You are reported for drink-driving: when it is a crime and how to defend yourself

Being stopped at a breathalyser checkpoint or reported after an accident for driving under the influence of alcohol generates distress and confusion about what is going to happen. The consequences can be serious, such as fines, loss of points, suspension of the licence or even imprisonment, but not every drink-driving case is treated the same way.

The first point is that not all drink-driving constitutes a criminal offence. The system distinguishes two categories. The administrative infringement occurs when the level exceeds the regulatory limits but does not reach the criminal threshold: the penalty is a fine, the loss of points and, in some cases, the temporary suspension of the licence, and the file is processed by the Directorate-General for Traffic. The criminal offence of driving under the influence of alcohol, regulated in Article 379 of the Criminal Code, occurs when the level exceeds 0.60 mg/l of breath or 1.2 g/l of blood, or when, without exceeding that threshold, the driver’s condition reveals that they are clearly impaired; in this case the file is processed before a court and may generate a criminal record.

The limits vary according to the driver: as a general rule, 0.25 mg/l of breath; for novice and professional drivers, 0.15 mg/l. There is thus a band of administrative infringement and a band of criminal offence from the stated threshold onwards.

The criminal consequences of Article 379 are a prison sentence of three to six months, although one rarely goes to prison if it is a first offence and there was no accident, or a fine of six to twelve months, or community service, and in any event the disqualification from driving for one to four years. If there was an accident with victims, offences of injury or reckless homicide may concur, aggravating the situation.

During the checkpoint, the driver has rights: the right to a contrast test, a second test at least ten minutes after the first, which it is always advisable to exercise; the right to be informed of their rights if arrested; and the right not to incriminate themselves, with no obligation to explain how much they had drunk. It is also worth knowing that refusing to undergo the breathalyser test is a separate offence under Article 383 of the Criminal Code, with a prison sentence of six months to one year: refusing to blow does not avoid the consequences, it adds to them.

There are defence arguments even if the test is positive: irregularities in the protocol, such as a non-approved or uncalibrated breathalyser or non-compliance with the times between samples; substances that may alter the result, such as certain medications or mouthwashes containing alcohol; and the possibility of a plea agreement with the prosecution that reduces the penalty, as well as the appreciation of mitigating circumstances.

If the level exceeds the criminal threshold, the process moves from the police report to the preliminary proceedings and, where applicable, to the oral trial before the criminal court. The presence of a lawyer from the outset is essential, because statements made to the police without advice can be difficult to reverse later.