Refusal to undergo alcohol and drug tests (Art. 383 CP)

Article 383 of the Penal Code punishes drivers who, when required by an officer, refuse to submit to legally established tests to verify blood alcohol levels and the presence of toxic drugs, narcotics, and psychotropic substances, with prison sentences of six months to one year and deprivation of the right to drive motor vehicles and mopeds for a period of more than one and up to four years.

What is the penalty for refusing to take a breathalyzer and/or drug test?

The penalty for refusing to take a breathalyzer test can be imprisonment, ranging from six months to one year, and deprivation of the right to drive motor vehicles and mopeds for a period of one to four years.

What are the requirements for the crime of refusal?

The requirements of the objective type of the aforementioned crime are:

• Clear request from the authority agent to perform the breathalyzer test or drug detection test and,
• Refusal of the person requested to carry out said test.

Who is required to undergo alcohol and drug testing?

It should be noted that the Traffic Law, in its Article 12, sections 2 and 3, as well as Articles 21 and 22 of the Traffic Regulations, establish that all vehicle drivers are required to undergo the relevant tests for the detection of alcohol and drugs.

Specifically, law enforcement officers may perform such tests on:

1. Any road user or vehicle driver who is directly involved as a potential responsible party in an accident.
2. Those who drive with obvious symptoms of being under the influence of alcohol.
3. To drivers who are reported for committing a traffic violation.
4. To any driver as part of preventive breathalyzer testing programs.

It’s important to note that when we talk about drivers, and therefore people required to undergo breathalyzer and/or drug testing, we’re referring to drivers of motor vehicles, mopeds, and electric bicycles and scooters. All of them are required to undergo such tests.

Difference between the crime of refusal and the administrative infraction

Refusal to submit to alcohol and drug tests is punishable by both criminal and administrative means. The main difference is that the offense, punishable by criminal means, carries a prison sentence, and conviction results in a criminal record. Administrative sanctions, on the other hand, only entail a monetary penalty, i.e., a fine.

Thus, to differentiate whether in a specific case, the refusal of the requested person will be criminal or solely administrative, we must refer to the following rules or guiding criteria:

1. Refusal to submit to a breathalyzer or drug test in the event of an accident or while driving with obvious signs of being under the influence of alcohol will be punishable by criminal rather than administrative law. That is, it is punishable by Article 383 of the Penal Code with imprisonment of six months to one year and deprivation of the right to drive motor vehicles and mopeds for a term of more than one and up to four years.
2. Refusal to submit to alcohol or drug testing in cases of drivers reported for committing a traffic violation and in cases of preventive alcohol or drug testing requires the following distinction:

• If the officers detect symptoms of the person being stopped and inform the person being stopped, the stop will be penal, not administrative. That is, the penalty provided for in Article 383 of the Criminal Code will be imposed.
• If officers do not detect any symptoms that the person in question is driving under the influence of alcohol or drugs, the person’s refusal to submit to alcohol and/or drug testing should not be considered a criminal offense and, therefore, could only be sanctioned administratively with the imposition of a fine.

In what cases can I refuse to take the alcohol or drug test?

Imagine a person who is preparing to drive a vehicle after having consumed alcohol and/or drugs, sits in the driver’s seat, puts on their seatbelt, and just before starting the vehicle, is required by law enforcement officers to conduct a breathalyzer test.

In this case, his refusal to take such tests could not be considered criminal since he did not start driving, nor did he even start the vehicle, despite the fact that it was obvious he was going to do so. In this case, he was not involved in a traffic accident, nor was this a preventive checkpoint, so he would not be required to take the breathalyzer or drug test.

That is, for you to be subjected to a breathalyzer test, you must be driving the vehicle—that is, the action of driving that involves moving from one point to another. Without movement, there is no driving.

However, it is not necessary for the vehicle to be transported as such, since, for example, parking or unparking the vehicle or moving it a few meters would already allow such tests to be carried out, and therefore, refusing to submit to such controls would be a criminal offense.

Can I be penalized for the offense of driving under the influence of alcohol and/or drugs and for the offense of refusing to submit to such tests at the same time?

The answer must be affirmative. Indeed, I can be convicted of both offenses, since they are separate crimes that protect different interests. The fact that I refuse to take the breathalyzer test does not prevent me from being charged and convicted of driving under the influence of alcohol or drugs if law enforcement officers detect clear symptoms that I was driving under the influence and record this in the corresponding symptom report.

Joaquín Sugrañes is a criminal lawyer with over 15 years of experience defending traffic safety offenses, having obtained numerous favorable rulings in cases related to this type of crime. His dedication is exclusive, and from the first contact with the client, his defense strategy is designed to avoid conviction or, where appropriate, imprisonment for repeat offenders of this type of crime.

Therefore, if you find yourself facing a problem related to the above, it is advisable to contact a lawyer specializing in the defense of such crimes as soon as possible.