Can I refuse to have a DNA sample taken?
May 30, 2024
I have committed a crime, can I be remanded in custody?
June 3, 2024
In a previous post we talked about the crime of driving under the influence of toxic drugs or alcohol.We already said there that one of the main tests to determine the alcoholic impregnation was the rate of alcohol per exhaled air, and this is obtained by blowing (at the request of law enforcement officers) in an approved ethylometer.
Article 21 of the Traffic and Road Safety Law states that:
"All drivers of vehicles and bicycles are obliged to undergo the tests established for the detection of possible alcohol intoxication. Likewise, other road users are also obliged when they are involved in a traffic accident."
The agents of the authority in charge of traffic surveillance may submit to such tests:
- a) To any road user or vehicle driver directly involved as a possible responsible party in a traffic accident.
- b) To those who drive any vehicle with evident symptoms, manifestations that denote or facts that reasonably allow to presume that they are driving under the influence of alcoholic beverages.
- c) To drivers who are denounced for committing any of the infractions to the rules contained in these regulations.
- d) To those who, on the occasion of driving a vehicle, are required to that effect by the authority or its agents within the programs of preventive alcohol controls ordered by said authority".
The general rule is, therefore, that it is mandatory to undergo a breathalyzer test. But what happens if, once required to submit to this test, we refuse to do so?
LEGAL NATURE
Until the reform carried out by LO 15/2007, article 380 of the Penal Code referred to the penalty foreseen for serious disobedience, so that, in spite of being in the chapter dedicated to crimes against road safety, it seemed that it was a type of disobedience, since the same penalty was imposed. But after the LO 15/2007, this conduct is regulated by assigning it an autonomous and different penalty (since it provides for a prison sentence (without the alternative of a fine) and, accumulated to this, a penalty of deprivation of driving license), which makes us think that we find ourselves in an autonomous crime against traffic safety.
OFFENSE AND PENALTY TO BE IMPOSED
Article 383 of the Penal Code currently in force states that the driver of a vehicle (the only possible active subject of this crime) who refuses to submit to tests for the verification of blood alcohol levels or drug or narcotic impregnation shall be punished with imprisonment from six months to one year and deprivation of the right to drive motor vehicles and mopeds from one to four years.
It should be clarified that in order to be convicted of this crime it is necessary that after the refusal to submit to the test, the driver is warned by the acting agent that he could be committing a crime of disobedience and that even so, the requested person continues to refuse to submit to the test (either the first or the second exhalation, which must be carried out 10 minutes after the first one).
But that is not all, since in addition to this penalty, and if it can be demonstrated that the driver was driving under the influence of alcohol or drugs (through other evidence such as the appreciation of the agents of driving - zigzagging driving, sudden changes in speed...) or the state of the driver - what is called "external signs" such as hesitant wandering, slurred speech, smell of alcohol... - we can be convicted of a crime of Driving Under the Influence of Alcohol or Drugs.- or the state of the driver - what is called "external signs" such as hesitant walking, slurred speech, smell of alcohol... - we can be convicted of a crime of Driving Under the Influence of Alcoholic Beverages or narcotic substances (CIBA), to the penalty provided for it and to which we refer in our previous post. However, there are some judgments that consider that we would be facing a single crime, since it is the same protected legal right (traffic safety).
In this case, and for the crime of disobedience, the mitigating circumstance of alcohol intoxication would most likely be applicable, since it is understood that drunkenness could have influenced the refusal to submit to the test.
WHAT IS THE CRIMINAL PROCEDURE FOR REFUSING TO SUBMIT TO ALCOHOL OR DRUG TESTS?
In most cases, this crime is usually processed as an Urgent Proceedings, so that after the complaint made by the agents and the summons to testify before the competent Court of Instruction, the accused may recognize the facts and thus benefit from a substantial reduction of penalty (up to a quarter of the same). Otherwise, the prosecutor would file an indictment (we have already said that he could even charge both for the crime of refusal and for a crime of alcoholic driving if he understands that there is sufficient evidence to do so) and the proceedings would be sent to the Criminal Court where the oral trial would be held and where the corresponding exonerating evidence would have to be taken.
Our recommendation is to submit to a breathalyzer test if we have been requested to do so and if it shows a positive result, go to a trusted lawyer who can advise us on the rest of the procedures to follow regarding the crime of Driving under the Influence of Alcoholic Beverages.
