP) operates, requiring the penalty to be imposed in its upper half. To this may be added the offence of Art. 384 CP when driving after the loss of validity of the licence through judicial deprivation or total loss of points, giving rise to a concurrence with cumulative penalties.

Defense Strategies

The defence of the repeat driver is fought on several fronts. The first is the cancellation of the prior criminal record: if the records underpinning the recidivism were cancelled or cancellable, the aggravating circumstance cannot be applied. The second is the reliability of the evidence: the breathalyser's margin of error, the correct performance of the second measurement, compliance with the timing and the chain of custody of the blood sample are points where the measurement may give way. The third is imputability: an established alcohol dependence may operate as a mitigating factor (Art. 21.2 CP) or, where applicable, as an incomplete exemption. And the fourth, decisive in these cases, is to steer the procedure toward the suspension or substitution of the sentence, offering road re-education courses and, above all, a detoxification treatment demonstrating a genuine will not to reoffend.

Criminal Consequences

The consequences go beyond the nominal penalty. The prison of 3 to 6 months (in its upper half due to recidivism) and the deprivation of the right to drive for 1 to 4 years are the starting point, but the central problem is the suspension of the sentence (Arts. 80 et seq. CP): the accumulation of convictions makes it harder, and the judge assesses the risk of reoffending and the will to undergo treatment. Alongside this, the DGT may require a reinforced psychotechnical exam and the completion of courses to recover the licence. And there is a relevant collateral impact: for those who work with the licence (haulier, courier), the prolonged deprivation of the permit may ground an objective dismissal for supervening ineptitude. Anticipating and managing all these consequences —not just the penalty— is what distinguishes a complete defence in recidivism cases.

The criminal threshold versus the administrative offence: where the crime begins

Not every positive breath test is a crime. The dividing line is set by Article 379.2 of the Criminal Code, which punishes anyone who drives a motor vehicle or moped with a reading above 0.60 milligrams of alcohol per litre of exhaled air, or above 1.2 grams per litre in blood. Above that figure liability is automatic, with no need to prove any actual impairment. The same article also allows a conviction below that threshold where it is shown that driving took place under the influence, that is, with a genuine loss of the faculties needed to drive safely.

Below 0.60 mg/l, and unless that influence is proven through symptoms, erratic manoeuvres or a crash, the conduct is not a crime but an administrative offence under the Traffic Law (Royal Legislative Decree 6/2015). The administrative limits are markedly lower: 0.25 mg/l as a general rule and 0.15 mg/l for novice and professional drivers. Telling one track from the other is decisive, because the administrative route never carries a criminal record or imprisonment, only a fine and licence points. In repeat-offence cases this dividing line is examined with particular care, since a second episode can push into the criminal sphere conduct that, taken alone, would have remained a traffic penalty.

The alcohol test and how it is challenged: breathalyser, blood contrast and drugs

The prosecution almost always rests on the breathalyser, and that device must be subject to metrological control: a valid periodic verification in force, no malfunction, and respect for the regulatory error margins and the waiting time between the first and second readings. A device whose verification is out of date, a second test taken without the required interval, or a failure to inform the driver of the right to a contrast test can all weaken the evidential force of the result. The driver is entitled to request a blood analysis as a contrast test, and that result prevails because of its greater reliability.

With drugs the mechanics differ. The roadside saliva screening test is merely indicative and cannot on its own sustain a conviction: it requires laboratory confirmation on a second sample. And, unlike alcohol, Article 379.2 sets no objective threshold for drugs, so a conviction for drug use requires proof of actual influence on driving. For that reason the defence scrutinises the chain of custody of the sample, the correctness of the screening, and the external signs recorded by the officers. Where the charge concerns speed under Article 379.1, the focus shifts to the verification and error margins of the speed-measuring device or radar.

Procedure: the police report, the fast-track trial, the plea agreement and the competent court

These offences follow a highly standardised path. Officers draw up a police report (atestado) setting out the readings, the symptoms observed and the steps taken, which opens the proceedings. Investigation falls to the Investigating Court (Juzgado de Instrucción), frequently sitting as the Duty Court (Juzgado de Guardia), and the trial to the Criminal Court (Juzgado de lo Penal). Because of their evidential simplicity they are the typical channel for the fast-track trials governed by Articles 795 and following of the Criminal Procedure Act, which compress deadlines and allow the matter to be resolved within a few dates.

Within that framework, a plea agreement (conformidad) — admitting the facts and agreeing the sentence — offers a one-third reduction on the penalty sought, which is attractive when the evidence is strong. It should not, however, be accepted automatically: first the validity of the breathalyser, the correctness of the police demand and the existence of procedural defects that may open the door to acquittal or to lower penalties must all be reviewed. In repeat-offence cases the plea agreement is weighed more cautiously, because the earlier conviction hardens the response and it is worth gauging whether it is worthwhile against the real prospects at the oral hearing.

Repeat offending, licence disqualification, modifying circumstances and limitation

The aggravating circumstance of recidivism under Article 22.8 of the Criminal Code applies where the driver has a prior, uncancelled conviction for an offence of the same title and the same nature. Its practical effect is significant: it makes it harder to access the alternative penalty of a fine, raises the period of disqualification from driving, and complicates the suspension of any prison sentence, which loses the almost automatic character it usually has for a first offence. Against that, mitigating circumstances may be invoked — reparation, cooperation, undue delay or, where applicable, a serious addiction — to reduce the criminal response.

It is worth recalling that, in addition to the principal penalty, Article 47 of the Criminal Code always imposes disqualification from driving motor vehicles and mopeds, of one to four years in Article 379.2 cases, the period running from the moment the judgment becomes final. Driving during that disqualification is a separate offence under Article 384. As to limitation, under Article 131 of the Criminal Code these road-safety offences, having a maximum penalty no greater than five years, become time-barred after five years; there is no longer an intermediate three-year band. Always keeping the criminal offence distinct from the administrative traffic file avoids confusing the deadlines and consequences of one and the other.