Driving without a license

The criminal code criminalizes the conduct of Driving without a license with the loss of legally assigned points. And with a prison term of 3 to 6 months or a fine of 12 to 24 months. The same penalty applies for those who drive deprived of the permit for a precautionary or definitive reason and for those who have never obtained it.

This conduct is a crime regulated by Article 384 of the Criminal Code, which reads as follows:

(…) Whoever drives a motor vehicle or motorcycle in cases of loss of validity of the permit or license for total loss of the legally assigned points, shall be punished with imprisonment of three to six months or with a fine of twelve to twenty-four months or with work for the benefit of the community of thirty-one to ninety days.

The same penalty shall be imposed on anyone who drives after having been cautiously or definitively deprived of the permit or license by a court decision and on anyone who drives a motor vehicle or motorcycle without ever having obtained a permit or license. (…)

In interpretation of article 384 CP, the Provincial Audience of Madrid (Section 16), in the sentence of 10.12.2015, concludes:

(…) “the mere fact of driving a motor vehicle or moped without ever having obtained a driving permit or license covers all the elements of the type provided for in paragraph 2 of Article 384 Criminal Act, and this has been the will expressed by the legislator, without the criminal precept requiring any other requirement. It is clear the legal property that this criminal precept is intended to protect, which is none other than traffic safety, which is altered “per se” when someone drives an artifact so dangerous for the life and integrity of people as motor vehicles without having the necessary expertise required for such activity, which is only evidenced by obtaining the corresponding permits or administrative licenses”. (…)

Contacto No te quedes con la duda, contacta con nosotros. Estaremos encantados de atenderte y ofrecerte soluciones.

Driving without offence due to accumulation of points

Now, despite the fact that in general the interpretation is so categorical, there is room for clarification. The jurisprudential development of Article 384 leads, among other things, to two issues that will  be addressed in this article:

A – Does the revocation of an administrative decision to withdraw a driver’s license have criminal effects? (Paragraph 1 art. 384 CP)

B – What happens with driving licenses obtained abroad? (Paragraph 2 art. 384 CP)

Does the revocation of an administrative decision to withdraw a driving license have any effect on criminal law?

The answer is yes, in case the resolution withdrawing the driving license is revoked. Because when the administrative act declaring the deprivation of license is missing, the criminal type is left without support. And this is expressly deduced from the sentence of the Supreme Court 205/2017 of January 25 (Criminal Chamber).

In this sense, in its second legal basis, mentioned sentence indicates:

(…) Although the decision of the Contentious-Administrative Court handed down on January 21, 2014, which annulled the decision of the Directorate General of Traffic (dated October 11, 2012), which had agreed to the loss of validity of the points assigned to the applicant for driving motor vehicles, has its effects in the area of administrative law, this does not mean that it has no repercussions in the criminal area. If the loss of the applicant’s driving license was based on an administrative sanction and this in turn was the basis for one of the objective elements of the type set forth in Article 384 of the Criminal Code, it is obvious that the validity and effectiveness of the administrative decision was an essential condition for the application of the criminal law and for a conviction to be handed down in the proceeding against the defendant. (…)

Once this element is missing because the sentence issued by the Contentious-Administrative Court has been declared null and void, it is clear that the type of crime applied has been left without the factual-regulatory support that allowed the driver’s conduct to be subsumed under the criminal law and the corresponding sentence to be issued. The fact is that there is no longer any basis for considering that the criminal law asset that legitimized the activation of the criminal law has been undermined (…)

Is it a crime to drive without an approved license in Spain? What happens to driving licenses obtained abroad?

In these cases, as can be deduced from the wording of Article 384 CP, the criminal rate does not apply. The article talks about the obtaining, not the validity of the license with which you drive. The article does not distinguish whether the permit was obtained inside or outside the national territory. It should be noted here that driving with an expired license is an administrative infraction, not a crime (Art. 77 Law on Traffic, Circulation of Motor Vehicles and Road Safety).

The Provincial Court of Toledo has constructed some requirements that are invoked in the STS 756/2017 of November 27th. (Criminal Chamber, Section 1). These are not mentioned in the article so that typical conduct may occur, but as we said, if the jurisprudential doctrine. In this regard, we cite fundament 1.3.3 of STS 756/2017 mentioned above:

a) The exegetical basis of this exclusion is primarily grammatical: Article 384 of the Criminal Code speaks of obtaining, and not of the validity of the license with which one drives. No distinction is made whether the permit or license has been obtained within or outside the national territory. The exhaustive expression “never” is conclusive.

b) The examination of the parliamentary process reinforces this interpretation. The final wording of the new criminal type originates in an amendment that expressly referred to not “having ever obtained a driving permit or license, issued by a public authority of any country. (…).

c) A teleological interpretation abounds in this exegesis. The new type obeys the idea of preserving the protected legal good, road safety, against all those who venture to drive a motor vehicle without having obtained a permit, precisely because of the extra danger posed to other users of public roads by driving vehicles by those who have not demonstrated a minimum fitness for driving. It protects, therefore, not so much the control by the Spanish administration of the qualifications to drive, but the legal good “road safety”.

Possession of a foreign license: On the burden of proof:

Finally, add that the burden of proof for the possession of a foreign license corresponds to the defense. In this regard, we will mention, by way of summary, the Madrid SAP (Section 1) of March 31, 2015:

(…)”With respect to the fact that it is up to the Public Prosecutor’s Office to provide proof that the foreign citizen does not have the card in his place of origin either, the jurisprudence has been unanimous in resolving this question, which is often raised by the defense of the accused in the crime of Article 384 Criminal Act when the accused is a foreigner, with the courts resolving that, like any exculpatory argument, his accreditation corresponds to the defense”(…).

If this article has been of interest, we also suggest you to read the following article published on our website: Limits on freedom of expression.