At 0.61 milligrams of alcohol per litre of exhaled air it is already a criminal offence. At 0.60 it is still a fine. That hundredth separates a Traffic Authority penalty from a fast-track trial before the duty court, a criminal conviction and up to four years without driving. The criminal side is in articles 379 and following of the Spanish Criminal Code (Organic Law 10/1995), the administrative side in the Road Safety Act (Royal Legislative Decree 6/2015), and the limits and the way the tests are carried out in the General Traffic Regulations (Royal Decree 1428/2003). I explain where each line falls, what penalty is at stake, how the fast-track trial you will be offered works, and what happens afterwards with prison, the criminal record and the licence, which is the part hardly anyone covers.
Where the fine ends and the offence begins
Article 20 of the General Traffic Regulations sets the administrative limit. As a general rule, 0.5 grams of alcohol per litre of blood or 0.25 milligrams per litre of exhaled air. For drivers who have held their licence for less than two years and for professional drivers (vehicles over 3,500 kilos, passenger transport with more than nine seats, public service, school transport, dangerous goods, emergency and special transport) the limit drops to 0.3 in blood and 0.15 in air.
Exceeding that limit without reaching the criminal one is a very serious infringement under article 77 of the Road Safety Act. The penalty under article 80 is 500 euros, rising to 1,000 if the reading is more than double the permitted limit or if you were already fined for the same thing in the previous year. Added to that is the loss of points under Annex II, four points between 0.25 and 0.50 and six above 0.50 (for novice and professional drivers, four between 0.15 and 0.30 and six above 0.30), and the immobilisation of the vehicle until someone fit to drive can take it away.
The offence begins in article 379.2 of the Criminal Code, which has two forms. The first is the objective limit. Anyone driving with more than 0.60 milligrams per litre of exhaled air or more than 1.2 grams per litre of blood commits an offence “in all cases”, in the literal words of the provision, regardless of whether they were driving in a straight line or claim that alcohol does not affect them. The second is driving “under the influence” of alcoholic drinks. Here the reading may be below 0.60, even within the administrative band, but the prosecution has to prove that the alcohol genuinely affected the driving. That proof is built from the police report, from the symptoms sheet the officers fill in (smell, slurred speech, glassy eyes, unsteady gait, in the usual wording of those forms), from the manoeuvre that led to the stop, from the accident if there was one, and from witnesses.
In practice, a reading between 0.25 and 0.60 with no noticeable symptoms and no abnormal driving stays as an administrative fine. The same reading with a collision against a parked vehicle and a thoroughly completed symptoms sheet ends up in court. Above 0.60 there is no argument about which route applies, only about the evidence.
The penalties under article 379 and how they are chosen
Article 379.2 refers to the penalties in paragraph 1. There are three alternatives and the judge imposes only one. Imprisonment of three to six months, or a fine of six to twelve months, or community service of thirty-one to ninety days. In all three cases, in addition, a ban on driving motor vehicles and mopeds of one to four years. The ban always accompanies the main penalty, whichever one the judge chooses.
Which alternative is imposed depends on the reading, on whether there was an accident, on whether you have a record and on what the prosecutor requests. With a reading close to the threshold, no accident and no record, the usual request is a fine or community service. Prison is reserved for very high readings, repeat offenders or injury, and even then article 385 ter allows the judge to reduce it by one degree in view of the lesser seriousness of the risk. Community service requires your consent (article 49) and in these offences it is usually served in the road safety programmes run by the Prison Service.
Article 47 defines what the ban consists of. During the period set you may not drive any motor vehicle or moped, and if the penalty exceeds two years the licence loses its validity. I come back to that at the end, because it changes a great deal what you have to do to get your licence back.
Article 385 bis declares the vehicle an instrument of the offence for the purposes of confiscation. In a straightforward drink-driving case with no record it is an unusual measure, but it is in the law and the prosecutor can request it.
How much the fine is and what happens if you cannot pay it
The criminal fine has no fixed amount. Article 50 of the Criminal Code imposes it by days, with a daily rate of between 2 and 400 euros that the judge sets according to your financial situation, and each month is counted as thirty days. An eight-month fine is 240 daily units. At 6 euros a unit, 1,440 euros. At 10 euros, 2,400. That is why it pays to document income and family responsibilities in court, because the rate is decided on what is on file.
The same article 50 allows you to ask to pay in instalments over a period of up to two years. If it goes unpaid, article 53 converts the fine into subsidiary personal liability, one day of deprivation of liberty for every two unpaid units, which with your consent can be served through community service. An unpaid fine of 240 units is 120 days. It is the route by which a sentence that started out as financial ends up as one of liberty, and it is avoided by asking for instalments in time.
Refusing to blow costs more than testing positive
Article 14 of the Road Safety Act requires every driver to submit to alcohol tests, and article 21 of the General Traffic Regulations specifies who may be required to do so, which at a preventive checkpoint is anyone. Refusal has its own offence, article 383 of the Criminal Code, with imprisonment of six months to one year and a driving ban of one to four years. There is no alternative of a fine or community service. Prison only, and with a minimum that doubles that of drink driving.
Refusing does not prevent a conviction under article 379 either. If the officers describe symptoms and irregular driving, the charge of driving under the influence still stands, and the two convictions are added together. The courts treat as refusal both the express kind and the simulated kind, where the driver blows insufficiently time and again until the device fails to register. The case of someone who cannot blow for a documented medical reason is different, and there the right course is to accept the blood test that is offered.
What to do if you are stopped
Blow. It is the first thing and the thing that avoids most. Then, two rights that the Regulations themselves oblige the officers to inform you of. Article 23 requires a second test with a minimum interval of ten minutes after the first, an interval that you or a passenger can monitor, and grants you the right to check the result against a blood test. If the blood test confirms the positive, the cost is yours. If the reading is close to the criminal threshold, that blood test may be the only thing that keeps you on the administrative route, and it has to be requested there and then, not days later.
You are under no obligation to explain what you drank, how much or when. Everything you say goes into the police report. Signing the form with any observations you want recorded is legitimate, but they should be few and true. The vehicle stays immobilised until someone fit to drive collects it. Taking it again that night is the quickest way to turn a fine into something worse.
As a general rule you will not be arrested. In the fast-track procedure, article 796 of the Criminal Procedure Act allows the police to summon you directly before the duty court. Arrest can happen where there is an accident with injuries, a refusal or an altercation at the checkpoint, and then the rights under article 520 apply, among them the right to a lawyer from the very first moment.
From the checkpoint to a fast-track trial within days
Drink driving is the textbook example of a fast-track trial. Article 795 of the Criminal Procedure Act reserves it for offences carrying a prison sentence of no more than five years, where there is a police report and the driver has been summoned or arrested, and it expressly mentions road traffic offences. The police complete the steps under article 796 and summon you before the duty investigating court for the place where the events occurred, which is the competent one. A checkpoint on Avenida de Alfonso Molina is heard in the A Coruña courts, one on the AP-9 near Betanzos or Ordes is heard in the corresponding judicial district. There, in a single morning, the urgent steps are carried out, the prosecutor brings the charge and you are offered a plea agreement. If you do not accept it, a trial is scheduled before the criminal court within a short period.
The duty judge may also withdraw your licence provisionally while the case is processed. That time is not lost, because article 58 of the Criminal Code requires it to be credited against the ban imposed in the judgment.
If you do not bring a lawyer, one is appointed from the duty roster that same morning, and will see the police report minutes before you do. Everything decided in that procedure is decided on what is on the table at that moment. Arriving with the police report already studied is the difference between accepting what is offered and knowing whether it is worth accepting.
The plea agreement and the one-third reduction
Article 801 of the Criminal Procedure Act governs plea agreements before the duty court. If the offence does not exceed three years of imprisonment, no private prosecutor has joined the case and the penalty resulting from the reduction does not exceed two years of imprisonment, the judge hands down judgment on the spot imposing the penalty requested by the prosecutor reduced by one third. The reduction applies to all the penalties. A nine-month fine becomes six. An eighteen-month driving ban becomes twelve. A prison sentence of four months and fifteen days becomes three. And in that same act the judge rules on the suspension of the prison sentence if it has been requested.
The plea agreement closes the matter within hours and with a known penalty. In exchange, the judgment is final, it creates a criminal record and the driving ban starts running. It should not simply be accepted when the reading is close to 0.60 and the device’s margin of error could bring it below, when the charge is “under the influence” without a criminal-level reading and the police report is weak, or when the evidence lacks guarantees. Assessing that takes half an hour with the police report in hand, and it is what is done before walking into the courtroom.
When there is recklessness, an accident or a hit-and-run
If a speeding offence under article 379.1 (more than 60 kilometres per hour over the limit on an urban road or more than 80 on an interurban road) is added to the criminal-level reading, article 380.2 deems the driving manifestly reckless, and article 380 punishes it with imprisonment of six months to two years and a driving ban of one to six years. With no fine or community service as an alternative. Article 381, driving with manifest contempt for the lives of others, reaches five years of imprisonment and ten years of driving ban.
If there are also injured or dead, article 382 orders that only the most serious offence be applied in its upper half and that civil liability be imposed in every case. Since Organic Law 2/2019, articles 142 and 152 deem driving in any of the circumstances of article 379 to be gross negligence, so a death with a criminal-level reading is homicide by gross negligence, with imprisonment of one to four years and a ban of one to six, with no room to argue the degree of negligence. And article 382 bis punishes leaving the scene of an accident with deaths or serious injuries with imprisonment of six months to four years where the accident was caused negligently.
The insurer pays the victims, but article 10 of the Act on civil liability and insurance in motor vehicle traffic (Royal Legislative Decree 8/2004) allows it to recover from the driver who was under the influence of alcohol. What the company pays out it later claims from you.
What the defence can examine
A conviction under article 379 almost always rests on a device and a piece of paper. The device is the breathalyser, which must be type-approved and pass the periodic verifications under Order ITC/3707/2006, with a valid certificate that has to be on the case file. That same rule allows for a margin of error, and at a reading of 0.62 or 0.63 the margin decides whether there is an offence. The paper is the police report, with the time of each breath sample, the interval between them, the information on rights and the symptoms sheet. An interval of under ten minutes, an expired certificate or symptoms contradicted by the checkpoint’s own recording are the material one works with.
In the under-the-influence form without a criminal-level reading, the debate is a different one. The prosecution has to prove that the alcohol altered the driving, and a generic symptoms sheet set against incident-free driving is not always enough. To that are added the mitigating circumstances of article 21, in particular confession and repair of the damage where there was any, and the reduction under article 385 ter. How all of that is combined in a morning at the duty court, and whether it pays more to fight it or to settle it, is the decision we take with the client with the police report in front of us.
Prison, suspended sentence and criminal record
The most repeated question is whether you will go to prison. In a first drink-driving case without an accident, almost never, because the usual outcome is a fine or community service. And if prison is imposed, article 80 of the Criminal Code allows it to be suspended when it does not exceed two years, it is your first conviction (cancelled records and those for negligent or minor offences do not count) and civil liability has been paid. The suspension period is two to five years (article 81), during which you must not commit an offence and must comply with the conditions the judge sets under articles 83 and 84, which may include a road safety course, a fine or a number of days of community service. If you commit an offence during that period, article 86 allows the suspension to be revoked and the prison sentence served. Driving while banned is the most frequent way that happens.
The conviction, whether a fine, community service or suspended prison, creates a criminal record. Article 136 sets the periods for cancellation. Two years for penalties not exceeding twelve months, three for other less serious penalties under three years and five for less serious penalties of three years or more. The period runs from the day after the penalty is served, and in a drink-driving case the penalty that takes longest to serve is the driving ban. With a two-year ban, the record is cancelled three years after you get your licence back. With a three-year ban, five years after. Where prison is suspended, the count is backdated, once final remission is obtained, to the day the sentence would have been served without the benefit.
While the record is live, it appears on the criminal record certificate, counts as recidivism if you commit another offence under the same title (article 22.8) and strips you of first-offender status for a future suspension. And it is not cancelled on its own. It has to be applied for at the Central Register of Convicted Persons or you wait for it to be done ex officio.
The licence after conviction
The driving ban is communicated to the Directorate-General for Traffic and recorded in the Drivers Register. What happens when it ends depends on its length. If it was more than two years, article 47.3 of the Criminal Code provides that the licence loses its validity, and to drive again you have to obtain it anew, with the awareness and road re-education course and the corresponding tests. If it was two years or less, the Road Safety Act requires you to show you have completed the awareness and road re-education course before recovering the licence.
The criminal conviction does not deduct points by itself. The Road Safety Act suspends the administrative penalty proceedings when the facts go to the criminal courts, and if there is a conviction the file is closed without an administrative penalty, because the same fact is not punished twice. If there is an acquittal, the file is reopened and then the fine and the loss of points can indeed follow.
Driving while banned is a separate offence. Article 384 punishes anyone who drives after being deprived of their licence, provisionally or definitively, by judicial decision with imprisonment of three to six months, or a fine of twelve to twenty-four months, or community service of thirty-one to ninety days. It is an offence that admits no explanations, because being behind the wheel is enough. It also revokes the suspension of the earlier prison sentence if there was one, removes first-offender status and opens the door to confiscation of the vehicle. The same article 384 imposes the same penalties on anyone driving with a licence invalidated by loss of all points and on anyone who has never obtained one.
At the firm we handle road safety offences in the courts of A Coruña and its province, from the summons to the duty court through to recovery of the licence. If you have been tested with a positive result or already have a summons for a fast-track trial, you can consult our criminal law practice or contact us before the scheduled date.
Frequently asked questions
Will I go to prison for testing positive for alcohol?
In a first drink-driving case without an accident the usual outcome is a fine or community service. If prison is imposed, it is three to six months and article 80 of the Criminal Code allows it to be suspended when you have no record and have paid the civil liability, with a suspension period of two to five years. The driving ban of one to four years is not suspended and is always served.
If I accept the plea agreement at the fast-track trial, is my penalty reduced?
Yes. Article 801 of the Criminal Procedure Act reduces the penalty requested by the prosecutor by one third when you plead at the duty court, and the reduction covers the fine, community service, prison and the driving ban. In exchange the judgment is final on the spot. If the reading is close to 0.60 or the police report has defects, it may pay more not to plead.
How long will I have a criminal record for drink driving?
It depends on the longest penalty, which is usually the driving ban. Under article 136 of the Criminal Code, two years from when you serve it if the ban did not exceed twelve months, three years if it exceeded twelve months without reaching three years, and five if it was three years or more. Until then it appears on the criminal record certificate and counts as recidivism.
What happens if I drive while banned by a court judgment?
It is an offence under article 384 of the Criminal Code, punished with imprisonment of three to six months, a fine of twelve to twenty-four months or community service of thirty-one to ninety days. In addition, if you had an earlier prison sentence suspended, the judge can revoke the suspension, and the vehicle can be confiscated.