Drink-Driving and Road Traffic Offenses in Marbella

The breathalyzer's margin of error and the rounding technique

Order ICT/155/2020 (the Spanish ministerial order regulating State metrological oversight of breathalyzers) sets a margin of error of 7.5% for breath-alcohol concentrations above 0.40 mg/l. The Supreme Court has confirmed, in a recent ruling of clear practical significance, how this margin must be applied:

"...el valor de 0,65 mg/l, al aplicarle el margen de corrección, se reduce a 0,60142 mg/l... este resultado debe expresarse con dos decimales y redondearse siempre hacia abajo, resultando en 0,60 mg/l."

(The court held that the 0.65 mg/l reading, once the correction margin is applied, is reduced to 0.60142 mg/l, which must be expressed to two decimal places and always rounded down, resulting in 0.60 mg/l.) Because it fails to reach the 0.60 mg/l criminal threshold once the margin of error and the rounding-down rule are applied in the defendant's favor, a reading that appeared to exceed the criminal limit may, once correctly calculated, fall outside the scope of the offense. This arithmetic operation — deducting 7.5% from the obtained measurement and rounding the result to two decimal places, always downward — is one of our most effective defense tools, and we verify its correct application in every police report that reaches our firm, regardless of whether the Public Prosecutor's Office itself already took it into account when formulating the charge.

The double measurement as a safeguard: refusing the second test

The regulatory protocol requires two measurements to be taken with an approved precision breathalyzer, separated by a minimum interval of ten minutes — a safeguard both for the person under investigation, who can thus verify the initial result, and for the system itself, designed to avoid interference such as alcohol residue in the mouth. The Full Bench of the Second (Criminal) Chamber of the Supreme Court resolved a long-debated question:

"...dos mediciones de alcohol deben considerarse dos fases de una única prueba, y la segunda medición es obligatoria y no potestativa."

(The court held that the two alcohol measurements must be regarded as two phases of a single test, and that the second measurement is mandatory, not optional.) As a result, refusal to submit to the second measurement constitutes, on its own, the offense under Article 383 of the Criminal Code, even when the person under investigation had already voluntarily submitted to the first. The Supreme Court itself has acknowledged, however, in the dissenting opinion to this ruling, that refusing both tests is more serious than refusing only the second, a nuance we bring to bear on sentencing individualization when the client did cooperate with the first measurement.

The rate bands: the line between administrative and criminal liability

Spanish law distinguishes three levels of breath-alcohol reading with very different legal consequences: below 0.25 mg/l in exhaled air there is no infringement at all; between 0.25 and 0.60 mg/l — 0.15 mg/l for professional or novice drivers — the conduct amounts to a purely administrative infringement, punishable by the Dirección General de Tráfico (Spain's General Directorate of Traffic, the national road-traffic authority); and from 0.60 mg/l upward the criminal route under Article 379.2 of the Criminal Code opens, either objectively, by exceeding that threshold, or by proving actual impairment of driving ability at lower readings. A recent instruction issued by the Fiscalía de Sala Coordinadora de Seguridad Vial (the Public Prosecutor's Office's coordinating unit for road-safety cases) has further clarified that, after deducting the metrological margin of error, criminal proceedings should only be opened when both regulatory measurements exceed 0.65 mg/l — a practical reference figure worth bearing in mind when assessing the viability of a technical defense based on the margin of error.

The two conducts under Article 384 of the Criminal Code: a distinction with consequences

Article 384 of the Criminal Code actually punishes two conducts of a different nature under a single provision: driving a motor vehicle without ever having obtained the corresponding driving permit or licence, and driving after that permit has lapsed due to the total loss of legally assigned points. Although they carry the same penalty — imprisonment of three to six months or a fine of twelve to twenty-four months, plus community service — the culpability and the evidence required differ substantially: in the first case it is enough to prove the total absence of administrative authorization to drive; in the second, it is necessary to prove that the person under investigation knew that their permit had lapsed due to the total loss of points, a fact that requires reliable notification of that circumstance and that, when such notification is defective or non-existent, constitutes one of our most effective defense lines against this second scenario.

Ways to keep your driving licence

When acquittal is not a reasonably viable path, we actively pursue the alternatives that reduce the impact of the driving disqualification, mandatory under Article 379 of the Criminal Code for a period of between one and four years: a guilty-plea agreement (conformidad) in the fast-track trial (juicio rápido), which allows for a one-third reduction of the sentence under Article 801 of the LECrim (Spain's Criminal Procedure Act); substitution of a short prison sentence with community service; and, where permitted, taking into account the client's personal and professional circumstances that may influence sentencing individualization within the legal framework. The Supreme Court has further clarified, in a recent ruling, that the driving disqualification penalty must be served continuously and without interruption, with no possibility of splitting it into separate periods — a point worth knowing when planning the most suitable procedural strategy for each client.