Criminal Lawyers for Positive Saliva Drug Test
Defense against drug driving charges based on roadside saliva test results.
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Roadside saliva drug tests (also known as DrugWipe or oral fluid screening devices) are the primary method used by Spanish police to detect drug-impaired driving. However, these preliminary tests have significant accuracy limitations and are subject to high rates of false positives. A positive saliva test does not, by itself, prove impairment—it only indicates the presence of certain substances.
Legal Framework: Technical Limitations
Key weaknesses include: cross-reactivity (over-the-counter medications, prescription drugs, and certain foods can trigger false positives), detection windows (cannabis metabolites can be detected for days after consumption, long after any impairment has ended), no correlation with impairment (a positive test shows substance presence, not that the driver's ability was affected), and environmental contamination (passive exposure to cannabis smoke can produce positive results). The offence of Art. 379.2 CP requires proof of actual impairment while driving, not the mere presence of a substance.
Defense Strategies
Our defense focuses on: demanding confirmatory blood or urine analysis (the preliminary saliva test alone is insufficient for conviction; laboratory confirmation is required, as the Supreme Court has held), challenging the chain of custody of samples, presenting medical evidence of prescribed medications that may explain the positive result, and arguing the absence of impairment signs (normal driving, passing field sobriety tests, no visible intoxication symptoms).
Criminal Consequences
Drug-impaired driving under Art. 379.2 CP is treated like drink-driving: prison of 3 to 6 months, a fine or community service, and the deprivation of the right to drive of 1 to 4 years, with the prison term usually suspended for a first offence. Because a positive screening alone does not prove impairment and may reflect past, non-impairing use, the absence of confirmatory analysis or of clinical signs frequently leads to acquittal or to the reclassification of the matter as a mere administrative infraction.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Imprisonment | Prison sentences from 3 months to 6 years depending on severity and concurrence of offenses. |
| License Revocation | Revocation of driving privileges from 1 to 4 years. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Evidence Review
Comprehensive review of the prosecution evidence to detect procedural irregularities.
Negotiation
Limited plea agreement when the evidence is strong, to minimize consequences.
Road Safety Offences in Spain: DUI, Reckless Driving and Traffic Crimes — Defence Guide
Road safety offences (Arts. 379-385 CP) are among the most prosecuted in Spain. Driving under the influence (DUI), dangerous driving, unlicensed driving, and driving while disqualified carry not only prison sentences and fines, but also driving licence disqualification that can last up to 10 years.
Penalty Table: Road Safety Offences
| Offence | Article | Threshold | Penalty |
|---|---|---|---|
| DUI (alcohol) | Art. 379.2 | > 0.60 breath / 1.2 blood | 3-6 months prison or fine + 1-4 yr disqual. |
| DUI (drugs) | Art. 379.2 | Any detectable amount | 3-6 months prison or fine + 1-4 yr disqual. |
| Excessive speed | Art. 379.1 | +60 km/h urban / +80 km/h interurban over the limit | 3-6 months prison or fine + 1-4 yr disqual. |
| Reckless driving (Art. 380) | Art. 380 | Manifest disregard for life | 6 months – 2 years + 1-6 yr disqual. |
| Unlicensed driving (never held) | Art. 384 | No licence ever held | 3-6 months prison or fine |
| Driving while disqualified | Art. 384 | Lost by judicial/admin order | 3-6 months + 1-4 yr further disqual. |
| Hit and run (Art. 382 bis) | Art. 382 bis | Leaving accident scene | 6 months – 4 years |
Key Defence Strategies
Challenge the Breathalyser Result
Breathalyser devices must be calibrated and certified. Challenge: calibration records out of date, device malfunction, improper administration protocol (required 15-minute observation period before test).
Drug Test Challenge (Saliva/Blood)
Roadside saliva tests are presumptive, not conclusive. Request the blood confirmatory test. If the confirmatory test was not performed or the result is contested, the evidence may be insufficient.
Reckless Driving: subjectivising the risk
Art. 380 requires manifest, concrete endangerment of road users. Driving fast on an empty road at night may not constitute the 'manifest danger to life' required.
Disqualification Computation
If the accused drove believing the disqualification had expired (administrative error, incorrect notification), the subjective element of Art. 384 may be absent.
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