On the margins of error in the alcohol impregnation test

As a lawyer specializing in breathalyzers in Barcelona , we can affirm that the margins of error allowed in authorized breathalyzers contemplated in Annex II of the Order of November 22, 2006 (OM / ITC / 3707/2006) must be taken into account, and which are referred to both for verification after repair or modification and for periodic (annual) verification. They are 0.030 mg / liter for all concentrations less than or equal to 0.400 mg / liter; 7.5% of the true value of the concentration for any concentration greater than 0.400 mg / liter and less than or equal to 1 mg / liter; and 20% of the true value of the concentration for any concentration greater than 1 mg / liter.

This means that, for example, an alcohol level in inhaled air of 0.63 milligrams per liter, if the corresponding margin of 7.5% is applied to the aforementioned level, results in a deduction that means it does not reach the limit of 0.60 milligrams per liter of inhaled air, the limit established by the Criminal Code to differentiate the administrative sanction from the criminal conviction for these acts.

Furthermore, it should be noted that the Circular of the FGE 10/2011 indicates that criminal action is only appropriate when the rate exceeds 0.60 mg/liter in both tests, since article 796.1.7ª of the Criminal Procedure Law establishes that the practice of breathalyzer controls will comply with the provisions of road safety legislation, and articles 23 to 26 of the Road Safety Law establishes the obligation to carry out breath alcohol tests by means of two expirations with an interval of ten minutes between them, so that in the event that only one of the rates is higher than the established limit, the pronouncement must necessarily be acquittal.

However, the non-application of Article 379.2 of the Criminal Code , final paragraph, because the level does not exceed 0.60 mg/l, does not exclude the possibility of the application of Article 379.2 of the Criminal Code, first paragraph, and, therefore, a criminal conviction for the facts. This is because the criminal offense is applicable not only when the alcohol levels stated therein are objectively assessed, but also when, even when they are lower than those, the influence of such consumption is proven based on a series of external markers. This influence is clearly facilitated in those cases where the subject drives in violation of the law, which externalizes the risk protected by the criminal offense.

Therefore, as an expert lawyer in drunk driving offenses in Barcelona, it will be necessary to design a good criminal defense whose analysis must take into account, in addition to the indicated margin of error and which may lead to the issuance of an acquittal, other elements of evidence, such as the testimony of people who have observed the driver’s driving or behavior, particularly that of law enforcement officers, the performance of dangerous maneuvers by the driver, whether or not such driving was appreciated by the police officers, or whether it was a routine check such that they could not observe whether the vehicle was driving abnormally or not, the driver’s symptom report, any spontaneous statements that he or she may have made to the police officers, as well as the signs that were appreciated by the police officers, such as pacing, behavior, external appearance, facial congestion, repetition of phrases and ideas, pale face, bright eyes, dilated pupils, slurred speech, and alcoholic halitosis.

We are a law firm specializing in drunk driving offenses in Barcelona . As criminal lawyers specializing in drunk driving offenses in Barcelona , we can affirm that it is essential to have a strong criminal defense from the moment you are informed that you are being investigated for a crime of driving under the influence of alcohol or drugs under Article 379 of the Criminal Code . This is so that we can evaluate all your options in detail and in advance for the best possible criminal defense.