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The essentials
You were stopped at a police check in your car, by day or at night, you blew twice and you were handed a summons for the duty court. You have only a few days and plenty of questions: will you lose your licence, could you end up in prison, is it worth accepting what the prosecutor offers? These are reasonable questions and they have answers, but it is better to ask them before you walk into court, not in the corridor. The example we use below is Barcelona, where checks are run by the Mossos d’Esquadra (the Catalan police) or the Guardia Urbana (the Barcelona city police). The procedure is the same across Spain, and the Spanish legal system treats drivers from any country in the same way.
Our criminal defence lawyers work in criminal law every day and handle road-safety offences as a matter of routine. We study the police report (atestado), the record of the alcohol test and the breathalyser printouts, and we check that the procedure was carried out as the law requires. With that we explain your real options: challenge the test, negotiate a plea agreement (conformidad) or go to trial. The decision is yours, taken with all the information in front of you and with the terms of our engagement in writing before we start.
If the check followed an accident or came with another charge, the case changes and we deal with all of it: where someone has died, the charge becomes involuntary manslaughter (homicidio imprudente), and if the driving was dangerous, reckless driving may be added. For any other matter, count on a criminal defence lawyer, a member of our team. In the event of an accident, the criminal case and any insurance dispute are separate matters, and we look at the criminal side.
Spanish traffic rules set the line by blood alcohol concentration (BAC) and by the way you were driving. Below the criminal limit, a positive result is an administrative traffic infringement: a fine and loss of points. Above it, or if it is shown that you were driving under the influence of alcohol, it becomes a criminal offence and a judge decides it.
Summoned to a fast-track trial for drink driving in Spain?
These are the figures set by the Criminal Code. The actual sentence depends on your alcohol level, on whether other road users were put in real danger and on your previous record.
3 to 6 months
in prison, or a fine of 6 to 12 months, or community service of 31 to 90 days
Art. 379.2 CP
1 to 4 years
ban on driving motor vehicles and mopeds, in every case
Art. 379.2 CP
One third less
off the sentence if you accept a plea agreement at the duty court
Art. 801 LECrim
The fast-track procedure is designed to resolve, within days, offences that are simple to prove, and drink driving is the typical example. This is how it usually goes:
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The officer carries out a first breath test and, if it is positive, a second one after an interval of at least 10 minutes, as the General Traffic Regulations (Reglamento General de Circulación) require. You have the right to ask for a contrast blood test.
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The police draw up the report (atestado) and you are summoned as a suspect (investigado) before the Investigating Section of the Court of First Instance on duty. In Barcelona, this is at the Ciutat de la Justícia, between Barcelona and L’Hospitalet de Llobregat.
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You make your statement with the assistance of your criminal defence lawyer. The prosecutor may offer a plea agreement: if you admit the facts, the sentence is reduced by one third.
4
If you accept, the sentence is handed down on the spot. If not, the case goes to the Criminal Section of the Court of First Instance (in Barcelona, the Barcelona Court of First Instance), which holds the oral trial with you and the officers as witnesses.
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The start of the driving ban is set and, where there is one, the way the prison sentence, fine or community service will be served.
No lawyer can promise you a result. What we can do is review every step of the procedure, because the defence strategy depends on those details. It is the part of the service we carry out with each client before the duty-court hearing, not in the court corridor.
We check that the device had a valid metrological verification, that the values on the printouts match the record and that your level was read correctly, including the margin of error of each measurement.
We review the time of each test to see whether the 10 minutes between them were respected, whether you were told of your right to a blood test and what happened if you asked for one. If the analysis confirms the positive result, it is charged to you.
With levels close to the limit, how the officers describe your driving and your condition carries a lot of weight. We analyse whether those symptoms are actually shown or are just a standard formula.
If the evidence is solid, a well-negotiated plea agreement is often the most reasonable option. Before you accept it, we explain what sentence you would be signing up to and what consequences it has.
The sooner you tell us, the more room we have
With these papers we can study your case before the duty-court hearing. If you do not have them all, we start with what you have.
Arriving at the hearing without having read the police report means deciding within minutes. A plea agreement can be negotiated better if the defence knows the weak points of the evidence beforehand.
Refusing the test does not make the problem go away: it is an offence in its own right under article 383, with harsher penalties than drink driving itself. If you doubt the result, the right step is to ask for the contrast test.
After a court-ordered driving ban, driving is a further offence (art. 384 CP). If the ban lasts more than two years, you also lose the validity of your licence and will have to obtain it again.
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It is a drink driving offence whenever the level exceeds 0.60 mg/l in exhaled breath or 1.2 g/l in blood. With a lower level it can also be an offence if the police report records that you were driving under the influence of alcohol, for example with evident symptoms or dangerous driving.
You are over the criminal limit, so you will be summoned to a fast-track trial. The sentence will be prison of 3 to 6 months, a fine or community service, and always a driving ban of more than 1 and up to 4 years. With a plea agreement, the sentence is reduced by one third.
It is unusual for a first offence. If the sentence is prison of no more than two years, the judge can suspend its execution when there is no previous record (art. 80 CP). The risk grows with repeat offences, with an accident causing injuries, with excessive speed or if you were also driving without a licence.
The summons usually arrives for a few days after the check. If there is a plea agreement at the duty court, the sentence is handed down that same day. If not, the trial is held later before the Criminal Section and the process takes longer.
There is no safe figure. The alcohol level that the same amount of drink produces depends on the alcohol content of the drink, your weight, whether you have eaten, the time that has passed and each person’s body. Two beers can leave one person below the limit and another above it. If you are going to drive, the only safe option is not to drink.
Yes. In criminal proceedings you need a lawyer to give your statement and for any agreement with the prosecutor. You can choose a lawyer you trust and contact them before the summons to prepare the defence. If, instead of being summoned, you are arrested, for example after an accident, what you need is an urgent criminal defence lawyer at the police station.
Yes. Even if it ends in a plea agreement and the sentence is a fine or community service, the judgment is entered as a criminal record. It can be cancelled once the period set by article 136 of the Criminal Code has passed without you reoffending, counted from when the sentence is served.
The fast-track trial is handled by the Court of First Instance of the judicial district where the check took place (art. 14 LECrim). In the Barcelona area, for example, a positive on the C-58 can end up in Cerdanyola del Vallès, Rubí, Sabadell or Terrassa; to the north, in Badalona, Mataró or Granollers; to the south and west, in Esplugues, Sant Feliu, Gavà, Martorell, Vilafranca del Penedès or Vilanova i la Geltrú. Only the court that holds the duty-court hearing changes.
A driving ban prevents you from driving in Spain for the length of the sentence, whatever licence you hold or in which country it was issued, including a UK or other foreign licence. If you do not understand the language, you have the right to an interpreter paid for by the authorities (art. 520 LECrim). If you live in or are visiting from elsewhere in Europe, the rule is the same. In English this offence is known as DUI, and the fast-track trial can usually be closed within days with a plea agreement.
You commit a separate offence (art. 383 CP), punished with prison of 6 months to 1 year and a driving ban of more than 1 and up to 4 years. It is not a simple offence of disobedience: it has its own article and is more serious than the positive result itself, which is why refusing almost never pays off.
If the licence was withdrawn by a criminal judgment or because you lost all your points, driving is an offence (art. 384 CP), punished with prison of 3 to 6 months, a fine or community service. And it adds to any record you already have.
It depends on where you are driving: the police force with traffic powers in that area. In Barcelona itself, mainly the Guardia Urbana, the city police. On roads and intercity routes in Catalonia, the Mossos d’Esquadra, who took over traffic powers from the Guardia Civil. If the case is criminal, it is handled by the duty court (in Barcelona, at the Ciutat de la Justícia).
We have six offices in Spain (Madrid, Barcelona, Sevilla, Málaga, Córdoba and Palma de Mallorca) and we also work with clients online.
