Arrested With Drugs in Spain: Rights and Defence Guide 2026
In this article
Key Takeaways
- Do not make a statement without a lawyer
- Silence is not guilt
- Supreme Court reference quantities
- Fine vs. prison: the indications
If you are arrested with drugs, the first thing is not to make a statement without a lawyer (Art. 24.2 of the Constitution), not to unlock your phone or give the PIN, and not to consent to searches voluntarily. The line between a fine and an offence is not fixed by law: they are Supreme Court case-law references based on a supply of 3 to 5 days of use. Use, or possession in an amount for personal use, is an administrative infringement (Art. 36.16 LO 4/2015) with no criminal record; possession with indications of trafficking is an offence (Art. 368 CP), carrying 1 to 6 years in prison depending on the substance. Indications of trafficking include splitting into doses, scales, cash in small notes or a client list. Anyone in this situation should request a drug crime lawyer before making any statement.
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If you have just been arrested with drugs, the first thing to know is that you have the right not to make a statement (Art. 24.2 of the Constitution). Anything you say to the police will be transcribed in the report and used against you at trial. As criminal defence lawyers acting as your drug crime lawyer, this guide explains your rights and the quantities that mark the line between a fine and prison.
1. First of All: Do NOT Make a Statement
- Do NOT make a statement to the police without a lawyer present.
- Do NOT unlock your phone or give your PIN code.
- Do NOT consent to searches voluntarily. Require it to be put in writing.
- Request a lawyer immediately (private or court-appointed: the lawyer must attend within a maximum of three hours from receiving the assignment).
- Memorise the circumstances: who arrested you, where, what they said, whether they read you your rights.
⚠️ Golden rule
What you say at the police station will be used against you. Silence cannot be interpreted as an indication of guilt (Art. 24.2 of the Constitution). It is your constitutional right and you should exercise it.
2. Quantities: Fine or Offence?
There are no fixed quantities in the law. They are case-law references from the Supreme Court (a supply of 3-5 days of use):
| Substance | Use (fine) | Trafficking (offence) | Basic penalty |
|---|---|---|---|
| Cannabis / Hashish | ≤ 25-100 g | > 100 g | 1-3 years |
| Cocaine | ≤ 7.5 g | > 7.5 g | 3-6 years |
| Heroin | ≤ 3 g | > 3 g | 3-6 years |
| MDMA / Ecstasy | ≤ 1.3 g | > 1.3 g | 3-6 years |
* Indicative quantities according to Supreme Court case law. They are not fixed legal figures.
3. Your Rights as a Detained Person (Art. 520 LECrim)
- Right to silence: you have no obligation to answer any question.
- Right to a lawyer: private or court-appointed. The lawyer must attend the place of detention within a maximum of three hours from receiving the assignment (Art. 520.5 LECrim).
- Right to a phone call: you can inform a relative of your arrest.
- Right to an interpreter: if you do not speak Spanish fluently.
- Right to medical assistance: if you need it.
- Maximum 72 hours: after that period, you must be brought before the court or released.
4. Administrative Fine vs. Criminal Offence
Administrative infringement (LO 4/2015, Art. 36.16): a fine of 601 to 30,000 euros, no criminal record, replaceable by detoxification treatment.
Criminal offence (Art. 368 CP): prison of 1-6 years depending on the substance, a criminal record, confiscation of assets and vehicles.
5. What Are "Indications of Trafficking"?
- Quantity: above the Supreme Court's reference quantities.
- Splitting: drugs divided into individual bags.
- Sale materials: precision scales, zip bags.
- Divided cash: small notes with no justification.
- Client list: lists on the phone with quantities and names.
Frequently Asked Questions
Can they search my car without a court order? The police can carry out a superficial search of the vehicle if they have well-founded reasons. An exhaustive search requires specific indications. An unlawful search makes the evidence null.
Do I have to give my phone PIN? NO. The content of the phone requires court authorisation.
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When an arrest is carried out by a private individual — for example, airport security staff — they must justify having acted on reasonably sufficient grounds under Article 491 of the Spanish Criminal Procedure Law.
The duty of the judicial police to make an arrest in the cases set by law is established in Article 492 LECrim.
Frequently asked questions
Should I make a statement to the police if arrested with drugs?
No — you should not make a statement without a lawyer present (Art. 24.2 of the Constitution); anything said will be transcribed in the police report and can be used against you at trial.
Do I have to unlock my phone or give the police my PIN?
No. There is no obligation to unlock your phone or provide the PIN; accessing the phone's content requires judicial authorisation.
What is the difference between administrative possession and a drug trafficking offence?
Possession for personal use is an administrative infringement under Art. 36.16 of Organic Law 4/2015, punished with a fine and no criminal record; possession with indications of trafficking is a criminal offence under Art. 368 CP, carrying 1 to 6 years in prison depending on the substance.
What quantities separate personal use from trafficking?
There is no fixed legal threshold — these are Supreme Court case-law reference points based on a 3 to 5 day supply, roughly 25-100g for cannabis/hashish, 7.5g for cocaine, 3g for heroin and 1.3g for MDMA, though the actual classification always depends on the full set of circumstances.
What counts as an 'indication of trafficking' beyond quantity?
Splitting the substance into individual doses, possessing precision scales or sealable bags, carrying cash in small denominations with no justification, or having a client list on a phone are all treated as indications pointing toward trafficking rather than personal use.
Can the police search my car or home without a court order?
A superficial vehicle search may be lawful with well-founded reasons, but an exhaustive search or a home search generally requires specific judicial authorisation; an unlawful search can render the evidence obtained null.
Do I need a drug crime lawyer if I was arrested with a small quantity?
Yes — even where the quantity looks close to the personal-use reference points, a drug crime lawyer should review the specific circumstances, since indications such as splitting into doses, scales or a client list can shift the case from an administrative fine towards a criminal offence.
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