• By Daniel SOT
• 03-08-2017

Consequences of not undergoing alcohol tests in Spain: The crime of disobedience

When drivers of vehicles, bicycles and other users of the road are involved in some traffic accident, or in random alcohol tests, they are required to undergo tests of alcoholic impregnation.

This obligation, based on the will to investigate the degree of alcoholism of both drivers and users, is regulated in art. 21 General Regulation of Circulation, and the refusal to carry out such tests may involve the commission of a crime.

Article 383 of the Spanish Penal Code is responsible for typifying the refusal to perform such test before the request of an agent of the authority. The article establishes that:

“The driver, who is required by an official of the authority, refuses to submit to legally established tests to check blood alcohol levels and the presence of toxic drugs, narcotic drugs and psychotropic substances (…), shall be punished by imprisonment from six months to one year and deprivation of the right to drive motor vehicles and mopeds for more than one and up to four years”.

As you can see, this refusal is conceived as an offense against road safety punishable by a penalty of imprisonment and deprivation of the right to drive, without prejudice to the fact that if there is no criminal record, the prison sentence may be suspended and not imprisoned.

In order to be considered a crime of disobedience for refusing to undergo alcohol or toxic drugs tests, the following circumstances must be met:

· There must be an express, clear and direct Requirement of the agent of authority.

· The Denial by the user must be express and direct.

· There must be a prior Warning that the refusal to submit to the test may have the criminal consequences mentioned.

· Persistence in the refusal of the defendant.

Likewise, sometimes the agents of authority require a second test (if the result of the first one exceeds the statutory rate or the person examined shows obvious symptoms of being under the influence of alcoholic beverages or narcotic substances), according to the same precept "for a greater guarantee and to effect of contrast". The doctrine is clear when considering that the driver who refuses to perform this second test can not be exempt from criminal responsibility for the mere fact of having undergone the first, given that the precision of the ethylometers with which it is practiced is less questionable. This has been affirmed by the State Attorney General's Office in Circular 10/2011 on unification of criteria. In this sense, to add that the defendant has the right to contrast the results obtained in the tests through blood tests, although this right only assists you having previously performed the tests for which it was required.

Finally you should keep in mind that if you are required by the agents of the authority, and even under the warning of the criminal consequences of your refusal you decide directly and undoubtedly not to perform such tests, they can immobilize your vehicle and even detain you to transfer you to police units.