Criminal: Offenses against traffic safety

Alberto Fernández Boira

1 de October de 2024

As we all know, in Spain there are an infinite number of conducts typified as administrative offenses in order to protect road safety. One of the basic principles of Criminal Law is that of the last resort or minimum intervention, reserving for the Criminal Code those more serious conducts that put at risk the safety of traffic, that is to say, the collective of road users.

There are six major types of conduct that we will discuss below: Speeding and driving under the influence of alcohol or intoxicating drugs; reckless driving; refusal to submit to breathalyzer or drug tests; driving without a license or permit; creating traffic hazards; and reckless homicide or injury involving a motor vehicle.

1. Speeding and driving under the influence of alcoholic beverages or intoxicating drugs (Art. 379 PC)

Excessive Speed

The typical conduct is to drive at speeds higher than the established limit by 60 km/h on urban roads or 80 km/h on interurban roads. When someone is investigated for this crime, it is usually because he/she has been detected by a speedometer, which emits an element of evidence of a technical nature that is difficult to disprove, although not impossible. There are many precedents in which, due to the margin of error admitted in these meters, the lack of calibration or some other technical defect in the use of the radar has resulted in an acquittal. In any other case, the penalties for this crime include a prison sentence of three to six months /or/ with a fine of six to twelve months /or/ with community service of thirty-one to ninety days, and, in any case, with the deprivation of the right to drive motor vehicles and mopeds for a period of more than one and up to four years.

Alcohol and drugs

The typical conduct is driving under the influence of alcohol or toxic drugs that alter the driving capacity and, in any case, with an alcohol level higher than 0.60 mg/l in exhaled air. I want to emphasize that it is possible to be prosecuted for this crime even with a rate lower than 0.60 mg/l in exhaled air if, even being lower, there is an evident symptomatology that the driver’s capacities are affected by the ingestion of alcohol or intoxicants. Usually, the agents use reports in which they only have to mark a few blades in a catalog of symptoms. In the same way as with speed, since the incriminating elements are determined by measuring devices, it is difficult to attack these tests, except for the margins of error or because they do not have the proper calibration certificates. As for the symptomatology, it entails the difficulty of the presumption of veracity of the statements made by the police in the statement. However, if this symptomatology that the agents reflect, corresponds to a previous pathology, it can be distorted that it is due to the influence of toxic substances and the behavior would be atypical, although they are found in blood without exceeding the limits indicated above (for example, when the hesitant gait, typical symptom that is also already preredacted in the police records, is attributable to a limp, for example) The penalties are the same as those provided for the excess of speed (previous paragraph).

2. Reckless Driving (Art. 380 and 381 PC)

Reckless driving refers to behaviors that show disregard for road safety and the lives of other road users. However, not all reckless behavior is a crime, only the most serious ones, the rest of the behaviors being reserved for administrative sanction. For example, doing a “stoppie”, a “wheelie”, or a small skid in an area where there are no other road users and where there is no serious risk to road safety, would constitute an administrative infraction and not a criminal offense. Not so, for example, “street racing”, which obviously involves a high risk for other road users. That, ladies and gentlemen, is what the circuit is for.

In any case, it is specially foreseen in the article that the typical conduct occurs when the two previous ones concur (in the criminal sphere): speeding together with alcohol and/or drugs. In other words, in this case, we would be talking about three crimes.

It is punishable by six months to two years imprisonment and the withdrawal of the driving license for up to six years. If there is also manifest disregard for life, the aggravated subtype of Art. 381 CP would apply, with higher penalties.

3. Refusal to Submit to Breathalyzer or Drug Tests (Art. 383 CP)

Refusal to perform alcohol or drug tests, when requested by the competent authority, is criminalized in article 383 of the Penal Code. This crime is punishable by six months to one year of imprisonment and the withdrawal of the driving license. However, the refusal is punished and not the material impossibility, i.e., if the person requested cannot perform the test for medical reasons (because he/she suffers from a condition that prevents him/her from maintaining a constant breath and performing the test correctly), the conduct would be atypical. This, although it may seem an excuse, is more common than people think, excuses aside. For example, a person with a serious lung condition would reasonably not be able to do the test well, or for example, a person with acute otitis may suffer severe pain when performing the test.

It is important to know that, in such a situation, you have the right to ask for a blood test. That is to say, to contrast the result of the precision ethylometer used by the acting force with a blood test, for which the investigated person must be taken to a health center.

4. Driving Without a Permit or License (Art. 384 PC)

Driving without ever having obtained the license, or after the loss of the same, is another crime against traffic safety regulated in article 384 of the Penal Code, and is punishable with a prison sentence of three to six months /or/ with a fine of twelve to twenty-four months /or/ with community service of thirty-one to ninety days.

The most common question I usually receive. If I have an A2 license and I am “caught” driving a 100 hp motorcycle, am I committing a crime? The answer is no. You would be committing an administrative offense provided for in Article 77 k) of Royal Legislative Decree 6/2015, of October 30, approving the revised text of the Law on Traffic, Circulation of Motor Vehicles and Road Safety which punishes as a very serious offense (I insist, administrative) driving a vehicle lacking the corresponding driving license or permit, punishable by a fine of 500 euros, but it is NOT a crime, being reserved for those who use a vehicle without ever having obtained a driving license.

5. Creation of Dangers to Circulation (Art. 385 PC)

Article 385 of the Penal Code punishes the placing of obstacles on the road or the deterioration of signs that compromise traffic safety. These conducts, which may cause serious accidents, are punishable with imprisonment from six months to two years or fines.

6. Homicides and Reckless Injuries due to Traffic Accidents (Arts. 142 and 152 PC)

When a driver, through gross recklessness, causes death or injury to others in a traffic accident, he faces prison sentences ranging from one to four years in the case of reckless homicide, and up to three years in the case of serious injury.

Speedy Trial

In many occasions, this type of crimes are processed by Urgent Proceedings – Speedy Trial. In these cases, the defendant, if he/she accepts a sentence of conformity in the Duty Court, may benefit from a reduction of one third of the sentence.

By this I mean that, unless there is a possibility to present a reasonable defense or there are good reasons not to accept an immediate sentence at that moment (for example, a suspended prison sentence), it may be advisable to acknowledge the facts and benefit from the effects of the conformity, i.e. the reduction by one third of the sentence (prison time, fine and time deprivation of driving license) requested by the Public Prosecutor’s Office.

Exclusionary clauses in insurance policies

Finally, I would like to comment on the incidence that these conducts can have when, unfortunately, a traffic accident occurs in the derived civil liability, where Insurance and Reinsurance Companies are already involved. It is common for many compulsory civil liability insurance policies for vehicles to include exclusion clauses (usually for drugs and alcohol). This means that if we are involved in an accident in which we are at fault and any of the circumstances foreseen in the exclusion clause occur, although the insurance company will pay for the damages to third parties, it can later claim the amount from the causer via repetition or subrogation action, in the case of third party insurance.

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