Article 384 and the DGT: when is the offense of driving without points understood to be committed?
It seems like only yesterday when Law 17/2005, of July 19, 2005, introduced the driver’s license points system in Spain. The non-criminal law reform also entailed a change to the Criminal Code. Thus, an amendment was inserted into article 384 penalizing, among other types of conduct, driving a vehicle while disqualified due to the loss of all the points on the driver’s license.
Although there is no doubt about the envisaged scenario, there was no consensus on how to interpret article 384 of the Criminal Code. This explains the current move towards a uniform approach, in which the Directorate-General of Traffic (“DGT”) has shifted from its previous stance to the interpretation championed by public prosecutors and the courts, namely: only in cases when the infringement resulting in the loss of all the driver’s points becomes final (i.e., when an appeal to a higher administrative body is dismissed, or the time limit for filing one has expired) is it understood that a criminal offense has been committed.
Such an interpretation is precisely the opposite of that enshrined in the instruction given on March 3, 2011 in which the DGT itself stated that the offense defined in article 384 of the Criminal Code was committed as soon as the driver was disqualified due to the loss of all the points on his/her license and started driving before obtaining fresh permission to drive. However, the instruction soon clashed with the approach taken by the courts and public prosecutors in practice.
From the moment they began applying article 384, the courts were very clear in their minds about what was required: to deem an offense to have been committed, there had to be a final decision declaring the driver to be disqualified; this meant that if an appeal filed against the disqualification decision was still pending resolution, such conduct did not constitute an offense. This interpretation was also taken on board by the General State Prosecutor’s Office (Circular 10/2011 on criteria for unity of specialized action by the Public Prosecutors’ Office in the field of road safety leaves no room for any doubt).
This was since, otherwise, the principle of the presumption of innocence would be contravened, leading to situations as absurd as that in which a driver could be deemed to be the perpetrator of a crime due to his/her having been unjustifiably disqualified because of the loss of all his/her points, despite winning an appeal against disqualification because the case against him/her was not legally compliant.
Given this state of affairs, the Directorate-General of Traffic published Instruction 13/S-131 on July 24, 2013 to the effect that such conduct can only be deemed criminal when the time limit for filing the relevant appeal to a higher administrative body has expired without any appeal having been lodged, or when the driver is notified of the decision on appeal. If the driver gets behind the wheel of a vehicle during this interim period, an administrative penalty can be imposed on him or her.
While we await its implementation in practice, this measure must, at the very least, be regarded as one designed to “break the logjam” in the criminal law courts, if it is borne in mind that in 2012 road safety offenses were the cases resulting in the largest number of dismissals at the examining stage, and that driving without a license or without points was the number two road safety offense by volume of cases in Spain (only surpassed by drunk driving cases).
We will see whether, with measures such as that proposed (which must go hand in hand with telematic expediting instruments), we manage to get the Spanish courts to step on the gas.
Garrigues Litigation and Arbitration Department