If, in the event that, after having drunk alcohol or any type of drug, we make the decision to drive, we may be stopped by the local police or civil guard for the purpose of submitting to a breathalyzer or drug use test detection. It is possible that, in these moments of tension, we may refuse to take this test in order to avoid being penalized.
The refusal to submit to these tests is one of the worst decisions we can make, since the refusal, in itself, implies the commission of a crime (even punishable by more serious penalty than driving under the influence of alcohol or drugs ), and on the other hand we will not avoid being convicted of driving under the influence of alcohol.
Article 383 of the Spanish criminal code punishes the driver who, when required to by a law-enforcement officer, refuses to submit to the legally established alcohol level tests, and those for the presence of toxic drugs, narcotics and psychotropic substances referred to in the preceding Articles, shall be punished with imprisonment of six months to one year and deprivation of the right to drive motor vehicles and mopeds for a term exceeding one and up to four years.
In order for us to be convicted, it is necessary that the driver consciously and voluntarily refuses to practice it. In order to be convicted, jurisprudence also requires that we have been expressly informed by the agents of the authority that this test is going to be carried out, and that the refusal to carry it out may constitute a crime.
The fact that we refuse to submit to a drug or alcohol detection test does not guarantee that we will not be later convicted of a driving under the influence of alcohol or drugs. It is true that the breathalyzer test for the detection of alcohol in blood or breath, as well as the salivary test, are tests that carry great weight in order to formulate and sustain the accusation in a criminal process, but without them we can also be sentenced. When said tests have not been carried out, the accusation may be based on the police report corroborated in trial by the police agents. The report will describe the physical and mental symptoms of the driver, describing all those that are symptomatic of being under the influence of alcohol or drugs. The report will refer to the existence of red eyes in the driver, pasty speech, strong smell of alcohol, wandering, incoherent speech, aggressive behavior and all those circumstances that are indicative of the commission of the crime. All this will serve as evidence that can be asserted in the act of trial and will constitute sufficient probative material to establish a conviction.
Based on what has been said, we recommend not refusing to submit to such tests. If unfortunately, we are positive in any of the tests carried out, what we can do is request a contrast test at that time, which may consist of undergoing blood, urine or other analogous tests. This test can be used later to challenge the tests carried out by law enforcement officials.