Road safety offences

FIRST.— Drink and drug driving

You’ve been stopped at a checkpoint and tested positive, or you think the test wasn’t done properly. This can be an administrative offence or a crime, depending on the exact reading and the circumstances.

Above a breath alcohol level of 0.60 mg/l, driving stops being just an administrative fine and becomes a crime (Article 379.2 of the Penal Code, CP). The law provides three possible penalties —prison for 3 to 6 months, a fine of 6 to 12 months, or community service— and the judge applies only one of them, not all three together. However, a driving ban (1 to 4 years) is always imposed, whichever penalty is chosen.

In practice, if it is your first time and there has been no accident, a fine is the usual outcome, not prison. Prison is reserved for repeat offences or more serious circumstances.

The same goes for drugs: no specific level is required, it is enough to prove you were driving under their influence.

SECOND.— Speeding

Not all speeding is a crime —most cases are administrative traffic penalties. It becomes a crime (Article 379.1 CP) when you exceed the speed limit by 60 km/h in an urban area or by 80 km/h on an out-of-town road.

THIRD.— Reckless driving

Driving with manifest recklessness, putting people’s lives or physical integrity in concrete danger, is a crime (Article 380 CP): prison for 6 months to 2 years and a driving ban of 1 to 6 years.

If there is also manifest disregard for the lives of others (Article 381.1 CP), the penalty rises to 2 to 5 years in prison, a fine of 12 to 24 months and a driving ban of 6 to 10 years. If no one’s life or integrity was actually put in concrete danger (Article 381.2 CP), the penalty is 1 to 2 years in prison, a fine of 6 to 12 months and the same 6 to 10 year driving ban.

FOURTH.— Refusing alcohol or drug tests

Refusing to take the legally established tests to check your alcohol level or the presence of drugs is a crime in itself (Article 383 CP), even if it is never proven that you were driving under their effect: prison for 6 months to 1 year and a driving ban of 1 to 4 years.

FIFTH.— Driving without a licence

Driving after your licence has lapsed through loss of all points, after a precautionary or final court-ordered suspension, or without ever having obtained a licence, is a crime (Article 384 CP): prison for 3 to 6 months, a fine of 12 to 24 months, or community service of 31 to 90 days.

SIXTH.— Creating serious risk to traffic

Placing unforeseeable obstacles on the road, spilling slippery or flammable substances, tampering with or removing signs, or failing to restore road safety when obliged to do so, is a crime (Article 385 CP): prison for 6 months to 2 years, or a fine of 12 to 24 months together with community service of 10 to 40 days.

SEVENTH.— What I always check

• Whether the test was carried out properly, with the guarantees the law requires
• Whether you were offered a second confirmatory test, and whether your right to request it was respected
• Whether the level or the recorded circumstances really justify the classification as a crime, or whether there is room for it to remain an administrative offence
• Whether the judge can reduce the sentence by one degree because of the lesser seriousness of the risk caused (possible for the offences in Articles 379, 383, 384 and 385)

EIGHTH.— If you’re stopped at a checkpoint

a) You have the right to a second confirmatory test and, if you ask for it, a blood test.
b) You are not obliged to make a statement, and you shouldn’t sign anything without reading it.
c) Refusing the tests is a crime in itself (Article 383 CP) and doesn’t improve your situation.
d) If you are summoned to court, don’t go without a lawyer. And if you have also been arrested, see the page on arrests 24/7.

NINTH.— What you can achieve

• If the check had a defect, the evidence may not be valid
• A quick plea agreement with the lowest possible penalty, if the evidence is solid and you prefer to close the case soon
• A full defence at trial, if you think there is room for an acquittal or a reduced sentence

TENTH.— What is a duty lawyer and what is free legal aid?

They are two different things, and they are often confused.
a) The duty lawyer scheme (turno de oficio) is the service by which the Bar Association assigns a lawyer to anyone who doesn’t have one of their own choosing. It is a way of appointing a lawyer; it doesn’t mean it’s free.
b) Free legal aid is a right granted according to your means. Only if it is granted to you does the State pay.
c) If you are assigned a duty lawyer and you are not entitled to free legal aid, which is common when the client has an income, for example in a drink-driving case, you pay the fees yourself. If free legal aid is denied, we explain how to appeal in this article (in Spanish).
d) You can always choose a lawyer you trust. If you choose me, we discuss fees at the first consultation, which is free.