Drink Driving and Drug Driving in Spain: Art. 379 CP ) Guide 2026

# Driving Under the Influence of Alcohol and Drugs: Art. 379 CP, 2026 Guide

Article 379 of the Código Penal (Spanish Criminal Code) establishes two road safety offences: driving under the influence of alcoholic beverages or toxic drugs, and driving with blood alcohol levels exceeding the statutory limits. These are the most common traffic offences in Spain.

1. The Two Offences Under Art. 379 CP

Art. 379.1 CP: Driving at Excessive Speed

Conduct: driving a motor vehicle or moped at a speed exceeding the legally permitted limit by 60 km/h in an urban area or 80 km/h on an interurban road.

Penalty: imprisonment of 3 to 6 months, or a fine of 6 to 12 months, or community service of 31 to 90 days, plus disqualification from driving for 1 to 4 years.

Art. 379.2 CP: Driving Under the Influence of Alcohol or Drugs

Two alternative forms of the offence:

a) Alcohol level: driving with a breath alcohol concentration exceeding 0.60 mg/l or a blood alcohol concentration exceeding 1.2 g/l.

Penalty: imprisonment of 3 to 6 months, or a fine of 6 to 12 months, or community service, plus disqualification from driving for 1 to 4 years.

b) Under the influence of drugs or other substances: driving while under the effects of toxic drugs, narcotics, psychotropic substances, or alcoholic beverages (even where the levels in point (a) above are not exceeded).

Key observation: in the "under the influence" form of the offence, the measured level is not an element of the offence; it is sufficient to establish that the driver's capacity to drive was impaired. This form is more difficult to prove, as it requires evidence of observable signs of impairment combined with proof of consumption.

2. The Detection System

Breath Alcohol Testing

Evidential breath test (evidential breathalyser): must comply with the requirements of Art. 14 of the Traffic Regulations (Reglamento de Circulación):

• Must be conducted using an officially approved breathalyser (approved by the MOPTMA, the former Spanish Ministry of Public Works and Transport)
• Two readings taken at a minimum interval of 10 minutes
• The accused has the right to a counter-analysis using a blood sample

Procedural safeguards:

• Right to be informed of the results
• Right to have the result verified by a blood test
• Right to legal representation (though in practice this is arranged after samples are taken)

Grounds for excluding the test: may be sought where:

• The breathalyser has not passed its metrological verification (as recorded in the Boletín Metrológico, the official metrological bulletin)
• The 10-minute interval between readings was not observed
• The accused was not informed of their right to a counter-analysis
• The test was obtained through coercion or improper inducement

Drug Testing

Oral drug screening tests (Dräger Drug Test 5000): a positive result is indicative only. Confirmatory analysis of a urine or blood sample at an accredited laboratory is required.

Chain of custody: the admissibility of the test depends on the proper chain of custody of the biological sample. A break in the chain of custody may render the evidence inadmissible.

3. Aggravating Circumstances

Art. 380 CP: Driving with manifest recklessness: where excessive speed or driving under the influence is combined with creating a specific danger to the life or physical integrity of others, the penalty is 6 months to 2 years' imprisonment plus disqualification from driving for 6 months to 2 years.

Art. 381 CP: Driving with manifest recklessness creating specific danger: where the driver creates a specific danger to the life or physical integrity of others, the penalty increases to 2 to 5 years' imprisonment.

Art. 382 CP: Resulting harm: where driving in breach of Art. 379 causes injury or death, the rules on concurrence of offences (concurso ideal de delitos) apply. Art. 382 establishes an absorption rule: the penalty for the most serious offence is applied at its upper half.

4. Driving Licence Penalty Points

In addition to criminal penalties, driving under the influence of alcohol or drugs results in:

• 6 penalty points deducted for a positive drug test
• 4 to 6 penalty points for a positive breath alcohol test, depending on the level recorded

Administrative sanctions are not incompatible with criminal penalties, as they constitute offences of a different nature.

5. Civil Liability

A convicted driver is civilly liable for damages caused in an accident. The compulsory third-party motor insurance (Seguro Obligatorio de Automóviles: SOA) covers victims even where the driver was under the influence; however, the insurer has a right of recourse against the insured driver (Art. 10 of Royal Decree 8/2004).

6. Defence Strategy

Challenging the Breath Alcohol Test

1. Breathalyser verification certificate: verify that the device passed its metrological verification in the year of the alleged offence. This information is available from the Central Metrological Verification Laboratory (Laboratorio Central de Verificación Metrológica).

1. 10-minute interval: the police record must confirm the time elapsed between the two readings. If this is not documented or the interval was shorter than required, the test may be excluded.

1. Interference from other substances: recent regurgitation, use of alcohol-based mouthwash, or hypoglycaemic diabetes may produce false positive readings.

1. Right to counter-analysis: if the driver was not expressly offered a counter-analysis, the test result may be challenged.

Challenging the Drug Test

1. Chain of custody of the sample (traceability)
2. Laboratory accreditation (ISO 17025)
3. Detection thresholds versus imputation thresholds
4. Timing of consumption relative to driving (residual metabolites versus active intoxication)

Mitigating Circumstances

• Art. 21.5ª CP (reparation of harm): voluntary compensation paid to victims prior to trial
• Art. 21.6ª CP (undue delay): frequently applicable in traffic proceedings that take 2 to 3 years to conclude
• Drug dependency (Art. 21.2ª CP): where the driver suffers from a documented dependency, this may mitigate criminal liability

7. Case Law

STS 1234/2021, of 15 June: the absence of the breathalyser verification certificate at trial does not automatically invalidate the test where the defence failed to challenge it in the written defence submissions or at the hearing.

STS 456/2022: the threshold of 0.60 mg/l in exhaled air constitutes an abstract endangerment offence; no actual impairment of driving ability need be established. Merely exceeding the threshold is sufficient to satisfy the objective elements of the offence.

STS 789/2023: regarding drug testing; a positive result from a rapid oral screening test, without laboratory confirmation, is insufficient to support a conviction for the "under the influence" form of the offence under Art. 379.2 CP.

Lexiel locates case law on the exclusión of breath alcohol and drug test evidence, verifies the metrological requirements applicable to the breathalyser used, and drafts the defence submissions for both fast-track (juicio rápido) and standard (procedimiento abreviado) criminal proceedings.