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Drink driving & traffic

Refusing a breath test in Spain: what the law says

Some drivers stopped at a checkpoint in Mallorca or Ibiza believe that refusing to blow will avoid a positive result. In Spain it has the opposite effect: refusing the breath or drug test is a separate crime under article 383 of the Criminal Code, with a prison sentence and a driving ban, even if the driver had not drunk at all.

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Why foreigners get caught out

Refusals usually happen out of nerves or confusion, especially when the driver does not understand the officer. Once recorded, the defence depends on how the request was made, whether the consequences were explained in a language the driver understood and whether there was a clear refusal.

Requirements of the offence

A driver of a motor vehicle or moped

Only the driver commits this offence. Mopeds, motorbikes and quad bikes are motor vehicles.

A request from a police officer

Officers can require tests at preventive checkpoints, after accidents, when there are signs of impairment or after a traffic offence.

The legally established tests

The breath test with an approved device and the saliva test for drugs. The Supreme Court considers that refusing the second breath measurement, after a positive first one, is also a crime.

A clear refusal

Express, or through conduct such as repeatedly pretending to blow. A real medical inability, such as a respiratory condition, is not a refusal, and the driver can ask for a blood test.

The penalty

Prison of six months to one year and a driving ban of more than one and up to four years. If the ban exceeds two years, a Spanish licence loses its validity. For first offenders, the prison sentence can usually be suspended, but the ban must be served. In a fast-track trial, a plea deal reduces both by one third.

Language problems

For a foreign driver, the key question is often whether they understood the request and the consequences of refusing. If the officers did not explain them in a language the driver understood, the defence can argue that there was no knowing refusal. See interpreter rights.

How refusal cases are defended

  • Checking whether a clear request was made and the consequences explained.
  • Proving a medical inability with reports.
  • Questioning whether the accused was actually the driver.
  • Checking the device and the way the tests were offered.

A practical example

A Finnish driver stopped near Palma airport tried several times to blow without the device registering a valid sample, and the officers recorded a refusal. We provided a pulmonologist's report on his asthma and showed from the report that he had not been offered a blood test. The court acquitted him of the refusal charge. Read drink driving in Mallorca. More information on the firm's main website: drink-driving offences (in Spanish).

Before you sign or say anything, call a lawyer

In a Spanish criminal case, what happens in the first hours shapes everything else. Call or WhatsApp us and an English-speaking criminal lawyer will tell you, in confidence, what to do next.

Questions about refusing a breath test in Spain

What happens if I refuse a breath test in Spain?

It is a crime with prison of six months to one year and a driving ban of more than one and up to four years.

Is refusing the second breath test a crime?

Yes. The Supreme Court treats refusing the second measurement as a crime.

Can I ask for a blood test instead?

You can ask for a blood test as a check, but it does not replace the breath test unless you are medically unable to blow.

Will I go to prison for refusing?

First offenders usually have the prison sentence suspended, but the driving ban is served.

Speak to an English-speaking criminal lawyer today

Tell us what has happened by phone, WhatsApp or email. We will explain the charge, the evidence and your options in plain English, and what we would do next to protect your liberty and your record.