The offence of driving a vehicle without a licence
The offence of driving without a licence is regulated in the Criminal Code, in article 384, and it penalizes the following conducts
- The driving of a motor vehicle in cases of loss of validity due to total loss of points;
- Driving after having been cautiously or definitively deprived of the permit or license by a court decision, and;
- Driving a motor vehicle or moped without ever having obtained a driving licence or permit.
The penalty is imprisonment for three to six months or a fine of twelve to twenty-four months or community service for thirty-one to ninety days.
The question was whether the offence of driving a motor vehicle or moped without ever having obtained a driving licence was an abstract or concrete offence of danger; if it was the former, it would be consummated by merely carrying out the driving in question, without the need to have committed any offence; if it was the latter, it would require that there had been a real danger to the protected legal asset, i.e. road safety, through the commission of some anti-regulatory manoeuvre.
The Supreme Court, in its ruling of 26 April 2017, set out the interpretative criteria for this article, which must be applied in the same way throughout the national territory.
What the High Court is saying is that the criminal type is an abstract crime of danger. In effect, from the reading of this precept, no requirement of a concrete danger for road safety is derived, but the carrying out exclusively of the driving of a motor vehicle without the corresponding administrative authorization, because the person who drives such a motor vehicle has never had it.
The abstract risk to road safety therefore results from driving without theoretical and practical qualification and without checking the physical and psychological capabilities of the driver, which naturally increases the risk to other road users, which is in itself dangerous and causes a high accident rate, which the standard seeks to reduce.
Under the consideration that it is an abstract crime, the conduct is consummated when driving without the appropriate administrative authorization (permit or license), without the incidence of having committed any road infraction, nor having carried out any anti-regulatory maneuver.
However, the criminal definition requires that the perpetrator has never obtained a driving licence. That is why those who hold a licence abroad must be excluded, both those from EU and non-EU countries; in other words, article 384 of the Criminal Code speaks of the "obtaining", not the "validity" in our law of the licence with which one drives, without distinction between having obtained it within or outside national territory. The fact that it has been issued in another country, when such an authorisation is likely to be recognised by the Spanish State, excludes that legal presumption of danger.
For all these reasons, we can differentiate between a criminal offence and an administrative sanction: the criminal type sanctions the driving of a motor vehicle without any permit or licence because it has never had one or because it has lost its validity due to the total loss of the legally assigned points, while the administrative type refers to not having the corresponding administrative authorisation, that is, it can be held but it is not appropriate to the characteristics of the vehicle with which it is driven, according to the different modalities that are legally determined and the circumstances of the case.