What a drink-driving offence actually is
Driving with a high alcohol reading is not a traffic ticket: it is a crime, and the Spanish Criminal Code sets it out in two separate articles worth telling apart. Article 379.2 carries three to six months in prison, or a fine and community work, plus a driving ban of one to four years for anyone who drives above 0.60 milligrams per litre of breath or 1.2 grams per litre of blood, or under the influence of alcohol regardless of what the breathalyser shows.
Below that reading, between 0.25 and 0.60 mg/l, driving is only an administrative offence, a fine and points lost, with a lower threshold of 0.15 mg/l for new and professional drivers. The exception is what gets argued most in court: if there are clear signs of being «under the influence» of alcohol, it is a crime even when the reading falls short of the criminal threshold.
Article 383 punishes, with an equal or heavier penalty, refusal to take the legally required tests. And article 384 punishes driving after losing the licence through a total loss of points or an earlier court-ordered ban: if there was already a previous conviction, the next offence can stack on top of it.
What surprises almost everyonerefusing the breath test does not help at all. It is a separate crime with a minimum of six months in prison, higher than the three months under article 379.2.
The clock: what happens, and when
These are the five real stages of the procedure. The first one, what gets written down at the roadside, carries more weight later than most people realise at the time.
The decision: what is at stake at the roadside, not just in court
Almost everything that decides a drink-driving case happens before you ever reach court: on the road, in front of the breathalyser. If the device did not have a current calibration certificate, if a second test or the requested blood sample was never offered, or if the report fails to record the exact time of each test, there is real technical defence available, not just a plea for leniency.
And there is one decision made with almost no time to think it through: whether to ask for the second test. Repeating it can confirm the first reading or, if the alcohol is still being absorbed into the blood, produce a higher figure than the first. There is no single right answer: it depends on how long ago the drinking stopped and how close the first reading already was to the criminal threshold.
When there is real technical defence
- The breathalyser did not have a current calibration certificate from the competent body.
- A second test or a requested blood sample was never expressly offered.
- There is a meaningful gap between the first and second readings.
- The report does not record the exact time of driving and of each test.
When a plea is the sensible option
- Both readings agree and clearly exceed the criminal threshold.
- There is no procedural defect in the report or in the caution given.
- There is already a record for the same type of offence, so suspension is not on the table anyway.
- The cost of waiting months for a hearing outweighs what could be argued at it.
What we do, and when
This is the actual work, not a statement of intent:
Before the summons. We obtain the full police report and the breathalyser's calibration certificate. Without that document there is no way to know if the device was in order.
Attendance at the police station. If the person is still in custody, we attend immediately, and it shapes what is said, or not said, from that point on.
Technical review of both readings. We compare the first and second tests, check the ten-minute gap between them, and whether the traffic regulations were followed.
The calculation, in writing. How many months of driving ban, whether prison can be substituted with a fine or community work, and when the record can be expunged. You decide on that basis, not us.
If there is no plea. We prepare an expert report challenging the breathalyser reading and dispute whatever in the police report does not hold up.
On outcomesno lawyer can tell you in advance what a court will decide, and anyone who does is selling you something. What we can give you before you walk in is the full map of scenarios and what depends on you in each one.
Fees and how to start
A first criminal-law consultation costs €150, VAT included, and covers a review of the documents and an explanation of where the case stands. There is no file-opening charge and no fee for calling to ask the price. The detail is on our consultations and fees page. If you want to check first whether your specific reading is a fine or a crime, you can work it out beforehand with the blood alcohol calculator.
If the hearing is tomorrow or someone is in custody, call the urgent line: +34 638 88 64 33, with telephone assistance 24 hours a day for criminal emergencies. Any intervention is subject to availability, conflict-of-interest checks and acceptance of the instruction.
Where we see youRambla Just Oliveras, 64, mezzanine 1, 08901 L'Hospitalet de Llobregat. 32 metres from the L1 metro and 117 from the Renfe station. In person Monday to Thursday 9 am to 6 pm and Friday 9 am to 2 pm.
Frequently asked questions
What reading turns drink-driving into a crime rather than a fine?
Article 379.2 of the Criminal Code applies above 0.60 milligrams per litre of breath or 1.2 grams per litre of blood. Below that it is normally an administrative fine, unless there are clear signs of driving under the influence of alcohol, in which case it is a crime regardless of the reading.
Can I refuse the breath test?
You can refuse, but it does not help: article 383 of the Criminal Code punishes refusal with a penalty equal to or higher than testing positive, with a minimum of six months in prison against three months under article 379.2.
How long is the driving ban for a criminal drink-driving offence?
The ban runs from one to four years. It is imposed in every conviction and is not suspended together with the prison sentence, even when that sentence itself is suspended.
Can I ask for a second test or a blood sample?
Yes, it is a right under the Spanish traffic regulations: repeating the test after ten minutes with a different device, or requesting a blood analysis. Both results must appear in the police report, and a discrepancy between them is a common line of defence.
Read on
Have you been summoned for a drink-driving offence?
The sooner we see the police report and the breathalyser certificate, the more options are still on the table. The fee is published on our fees page.