What happens if you are stopped at a breathalyzer checkpoint?
Alcohol controls are a common measure in Spain to prevent traffic accidents, especially during the festive season (Christmas, local festivals…) or near leisure areas.
If, during your stay in Spain, you are subject to a surprise control, it is important that you are aware of your rights and obligations so that you do not incur further problems.
In this article we will try to explain in simple terms how to act, what to expect and how to protect your rights.
What is a breathalyzer test?
A breathalyzer test is a test carried out by the police to determine whether you have consumed alcohol and whether the level ingested exceeds the legal limits. In Spain, there are two types of sanctions: the administrative sanction and the criminal sanction. If you exceed a certain threshold of alcohol in the air or in your blood, you will need the assistance of a lawyer.
These limits are:
In the case of administrative sanction: it is more minor and generally carries a fine penalty.
- 0.5 g/l in blood or 0.25 mg/l in exhaled air for general drivers.
- 0.3 g/l blood or 0.15 mg/l breath for novice drivers (with less than 2 years of experience) and professional drivers (taxi drivers, bus drivers, etc.).
In case of criminal sanction: this is more serious, as if you exceed these thresholds you will be committing a road safety offence and will face legal proceedings for which you will need the assistance of a lawyer.
- 1.2 g/l in blood or 0.60 mg/l in exhaled air.
Article 379 of the Spanish Penal Code, in section 2, provides that: 2. Anyone who drives a motor vehicle or moped under the influence of toxic drugs, narcotics, psychotropic substances or alcoholic beverages shall be punished with the same penalties. In any case, these penalties shall be imposed on anyone who drives with a breath alcohol level of over 0.60 milligrams per litre or with a blood alcohol level of over 1.2 grams per litre’.
When can you be breathalyzed?
The police can carry out breathalyzer tests in the following situations:
- Random checks - Part of accident prevention operations.
- Traffic accidents - If you are involved in an accident, the police are likely to check that you have not been drinking.
- Traffic offences - If you commit a traffic offence, you may be asked to submit to testing.
- Reasonable suspicion - If officers believe you show signs of drunkenness (smell of alcohol, erratic behavior, slurred speech, etc.).
Your rights during a breathalyzer checkpoint
Knowing your rights allows you to handle the situation properly and avoid further legal problems. These are the main rights you have.
Right to information
Officers are obliged to explain the procedure, the reason for the check and the consequences of the results. If you have any doubts, you can ask for clarification before the test is carried out.
The right to have the test carried out correctly
The breathalyzer test must be carried out with an approved and calibrated breathalyzer.
It should also be remembered that:
The initial test is carried out by blowing into a portable breathalyzer.
If you test positive, you have the right to a second, contrasting test.
The right to have the test carried out correctly
The breathalyzer test must be carried out with an approved and calibrated breathalyzer.
It should also be remembered that:
The initial test is carried out by blowing into a portable breathalyzer.
If you test positive, you have the right to a second, contrasting test.
Right to a counter test
If the result exceeds the legal limit, you can request a counter-test in the form of a blood or urine test at a medical center.
This test can confirm or contradict the results.
Right to the assistance of a lawyer
If the situation results in an arrest or criminal prosecution (e.g. for exceeding 0.60 mg/l in exhaled air, which is a road safety offence), you have the right not to make a statement and to be assisted by a lawyer. You should call your lawyer as soon as possible as there is likely to be a speedy trial a few days later, and it will be important that your lawyer consults the proceedings and checks that you have been read your rights, that the law has been complied with, that the breathalyzer complies with current legislation, and so on.
Right to receive a copy of the report
You have the right to request a report with the results of the check and all documentation related to the proceedings.
Obligations during a breathalyzer test
Although you have rights, you also have certain legal obligations.
- Submit to the test - Refusing to take the test is considered a criminal offence, which may aggravate the situation.
- Cooperate with officers - An aggressive or defiant attitude could complicate the situation.
Consequences of a positive breathalyzer test.
If the test results exceed the legal limits, you could face the following penalties.
If it is an administrative penalty – levels above 0.25 mg/l (or 0.15 mg/l for novices and professionals), you will be fined up to 500 or 1000 euros and face a possible loss of 4 to 6 points on your licence depending on the level of alcohol.
If it is a criminal offence – if it exceeds 0.60 mg/l in exhaled air or 1.2 g/l in blood – you could be charged with a road safety offence, with penalties including fines, licence withdrawal and imprisonment.
Removal of the vehicle is likely in cases where it represents a risk to road safety and there is no other person who can drive, in which case your vehicle may be immobilised.
Frequently asked questions about breathalyzer checks
How long does a breathalyzer check take?
A breathalyzer check is usually quick, between 5 and 10 minutes, depending on the cooperation of the driver and the equipment available.
Can I refuse to take the test if I have not been drinking?
You cannot refuse to take the test, even if you have not consumed alcohol, it is an offence and can have serious legal consequences.
What happens if the breathalyzer is not calibrated?
An uncalibrated breathalyzer could invalidate the results. If you are in doubt, consult our specialists, who will request a technical report on the device used.
What is the procedure for appealing a breathalyzer fine?
The appeal must be lodged with the body that issued the fine (usually the Jefatura de Tráfico). Include evidence to support your position, such as witnesses, medical reports or possible irregularities in the procedure.
Can a breathalyzer test result in a false positive?
It is rare but the answer is yes, as there are certain types of medication that could alter the result. Consult our specialists if in doubt.