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LEGAL NATURE
This is what is legally called a crime of abstract danger, that is to say, it does not require the concrete endangerment of any property or person. In this case, what is called an "advance of the protection barrier" is produced in order to avoid greater evils such as injuries or even death that could be caused.
Its basis is that the consumption of alcohol or drugs produces a decrease in the psychophysical capabilities of the person who has taken them, so that their perception of the environment and the ability to react to traffic contingencies are altered, which presupposes a danger at the controls of a vehicle (since the driving of a motor vehicle in this state can cause very serious damage to other road users - vehicles and pedestrians).
CRIME OR ADMINISTRATIVE INFRACTION?
Alcoholic driving is regulated both as an administrative offence (Chapter IV of the Road Safety Law - LSV) and as a crime(Article 379.2 of the Penal Code). This means that not in all cases in which the blood alcohol level is positive we will be facing a crime; Anyone with a BAC of more than 0.6 milligrams of alcohol per liter of blood will be criminally liable, while administratively a minimum rate of 0.25 is established (which is reduced to 0.15 milligrams/liter in the case of vehicles used to transport passengers with more than nine seats, or public service, school and minors, dangerous goods, emergency services or special transports, or when the driver's license is not valid for two years).
This means that if the breathalyzer reads between 0.25 and 0.60, if there are no obvious symptoms that influence driving, it will be an administrative infraction and we will face a fine as well as a loss of up to 6 points.
However, if the rate is higher than 0.60 or if, being lower, the police investigation shows an evident influence in the handling of the vehicle that entails a danger to road users (by zigzagging driving, braking or speed changes without reason...), we will be facing a crime.
The penalty to be imposed for this offense shall be one of the following:
- imprisonment of 3 to 6 months, or
- a fine of 6 to 12 months, or
- work for the benefit of the community from 31 to 90 days.
In addition, and in ALL CASES, the deprivation of the right to drive motor vehicles and mopeds for a period of more than one year and up to four years.
Driving under the influence of drugs; if the drug impregnation test in the saliva is positive, no matter the drug or the quantity, it will mean that IN ANY CASE we are committing an administrative offence, which will become a crime if the influence on driving is evident, according to what has been said above.
In any of the cases, and if we do not agree with the results, we have the right to request the contrast by means of a blood, urine or analogous analysis (art. 22 LSV).
WHAT IS THE CRIMINAL PROCEDURE?
When it is deemed necessary, by the authority agents in charge of traffic surveillance (the Local Police or the Civil Guard, since the national police do not have breathalyzers to perform these tests), a person may be ordered to undergo an alcohol impregnation test using a breathalyzer. In the case of a positive result (as indicated above), another test will be performed, always taking care that between the first and the second test there is a minimum time of 10 minutes. Likewise, the person shall be informed of the right to make as many allegations or observations as he/she deems pertinent, which shall be included in the report.
After verifying the positive result, the corresponding report will be issued and the perpetrator will be released without the need to be assisted by a lawyer at that moment, and the report will be sent to the duty court, before which we will be summoned (in the shortest possible time) to take a statement, although if it is a serious accident, the rate of alcohol is very high or we are facing a person who is a repeat offender, he could even be arrested and admitted to the police station and taken to court within a maximum period of 72 hours.
In most cases the proceedings will be processed as Urgent (which means a quick trial), so we can admit the facts in the same court of instruction and thus we will get a reduction of the penalty of one third of it. For example: if we are asked for 12 months of fine and 1 year of driving license deprivation, the resulting penalty would be 8 months of fine and 8 months of prohibition to drive motor vehicles.
If there is no agreement, the prosecutor will send the indictment to the court and a speedy trial will be convened before the criminal court, where the oral trial will be held with the practice of the corresponding evidence.
Soler Martín Abogados · Criminal lawyers in Alicante since 1996
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