The so-called crimes against road safety are found between Articles 379 and 385 ter of the Criminal Code. Specifically, the offense that addresses driving under the influence of alcohol in an accident involving a motor vehicle or moped appears in Article 379.2, providing for the following alternative penalties:
- Imprisonment from 3 to 6 months
- Fine from 6 to 12 months
- Community service from 31 to 90 days
And in any case, disqualification from the right to drive a motor vehicle or moped for a period between 1 and 4 years (license withdrawal).
What happens if I refuse to take the test?
We are obliged by the Criminal Code, as refusal to take the test may result in prosecution for the crime of disobedience under Article 383 of the same code.
When is the breathalyzer test considered positive?
In any case, whenever 0.60g/l in breath or 1.2g/l in blood is exceeded.
The result of the breathalyzer test is a type of evidence called preconstituted evidence (irreproducible in oral trial), which may be sufficient on its own to rebut the presumption of innocence.
Therefore, when the result is positive, it will be very difficult to defend the case at oral trial.
However, the fact that it is preconstituted evidence means that special attention must be paid to the fulfillment of its guarantees and requirements.
What are these guarantees and requirements that must be met?
The person subjected to the test must be informed of their rights without unjustified delay, meaning prior to the administration of the breathalyzer test.
According to case law of the Constitutional Court, the breathalyzer test is subject to the fulfillment of certain formal guarantees, especially the individual’s knowledge through appropriate information of their right to a second breathalyzer test.
The test will also be invalid if the individual is informed of their rights after the test has been administered (Provincial Court of Las Palmas de Gran Canaria, September 1, 2010, and Provincial Court of Madrid, November 14, 2011).
Other elements must also be considered, such as the breathalyzer verification certificate. These devices undergo periodic checks and must be up to date.
If I test below 0.60, could I still go to trial?
It is possible, as the police officer has the authority to decide whether you are under the influence of alcoholic beverages. In such cases, as a general rule, if there was an accident, proceedings for driving under the influence of alcohol will be initiated.
It is always advisable to have the assistance of a professional specialized in the field, but in this specific case, it is mandatory. To best defend your interests and ensure that the procedure is carried out properly, we invite you to request a completely free consultation if you find yourself in this type of situation.
