“Of the crimes against the road safety”, is the title of the Chapter IV, of the Title XVII, of the Book II, of the Spanish Penal Code (CP). It is a chapter formed by ten articles, and which in the practice is very important, for it protects the legal good road safety, when hundreds of persons die every year in the Spanish roads and probable thousands of them are punished administrative or penally.
Let us study in detail the content of each article.
– Article 379:
Let us start with the article 379, known as a crime against the road safety. First we are going to read it, and subsequently we are going to analyze its content.
“Article 379:
1. Whoever drives a motor vehicle or a moped exceeding in sixty kilometers per hour in an urban road or in eighty kilometers per hour in an intercity road the speed legally allowed, shall be punished with the punishment of imprisonment from three to six months or with fine from six to twelve months or with community service from thirty-one to ninety days, and, in any case, with the privation of the right to drive motor vehicles or mopeds for more than one year and up to four years.
2. With the same punishment shall be punished whoever drives a motor vehicle or moped under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic drinks. In any case shall be punished with such punishments whoever drives with a breath alcohol concentration greater than 0,60 milligrams per liter or with a blood alcohol concentration greater than 1.2 milligrams per liter.”
Art. 379.1:
We see how the article 379 is divided into two points, each punishing a different behavior but with the same punishments.
Firstly, before beginning with the most important, we have to specify that the crime established in the first point of the article 379 is a special own crime, since it can only be committed by the person who drives a motor vehicle or a moped.
In the first point, the typical behavior consists in driving a motor vehicle or a moped exceeding the in sixty kilometers per hour in an urban road or in eighty kilometers per hour in an intercity road the speed legally allowed.
According to the Dictionary of the Spanish Royal Academy of the Language (DRAE), “to drive” according to its fifth meaning is: “to guide an automobile”. A definition which is more limited than the one of the CP, since it includes in the same package automobiles and mopeds. But, what is an automobile?, and a moped? According to the Annex II, Definitions and Categories of Vehicles, of the Royal Decree 2822/1998, of 23 December, by which is approved the General Regulation of Vehicles, a motor vehicle is: “Vehicle provided of an engine for its propulsion. From this definition are excluded the mopeds, the streetcars, the vehicles for persons with reduced mobility, pedal bicycles with assisted pedaling and the vehicles of personal mobility.” On the other hand, the definition of moped is more complicated, according to the same Royal Decree, mopeds are “the vehicles defined as follows”: 1) Moped of two wheels: Vehicle of two wheels, provided with an engine with a cubic capacity no greater than 50 cm3, if this is of internal combustion, and with a maximum speed by construction no greater than 45 km/h; 2) Moped of three wheels: Vehicle of three wheels, provided with an engine no greater than 50 cm3, if this is of internal combustion, and a maximum speed by construction no greater than 45 km/h; From now onwards we have to attend to the Regulation (EU) Nº 168/2013 of the European Parliament and Council, of 15 January 2013, in order to obtain the rest of the definitions:
A light quad is:
(4) four wheels and propelled by a propulsion according is enumerated in the article 4, point 3, and
(5) maximum speed of the vehicle by construction ≤ 45 km/h and
(6) curb weight ≤ 425 kg, and
(7) cubic capacity ≤ 50 cm3 if an engine which is started by spark is part of the configuration of the propulsion of the vehicle or cubic capacity ≤ 500 cm3 if an engine of starting by compression is part of the configuration of the propulsion of the vehicle and
(8) equipped with a maximum of two seated places, including the driver´s seated place.
A heavy quad is:
(4) four wheels and propelled by a propulsion according is enumerated in the article 4, point 3, and
(5) curb weight:
(a) ≤ 450 kg in the case of transport of passengers;
(b) ≤ 600 kg in the case of transport of goods, and
(6) vehicles L7e which cannot be classified as vehicles L6e
And lastly, a cycle of motor is:
(9) cycles designed for functioning with pedals which have an auxiliary propulsion whose main object is to help the pedaling and
(10) the power of the auxiliary propulsion is interrupted at a speed of the vehicle ≤ 25 km/h and
(11) maximum continuous net power (1) ≤ 1 000 W and
(12) the cycles of motor of three or four wheels which fulfil the specific criterions of subclassification additional 9 and 11 are classified as technically equivalent to the vehicles L1e-A of two wheels.
Then, we have now the following definitions: to drive, motor vehicle and moped. The next objective element of the crimes is that, the allowed speed must be exceeded in sixty kilometers per hour in urban roads or in eighty kilometers per hour in intercity roads. This element is an objective element which proven makes the crime be automatically consummated, for the legislator has understood that, exceeding that limit is when the legal good protected by the norm, the road safety as intermediate legal good which guarantees others more basic, the life and physical integrity of the persons, is endangered. Therefore, this crime has been shaped as a crime of abstract danger, which requires that the unlawful behavior must be adequate to generate the risk forbidden by the norm, but without being necessary the materialization of this risk, for example, when a pedestrian is almost run over by a car. To put it differently, it is enough with having a behavior which is able to generate the risk forbidden by the norm, it is enough, with a speed which impedes the driver to control the vehicle in the case of an unforeseen event with pedestrians or other vehicles. We have to emphasize that, the excess of speed which generates this risk has been established by the legislator, automatically once we exceed this limit the legal good protected by the norm in endangered.
On the other hand, regarding the subjective elements of the crime, this is a malicious crime, which cannot be committed by imprudence since this scenario is not expressly stated by the own precept (art. 12 CP). There is direct malice, when the active subject knows the objective elements of the crime and in spite of this, he executes them, this applied to this concrete article means that, the author of the facts knows that exceeding certain speed he is committing a crime, but without being necessary that he knows in detail every objective element of the crime, the doctrine has understood that it is enough with knowing in general terms that you are committing a crime, something which is going to happen with a crime like this, with a great presence in the media and to which the society gives such importance. Thus, forget it, defense lawyers, you cannot allege an error of objective element. Leaving behind the direct malice, we cannot reject its commission by eventual malice. There exists eventual malice, when the active subject knows that his behavior probably is going to produce the result forbidden by the norm, for example, a driver who has a heavy foot pressing the accelerator too much, and meanwhile he does not look to the speedometer, he knows that with his carefree behavior he is endangering the legal good protected by the norm, but he continues without giving importance to the consequences which may derive from his acts.
Art. 379.2:
Like we said before, the article 379 punishes two kinds of behavior as a crime against the road safety, we have seen one, let us now study the other.
The first thing that this article tells us is that, the punishment with which is punished the behavior described by it, it is going to be the same than the established in the preceding point. And another important thing that, it does not say, but which I tell you is that, it is a special own crime, since it can only be committed by the driver of a motor vehicle or moped.
Reaching to the important, the forbidden behavior of this second point is to drive “a motor vehicle or moped under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic drinks.” We can make use of what we have already seen in the first point, we already know what is the scope of the verb “to drive”, we know that this applies to motor vehicles and mopeds, and we also know what is a motor vehicle or a moped according to the Royal Decree 2822/1988, of 23 December. But there is also an important change, the driving of a motor vehicle or moped has to be made under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic drinks. Someone is driving under the influence of some of these substances, when his behavior is being conditioned by them, does it mean that when very little amounts of a drug are found in the organism of a driver the behavior is licit? I would say so, whenever it is not possible to prove that the presence of this drug in his organism was influencing the way in which he was driving, in these cases it is going to be a very grave administrative infringement of the art. 77 of the Royal Legislative Decree 6/2015, of 30 October, by which is approved the consolidated text of the Law on Traffic, Motor Vehicle Circulation, and Road Safety (Royal Legislative Decree 6/2015, of 30 October).
The question that I am asking to myself now is, what is a toxic drug, a narcotic, a psychotropic substance or an alcoholic drink? First the easiest, an alcoholic drink is the drink which has alcohol, end of the argument. On the contrary, for considering something like a drug, in my opinion, we must attend to the lists drafted by the United Nations Conventions of which Spain is a party, since they are internal legal norms according the article 96.1 of the Spanish Constitution. Of these international conventions two are especially relevant: The Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol, and, the 1971 United Nations Convention on Psychotropic Substances. The Police cannot make analysis of different substances than those classified as drugs by those conventions because this would infringe the principle of legality, drugs are those which previously have been agreed as such.
Subsequently, this second point adds, “In any case shall be punished with such punishments whoever drives with a breath alcohol concentration greater than 0,60 milligrams per liter or with a blood alcohol concentration greater than 1.2 milligrams per liter.” This is a good example of a presumption iuris et de iure, a presumption which does not admit a proof proving it wrong, thereby, whenever this fact is proven we automatically understand that the driver was driving under the influence of the alcohol.
Then, we can conclude that, there are two possible scenarios, the main scenario which has two objective elements, to be driving under the influence of toxic substances and alcohol and the detection of such drugs in the driver´s organism, and other, which only has one objective element, to exceed the limits of alcohol in breath or blood established by the CP, since when these limits are exceeded, we automatically understand that the driver is driving under the influence of the alcohol.
In the first scenario, an essential element which the accusation can never forget, is to prove during the trial that the driver was driving under the influence of toxic substances, either because he was driving in zigzag, or because he drove not attending to the traffic signs, or because of any other fact which allows to determine that the drugs detected in his organism were negatively influencing in his driving. For that, the witnesses statements are going to be essential, among them those coming from the police.
But we have to talk again about the alcohol, because even though there exist a presumption iuris et de iure when determined thresholds are exceeded, that the driver is under the influence of the alcohol, this fact does not impede to appreciate the influence of the alcohol in the driver´s driving when he has not exceeded these thresholds. In such cases, we return to the general scenario, where both circumstances have to be proven, the presence of the drug in the driver´s organism and its influence on the driver´s driving. To put it differently, without exceeding the article 379´s limits for alcohol in breath or blood a driver can be punished for a crime against the road safety.
It goes without saying, that the second point of the article 379 has been shaped as a crime of abstract danger too. Like we said before, the behavior has to be suitable to endanger the legal good protected by the norm, this is the motive of requiring to drive under the influence of toxic substances, for otherwise, the legal good protected by the norm would not be endangered.
We can draw more conclusions from the shaping of the article 379´s two scenarios as crimes of abstract danger. To drive exceeding the speed limits, and with drugs in your organism is also an administrative infringement, very grave according to the article 77 of the Legislative Royal Decree 6/2015, of 30 October. Although, the administrative limits are always lower than the penal limits. For example, the presence of alcohol in the driver´s organism is punished when it exceeds the 0,25 milligrams per liter of alcohol breath concentration, and the punishment is harsher when it exceeds the 0,5 milligrams per liter of alcohol breath concentration. The same happen with the speed limits. Then, what is the border between the administrative and penal infringement, when like we said before, even not exceeding the CP´s limits of alcohol breath concentration a driver can be punished with a crime against the safety road? The limit between the administrative and penal infringement is the endangering of the legal good protected by the norm, only when this legal good has been endangered the behavior has to be punished as a crime according to the CP´s rules. This is why the CP requires the influence of the drugs on the drive´s driving, although with the speed is understood that the legal good is endangered when some limits are exceeded.
Another question may be, if the behavior is administrative and penally punished, can they punish me two times for the same facts? No, when a behavior is punished in the penal order, it cannot be punished in the administrative order, this is what the Spanish Constitutional Court has said, otherwise the principle non bis in idem would be infringed. An important consequence is that, the behaviors penally punished does not entail the losing of points in the driver´s license, although they driver can be punished with the privation of the right to drive motor vehicles or mopeds for more than a year and up to four years.
Regarding the subjective elements of the crime, we can add little to the said before. The crime of this second point is also a malicious crime, which cannot be committed by imprudence, since the latter possibility is not expressly stated by the CP (art. 12 CP). There is direct malice, when the driver knows that he is exceeding the CP´s alcohol concentration limits, or that the substances that he has consumed, including the alcohol without exceeding the CP´s alcohol concentration limits, are negatively influencing on his driving, and that this is a crime. And there is eventual malice, when the driver knows that the drugs or alcohol which he has consumed may endanger the legal good road safety, because they are able of negatively influencing his driving, notwithstanding, he admits the risk and decides to drive a motor vehicle or moped.
I almost forget it, but this excerpt from the Spanish Provincial Court of Madrid´s sentence number 6806/2024 is very interesting, since it helps us to ascertain the scope of the forbidden behavior, for even when we have already said that to drive is to guide a motor vehicle or moped, we can find scenarios where we cannot be so sure about whether we are driving or not. According to this sentence to pull a vehicle out of its parking spot is to drive, and hence it is within the ambit of the article 279. The Spanish Provincial Court of Madrid´s sentence number 6806/2024 says: “And regarding the movement of the vehicle in relation to crime by which the appellant has been convicted by the appealed sentence, the Sentence of 29 November 2023 from the Spanish Supreme Court has to be quoted: “In order to delimit what should be understood by driving, the Penal judge has made use of the number 436/2017, of 15 June, corroborated by subsequent sentences number 670/2018, of 19 December; 385/2019, of 23 July and 48/2020, of 11 February, to which can be added the sentence of the Plenary of this Chamber 794/2017, of 11 December.
In fact, the Sentence of the Plenary of this Chamber number 436/2017, of 15 June (reproduced by the sentence number 794/2017, of 11 December, also of the Plenary), after affirming that the combine interpretation of various normative tools (arts. 1, 3, 10, 13 to 44 of the RDL 6/2015, of 30 October; arts. 3, 72 and 73 of the RD 1428/2003, of 21 November and arts. 41 to 43of the RD 818/2009, of 8 May) sheds light on what should be understood by driving, adds: “With that normative environment as backdrop we can affirm that, from an administrative point of view, “to drive a motor vehicle or moped” is the behavior which is carried out by the person who handles the steering mechanism or is in charge of the vehicles which is moving. The action of driving a motor vehicle incorporates in this way a minimum coordinates temporary space, a movement from one geographical spot to another. Without movement there is no driving. But it is not necessary that these coordinates have to be relevant, nor a determined extension of the journey. Acts of pulling over or pulling out, or movements of scarce meters of the vehicle fulfil the crime requirements (…). The art. 379.2 CP requires, a movement but not the driving during determined time or to cover a minimum of distance. A journey of the car, under the domain of the active subject, in a public road and in conditions of being able, in abstract, to cause some damage is to drive. The behavior is going to be a crime if the rest of the crime´s objective requirements concur: determined breath alcohol concentration or to prove that the driver was under the influence of alcoholic drinks.”
And according to such Jurisprudence, the behavior of the accused, driving the vehicle, moving it to pull it out from its parking spot, fulfils the requisite of driving required by the article 379 of the Penal Code.”
– Article 380:
Let us first read the article 380:
“Article 380.
1. Whoever drives a motor vehicle or moped with manifest temerity and puts in concrete danger the life and integrity of the persons shall be punished with the punishments of imprisonment from six months to two years and the privation of the right to drive motor vehicles and mopeds for more than a year and up to six years.
2. For the purpose of the present precept it is going to be deemed as manifestly rash the driving in which concur the circumstances established in the first point and in the second section of the second point of the previous article.”
Like we are able to observe, the article 380 has two points, a first, where is described the behavior which is punished, and a second, where is established a presumption iuris et de iure, for always it is going to be considered that there is manifestly rash driving when the two circumstances mentioned in it, take place.
Art. 380.1:
As always, we are going to try to explain the content of the article 380 part by part, starting with the first point.
Firstly, the first, it is a special own crime, because the author of the crime can only be the person who drives a motor vehicle or a moped.
Subsequently, we find the forbidden behavior. It is punished, the person who drives “a motor vehicle or moped with manifest temerity” and putting “in concrete danger the life or the integrity of the persons”. We are not going to explain again what is to drive, nor what is a motor vehicle or moped, those who do not know it yet, should read the explanation of the article 379, where it was already explained.
Now, we are going to concentrate our efforts in explaining what is a manifest temerity and the character of a crime of concrete danger of this crime. Starting with the former, the jurisprudence has understood that there exists manifest temerity when someone does not fulfil the more essential driving rules, it has to be evident for the third persons who are present during their infringement, putting into risk the other users of the public road. We can mention the example, of those who drive in the opposite direction, or through red lights. The Spanish Provincial Court of Salamanca´s sentence number 868/2024 says: “The penal precept requires that the author has to drive rashly, this is, not observing the essential traffic rules, it has to be manifest, this is, obvious for third parties; as consequence of this behavior the life of third persons has to be endangered; We stress the essential elements of the configuration of the crime: act of driving through public road; rash driving; affectation to the collective security; and the concrete putting into danger of the life of third person (Spanish Supreme Court Sentence number 717/2014, of 29 January 2015). Despite the fact that, this crime was especially introduced for punishing the cases known as “suicidal driving” for making it in the opposite direction it cannot be limited to such cases, for example, manifest rash driving has been appreciated in an scenario in which the accused gave various accelerations, putting into concrete risk the life of his wife and his bodyguards, and also the life of the rest of the users of the parking, damaging various vehicles parked there, until the final collision, making it with total contempt to their life and physical integrity (Spanish Supreme Court 1518/1999, of 25 October). Evidently, the current scenario is much graver.
The driving of the motor vehicle has to be carried out “with manifest temerity”. The expression “rash” allows to consider as such all way of driving a motor vehicle without taking into account the more essential precautions and assuming the driver some risks of producing the result greater than the normal: to pass by the door of a school at the time the students leave it exceeding the 100 km/h; to invade at great speed the left side of the road in a curve or blind summit, coming, besides, a lot of traffic in the opposite direction; to invade the opposite direction of a highway driving various kilometers at great speed; to drive backwards, or zig zag, at great speed and with a lot of traffic, …
The temerity has to be, besides, “manifest”, in other words, obvious for third persons. It has to be, therefore, something more than a simple subjective appreciation of some observer or the own driver. In the present case, such manifest temerity has been appreciated by the witnesses who have testify during the trial, particularly Mr. Melchor in the way previously indicated and may be deduced from the way and the circumstances in which it was produced (mutual passing maneuvers, very significant exceeds of speed, …)”.
This is a crime of concrete danger, because the precept requires to have put into “concrete danger the life or the physical integrity of the persons”. It means that, the persons who were present during the facts had to have suffer a real risk that their life or physical integrity might be damaged. It is not enough, therefore, with a suitable behavior to generate the risk forbidden by the norm, this risk has to be materialized, but without being necessary a damage in the life or physical integrity of the persons who were present.
Regarding the subjective elements of the crime, it is a malicious crime which cannot be committed by imprudence, since this possibility is not expressly stated like the article 12 CP requires. We should understand that it is possible to commit it, by direct malice and eventual malice. On the one hand, there is direct malice when the active subject knows that his rash driving is endangering the life and physical integrity of the other users of the road, and that, this is a crime. On the other hand, there is eventual malice when the driver knows the possibility that exists of putting into concrete risk the life and physical integrity of other users of the road, despite thinking in this possibility he continues driving rashly and knowing that this is a crime.
Art. 380.2:
Let us now study the second point of the article 380. We already said that, in this second point the legislator has established a presumption iuris et de iure, which consists that in the same fact concur the two circumstances mentioned in the first point and in the second section of the second point of the article 379, in other words, there is always rash driving when someone drives a motor vehicle or moped exceeding the 60 km/h in an urban road or the 80 km/h in an intercity road the speed legally allowed, and with a breath alcohol concentration exceeding the 0,60 milligrams per liter or a blood alcohol concentration exceeding the 1,2 grams per liter.
But we cannot forget, that the general rule established in the first point is still applicable, being possible to appreciate rash driving when only one of these circumstances concur or even when none of them concurs, whenever the rest of the elements of the crime do concur, a rash driving which puts into concrete danger the life and physical integrity of the other users of the public road. Moreover, this makes us recall that even concurring the two elements required by the second point of the article 380, it is always necessary the putting into concrete danger of the life of other persons, because without that, we are going to have only a rash driving, which is not illicit, if the other necessary objective element does not concur, the concrete danger. In this sense, the recent Spanish Supreme Court´s sentence number 388/2024 remember us that: “In doctrinal expression, the function of the current second number of the article 380 is not to offer an authentic and closed definition of the manifest temerity, but to establish a hypothesis in which such temerity is always presumed – presumption “iuris et de iure”-, regardless of any other circumstance. In other words, the second paragraph does not pretend to exhaust altogether the concept of manifest rash driving; or expressed in jurisprudential terms, we are before a legal presumption of manifest temerity; not before one excluding and totalizing definition (STS 945/2021, of 12 December, quoting the STS 744/2018, of 7 February 2019), a jurisprudential doctrine which the STS 744/2018 goes into greater detail. The norm is not shaped on the basis of a numerus clausus. It does not mean that there is only manifest temerity when the driving concurs exceeding the speed limit and the breath or blood alcohol concentration. The legislator´s intention is, from this perspective, to clarify that the driving in which the behavior of the article 379.1 and of the article 379.2 concur, is for its intrinsic danger, a driving with manifest temerity. It is clear that, in these cases the subsumption in the article 380.1 needs besides the creation of a situation of concrete danger.”
Before ending with this article 380, what happens when the same facts can be classified as a crime of rash driving of the article 380 CP and a crime against the safety road of the article 379? It happens that, we are before a concurrence of norms which has to be solved according to the third rule of the article 8 of the CP: “3ª The broader or more complex penal precept shall absorb those which punish the infringements included in it”.
– Article 381:
We can consider the article 381 as an aggravated version of the article 380, for the greater harm of the action increasing the danger on the legal good protected by the norm, road safety, although ultimately it is going to be the life and physical integrity of the users of the public roads. The article 381 says:
“Article 381.
1. Shall be punished with the punishment of imprisonment from two to five years, fine from twelve to twenty-four months and the privation of the right to drive motor vehicles or mopeds during a period from six to ten years whoever, with manifest contempt for the life of others, carries out the behavior described in the previous point.
2. When the life or the physical integrity of the persons has not been put into concrete danger, the punishments shall be of imprisonment from one to two years, fine from six to twelve months and the privation of the right to drive motor vehicles or mopeds for the time established in the previous point.”
Like we are able to see, the article 381 is formed by two points. A first point, which adds a new element of subjective character to the behaviors described in the previous point, the manifest contempt for the life of others, and a second point, in which is excluded one of the objective elements of the crimes of the previous point, the concrete danger to the life or physical integrity of the persons, in exchange for a decrease in the punishment in comparison with the established in the previous point.
Art. 381.1:
Like we already said, the article 381.1 adds a new subjective element to the crime described by the article 380, taking into account that we have already talked about the rest of the elements forming this crime.
It is required a manifest contempt for the life of the rest of the persons, therefore, to the malice of putting into concrete danger the life or physical integrity of the persons, we have to add this new element. On the one hand, something is manifest, when it is easily perceptible by third persons, it has to be evident, clear. On the other hand, there is contempt when it is not granted the consideration which someone or something deserves, therefore undervaluing or underestimating it. This manifest contempt has to be shown for the life of other persons through the way of driving a motor vehicle or moped. Pay attention to this excerpt from the Spanish Provincial Court of Salamanca´s sentence number 868/2024: “To drive with manifest contempt means that the driver has to steer the wheel of a moving vehicle in a way which, according to the general experience, it is evident for anyone that his way of doing it represents a grave and clear danger for the security of other users, which is very likely that from his behavior may be derived a mortal accident or which damage the integrity of other persons and, this, is precisely what happened in the current case for it cannot be discussed that, to drive in the course of a race through the center of the city, with mutual overtaking maneuvers, at the previously referred speeds and with the rest of the circumstances described, it is easily understandable for anyone which may be derived an accident with fatal results. And, truly, to drive in this way supposes to accept that some of the cited harmful results is going to be produced, because necessarily who acts in this way has to have thought in the probability of their production and despite this, he has not changed his behavior; and he has to have thought in this because if his behavior is plainly dangerous for anyone, it has to be dangerous for him too. Thus, it is possible to affirm that he has assumed that the production of the reiterated result, although he does not look for it or wish it; this is: he acts with the so-called eventual malice. Doubtlessly, the conscious contempt for the life of the rest, introduces a subjective element of difficult concretion which excludes to punish the imprudence in the article 381.1, which on the other hand it would be obvious according to the numerus clausus regarding the imprudence stated by the article 12 of the CP. Thus, to determine what we understand for that is complex. Nevertheless, it is possible to consider that to act “consciously” has to be understood that one who feels himself, thinks himself, loves himself and acts knowing what he does. “Contempt” is underestimation, the lack of consideration for something, the snub.”
The STS number 717/2014, of 29 January 2015 stresses the difference the crime of rash driving with contempt for the life of the article 381.1 CP and the crime of result of homicide of the article 138 CP: “Although the crime is of concrete danger, the action is aimed at indetermined thirds persons for the author of the criminal fact, for the action is not against the persons occupying the vehicle, it is aimed at endangering the traffic which is already dangerous and strongly regulated. In this way, if the behavior is aimed at determined persons to whom it is wanted to put into risk, assuming the materialization of the risk into a concrete result, which is wished or which once noticed the aggression to the legal good continue, the behavior cannot be classified as a crime against the road safety, but in the crime of result, since the attack is against the life and physical indemnity of concrete and determined persons, against which is concretely aimed the crime of homicide […].
In the first place, the requisite of the act of driving as an element of the crime of the article 381 CP. By its virtue, the author has to use the vehicle for an act of circulation, using a public road as a general rule, though the behavior can be carried out on roads which does not have that consideration. The relevant is the existence of an act of circulation. In the case of our cassation, the author does not carry out an act of circulation in the sense aforesaid, it does not pretend a movement between two places. The action is developed in a space excluded from the circulation and the author does not carries out a behavior which is framed within the circulation, as action of linking two places, he wants to hurl the car to the see, not to drive through a public road reserved to the circulation of motor vehicles. The act of circulation is excluded from the fact.
In second place, from the perspective of the legal good we have to proceed to specify the legal good which is attacked, whether the life or the conditions of security of the traffic. In the first case, if the author carries out an action against concrete and determined persons on which he acts, the classification is materialized in a crime against the life; if, on the contrary, the action is aimed at attempting against the conditions of road safety, what supposes a danger for third users of the public road in which is driven rashly, the subsumption will proceed in the crime against the road safety, in different modalities according to the concretion of the danger. In our case, the author does not compromise the road safety, but the life of his friends with whom he is angry and carries out a behavior which consists in hurling the vehicle to the see. The traffic is not affected.
In the third place, we will deal with the subjective illicitness. In jurisprudential precedents we have declared that “If a person creates, with his rash way of driving, a concrete danger for the life of physical integrity of the persons and he creates it with conscious contempt for these legal goods, it has to be understood that he imagines and admits the possibility of harming them, for he puts them into danger because he does not appreciate them, consent and awareness which obliges to attribute to him, at least, the eventual malice and in such case the result imagined and admitted transforms him into author with malice (STS 561/2002, of 1 April).
In the case of our cassation, the author carries out a behavior of which he knows the danger for the life of the persons who accompanies him, using he vehicle as a tool of aggression of the legal good protected. Thus, the factual account is referred to a case of utilization of the motor vehicle as useful tool to produce a result of death of the persons occupying the car. It is declared proven that the accused steer the vehicle, with a strong acceleration, towards the see, jumping, at the same time that he opened his window allowing his scape, on the one hand, and the sinking of the vehicle, on the other. The author carried out the crime of result, homicide of the article 138 CP. The proven acts were not of driving, a traffic act, for it was not a movement through a public road, the vehicle was used as a tool of aggression in the creation of the risk; the author does not put into danger the life or physical integrity of indetermined persons, typical in a crime against the road safety, but of concrete persons whom he wants to kill; lastly the author thinks in the danger, he knew it and accepted it in the terms we have exposed.”
Art. 381.2:
Another important aspect is that, the article 381contemplates a second possibility in its second point, for the crime may be committed even when the life or physical integrity of the persons have not been put into concrete danger, although, with a substantial decrease in the punishment.
Not to require this requisite, implies an extension of the penal protection granted to the legal good road safety, for the article 380, which covers the scenarios of rash driving, always requires it. Furthermore, it is easily defendable, that always that there is rash driving there is going to be a manifest contempt for the life of the rest of the persons, because even when they have been shaped as two different scenarios, it is evident that they are also closely related, for example, if a driver drives through all the red lights, he is going to drive with manifest temerity and with manifest contempt for the life of the rest of the persons. This likeness makes difficult to distinguish the cases contemplated in the article 380 and the article 381. But let us return to the idea that the article 381 broadens the penal protection, pay attention to this, if, almost always, that there is rash driving there is manifest contempt for the life of the rest, when it was not possible to prove that there was a concrete danger for the life of the rest, the facts would be punishable for driving with manifest contempt for the life of the rest of the persons, with at least, a punishment of imprisonment very similar to that of rash driving.
But, then, if we cannot classify this crime as a crime of concrete danger, how can we classify it? In my opinion, it is a crime of abstract danger, discarding the idea of classifying it as a crime of mere activity which is consummated as soon as the forbidden behavior is carried out. Therefore, the behavior has to be at least suitable to put into danger the legal good protected by the norm, but without being necessary the materialization of that risk, because in that cases we are going to be within the scope of the first point.
I almost forget something. There is a concurrence of norms between the crimes of the articles 379, 380 and 381, when the facts fit within those precepts. This concurrence of norms should be solved according to the third rule of the article 8 of the CP, in other words, the broader or more complex precept shall absorb those which punish the infringements covered by it.
– Article 382:
In the article 382 is established a specific concurrence of norms for the cases in which the crime of danger of the article 379, 380 or 381 concurs alongside one of result, like a crime of injuries or homicide. The article 382 says:
“Article 382.
When with the acts punished by the articles 379, 380 and 381 is caused, besides the prevented risk, a harmful result which is a crime, whatever its gravity, the Judges and Courts shall appreciate the infringement more harshly punished, applying the punishment in its superior half and convicting, in any case, to the compensation of the civil liability which had been originated.
When the harmful result concurs with a crime of the article 381, shall be imposed in any case the punishment of the privation of the right to drive motor vehicles and mopeds established by this precept in its superior half.”
Pay attention to the fact, that the article 382 is referring to the abstract punishment, not to the concrete punishment, therefore, the punishment has to be assessed, in order to choose the precept according to which the facts should be punished, attending to the maximum and minimum threshold to punish a crime in accordance with the CP, not to the punishment with which the facts should be punished once the rules to determine it have been applied.
The doctrine has debated whether a malicious crime of danger and an imprudent crime of result are compatible, like for example, an imprudent homicide or the imprudent injuries. Even more, when the own CP establishes that there is always grave imprudence when in the death or injuries, concur any of the circumstances mentioned in the article 379 and the homicide or injuries were committed using a motor vehicle or moped (art. 142.1 and art. 152.1 CP). For it can be argued, that the appreciation of the imprudence automatically excludes the malice and vice versa, what would impede the appreciation in the same facts, for example, a crime of rash driving with manifest contempt for the life of other persons, and an imprudent homicide, for like we already know, the former crime cannot be committed by imprudence. It has been said also, that in the practice the problem does not exist, for the courts have to punish the facts always according to the precept which imposes in abstract the harsher punishment, something which impedes to punish the facts according a concurrence of crimes between the imprudent crime of result and the malicious crime of danger, although I do not share this opinion, strictly speaking, like we said before, the appreciation of imprudence automatically excludes the appreciation of malice, what impedes the possibility of choosing between an scenario or the other depending on the court´s or judge´s interest in punishing the facts with the harsher punishment, it should be punished as a malicious crime of danger, when there is malice, and as a imprudent crime of result. Another thing is that, the jurisprudence may establish, like it has established, that the crime of result with the same or harsher punishment than a crime of danger, always absorbs the latter, as a concurrence of norms, what again impedes to punish the same facts twice as a crime of danger and as a crime of result (the crime of danger followed by another of result with the same or harsher punishment is consumed by this STS 1135/2010, of 29 December). In any case, the doctrine has solved the problem limiting the scope of the malice of the crime of danger which is previous to the imprudent crime of result. It has said that, the malice of the crime of danger only affects to the behavior which generates the danger for the legal good, without having thought the active subject in the result forbidden by the imprudent crime of result, thereby, the result it is going to be an imprudence, for even when the active subject could have thought in the production of the forbidden result, he rejected it altogether, on the contrary, in the eventual malice, the active subject admits the possibility of producing the result forbidden by the norm, but he continues acting without worrying for the consequences. It is plain to see, that the line dividing the eventual malice y and the conscious imprudence is very thin, not being easy the labor of the courts which are in charge of distinguishing a scenario from the other, even more, if we take into account that the imprudence and malice are subjective elements of the crime, what implies to find out what the active subject thought at the moment of committing the facts. The Spanish Provincial Court of Salamanca´s number 868/2024: “And we have already pointed out that such compatibility is admitted by the STS number 561/2002, of 1 April stressing that it is “hardly compatible” but not “incompatible”, and it is expressly admitted by prestigious writers, for example “Comments to the Penal Code, carried out by various authors of whom the Professor of Penal Law: Corcoy Bidasolo and Mir Puig, Tirant, 2015, are the directors”. But we cannot reject that the malice does not reach the result effectively produced, and a concurrence of norms has to be appreciated between the crime of danger established by the article 381 and the crimes of homicide and/or injuries.” Criterion proposed and maintained in such work by the Professor Montraveta, too.”
Another important aspect, which we have to take into account when we think in this article 382 is, the high probability that exists that the crime of danger may be followed by various crimes of result, for example, when the rash driving with manifest contempt for the life of others causes the death of various subjects, or injuries in various subjects, or the death to some of them and injuries in others. We find the solution to this problem in the articles 142 bis and the article 152 bis, which allows to the judges and courts to impose the punishment superior in degree whenever the facts are extremely grave.
– Article 382 bis:
The article 382 bis punishes the driver who has left the place of a traffic accident when there have been deaths or injured. The article 382 bis says:
“Article 382 bis.
1. The driver of motor vehicle or moped who, outside the cases contemplated in the article 195, willingly and without concurring risk for himself or of third persons, leaves the place of the facts after causing an accident in which one or various persons have died or have been caused to them any of the injuries to which are referred the articles 147.1, 149 and 150, shall be punished as an author of a crime of leaving the place of an accident.
2. The facts contemplated in this article which have their origin in an imprudent action of the driver, shall be punished with the punishment of imprisonment from six months to four years and the privation of the right to drive motor vehicles and moped from one to four years.
3. If the origin of the facts which give rise to the leaving of the place are fortuitus he shall be punished with a punishment from three to six months of imprisonment and the privation of the right to drive motor vehicles and mopeds from six months to two years.”
Art. 382.1 bis:
On reading the first point of the article 382, we realize that this is a special own crime, since it cannot be committed by anyone, the active subject has to be the driver of the motor vehicle or moped which causes de accident. For example, the crime cannot be committed by those who accompanied the driver within the motor vehicle.
When this first point of the article 382 bis excludes the cases contemplated in the article 195, it is not requiring that the victim has to be helpless and in a manifest and grave danger, covering all those cases which are not included in the article 195.
The precept requires that the driver who causes the accident has to leave the place where it took place willingly and without any risk to himself. Here two elements with different nature are mixed, because when it requires that the driver has to leave the place of the accident, it is referring to an internal aspect of the active subject, he has to leave the place without being influenced by any other circumstance, it is his own decision altogether, this has to be inferred from external elements which confirm that the driver acted freely. On the contrary, when the precept requires that the driver has to leave the place of the accident without existing a risk for him or other, it is referring to an external element, something which the driver does not control, being, therefore, an objective element of the crime. Notwithstanding this difference of nature, these elements complement each other, because as we say before that the driver left the place of the accident willingly can only be inferred from external facts, in other words, because there was no risk for himself or others staying there.
Since the precept requires that the driver has to leave the place of the accident willingly and without concurring a risk for himself or third persons, the crime is going to be consummated even when the victims were already being assisted by other persons. On the other hand, the precept does not require that the driver has to actively assist the victims, this is only necessary when the victims are helpless and in a manifest and grave danger, but in these cases in which the driver does not leave the place of the accident but does not assist the victims either, the precept applicable is going to be the article 195.
Which is the precept applicable if the driver who causes the accident leaves the place where it happened and the victims are helpless and in manifest and grave danger? In these cases, there is a concurrence of norms, between the article 195 and 382 bis, which has to be solved according to the first rule of the article 8 CP, for the special precept should be applied with preference to the general.
Besides, it is required that the victims have to die or at least suffer some of the injuries classified in the article 147.1, 148 and 150, in other words, the injury has to need objectively for its healing, besides a first assistance, medical or surgical treatment (art. 147.1 CP), or the losing or the inutility of an organ or principal limb, of a sense, the impotence, the sterility, a grave deformity, or a grave somatic or psychic illness (art. 149 CP), or the loss or the inutility of an organ or not principal limb, or the deformity (art. 150 CP). The problem is that, these consequences can only be checked after the accident, and the person who causes it only can be sure of their production if he stays in the place of the accident, although it is also true that, he can infer that these injuries or even deaths can have been caused attending to the violence of the accident, that is eventual malice.
Lastly, to the subjective element of the willingness, we have to add the generic malice that the active subject should know that he has caused an accident deriving from it victims, and despite this knowledge he decides to leave the place of the accident. Its commission by eventual malice is even more probable, when the driver causes an accident and he knows that it is probable that it has caused victims.
We cannot forger either that the article 51 of the Legislative Royal Decree 6/2015 says that, the “user of a road who is involved in a traffic accident, is present during it or has knowledge of it is obliged to assist or request help for attending the victims who may be, provide his collaboration, avoid greater dangers or harms, to restore, as long as possible, the safety road and clarify the facts.” The infringement of this obligation is considered a very grave infringement by this Legislative Royal Decree (art. 77), and the penalty is a fine of 1.000 euros (art. 80.2.a). Does it mean that you can be punished two times for the same facts, one according to the penal order and other according to the administrative? No, like we have said so many times, it would infringe the principle non bis in idem, which impedes that a person may be punished more than one time for the same facts. The penal order has preference over the administrative order, and the facts should be punished according to the article 382 bis, when its objective and subjective requisites are fulfilled.
Art. 382.2 bis:
The facts contemplated in the first point, shall be punished with the punishment of imprisonment from six months to four years and the privation of the right to drive motor vehicles and mopeds from one to four years, when they have their origin in an imprudent action of the driver.
The precept does not say grave imprudence, it says only imprudence, therefore, it is not required the infringement of an essential or basic duty or norm of care, although it is not going to be enough with the infringement of any rule. As criterion, we can make use of the classification of infringements that the Legislative Royal Decree 6/2015 makes, it has light infringements (art. 74), grave infringements (art. 76) and very grave infringements (art. 77), understanding that give rise to an imprudence punishable by the article 382.2 bis, those classified as grave and very grave infringements.
Now the question is, what happens when instead of imprudence there is malice in causing the accident with deaths and grave injuries? That the facts have to be punished as malicious crimes of homicide and injuries.
Another question is, what is the relation between a crime of leaving the place of the accident and the imprudent crime which caused the death or injuries, for example, a crime of rash driving with manifest contempt for the life of others (art. 381 CP)? First, we are going to apply the article 382, punishing the facts according to the precept which punishes the facts with the harsher punishment, and subsequently, we have to establish a relation of concurrence of crimes (art. 73 CP), between this crime and the crime of leaving the place of the accident, in other words, both have to be punished separately.
Art. 382.3 bis:
Lastly, in its third point, are punished the cases in which the leaving of the place of the accident was for fortuitous facts. According to the dictionary, some fortuitous is: “Which happens unexpected and causally”. Hence, it is not thought and it happens as consequence of the chance.
Thanks to this point, the requisite of the willful intent in the action is eliminated. Even when the leaving of the place of the accident is fortuitous there is penal reproach, although the punishment is considerably decreased in comparison with the established in the previous point.
– Article 383:
The article 383 punishes those who do not want to take the alcohol or drugs tests. The article 383 says:
“Article 383.
The driver who, required by an agent of authority, refuses to take the tests legally established for checking the alcohol concentration and the presence of toxic drugs, narcotics or psychotropic substances to which are referred the previous articles, shall be punished with the punishment of imprisonment from six months to one year and privation of the right to drive motor vehicles and mopeds for more than one year and up to four years.”
Let us now analyze the content of the article 383. The active subject can be only a driver, this requirement transforms this crime into a special own crime. Another important aspect related with this, is that the precept does not add more explications, it is referred to a driver in general terms, without mattering if he is the driver of a motor vehicle or a moped, or of any other vehicle. This indicates that, any user of a public road who drives a vehicle, without mattering the kind, can be required by the agents of authority to take the tests of alcohol concentration or presence of drugs, regardless of whether he is a cyclist or a skater.
The forbidden behavior consists in refusing to take the tests legally established for checking the alcohol concentration or the presence of toxic drugs. Therefore, it is a crime of mere activity, which is consummated as soon as the forbidden behavior is carried out.
The agents of authority are, the members of Law Enforcement Agencies (art. 7 of the Organic Law 2/1986, of Law Enforcement Agencies, and the Law Enforcement Agencies are (art. 2 LO 2/1986):
“a) The Law Enforcement Agencies depending on the Government of the Nation.
b) The Police depending on the Autonomous Regions.
c) The Police depending on the localities.”
The tests legally established are, the checking of alcohol and toxic drugs established in the article 14 of the Legislative Royal Decree 6/2015 and the article 20 and following of the General Regulation of Traffic.
For that purpose, the article 14.3 of the Legislative Royal Decree 6/2015 says:
“3. The proofs for detecting the alcohol shall consist in verifying the air exhaled through authorized devices, and for detecting the presence of drugs in the organism, in a salivary test through an authorized device and in a subsequent analysis of a salivary sample in enough quantity.”
And the article 23 General Regulation of Traffic:
“Article 23. Practice of the tests.
1. If the result of the test practiced gives an alcoholic impregnation greater than 0,5 grams of alcohol for liter of blood or a 0,25 milligrams of alcohol for liter of air exhaled, or the established for determined drivers in the article 20 or, even without reaching these limits, the examined person shows evident symptoms of being under the influence of alcoholic drinks, the agent shall subject the examined person for a greater guarantee and for the purpose of contrasting it, to the practice of a second test of detection of alcohol by the air exhaled, through a similar procedure to the one which was used for making the first test, of which the person affected has to be previously informed.
2. In the same way he shall warn the person subjected to examination of the right he has to control, by himself or by any of his companions or witnesses, that between the first test and the second test there is a minimum time of 10 minutes.
3. Likewise, he shall inform him of the right he has to make as many allegations or observations as he considers necessaries, by himself or through companion or defense, if he has it, which are going to be recorded by writing, and to contrast the obtained results by a blood, urine or others analogous tests, which the medical staff of the medical center to which he is taken consider more adequate.
4. In the case that the person affected decides the realization of such analysis, the agent of the authority shall adopt the more adequate measures for taking him to the closer medical center. If the medical staff appreciates that the tests requested by the person affected are the adequate, it shall adopt the measures aimed at fulfilling the established in the article 26.
The amount for such analysis shall be previously deposited by the person affected and with it the tests shall be paid when the result of the contrasting test is positive; it shall be paid by the peripheric organs of the autonomous organism Central Traffic Headquarters or the competent regional or municipal authorities when it is negative, returning him the deposit in this last case.”
This article 23 is interesting, because it has been discussed in relation to the sobriety checkpoints, whether the obligation of the driver to take the test is limited to the first test, or it also applies to the second test. For, like the first point of the article 23 points out, once the result of the test is positive, there has to be a second test in order to confirm that the result was right. According to the jurisprudence from the Spanish Supreme Court, the driver has to take both tests if he does not want to commit the crime regulated in the article 383, although this jurisprudence has given more importance to the first test, for if he takes the first test, but refuses to take the second, the punishment may be modulated within the range stated by the CP. The Spanish Provincial Court of Barcelona´s sentence number 5833/2024 says: “The question treated by the appeal, concerning the rejection to take the second test, which tends to the contradiction or corroboration of the result of the first, would not be considered a crime of the article 383 of the Penal Code, has been reject by the Supreme Court, from the STS 210/2017, of 28 March which already settled the matter and it has maintained the same arguments. Reproducing the third argument of the STS 291/22 of 23 March, which follows the same criterion, not without recognizing that the question may be debatable, and to whose interpretation the penal courts are obliged:
“In fact, the sentence, which was accompanied by some dissenting opinions what comes to prove, on the one hand, that it is a debatable question, and, on the other hand, that the legal problems are not solved with a simple in dubio, understood that although the driver had willingly acceded to the first test being required by an agent of authority, and though the result had been positive, it is not excluded from the penal reproach the explicit or implicit negative to the second test, prescribed by the administrative norm for integrating what is conceived as only one proof formed by two tests (art. 14 of the Royal Decree 6/2015, of 30 October).”
Then, what happens when a driver decides that he does not want to take the alcohol or drugs tests, but shows evident symptoms of being affected by them in his driving? In those cases, it does not seem that there is going to be many problems for convicting him for a crime against the road safety of the article 379 and for a crime of disobedience of the article 383, although the conviction for the first crime should be based on the agent of authority´s and/or witnesses´ testimonies proving that the driver was drunk or intoxicated and that circumstance was affecting to his driving. For example, alcohol breath, zigzag driving, difficulties to talk or walk…
And, what happens when the driver gives positive in the first test, but he refuses to take the second test, and there are no further symptoms which evidence that he was driving under the influence of alcohol or drugs? For, in these cases the judge or court should have doubts of whether he has committed a crime against the road safety or not (art. 379 CP), thus he should be acquitted for this crime, without prejudice of being convicted for a crime of disobedience of the article 383.
The same should happen if he refuses to take any test.
Another important question related with the alcohol tests, which we should not forget, is the importance given by the courts to the blood or urine tests, that should be offered to the drives who have given positive in the two breath alcohol tests (art. 23.3 of the General Regulation of Traffic). They have said that, it is very important, as important as to make null and void the two positive breath alcohol tests if the driver requests it and the agents of authority do not grant it, making impossible a conviction for a crime against road safety when there are no further proofs supporting it. Pay attention to this excerpt from the Spanish Provincial Court of Barcelona´s sentence number 4949/2024: “In the end, the petition of a blood test does not allow to avoid the mandatory character of the breath alcohol tests. But it was not what the accused wanted, but already successfully taken one of the tests (and not two like the judge points out in the sentence for there is only one ticket from the breath alcohol tester with positive result which has obliged to modify the proven facts since it has been appreciated an error of appreciation of the preconstituted and documented proof) he manifested his desire of contrasting it with a blood analysis, something which was not allowed to him when it is a guarantee, and in this sense his right of defense was infringed by the agents of authority and that proof cannot be taken into account for sustaining the conviction for the referred crime since, being possible to contrast it with other more precise which may invalid it, the accused was not allowed to make it.”
There have been also problems establishing the legal good protected by the article 383, but, at the end, the Spanish Supreme Court has pointed out that this is the principle of authority, what is punished is the refusal to be subjected to the authority of the agents of authority, without forgetting that, the legal good road safety is also affected in determined cases, when the driver is driving under the influence of alcohol or drugs. The Spanish Provincial Court of Barcelona´s sentence number 5833/2024: “But if we go down to the terrain of the positive law and to the plain of the strict penal dogmatic, this conclusion has to be modulated. It would be the mediate object of protection; very mediate. The legal good directly protected is the principle of authority, like in the crimes of disobedience. Indirectly, the legal good protected is the road safety. The article 383, for its specificity, has definitely emancipated itself from the generic crime of disobedience of the article 556, but it is still a singularized modality.
…
This explains that there is also an infringement when the legal good “road safety” is absent: refusal for contumacy, or for simple anger generated by the annoyance of being required for this by who is in perfect conditions for driving for not having drunk a drop of alcohol. We are going to be before a crime of the article 383.
Only from this differentiation between the legal goods protected in this precept and the article 379 (road safety) are admissible the generalized solutions of the real concurrence of crimes between both infringements. This is what the Second Chamber has understood (STS 214/2010, of 12 March).”
Beyond that, regarding the subjective elements of the crime, it is a malicious crime which cannot be committed by imprudence.
– Article 384:
Let us first study the article 384:
“Article 384.
Whoever drives a motor vehicle or moped in the cases of losing the validity of the license for losing all the points legally assigned, shall be punished with the punishment of imprisonment from three to six months or with fine from twelve to twenty-four months or with community service from thirty to ninety days.
The same punishment shall be imposed to whoever carries out the driving after having been provisionally or definitively deprived of driving license by judicial decision and to whoever drives a motor vehicle or moped without never having obtained a driving license.”
Like we are able to observe, the article 384 is another special own crime, since it only punishes the drivers of a motor vehicle or moped.
The article 384 punishes three types of behaviors which share the act of driving a motor vehicle or moped: 1) The losing of the validity of the license for losing all the points legally assigned; 2) After having been provisionally or definitively deprived of driving license by judicial decision, and; 3) To drive a motor vehicle or moped without never having obtained a driving license.
Although the crime is consummated as soon as the behavior described by the precept is carried out, it has been shaped as a crime of abstract danger, this is how the legislator has classified it in the Preamble of the Organic Law 5/2010, of 22 June, talking about it as a “behavior of abstract danger”, in which the important is the suitability of the behavior for putting into risk the legal good protected by the norm, in this case, the safety road. Therefore, it is not necessary other infringements which may endanger the legal good, for understanding consummated crime, like running a red light.
Therefore, the legislator has left some scenarios out of the scope of this article 384, for the way he has described the forbidden behavior. For example, to drive with a driving license obtained in a foreign country.
Regarding the subjective elements of the crime, it is a malicious crime, which cannot be committed by imprudence. This requires that, the driver should know that he is driving without points, that he has been provisionally or definitively deprived of license for a judicial decision, or what is even more evident, that he has never obtained a driving license. Indeed, for the two first cases, there are examples in the jurisprudence of drivers who have alleged not to know that they have lost all the point or have been judicially deprived of their driving license, although the courts have understood as duly notified the driver when the decision has been published in the B.O.E. (Official Bulletin of the State). An example is, the Spanish Provincial Court of Madrid´s sentence number 6971/2024: “In this case, by documentary proof has been accredited – like we pointed out before – that notification, was made by the Official Bulletin of the State, since the notification of the administrative resolution to the accused was not possible, despite having addressed the notification to him.”
– Article 385:
The article 385 says:
“Article 385.
Shall be punished with the punishment of imprisonment from six months to two years or fine from twelve to twenty-four months and community service from ten to forty days, whoever originates a grave risk for the traffic in any of the following ways:
1º Putting in the road unforeseeable obstacles, spilling slipping or inflammable substances or mutating, subtracting or annulling the signposts or by any other means.
2º Not restoring the safety of the road, when there is obligation.”
In this case, this is a common crime, since it does not require any extra quality in the active subject, beyond having carried out the behavior described in the precept.
This behavior may consist in: 1) Putting in the road unforeseeable obstacles, spilling slipping or inflammable substances or mutating, subtracting or annulling the signposts or by any other means, and; 2) Not restoring the safety of the road, when there is obligation.
There is an obligation of restoring the road safety for the user of a road, who is involved, present, knows a traffic accident (art. 51 of the Legislative Royal Decree 6/2015). That this an obligation imposed by the administrative order, which is also considered a very grave infringement by the same law (art. 77), fined with 1000 euros (art. 80.2.a), does not mean that you can be punished two times, administrative and penally, this would be an infringement of the principle non bis in idem, which impedes to punish the same person more than one time for the same facts. The penal order has preference over the administrative, and the facts must be punished according to the article 385 when its objective and subjective elements are met.
It is a crime of abstract danger, thus, it is required that the behavior of the active subject has to suitable to endanger the legal good protected by the norm, the road safety. Consequently, the real good does not have to suffer a real risk for understanding consummated the crime.
On the other hand, it is a malicious crime which cannot be committed by imprudence (art. 12 CP). This requires that the active subject wants to put into danger the legal good protected by the norm with his behavior (direct malice), or at least, that he assumes the possibility of putting it into risk, without caring about the result and continuing with the action (eventual malice).
– Article 385 bis:
The article 385 bis says:
“Article 385 bis
The motor vehicle or moped utilized in the facts established in this Chapter are considered tools of the crime for the purposes of the article 127 and 128.”
This means that according to this article, the motor vehicle or moped with which is committed any of the crimes established in this Chapter, shall be seized according the rules of the article 127 and 128.
– Article 385 ter:
The article 385 ter says:
“Article 385 ter.
In the crimes established in the articles 379, 383, 384 and 385, the Judge or Court, reasoning it in the sentence, may diminish in one degree the punishment of imprisonment attending to the minor entity of the risk caused and the other circumstances of the fact.”
Therefore, this article 385 establishes the possibility that the judges or courts may impose the punishment of imprisonment inferior in one degree to the established in the articles 379, 383, 384 and 385, attending to the minor entity of the risk caused and the rest of the circumstances of the fact.
It is understood that in the case that the judges and courts decide not to apply this article 385 ter, they only have to motive the decision when its application has been requested by the accused.
For assessing the entity of the risk caused, we may make use of the classification of infringements of the Legislative Royal Decree 6/2015, which divides them into minor infringements (art. 75), grave infringements (art. 76) and very grave infringements (art. 78).
Víctor López Camacho.
Twitter: @victorsuperlope.
Más en mi website: www.victorlopezcamacho.com