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Drink Driving in Spain: Margins of Error in Breathalyser Tests

Punishments available to the Courts

Article 379.2 of the Spanish Criminal Code states that anyone who drives a motor vehicle under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic drinks shall be punished with a sentence of imprisonment for a period of between three to six months or with a fine for six to twelve months (at the specified daily rate).

Alternatively, drink driving in Spain may be punished by community service orders for 31 to 90 days and, in any case, with disqualification from driving motor vehicles for more than one year up to four years.

In any case, anyone will be punished if the  result of a breathalyser test shows an ‘exhaled  alcohol level’ of more than 0.60 milligrams per litre or an alcohol level greater than 1.2 grams per litre blood.

Different Types of Breathalyser

There are two types of breathalyser used by the police in Spain – one is a mobile design, used by the Police when out on patrol.

It is more rudimentary and less precise than the larger version that is used in Police Stations. This latter version is the definitive breathalyser and it is the results on this machine that are used to determine what action, if any, should be taken against a motorist.

So, in order for there to be a conviction for drink driving in Spain, the latter test must be carried-out. At this point is is worthwhile pointing out that the driver must submit to this test as a refusal will be considered a crime of disobedience.

Margin of Error

To the result obtained from a breathalyzer test we must apply a margin of error which will, therefore, reduce the result  – this can be calculated by performing a simple arithmetic operation.

If after applying margins of error, if the first test yields a rate greater than 0.65 mg Alcohol/litre breath but the second measurement result is lower, the police will prepare and submit a report to the judicial authorities that a crime has been committed because the driver, when tested, was driving, according to the primary test, with a rate higher than the rate provided for in Article 379.2, which will result in a fine only.

On the contrary, if after applying the above margins of error to the first test,  the  result is a reading of less than 0.65 mg of ethanol per liter of exhaled air and that reading is higher than the second reading, only an administrative complaint shall be made for such a breach.

In the interests of the accused and to guarantee the exclusion of any incorrect results, the legal limit has to be exceeded by both results because, otherwise, a person could be condemned although they had  not in fact exceeded the legal maximum.

Imprisonment

Although the penalty for drink driving can lead to imprisonment, in practice and reality in accordance with our legal system, a first offence, with no criminal record, does not involve imprisonment, even a second offence may not attract a prison sentence, though this is a matter left to the discretion of the judge. On the other hand, a third offence will normally be punishable with a custodial sentence.
If you find yourself involved in such situations, at any level, you probably will greatly benefit from asking for local expert help regarding Road Traffic Offences.

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Road Traffic Offences

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1Who is this Service for?

One of the most common situations for English-speakers abroad is being stopped by the police for some type of infraction of the rules of the road.

Such offences range from speeding to death by dangerous driving, so the sentences that can result are equally varied.

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2What does this service consist of?

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Emily Mason (May 19, 2021)

Drink Driving Offences

Available in the following locations: Alicante, Barcelona, Benidorm, Castellon, El Campello, Estepona, Fuengirola, Gandia, Granada, Jaen, L`Eliana, La Manga del Mar Menor, Las Palmas, Los Alcázares, Los Cristianos, Madrid, Mazarron, Murcia, Orihuela Costa, Palma de Mallorca, Puerto del Rosario, Puzol, Seville, Torrevieja, Valencia.

* If your local town is not listed, a lawyer from our nearest office will be happy to assist you.

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1Who is this service for?

Driving while under the influence of alcohol or drugs normally will constitute an administrative infraction, though in certain cases may result in criminal charges.

The penalties range from fines to confiscation of your driving license to a prison term or community service.

2Types of Offence

Administrative Offence

If the results obtained from the breathalyser test exceed 0.25 milligrams per litre (0.15 for professional drivers and drivers with less than two year's driving experience), the driver will receive a €500 fine.

Should the test register an amount above 0.5 milligrams (0.3 for professionals and inexperienced drivers) or if the driver has been fined for the same reason in the previous 12 months, the fine doubles to €1,000. The driver will also lose their driving license for a specified period of time.

Criminal Offence

Criminal charges for driving while under the influence of alcohol in Spain will be pressed against any driver with a blood-alcohol level in excess of 0.60 milligrams per litre, as measured in a breathalyser test. A criminal offence may also be committed if the driver’s faculties are clearly affected by the ingestion of alcohol or drugs affecting the driver's ability to drive - even where the measured rate is below 0.60 milligrams per litre, or indeed if the driver refuses to take a breathalyser test.

Penalties

The penalties will depend upon the circumstances of the case, if anyone was injured or killed, if damage was done to property, if it is not a first offence etc

There will certainly be a fine and removal of your driving license as well, potentially, as a community service order or a prison term. You will also have a criminal record.

Important Advice!

Do not refuse to take a breathalyser test. To do so is an independent criminal offence, for which you will be charged, in addition to the prior offence of driving while under the influence of alcohol or drugs.

3What does this service consist of?

  • Discussion with an experienced English-speaking criminal lawyer to determine the nature of the charges
  • Preparation of the defence strategy
  • Negotiation with the public prosecutor
  • Representation in court proceedings

4Free Support Services Included

When combined with the free and innovative Advocate Abroad support services you can be sure that you are obtaining completely transparent legal services from registered and regulated English-speaking lawyers abroad.These support services include:

  • Verification of the regulatory status of your professional.
  • Fees as recommended by the Local Professional Body
  • Fees specified in advance and legally guaranteed.
  • Service levels agreed in advance and guaranteed.
  • All professionals must hold professional indemnity insurance.
  • Professionals' proficiency in English monitored.
  • Continuous quality controls and reviews.
Support services

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