C.97a - Lepe case

I. The proven facts show how Antonio A.V. i) was driving through the town of Lepe after having drunk alcoholic beverages which reduced his Schools and his reflexes for driving vehicles. Driving in this way, ii) he collided with another vehicle, causing damage valued at 170,000 pesetas. Subsequently, iii) he is asked by a police officer to submit to a breathalyser test; the officer informs him of the legal consequences of refusing to do so test. We will group moments i) and ii) in a first phase of the case; while iii) constitutes a second phase.

II. On these facts, and without modifying them, the following can be said about Antonio's criminal liability.

II.1. In the account of proven facts there are enough data to affirm self-control: drinking alcohol beforehand, getting behind the wheel, driving the car, refusing to do the test... All these actions require self-control, i.e. different alternatives. It can also be affirmed that none of the factors that exclude human behaviour are present. At final, there is human conduct. Let us now see whether it is typical.

II.2. The question now arises as to whether these actions constitute a criminal offence. And we refer to the two different phases: first, driving after drinking alcohol and the collision; and second, the refusal to submit to a breathalyser test. Regarding the first, driving under the influence of alcoholic beverages, as an offence of abstract danger, requires the ingestion of an alcoholic substance, plus influence on driving to the point of generating an abstract danger to road safety, without it being necessary to put someone in concrete danger (art. 379.2). As it is a crime of mere activity, there is no spatio-temporally separated result to be imputed to the risk created. In this first phase, there is also a collision with a parked vehicle: driving is the cause of the collision, and driving in such circumstances already constitutes ex ante a risk of damage (art. 263) to other people's property, as it will affect the integrity of other people's property as soon as he loses control of the vehicle; as was the case ex post, given that he immediately collided and damaged a vehicle, the damage to which can only be explained by this collision. With regard to the second part, the refusal to carry out the test alcohol detection test, as a crime of mere disobedience, is fulfilled in objective terms, as there is a requirement, and there is also a refusal. There is little more to argue in this respect. Therefore, Antonio is objectively imputable for the crimes of driving under the influence of alcohol (art. 379.2), property damage (art. 263), and disobedience to authority (art. 383). The question now arises as to whether these three offences are subjectively typical.

II.3 . Antonio has consumed alcoholic beverages that influence his behaviour, but the question now is whether they affect his perception of reality, to the point of making him unaware of what is in front of him. data However, from what has been narrated in the proven facts, there is sufficient evidence to affirm that he is aware of the risk inherent in the three crimes objectively imputed. Firstly, he knows - he cannot be unaware of it - that he has been drinking, and that the quantity ingested makes it difficult for him to move normally, to have reflexes... Secondly, he cannot fail to see that this influences his driving of the vehicle, which he does not fully control, and that he is driving among other cars. And thirdly, he engages in a conversation with the policeman, which, however simple it may be, requires him to respond to the messages he perceives. I am inclined to affirm intent, moreover, because the alcohol ingested does not lead to ignorance of the risk of each of these offences. Therefore, as regards the subjective criminality of Antonio's conduct, there is no reason to doubt intent. Antonio is objectively and subjectively imputable for the crimes of driving under the influence of alcoholic beverages (art. 379.2), property damage (art. 263), and disobedience to authority (art. 383). Let us continue by analysing the remaining elements of the theory of the offence.

II.4. As to whether their conduct is also unlawful, it can be stated that in none of the three cases is there a crisis status that would call into question whether the unlawfulness of these three offences disappears. Their conduct is unlawful.

II.5 . With regard to Antonio's guilt, some doubts do arise. Indeed, alcohol intake can and should be relevant for criminal liability. One of the main institutions of the theory of crime in which alcohol intoxication is reflected is culpability. Guilt requires (i) imputability, (ii) the knowledge of the rule, and (iii) the enforceability of other conduct. Schools Regarding imputability, it must be taken into account that his mental Schools were diminished ("his normal driving reflexes and reflexes were diminished, ... presenting evident symptoms of alcohol intoxication, such as a strong smell of alcohol on the breath, incoherent responses, violent behaviour, inability to respond and inability to walk"), but I understand that not to the extent that the subject was incapable of knowing the rule or of being governed by the known rule . We are told how he was still able to identify the policeman, exercise force and violence, engage in conversation... Insofar as they still have a minimum capacity to perceive the meaning of their actions, there would be imputability. And in this case, I think that it can be affirmed, which does not mean that there is not a certain reduction or diminution. Moreover, we can affirm the knowledge of the rule on the basis that the police officer warned him of the criminal consequences of his refusal. Finally, there is nothing to stop him from being required to act in accordance with rule in each case. I understand, therefore, that Antonio is guilty of the three offences that we have been arguing, but with diminished imputability. More specifically, I think that this diminished imputability could give rise to an incomplete defence of intoxication.

II.6. In terms of punishability, it should be borne in mind that the legislator itself has provided for a concursal clause (art. 382), which obliges the more serious offence to be assessed in the case of a result offence of harm in the context of dangerous driving offences, as in this case. Thus, the offence of driving under the influence of alcoholic beverages would be assessed, and not the sanction of damage, with a lower penalty. Apart from this, the offence of disobedience to authority, in real competition. 

III. At final, Antonio will have to answer for the crimes of driving under the influence of alcoholic drinks (art. 379.2), and disobedience to authority (art. 383), in real concurrence, in both cases, with the penalty lower by one or two Degrees due to the incomplete exonerating circumstance of intoxication (art. 21.1 in relation to art. 20.2).