Driving under the influence of alcohol or drugs offence

Driving under the influence of alcohol can have serious consequences. Depending on the driver's blood alcohol level, it can be considered a mere administrative offence or a criminal offence. In this article, we take an in-depth look at all the issues related to alcohol and driving.

The BAC is the concentration of alcohol in the blood or in the breath. As the body digests the alcohol, the BAC changes. The maximum blood alcohol concentration is between 30 and 90 minutes after ingestion.

Drink-driving offence in the Penal Code

Driving under the influence of drugs is an offence. The offence is regulated in article 379.2 cp, within the offences against road safety, which establishes the penalties that may be imposed on anyone who drives under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic beverages with a breath alcohol level of more than 0.60 milligrams per litre or with a blood alcohol level of more than 1.2 grams per litre.

The penalty that may be imposed for this offence may be one of the following:

• Imprisonment of 3 to 6 months.
• Fine of 6 to 12 months.
• Community service from 31 to 90 days.

In all cases, a penalty of deprivation of the right to drive motor vehicles and mopeds for a period of more than one year and with a maximum limit of four years will also be imposed. If, in addition to the above, the driver drives with a disproportionate excess of speed, he/she could incur an aggravated offence of manifest recklessness, which would aggravate the penalty imposed. The same applies when the driver driving under the influence of alcohol causes an accident in which a homicide or injury is caused. In this case, there is a concurrence of offences, as provided for each specific case in the Penal Code, which would also aggravate the sentence imposed.

Criminal proceedings for the offence of drink-driving under the Criminal Code

The officers who carried out the breathalyser test pass the report to the court. The judge will summon the driver to a speedy trial. At the trial, the accused may admit to the facts, in which case the penalty to be imposed will be reduced by one third.

In which cases is it considered an administrative offence?

In those cases in which the driver does not exceed the limits set out in the Penal Code, driving under the influence of alcohol will be considered a very serious administrative offence.

In this case, the limits are as follows:

• For drivers in general: 0.5 g/l in blood or 0.25 g/l in breath.
• For professional drivers: 0.3 g/l in blood or 0.15 g/l in exhaled air.
• For novice drivers (with less than two years of driving licence): 0.3 gr/l in blood or 0.15 gr/l in exhaled air.

In these cases, the administrative offence entails a fine of up to 1000 euros together with the suspension of the driving licence for a period ranging from 3 to 6 months and the loss of 4 to 6 points on the driving licence.

How much alcohol do you have to drink to test positive in a breathalyser test?

A positive result in a breathalyser test depends on the amount of alcohol ingested and the driver's weight, so it is very difficult to give an exact reference. As a guideline, we can indicate that the limit for not giving a positive result in a breathalyser test would be for a 70 kg male if he had drunk a can of beer and a glass and a half of wine. In the case of a 60 kg woman, the limit would be half the amount indicated above for a man.

Is it compulsory to take a breathalyser test?

The breathalyser test is compulsory, so no driver can refuse to take it. If a driver refuses to take the test, he/she may be fined 500 euros and have 6 points withdrawn from his/her licence. In addition, he/she may also incur the offence against road safety regulated in article 383 of the Penal Code, which can lead to a prison sentence of 6 months to 1 year, as well as the deprivation of the right to drive for 1 to 4 years.

Driver's rights in breathalyser testing

The driver has the right to ask for the test to be carried out twice, at least 10 minutes apart. If the driver does not agree with the result of the test, he may also request a blood test. If the result of the blood test is positive, the costs of the blood test shall be borne by the driver.

Criminal record resulting from a drink-driving offence

A criminal record resulting from a conviction for driving under the influence of drugs can be expunged. The time limits for expungement vary, depending on the severity of the penalty:

• Minor penalties may be cancelled within six months.
• Sentences not exceeding twelve months and sentences imposed for imprudent offences may be cancelled within two years.
• Less serious penalties of less than three years may be cancelled within three years.
• Less serious penalties of three years or more may be cancelled within five years.
• Serious penalties may be cancelled within ten years.

Drugs and driving

Driving under the influence of drugs is a criminal offence. In recent years it has been proven that alcohol and driving is a serious problem for road safety, as the presence of alcohol is behind 43% of traffic accidents resulting in death, so it is necessary to raise public awareness of the problem of driving under the influence of alcohol in order to reduce, as much as possible, the accident rate on the road.

At the law firm of Elías y Muñoz you have at your disposal lawyers specialised in drink-driving and drug offences, who will resolve any doubts you may have on the subject and will provide you with the best defence in a speedy drink-driving trial. Consult us without obligation and get the best advice to avoid the unpleasant surprise of having a criminal record derived from driving under the influence of alcohol or drugs.