Complete guide to the Offense of Driving Under the Influence in Spain (DUI)

Discover the legal guide on DUI (Driving Under the Influence) created by lawyers from Girona and Barcelona, an essential tool for understanding the penalties, procedures, and defense strategies in cases of driving under the influence of alcohol. From applicable regulations to strategies for reducing sentences, this guide covers it all.

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What are traffic-related criminal offenses?

Definition and general regulations
Traffic-related criminal offenses are serious infractions that jeopardize the safety of both vehicle traffic and pedestrians. These offenses are codified in the Spanish Penal Code (articles 379 to 385) and can result in penalties such as fines, community service, imprisonment, and the revocation of driving privileges. Committing these offenses includes driving under the influence of alcohol or drugs, speeding, driving without a license, or other actions that endanger people’s lives.

Legal consequences of traffic offenses
The consequences of traffic-related criminal offenses can include loss of a driving license, hefty fines, and community service. In more serious cases, such as repeat offenses or particularly dangerous behaviors, imprisonment may be imposed. While in most cases, prison sentences are suspended, in instances of recidivism or when aggravating circumstances are present, the penalty may be increased and the sentence may be served in full.

DUI Offense

What is DUI and how is it measured?

The breathalyzer must be properly calibrated and subjected to regular checks to ensure its accuracy, as established by Order ICT/155/2020, of February 7, which regulates the State’s metrological control over certain measuring instruments. This regulation sets the requirements to ensure that devices like the breathalyzer provide accurate results, although a margin of error is allowed.

Source: BOE – Order ICT/155/2020, of February 7

The margin of error in breathalyzers, regulated by Order ICT/155/2020, can be a key factor in judicial cases related to traffic safety offenses. If the result of a DUI test is close to the legal limit and it is argued that the margin of error does not guarantee an accurate measurement, this could lead to acquittal.

The margin of error in DUI tests depends on the type of device used, but generally, it is considered to be 7.5% of the measured value. For example, if the result is 0.65 mg/l, the margin of error would be 0.04875 mg/l, which could reduce the actual reading to 0.60125 mg/l. Rounding in favor of the driver, this figure could be lowered to 0.60 mg/l, which may result in an acquittal if the legal limit of 0.60 mg/l is not exceeded.

It is important to note that even if the DUI test result is negative, a conviction for a traffic safety offense can still be imposed if the presence of alcohol is detected and it is determined that the driver was under its influence. This is especially relevant in cases where an accident occurs and symptoms of intoxication are observed, along with a clear causal link between alcohol consumption and the accident.

Even if the legal DUI limit is not exceeded, a driver may still be penalized for driving under the influence if it is proven that alcohol consumption significantly impaired their ability to drive and contributed to causing the accident. In such cases, the presence of alcohol, along with visible symptoms of intoxication, is sufficient to establish that the driver was not fit to drive safely and is criminally liable for a DUI offense.

Legal Limits of Alcohol Consumption in Spain

Administrative Offense

An administrative offense occurs when a driver exceeds the legal limit of alcohol in breath between 0.26 mg/l and 0.50 mg/l. In this case, the driver faces a fine of €500 and the loss of 4 points on their driving license. If the breath alcohol level reaches up to 0.60 mg/l, the fine increases to €1000, with the loss of 6 points on the license.

Source: Royal Legislative Decree 6/2015, of October 30, approving the revised text of the Traffic, Motor Vehicle Circulation, and Road Safety Law.

Criminal Offense

According to Article 379.2 of the Spanish Penal Code, a criminal offense is committed when:

A person drives with a breath alcohol concentration of more than 0.60 mg/l, or
A person drives with a blood alcohol concentration of more than 1.2 g/l.

Article 379 CP:

Any individual who drives a motor vehicle or motorcycle at a speed exceeding 60 km/h in an urban area or 80 km/h in an interurban area above the permitted speed limit shall be punished with three to six months of imprisonment, a fine of six to twelve months, or thirty-one to ninety days of community service. Additionally, the individual will be disqualified from driving motor vehicles or motorcycles for a period of one to four years.
The same penalties apply to anyone who drives a motor vehicle or motorcycle under the influence of toxic drugs, narcotics, psychotropic substances, or alcoholic beverages. In any case, individuals who drive with a breath alcohol concentration exceeding 0.60 mg/l or a blood alcohol concentration of more than 1.2 g/l will face these penalties.

Offenses for Driving Under the Influence of Alcohol

Driving with a breath alcohol level above 0.60 mg/l or a blood alcohol level exceeding 1.2 g/l constitutes a criminal offense under Article 379 of the Penal Code. This may result in imprisonment, loss of the driving license, and other penalties.

Penalties Associated with DUI

The penalties for driving under the influence of alcohol may include:

Disqualification from driving for up to four years.
Fines.
Imprisonment for up to six months.

The penalties established in Article 379 for basic DUI offenses are:

Imprisonment: Three to six months.
Fine: Six to twelve months.
Community service: Thirty-one to ninety days. Additionally, the individual may be disqualified from driving motor vehicles or motorcycles for a period of one to four years.

Article 379 of the Penal Code classifies driving offenses related to alcohol or drugs, as well as extremely excessive speeding, as criminal offenses. The penalties for committing these offenses fall into three primary categories and are alternative penalties, meaning the court must select one of the penalties:

Imprisonment: Three to six months.
Fine: Six to twelve months.
Community service: Thirty-one to ninety days.

These alternative penalties allow the convicted individual to choose, although in cases of recidivism, the Public Prosecutor’s Office may object and request imprisonment.

Currently, the fine is set at €8 per day, calculated by multiplying 30 days per month by the number of months of the fine.

For example, if the fine is for 12 months, the calculation would be:
30 days x €8 x 12 months = €2,880.

In instructional court, the most common fine is for 6 months, which would total €1,440 (6 months x 30 days x €8). Additionally, if an agreement is reached with the prosecutor, the sentence could be reduced to 4 months, making the total fine €960 (4 months x 30 days x €8).

This calculation is based on the daily quota of the fine, which is set according to the economic capacity of the convicted individual, as established by Article 50 of the Spanish Penal Code. The daily quota may range from a minimum of €5 to €8 per day. Depending on the personal circumstances of the accused, such as financial hardship, the daily fine can be reduced. In some cases, the daily quota has been reduced from €8 to €5 if justified.

This flexibility aims to adjust the penalty to the real financial situation of the accused, ensuring that the fine is not disproportionate in relation to their financial resources.

Subsidiary Personal Responsibility

Article 53 of the Spanish Penal Code regulates subsidiary personal responsibility in the event of non-payment of a fine. If the convicted person fails to pay the imposed fine, it can be substituted by subsidiary personal responsibility, which involves one day of imprisonment for every two unpaid installments, effectively converting the fine into a prison sentence. The duration of this subsidiary responsibility is calculated by converting the outstanding amount of the fine into days of imprisonment, at the rate of one day in prison for every two unpaid daily installments.

Basic Penalties

Basic penalties are applied when there are no aggravating or mitigating circumstances. In this context, when the offense of driving under the influence of alcohol, drugs, or excessive speed is committed without elements that aggravate or mitigate the offender’s criminal responsibility, the penalties are as established in Article 379 of the Penal Code, and the minimum sentences are:

Prison sentence: three months.
Fine: six months.
Community service: thirty-one days.

In any case, disqualification from driving motor vehicles or motorcycles for a period of more than one year and one day is imposed.

Penalty Reduction by Agreement

According to Article 801 of the LECrim, if the accused accepts the facts and cooperates with the justice system, the penalties can be reduced by up to one-third of their original duration. This means that the minimum penalties for driving under the influence of alcohol, after applying the reduction, would be as follows:

The prison sentence of three to six months could be reduced to a minimum of two months.
The fine of six to twelve months could be reduced to a minimum of four months.
The community service of thirty-one to ninety days could be reduced to a minimum of twenty-one days.

In addition, the disqualification from driving, which ranges from one to four years, could be reduced to a minimum of eight months in cases of agreement.

These reductions are typically applied when the accused admits the facts and facilitates the judicial process, making it easier and faster to resolve the case.

Aggravated Penalties

Aggravated penalties are imposed when specific circumstances increase the severity of the offense, as provided for in the Penal Code.

Aggravating circumstances are regulated by Article 22 of the Spanish Penal Code, which defines the situations that can increase the criminal responsibility of the offender, thus enhancing the severity of the penalty.

In the case of driving under the influence of alcohol, drugs, or excessive speed, the penalties are more severe if the following aggravating circumstances apply, such as:

Causing an accident with personal or material damage.
Driving with a blood alcohol level far above the legal limit.
Endangering the life or integrity of others.
Committing the offense repeatedly.

According to Article 380 of the Penal Code, these aggravating circumstances can result in:

Imprisonment: from six months to two years.
Fine: greater than that of the basic type, ranging from twelve to twenty-four months.
Community service: from ninety to one hundred and eighty days.
Disqualification from driving motor vehicles and motorcycles: for a period of two to six years.

It is important to note that in cases of recidivism or if the offense puts lives at risk, the prison sentence may be increased to four years, as established by Article 384 of the Penal Code.

Aggravated penalties are designed to proportionally punish those whose especially dangerous conduct or negligence increases the risk to society. Additionally, these penalties have a preventive and deterrent character, aimed at preventing the commission of further offenses.

In cases of aggravated penalties, the fine increases significantly compared to the basic type. Since aggravated penalties can involve a twelve to twenty-four month fine, the fine is calculated as follows:

For a twelve-month fine:
Calculation: 30 days x €8 x 12 months = €2,880.
For a twenty-four-month fine:
Calculation: 30 days x €8 x 24 months = €5,760.

This calculation is based on the assumption that the judge sets the daily amount of the fine at €8 per day, which is the most common amount.

In cases of aggravated penalties, it is also possible to reach a plea agreement according to Article 801 of the LECrim. If an agreement is reached with the prosecution in the Investigating Court, a significant reduction of the fine can be obtained. Even though the initial sentence could be a fine of twelve to twenty-four months, depending on the seriousness of the offense, in a plea agreement, it is possible to reduce it by up to one-third of its original duration, in accordance with Article 801 of the Criminal Procedure Law (LECrim).

Without reduction: 30 days x €8 x 12 months = €2,880.
With a 1/3 reduction: 30 days x €8 x 8 months = €1,920.
Initial sentence of 24 months:
Without reduction: 30 days x €8 x 24 months = €5,760.
With a 1/3 reduction: 30 days x €8 x 16 months = €3,840.

Thus, even in cases of aggravated penalties, reaching an agreement with the prosecution can lead to a significant reduction in the penalty, including the fine, as long as the accused admits the facts and cooperates with the judicial process.

In conclusion, aggravated penalties are applied in cases where the offender displays more dangerous or recurrent behavior, justifying an increase in the imposed sanction.

Installment Payment of the Fine

Article 50.4 of the Spanish Penal Code allows the judge to authorize the payment of the fine in installments based on the convicted person’s financial situation, but also specifies that the maximum period for such installments cannot exceed 24 months (2 years).

Therefore, the judge or court can divide the payment into installments, but the convicted individual must complete the full payment of the fine within a two-year period from the date of the sentence.

Possible Defenses Against a Refusal to Submit to Alcohol Tests

There are several possible defenses in cases of refusal to submit to breathalyzer or drug tests. One of the most common defenses is arguing that the tests were not properly conducted, or that the instruments used were not in proper condition. It is also possible to claim violations of rights during the control procedure carried out by authorities. It is essential to have legal advice to determine the best defense strategy.

In DUI cases, there are several defense strategies that can be used to try to reduce or avoid a conviction. Some of the most common defenses are:

1. Not Driving the Vehicle

Proving that you were not driving the vehicle at the time of the breathalyzer test or accident can be one of the most powerful defenses in such cases. This defense is based on the fundamental principle of the presumption of innocence, which means no one can be convicted without sufficient evidence of guilt.

If you can provide solid evidence that you were not behind the wheel, such as witnesses, security camera footage, or other forms of evidence (for example, messages proving you were not at the scene), your responsibility is called into question. In these cases, the burden of proof falls on the prosecution, which must prove beyond a reasonable doubt that you were the driver.

2. Medical Conditions

In some DUI cases, certain medical conditions can cause false positives in breathalyzer tests. Additionally, there is a rare condition known as auto-brewery syndrome, where the body produces alcohol endogenously during digestion. It’s also important to consider other substances, such as alcohol-based mouthwash, which can affect the results if used shortly before the test. These situations are rare and exceptional.

These defenses are valid as long as it can be demonstrated that the medical conditions influenced the breathalyzer test results. It is essential to request a counter-analysis at a medical center to verify the accuracy of the initial reading, as external factors like auto-brewery syndrome or mouthwash use could have affected it.

To strengthen this defense, it is crucial to provide medical documentation confirming the driver’s health conditions and request an expert witness report. While these cases are rare, they are possible and can significantly impact the defense if solid evidence is presented to demonstrate how these factors influenced the results.

It is also possible to achieve an acquittal if such evidence makes a decisive difference in the judgment, especially if it can be shown that the equipment used or the procedures followed were not entirely accurate.

Sources:

Diario de Navarra: “The 3 Cases Where You Can Test Positive for Alcohol Without Drinking“

El Debate: “The Strange Disease That Can Free You From Breathalyzer Tests“

El Mundo: “Hand Sanitizer and the Case of False Positives in Breathalyzer Tests“

3. Errors in the Test

1. Expired Breathalyzer:

If the breathalyzer’s certification of verification has expired or the device has not been properly calibrated, the reliability of the results obtained during the breathalyzer test can be called into question. According to current regulations, breathalyzers must strictly comply with the required maintenance and verification procedures. This is regulated by Order ITC/3707/2006, of November 22, which establishes metrological control to ensure that the devices correctly measure the alcohol concentration in the exhaled air.

In accordance with this order, breathalyzers must be periodically verified to ensure their accuracy. If it can be demonstrated that the device did not meet these requirements at the time of the test, this can be an effective defense argument, as the results could be considered invalid. In such cases, it is possible to request the nullification of the breathalyzer test based on the lack of guarantees in the measurement process.

2. Deficiencies in the Breathalyzer Test

Notification of Rights: If the notification of rights is not included in the police report, such as the right to a second test or to an attorney, it may be considered a violation of fundamental rights.
Absence of Blood Test: If the police did not offer you the opportunity to contrast the breathalyzer test with a blood test, you could argue that your right to a second opinion was not respected, which may invalidate the initial test result.
Insufficient Time Between Tests: The protocol establishes that a minimum of 10 minutes must pass between two tests to ensure accuracy. If this time frame is not respected, the defense can argue that the measurement is invalid.

3. Plea Bargain for Penalty Reduction

Although this is not strictly a defense, in many DUI cases, it is possible to seek a plea agreement with the prosecutor, which may include a reduction in penalties in exchange for admitting the facts. This can be beneficial if there are no strong defenses, and the goal is to reduce the penalty, such as lowering the fine or shortening the suspension period for the driver’s license.

DUI Trial

DUI Trial Process

A DUI trial follows several stages, from the investigation phase to its conclusion, including the oral trial and the possibility of filing appeals. Below is a detailed outline of the process:

Summary Trial (Judici Ràpid)

A DUI summary trial is a simplified legal procedure regulated by Article 795 of the Spanish Criminal Procedure Law (LECrim), applicable to traffic offenses such as driving under the influence of alcohol. This type of trial resolves cases faster than a standard process, typically within 48 hours of the arrest.

How Does a Summary Trial Work?

Summary trials are primarily governed by the Spanish Criminal Procedure Law (LECrim), particularly Articles 795 to 803. This legislation outlines the entire procedure, from arrest and detention to the oral trial, ensuring quicker justice by avoiding unnecessary delays and providing a fast response for certain offenses.

Key characteristics of summary trials:

Immediate application: When a driver is arrested for exceeding legal alcohol limits, the police typically file a report to the duty court. If the offense is clear and uncomplicated, the case proceeds to summary trial.
Requirements: Summary trials are possible when:
- The offense is flagrant (directly detected by the police).
- No complex investigations are required.
- The accused is brought to court immediately.
Procedure: The process begins in the investigating court, where statements may be taken. If the accused acknowledges the facts, an agreement with the prosecutor (plea bargain) can be reached. This generally leads to a penalty reduction of up to one-third, as per Article 801 of the Spanish Criminal Procedure Law.
Quick sentencing: If there are no complex defenses or evidence to dispute, the judge can issue a sentence within a few hours or days, speeding up the judicial process.

In conclusion, a DUI summary trial allows for the rapid resolution of driving-under-the-influence cases, often with a penalty reduction if the accused cooperates and acknowledges the facts.

Steps in the Summary Trial Process

1. Investigation Phase

The process begins in the investigating court, where evidence such as the breathalyzer results, police reports, and witness statements are collected. If there are doubts about the accuracy of the breathalyzer or other issues, a complementary test, like a blood test, may be requested to verify the initial results.

If irregularities are detected during the investigation, such as procedural errors, calibration issues with the device, or violations of fundamental rights (like failure to inform the accused of their rights), the case may be dismissed. This strategy is particularly effective if key evidence does not meet the legal requirements set out by Order ITC/3707/2006, which regulates breathalyzer calibration and accuracy. Demonstrating these deficiencies could prevent the case from moving to the oral trial phase.

A strong defense during this initial stage can be crucial to achieving a favorable outcome, as defective evidence may result in the nullification of the entire process.

If there is no agreement or dismissal, a trial date is set, and the defense is given time to present a defense statement outlining the legal arguments, evidence, and witnesses or experts expected to testify. This document is essential for establishing the defense strategy and addressing any procedural irregularities, such as breathalyzer errors.

2. Oral Trial

The oral trial in a DUI case follows formal stages established by LECrim, including the presentation of evidence and arguments from both the prosecution and defense, under the judge’s supervision. Here are the key steps:

1. Summoning for the Trial

The court summons all parties: the accused, their defense, the prosecution, and, if necessary, witnesses or experts. In DUI cases, the primary evidence is usually the breathalyzer test results, but other evidence like medical reports or witness statements can be presented.

2. Presentation of Arguments

Both the prosecution and defense present their initial arguments. The prosecution outlines the facts for which the accused is being charged, while the defense may argue violations of rights or question the validity of the evidence gathered during the investigation.

3. Evidence Presentation

This is the main part of the trial, where all admitted evidence is presented. The parties can submit:

Witnesses: Testimonies from individuals who witnessed the events.
Experts: Technical experts, such as breathalyzer calibration specialists, who may challenge the reliability of the test results.
Documentary Evidence: Medical reports showing that the accused had a medical condition affecting the breathalyzer test.

4. Cross-Examination

During this phase, both sides can question the accused and witnesses to clarify the facts or challenge their credibility. Experts may also be questioned to explore technical issues, such as the calibration of the device used to measure the alcohol level.

5. Closing Arguments

After the evidence is presented, both the prosecution and defense make their final arguments. The prosecution requests the penalty it considers appropriate, while the defense may seek acquittal or a reduction in the sentence, depending on the evidence presented.

6. Verdict

Following the trial, the court delivers its verdict, which may be either guilty or not guilty. In DUI cases, the sentence may include penalties such as fines, license suspension, community service, or even imprisonment, depending on the severity of the offense.

The oral trial is a critical phase, where all parties present their evidence and arguments, and the court determines the guilt or innocence of the accused based on the law and the evidence provided.

After the trial, the court issues a verdict, which may impose penalties such as fines, community service, or license suspension.

7. Appeal

If the convicted party feels that the verdict was unjust, an appeal may be filed with the Provincial Court. The appeal reviews the decision of the trial court. If the appeal is denied, the verdict becomes final. In exceptional cases, an appeal can be lodged with the Supreme Court if there are claims of legal misinterpretation.

FAQ: DUI Offense

1. What is a DUI offense?

A DUI offense refers to driving a vehicle under the influence of alcohol, exceeding the legal limits of alcohol concentration in blood or breath. This poses a serious risk to road safety, as alcohol impairs the driver’s abilities.

2. What are the legal alcohol limits according to the Penal Code?

Legal limits established by the Penal Code (CP):

Breath alcohol concentration exceeding 0.60 mg/l.
Blood alcohol concentration exceeding 1.2 g/l.

3. Legal Breath Alcohol Limits (Administrative Offenses):

The legal limits vary depending on the type of driver:

If the breath alcohol level is between 0.26 mg/l and 0.50 mg/l, the penalty is a €500 fine and the loss of 4 points on the driver’s license.
If the level exceeds 0.50 mg/l but stays below 0.60 mg/l, the fine increases to €1000, and 6 points are deducted from the license.

In accordance with the legal principle of ne bis in idem in the Penal Code, the offense will be treated either as an administrative or a criminal matter, but not both.

4. What penalties are imposed for a DUI offense?

Penalties for a DUI offense can include fines, loss of license points, temporary or permanent suspension of the driving license, and even imprisonment in more serious or repeat offenses. In some cases, vehicle immobilization and other legal consequences may apply.

5. What happens if I refuse to take a breathalyzer test?

Refusal to take a breathalyzer or drug test is considered a separate offense under Article 383 of the Spanish Penal Code, regardless of the presence of alcohol in the body. This can result in more severe penalties, including heavy fines and prison sentences.

6. What should I do if I am arrested for a DUI offense?

If you are arrested for a DUI, it is crucial to cooperate with the authorities and contact a lawyer specializing in criminal or traffic law. A professional will advise you on possible defenses and the legal consequences.

7. How can I avoid a DUI offense?

The most effective way to avoid a DUI offense is not to drive after consuming alcohol. Planning alternatives like public transportation, calling a taxi, or designating a sober driver are recommended.

Legal Disclaimer

The content of this article is informational and does not constitute legal advice. While we have tried to ensure the accuracy and timeliness of the information provided, we cannot guarantee its application to specific cases or its suitability to individual circumstances. Additionally, laws and regulations may vary, and circumstances may change over time.

For personalized legal advice on any topic covered in this article, we recommend consulting a qualified lawyer or legal expert. You can contact us directly. The use of the information in this article is at your own risk, and the author or blog owner assumes no liability for the misuse or incorrect use of this information or for any inaccuracies within.

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For personalized legal advice regarding your specific situation, contact our qualified legal experts today. The information provided in this article is for general purposes only and should not replace individualized legal consultation. The author or blog owner assumes no liability for any misuse or misinterpretation of this content. Let us fight for your rights and secure your future.