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REFUSING to take a random alcohol test is not a criminal offence, according to a ruling by a judge in Pamplona.

Under penal code revisions passed in December 2007, drivers who refuse to submit to an alcohol test can be sentenced to six months to a year in prison.

But the Pamplona judge ruled that refusal to take the alcohol test can only be considered a criminal offence if law enforcement officers observe clear signs that the driver is under the influence of alcohol, or the driver has been involved in an accident. Refusing at a random alcohol checkpoint, when neither of the above conditions applies, is merely a traffic infraction, not a criminal offence, found the judge.

He based his ruling on a Supreme Court decision in 1999 regarding Article 380 in the penal code, in which the court ruled that refusing to submit to a random alcohol test when officers do not detect clear signs of inebriation “does not pass the level of administrative sanction” and enter into criminal territory. That case involved a member of congress who had refused to take an alcohol test at a random checkpoint.

The Pamplona ruling, which is subject to appeal, came in the case of a man who was pulled over on his motorbike and, when given an alcohol test, “consciously performed it defectively in order to avoid a valid result.”

It is not the first time a Pamplona court has made a ruling challenging the criminality of drink-driving related offences. In February 2008, just months after the penal code revision made alcohol levels exceeding 0.60 mg/l of expired air a crime punishable by prison sentences, a Pamplona court let off a driver who had blown at 0.63 mg/l. In that case, the ruling was based on a potential margin of error of 7.5 per cent in the testing device, based on guidelines established by the Ministry of Industry.