Drug Crime Lawyer

The crimes against public health regulated in Arts. 368 to 378 of the Spanish Criminal Code — commonly known as drug trafficking offences — constitute one of the most litigated and technically complex chapters of Spanish Criminal Law. The protected legal interest is collective health, understood as abstract risk: it is not necessary to prove specific harm to a consumer; it suffices that the conduct be suitable to disseminate the substance and endanger the health of an undetermined number of persons. Supreme Court case-law has developed an extremely guarantee-oriented interpretative framework on circumstantial evidence, chain of custody, motivation of wiretaps and the distinction between self-use, shared consumption and trafficking proper.

The Criminal Code distinguishes first between substances causing serious harm to health (cocaine, heroin, MDMA, amphetamines, methamphetamine, fentanyl) and substances not causing serious harm (hashish, marijuana, other cannabis derivatives). This classification determines the base penalty: 3 to 6 years' prison and fine for the former and 1 to 3 years' prison and fine for the latter (Art. 368 CP). On this scheme operate the aggravated subtypes of Art. 369: aggravated quantity, commission in or near educational, military, prison or rehabilitation facilities, supply to minors or persons in treatment, use of minors or incapacitated persons in the network (Art. 370.1), membership of a criminal organization (Arts. 369 bis and 570 bis), extreme gravity (Art. 370) and hyper-aggravated trafficking reaching 9 years and 1 day to 13 years and 6 months' prison. The mitigated subtypes of Art. 368.2 allow reducing the penalty by one degree for minor entity and personal circumstances (proven drug addiction).

The aggravated-quantity thresholds, set by the Supreme Court non-jurisdictional plenary of 19 October 2001 on the basis of five hundred daily doses, are objective: cocaine >750 g, heroin >300 g, hashish >2.5 kg, marijuana >10 kg, MDMA >240 g. For cocaine, heroin and MDMA these parameters are calculated on the active ingredient, not gross weight, opening one of the most relevant defence fronts: challenging the purity percentage certified by the National Institute of Toxicology and Forensic Sciences to avoid the leap to the aggravated subtype. For cannabis and its derivatives, by contrast, the threshold is computed on net weight and is not reduced to THC: the analysis proves the seized material is cannabis and allows the doses to be calculated, but it does not lower the threshold, so the defence turns on the contested weighing. The penalty for aggravated quantity ranges from 6 to 9 years' prison for serious-harm drugs and from 3 to 4.5 years for the others, with fines from once to four times the drug value.

Technical defence is grounded on several consolidated axes. The first is the nullity of wiretaps: Constitutional Court doctrine and Supreme Court doctrine demand reasoned judicial orders, based on objective evidence and proportionate; generic prospecting or mechanical renewals can be challenged and drag down all derived evidence via the fruit of the poisonous tree doctrine (Art. 11.1 LOPJ). The second is the chain-of-custody challenge: any break between seizure, weighing, shipment to the laboratory and the INTCF report may raise doubts about the identity of the analysed substance. The third is the shared-consumption doctrine, which excludes criminality where prior agreement among habitual users, immediate consumption in a closed place and absence of diffusion are proven. The fourth is the nullity of home entries and searches without valid judicial order or informed consent of the dweller (Art. 18.2 CE). And the fifth is the highly qualified addiction mitigating factor of Art. 21.2 CP, which may reduce the penalty by one or two degrees when serious affectation of will is expertly proven.

Current forensic practice is marked by the internationalization of drug trafficking, the rise of fentanyl and synthetic opioids, the consolidation of industrial-scale indoor cannabis in Spain and the assignment of relevant cases to the Investigation Section of the Central Court of Instance, which instructs the cases tried by the National Court (Art. 65.1(d) LOPJ) where the trafficking is committed by organised gangs or groups and has effects in the territory of different Provincial Courts. Organic Law 1/2025 on the efficiency of the Public Justice Service is a procedural and organisational statute: it does not amend the Criminal Code or its penalties. At Alonso Sala we intervene in high-complexity macro-cases coordinating chemical experts from the Official Chemists' Association, IT experts to challenge SITEL methodologies, and sworn translators for transnational cases. We approach each file with the conviction that in drug trafficking the client's freedom almost always depends on procedural detail: insufficient motivation, doubtful purity, an entry without consent or a broken chain of custody can make the difference between maximum conviction and acquittal.