Refusing a breath test at a checkpoint in Spain: penalty and consequences

Refusing to blow at a breath test checkpoint may seem like a way out if you have had a drink and fear the result, but the law punishes refusal more harshly than many positive tests. We explain the penalty, when it is a criminal offence, what happens if you cannot blow and how it is defended.

What article 383 of the Criminal Code says

This offence is committed by a driver who, when required to do so by a law enforcement officer, refuses to undergo the tests established by law to check their alcohol level or the presence of drugs. Three elements are needed: you must be the driver, an officer must clearly require you to take the test, and you must refuse.

The offence exists even if it is later shown that you had not been drinking: what is punished is the refusal itself. The judge can reduce the prison sentence by one degree in view of the lower level of risk and the circumstances (art. 385 ter CP). And refusing does not prevent you also being charged with driving under the influence (art. 379.2) if the police report describes signs of impairment, because they are separate offences.

The obligation to take the tests

The Road Safety Act (Ley de Seguridad Vial, Royal Legislative Decree 6/2015) provides in its article 14.2 that every driver is obliged to undergo the alcohol and drug detection tests carried out by the officers responsible for traffic enforcement. For alcohol, the test is a breath test; for drugs, a saliva test followed by analysis (art. 14.3).

Article 21 of the General Traffic Regulations (Reglamento General de Circulación) specifies who can be required to take the test:

• A driver involved as a possible responsible party in an accident.
• Anyone driving with clear signs of being under the influence of alcohol.
• A driver reported for any traffic offence.
• Any driver stopped at a preventive breath test checkpoint ordered by the authorities.

In other words: at a preventive checkpoint you do not need to have done anything wrong to be obliged to blow.

Criminal or administrative offence

The Road Safety Act also classes failing to take the tests as a very serious administrative offence (art. 77.d), with a fine of €1,000 (art. 80.2.a) and the loss of 6 points (Annex II), but only “where they do not constitute a criminal offence”. The administrative obligation also extends to other road users involved in an accident or who have committed an offence (art. 14.2).

If you were driving a car, motorbike or moped and refused, the case is usually dealt with as a criminal offence under article 383. Officers must take anyone who refuses before the court when the facts amount to a criminal offence (art. 24 RGC) and may immobilise the vehicle (art. 25.2 RGC).

Refusing the second test or the drug test

The second breath test

After a first positive result, the officer must carry out a second confirmatory test, with at least 10 minutes between the two (art. 23 RGC). The plenary Criminal Chamber of the Supreme Court (Tribunal Supremo) held in its judgment 210/2017 of 28 March that refusing that second reading constitutes the offence under article 383.

A blood test is a right you can request for confirmation purposes (art. 14.5 LSV). Requesting it does not exempt you from blowing: it is an additional test, not a substitute.

The drug test

Article 383 also covers drug tests. Under article 796 of the Criminal Procedure Act (Ley de Enjuiciamiento Criminal), the driver must undergo the preliminary saliva test and, if it is positive or there are signs of drug use, provide enough saliva for analysis at an approved laboratory, with a chain of custody. Refusing any of those steps can lead to a charge for this offence.

What happens if you physically cannot blow

Some people cannot produce the volume of air the breathalyser requires because of a respiratory illness or an injury. The law provides for this: where there are justified reasons preventing the tests, a medical examination or the clinical tests the doctors at the health centre consider appropriate can be ordered (art. 14.3 LSV). If injuries or illness prevent the test, the medical staff decide which tests are carried out (art. 22.2 RGC).

1. Tell the officers at the time and explain why you cannot complete the test.
2. Ask for it to be recorded in the police report and offer to take a blood test at a health centre.
3. Keep your medical reports (asthma, COPD, recent surgery): they will be key in court.

If the officers believe you are pretending to blow or deliberately doing it wrong, they will record this in the police report and charge you with refusal. That is where the medical evidence makes the difference.

Speedy trial, plea agreement and criminal record

Road safety offences are usually dealt with as a speedy trial (juicio rápido, art. 795 LECrim): the police summon you to the duty court (juzgado de guardia) and the prosecutor brings charges there. We explain it step by step in what happens in a drink-driving speedy trial in Alicante.

If you accept a plea agreement, the judge imposes the sentence sought by the prosecutor reduced by one third, even if it ends up below the legal minimum (art. 801 LECrim). With the minimum sentence of six months’ imprisonment, the reduction brings it down to four months; the driving ban is reduced too. If it is your first offence, the prison sentence can be suspended as it does not exceed two years (art. 80 CP), and the duty judge can decide this at the same hearing. Before deciding, read what accepting a plea agreement involves.

The conviction creates a criminal record, which is cleared if you go without reoffending for the periods in article 136 CP: two years for sentences not exceeding twelve months and three years for other less serious sentences under three years. We can help you work this out on our criminal records page.

In your defence we check whether the request was clear, whether what was being asked of you was explained (especially if you do not speak Spanish well), whether the breathalyser was working, whether you raised a physical inability and whether this is recorded in the police report.

Refusing a breath test in Alicante: how it works in practice

The speedy trial is handled by the duty court of the judicial district where the checkpoint took place, which since Organic Act 1/2025 forms part of the Investigating Section of the Court of First Instance (Sección de Instrucción del Tribunal de Instancia). According to the Generalitat Valenciana’s directory, the Alicante Duty Court is at Avenida de Aguilera, 53. For Elche, Benidorm, Torrevieja and the other districts, see our guide to the criminal courts in Alicante and, above all, the address on your summons.

If you are a foreign national, you have the right to an interpreter (art. 123 LECrim) and our team will assist you in English; a request you did not understand is a line of defence worth examining. Celeste Pérez Bleda has more than 20 years’ experience in criminal law and has assisted more than 800 detainees. If you were arrested at the checkpoint, read what to do if you are arrested.

Frequently asked questions

Is refusing a breath test worse than testing positive?

In many cases, yes. Refusal under article 383 of the Criminal Code is punishable by six months to one year in prison, with no alternative of a fine or community service, as well as a driving ban. For drink-driving under article 379.2, the judge can choose between three to six months in prison, a fine or community service. And refusing does not stop you also being charged with driving under the influence if there are signs of impairment.

Will I go to prison for refusing a breath test?

Not necessarily. If it is your first offence and the prison sentence does not exceed two years, the judge can suspend it (art. 80 of the Criminal Code). With a plea agreement, the sentence is reduced by one third and the duty judge can decide on suspension at the same hearing. Each case depends on your record and the circumstances, which is why it is important to prepare properly for the hearing.

Can I ask for a blood test instead of blowing?

Not as a substitute. A blood test is a confirmatory test you can request in addition to the breath test (art. 14.5 of the Road Safety Act). Only where there are justified reasons that prevent you from blowing, such as an injury or illness, can a medical examination or clinical tests be used instead (art. 14.3). If that is your situation, explain it to the officers and ask for it to be recorded.

Is it an offence to refuse the second breath test?

Yes. The plenary Criminal Chamber of the Supreme Court, in its judgment 210/2017 of 28 March, held that refusing to undergo the second reading of the breath test constitutes the offence under article 383 of the Criminal Code. Even if you have already blown once, refusing the second can lead to a trial for this offence.

Do I lose points if I refuse a breath test?

The loss of 6 points and the €1,000 fine are the consequences of the administrative offence, which only applies when the facts are not a criminal offence. If it is dealt with as a criminal offence under article 383, what is imposed is a driving ban of more than one and up to four years. If it exceeds two years, your licence loses its validity (art. 47 of the Criminal Code).

If you have been summoned for refusing a breath test, call us before your court date. We review the police report with you and explain your options clearly. Our team will assist you in English. You can reach us on 607 449 491 (24 hours, also on WhatsApp), and there is more information on our pages for a drink-driving lawyer in Alicante and for speedy trials.