Drink Driving in Spain: Margins of Error in Breathalyser Tests

While the penalty for drink-driving in Spain can lead to imprisonment, in practice (first offence, no criminal record) this is very unlikely.
Article Last Updated: 17 May, 2024 under Speeding Fines

Driving under the influence of alcohol – or drugs - has serious consequences, and it could also constitute a criminal offence in certain cases. Under Spanish drink-driving laws, criminal proceedings may follow in two cases, according to the Spanish Criminal law:

  1. In all cases when the breathalyser test rate exceeds 0.60 milligrams per litre;
  2. Secondly, when -  even if the rate is below 0.60 milligrams per litre (or in those cases when no test can be carried-out), the driver’s faculties are clearly affected by the ingestion of alcohol or drugs and it affects the driver´s ability to drive.

Much therefore depends on the results of the breathalyser test, and so this merits further analysis.

1. The breathalyser test

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 experience), the driver would receive a 500 euros fine. 

In those cases when the rate is higher than 0.5 milligrams (0.3 for professionals and inexperienced drivers), and also when the driver has been fined for the same reason in the previous 12 months, the fine would be double that amount (1,000 euros). You may also read about the breathalyser results accuracy.

The previously mentioned fines are to be imposed, initially, under administrative proceedings by the traffic authorities, and they do not imply any Court proceedings or criminal records for the driver.

But driving under the influence of alcohol would constitute a criminal offence in two specific cases, according to section 379.2 of the Spanish Criminal Code:

  1. In every case, when the test rate exceeds 0.60 milligrams per litre; and
  2. Even if obtaining a rate below that limit (or in those cases when no test is made), the driver’s faculties are clearly affected by the ingestion of alcohol or drugs, and it affects their ability to drive.

In the second case, it is essential that the officers making the test are able to prove those circumstances before the Court – it should be mentioned that the Courts, instead of traffic authorities, would deal with these criminal cases.

Criminal proceedings would carry (where the driver is found guilty by the Court after the legal proceedings) in every case the deprivation of the right to drive vehicles for a period of between one and four years; and besides that the driver would receive one of the following three punishments: a prison sentence (for the most serious cases; between three and six months); a community services order (between 31 and 90 days); or a fine (normally between 1,000 and 3,000 euros, but this amount could vary depending on the financial situation of the driver).

2. 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 of 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 it is worthwhile pointing out that the driver must submit to this test as a refusal will be considered a crime of disobedience.

3. Margin of Error

To the result obtained from a breathalyser 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 litre 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.

4. Refusing a breathalyser test

It is important to take into account that, according to article 383 of the Criminal Code, if the driver refuses to complete the breathalyser test it would constitute an independent criminal offence (in addition to any relating to driving while under the influence of alcohol or drugs), carrying a prison sentence (of six to twelve months) and deprivation of the right to drive (for one to four years).

5. 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 and 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.

Most of these criminal proceedings end with the signing of an agreement with the Prosecutor, the driver admitting his fault and accepting a penalty with a reduction from the initial charge. The lawyer representing the driver would negotiate the best possible agreement, which would need to be ratified by the driver, with the assistance of a translator if necessary.

This does not mean that it is not possible to defend these kinds of charges before the Court and to obtain a dismissal of the charges. 

For this purpose, it is essential that the lawyer in charge of the road traffic offence case has studied in depth the documentation included in the file: in most of these cases, formal defects committed by the Officers or the Court during the process could be the best option for the defence strategy. 

Those formal mistakes could affect the statements and formal report issued by the officers (called “atestado”), the revisions and certificate of the breathalyser, or the Court notifications, amongst others.

6. 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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