Drink-driving lawyer in Alicante

When drink-driving or drug-driving is a crime

Not every positive breath test is a criminal offence. Article 379.2 of the Criminal Code (Código Penal) punishes two different situations:

• Exceeding the objective limit: more than 0.60 milligrams of alcohol per litre of exhaled air or more than 1.2 grams per litre of blood. Above that figure, the offence exists even if you were driving normally.
• Driving under the influence of alcohol, toxic drugs, narcotics or psychotropic substances. Here there is no fixed figure: the prosecution has to prove that your ability to drive was impaired (symptoms, manner of driving, an accident…).

If you give a positive reading below 0.60 mg/l and there are no signs that alcohol affected your driving, it will normally be an administrative traffic offence (a fine and penalty points), not a crime. That borderline is exactly where many defences are won or lost.

Paragraph 1 of the same article 379 also punishes serious speeding. If that is your situation, or if you were driving without a licence, we explain it on our page on driving without a licence, speeding and reckless driving.

Drink-driving penalties

The penalties in article 379 are alternatives: the judge chooses one of the first three and, in addition, always imposes a driving ban.

You should also bear in mind that:

• If there is an accident causing injury or death, article 382 requires only the most serious offence to be punished, but with the penalty in its upper half, and the victims must be compensated.
• The judge may reduce the prison sentence by one degree where the risk was less serious, taking into account the circumstances of the case (art. 385 ter).
• The vehicle is considered an instrument of the offence for confiscation purposes (art. 385 bis).

Refusing a breath or drug test

Refusing to blow into the breathalyser or to take a drug test when an officer requires you to is a separate offence (art. 383 of the Criminal Code), even if it is never proved that you had been drinking. The penalty is six months to one year in prison and a driving ban of more than one and up to four years. It is more serious than drink-driving itself, because here there is no option of a fine instead of prison.

For drug testing, the law provides for a preliminary saliva test and, if it is positive or there are signs of drug use, an obligation to provide a saliva sample for analysis at an accredited laboratory with a chain of custody. In addition, you are entitled to request a confirmatory test (a blood or urine test or similar), under article 796 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal, LECrim).

The speedy trial for drink-driving

Road traffic offences are almost always dealt with through a speedy trial (juicio rápido, art. 795 LECrim). The police will summon you to the duty court (juzgado de guardia) – now the investigating section (Sección de Instrucción) of the Court of First Instance (Tribunal de Instancia) on duty – within a few days, sometimes the same day if you have been arrested.

There, the public prosecutor usually offers a plea agreement (conformidad): if you admit the facts, the requested sentence is reduced by one third (art. 801 LECrim). It can be a good way out, but not always. Before accepting, the police report should be reviewed to check whether there really is an offence. If no agreement is reached, the case goes to the criminal section (Sección de lo Penal) of the Court of First Instance (formerly the criminal court, juzgado de lo penal) for trial.

How we defend you

1. We review the police report (atestado): the reason for the check, the instructions given to you, how you were informed of your rights, the time between tests and the signing of the records.
2. We check the breathalyser: that it was approved and calibrated, that the measuring procedure was followed and that you were offered a confirmatory test.
3. We analyse the symptoms described by the officers when the reading is below 0.60 mg/l: without actual impairment, there is no offence.
4. We assess the plea agreement: we tell you clearly whether to accept it or go to trial, and we negotiate the lowest possible sentence.
5. We apply for suspension of any prison sentence imposed, and we keep track of the deadlines for your licence and the fine.

If you have been arrested after a roadside check or an accident, call us from the police station: you have the right to choose your own lawyer. We explain how it works on our page on 24-hour lawyer for people under arrest.

Criminal record, licence and prison

Will you go to prison? For a first drink-driving offence with no accident, it is very unusual. If the sentence is a prison term of no more than two years, the judge can suspend it when it is your first offence and the other requirements of article 80 of the Criminal Code are met.

Will you have a criminal record? Yes: it is a criminal conviction, including when you accept a plea agreement. The record can be expunged once the period in article 136 has passed without reoffending; that period depends on the length of the sentences (for example, two years for those not exceeding twelve months and three years for other less serious sentences under three years). We can help you with expunging your criminal record.

What about your licence? If the ban exceeds two years, your licence ceases to be valid (art. 47 of the Criminal Code) and you will have to recover it through the administrative procedure once you have served your sentence. Driving while banned is a new offence.

If you are the victim of a drunk driver

If a driver under the influence of alcohol or drugs has hit you or crashed into you, you can join the proceedings as a private prosecutor (acusación particular). This allows you to take part in the case, ask for the appropriate sentence and claim compensation for injuries, after-effects and damage, which article 382 requires to be paid in every case.