Street Dealing and Minor Drug Trafficking: the Reduced Offence of Art. 368.2 CP

Not every act of drug trafficking warrants the same criminal response. Street dealing —selling or handing over small amounts, often among users— remains an offence against public health under Article 368 of the Spanish Criminal Code (CP), but the law keeps an escape valve for the less serious cases: the reduced offence of art. 368.2 CP. As criminal defence lawyers specialising in drug trafficking offences, we explain what this provision involves, how it differs from personal consumption and which lines of defence can bring the case back to its proper measure.

What Street Dealing Is (Art. 368 CP)

Art. 368 CP punishes anyone who carries out acts of cultivation, manufacture or trafficking, or otherwise promotes, encourages or facilitates the illegal consumption of drugs —toxic, narcotic or psychotropic substances— or possesses them for those purposes. The provision sets no minimum quantity: selling or handing over a single dose to a third party may already constitute the offence. That is why so-called street dealing or minor trafficking —distributing small amounts, frequently within the circle of users themselves— falls squarely within this offence.

The penalty depends on the type of substance. Art. 368 itself draws two bands:

• Substances that cause serious harm to health (cocaine, heroin, MDMA, etc.): imprisonment of three to six years and a fine of one to three times the value of the drug.
• Substances that do not cause serious harm to health (typically cannabis and its derivatives): imprisonment of one to three years and a fine of one to two times the value.

The Reduced Offence of Art. 368.2 CP

The second paragraph of art. 368 CP introduces a power to reduce the penalty designed precisely for street-dealing situations. It states that, notwithstanding the penalties above, courts may impose the penalty one degree lower than those laid down, having regard to the minor nature of the act and the offender's personal circumstances.

There are therefore two requirements that must be weighed together:

• Minor nature of the act: this looks to the objective dimension of the conduct —the small quantity of drugs, their low value, the occasional or isolated character of the sale, the absence of any real distribution structure.
• The offender's personal circumstances: this looks to the subjective dimension —the defendant's status as a user or addict, the absence of a record for similar acts, their personal and social situation, the lack of any significant profit motive.

The effect is substantial: once the reduction applies, the penalty for serious-harm substances can fall from the three-to-six-year band to one of eighteen months to three years' imprisonment; and for the other substances, from one to three years to a band of six months to one year. That reduction is decisive because it places the penalty within ranges that make it possible to seek a suspended sentence.

The Boundary with Shared Consumption (Non-Punishable)

Even before reaching the question of mitigation, it is worth knowing that not every exchange of drugs is trafficking. The settled case law of the Supreme Court recognises that shared consumption is non-punishable —it is not a crime— where a series of conditions, refined in practice over time, are present:

• That those involved are users (or addicts) who come together to consume.
• That the group is small and closed, made up of identifiable individuals.
• That there is no distribution to outsiders beyond the group.
• That consumption takes place in a private or enclosed setting and on a more or less immediate basis.
• That it involves small quantities intended for that joint consumption, with no profit motive.

The essential difference from street dealing is that, in shared consumption, the drug does not leave the consumption circle itself: there is no handing over to third parties and no distribution. The moment the substance is directed to people outside that closed group —or trafficking-type payment is involved— we leave the realm of non-punishable conduct and enter art. 368. Establishing that a specific case meets the features of shared consumption is therefore one of the strongest defences, because it leads directly to acquittal.

Difference from Trafficking under Art. 368.1 CP

Street dealing is not a separate offence from "ordinary" trafficking: it is the same offence under art. 368, with the reduction of the second paragraph applied to it. The distinction is one of seriousness, not of nature. The trafficking of the first paragraph (art. 368.1) covers both operations of some significance and those which, while not reaching the aggravating factors of arts. 369 and following, cannot be described as minor. The reduced offence of the second paragraph is reserved for genuinely minor acts.

Above the basic offence sit the aggravated forms of art. 369 CP, which raise the penalty where circumstances such as the notable importance of the quantity are present, distribution to minors, commission in premises open to the public or in educational or prison facilities, or the use of violence or weapons. And on the top tier, arts. 369 bis and 370 punish organisation and extreme seriousness. A central part of the strategy is precisely to contest the classification so as to place the act in the correct band.

Lines of Defence in Street Dealing

The defence in these proceedings is built on several fronts that should be worked on from the investigation stage:

1. Quantity and personal use: challenging that the drugs were intended for trafficking. Possessing amounts compatible with personal use —assessed against the guideline daily-consumption modules— is not a crime. The absence of individually measured doses, scales, lists or divided cash strengthens this argument.
2. Purity and richness of the substance: the laboratory analysis is essential. The penalty is graded on the actual active ingredient, not on gross weight; a very low purity reduces the criminally relevant quantity of drug and may bring the case closer to the reduced offence or even to non-punishability on grounds of insignificance.
3. Shared consumption: where applicable, establishing that the features of shared consumption are present in order to argue that the conduct is not punishable.
4. Application of art. 368.2 CP: arguing the minor nature of the act (minimal quantity, occasional sale, no structure) and the favourable personal circumstances (status as a user, lack of a record) in order to obtain the one-degree reduction.
5. Mitigating circumstance of drug dependence: where the defendant acts because of serious addiction, invoking the mitigating circumstance of art. 21.2 CP or, depending on the intensity of the impairment, the full or partial defence of art. 20.2 CP, which may further reduce the penalty and open the route to suspension conditional on a rehabilitation programme.
6. Validity of the evidence: reviewing the lawfulness of the search of premises or person and of any interceptions, as well as the chain of custody of the seized substance; any defect may deprive the prosecution evidence of effect.