Arrested with Drugs? Emergency Criminal Lawyer
First: DO NOT MAKE STATEMENTS. Call us. Everything you say will be used against you
Possession of drugs for personal use is not a crime: in public places, on roads, in public establishments or on public transport it is an administrative offence under Organic Law 4/2015 (a fine of 601 to 30,000 euros, with no criminal record). Trafficking under Article 368 of the Spanish Criminal Code (CP) carries imprisonment of 3 to 6 years if the substance causes serious harm to health—cocaine, heroin—or 1 to 3 years if not, as with cannabis; quantity and indicia of dealing—a scale, small bags, split cash—draw the line. Anyone arrested has the right to remain silent (Article 520 of the Spanish Criminal Procedure Act (LECrim)) and their phone cannot be searched without judicial authorisation. Our defence demands proof of those indicia before accepting the classification, and proves personal use.
If you've just been arrested with drugs:
- 1DO NOT TESTIFY to police. You have the right to remain silent.
- 2Request to speak with a lawyer BEFORE any statement.
- 3DO NOT unlock your phone. DO NOT give your PIN code.
- 4DO NOT consent to searches. Demand written record if you refuse.
- 5Memorize circumstances: who detained you, where, what they said.
Quantities: Administrative Fine or Criminal Offence?
| Substance | Personal use (guideline) | Indication of trafficking | Basic penalty |
|---|---|---|---|
| Hashish | ≤ 25g | > 25g | 1-3 years |
| Marijuana | ≤ 100g | > 100g | 1-3 years |
| Cocaine | ≤ 7,5g | > 7,5g | 3-6 years |
| Heroin | ≤ 3g | > 3g | 3-6 years |
| MDMA / Éxtasis | ≤ 2,4g | > 2,4g | 3-6 years |
| Methamphetamine | ≤ 0,3g | > 0,3g | 3-6 years |
| GHB | No guideline figure | Depends on indications | 3-6 years |
* Guideline of about five days’ supply, calculated on the National Toxicology Institute daily consumption set out in the Supreme Court Plenary Agreement of 19-10-2001. Not legal figures: exceeding them is an indication, not proof, of trafficking, and personal use is an administrative infraction only in public places. Each case is assessed individually.
Drug Trafficking: Basic Type and Subtypes (Art. 368 CP)
The boundary between personal use (administrative infringement under LO 4/2015) and trafficking (offence of Art. 368 CP) is the core of the defence. The basic type distinguishes by substance: those that cause serious harm to health (cocaine, heroin) are punished with 3 to 6 years' prison; those that do not (cannabis) with 1 to 3 years' prison. The attenuated subtype of Art. 368.2 CP allows lowering the penalty in view of the minor entity of the act and the author's personal circumstances. The aggravated subtypes of Art. 369 CP (quantity of particular significance, organisation, educational centres, adulteration) substantially raise the criminal response.
Your Rights as a Detainee (Art. 520 LECrim)
Right to Silence
You have no obligation to answer any question. Silence CANNOT be held against you.
Right to a Lawyer
Police must provide a lawyer (private or court-appointed) before any statement. The appointed lawyer must attend within a maximum of three hours (Art. 520.5 LECrim).
Right to a Phone Call
You have the right to make a phone call to a family member or trusted person to inform them of your detention.
Medical Assistance
You can request medical attention if needed. The doctor must document any injuries or intoxication state.
Administrative Fine vs. Criminal Offence
Administrative Infraction
- LO 4/2015, Art. 36.16
- Fine from €601 to €30,000
- Does not generate a criminal record
- For minors, can be suspended if they accept treatment or re-education (5th additional provision, LO 4/2015)
- Consumption or possession in public places, roads, establishments or public transport
Criminal Offence
- Art. 368 Criminal Code
- 1-6 years imprisonment depending on substance
- Criminal record for years
- Asset and vehicle seizure
- Possession with trafficking indicators (scales, bags, cash)
Need an Emergency Lawyer?
Every minute counts. What you say or do in the first hours after arrest can determine whether you end up with an administrative fine or years in prison. Contact our criminal defence team.
Drug Crime Specializations
General Trafficking (Art. 368)
Defence in basic type: cultivation, production, or trafficking. Technical differentiation between substances causing serious harm and those that do not.
Criminal Organization
Defence in macro-cases with multiple accused. Challenging hierarchical structure and membership charges. Art. 570 bis CP.
International Trafficking
Import/export, containers, and National Court jurisdiction. Transnational criminal law. Art. 370 CP.
Cannabis Cultivation
Self-consumption doctrine, indoor/outdoor plantations, electricity fraud, and home search nullity.
Cannabis Clubs
Legal defence of associations and clubs. Limits of shared consumption and Supreme Court doctrine.
Sports Doping
Criminal and disciplinary defence in sports doping. Art. 362 quinquies CP. Prohibited substances and anti-doping controls.
Drug Crimes in Spain: Defence Guide for Trafficking, Possession and Cannabis Clubs
Drug offences are among the most prosecuted crimes in Spain. Articles 368-378 of the Criminal Code distinguish between drugs that cause serious harm to health (cocaine, heroin, amphetamines) and those of lesser harm (cannabis, MDMA). This distinction is pivotal — it directly determines the minimum and maximum prison sentences applicable.
Penalty Table: Drug Offences
| Offence | Article | Substance type | Penalty |
|---|---|---|---|
| Basic drug trafficking | Art. 368 | Serious harm (cocaine) | 3 – 6 years |
| Basic drug trafficking | Art. 368 | Lesser harm (cannabis) | 1 – 3 years |
| Aggravated trafficking (Art. 369) | Art. 369 | Large amounts/minors | Next higher degree: 6 – 9 years (serious harm) / 3 years and 1 day – 4 years and 6 months (lesser harm) |
| Criminal organisation (Art. 369 bis) | Art. 369 bis | Organised crime | 9 – 12 years (serious harm) / 4 years and 6 months – 10 years (lesser harm); next higher degree for leaders, managers or administrators |
| Extreme gravity (Art. 370) | Art. 370 | Extreme gravity, use of minors, organisation leaders | Penalty of Art. 368 raised by one or two degrees — up to 13 years and 6 months for serious-harm substances |
| Personal possession (own use) | Not criminal | Personal amounts | Administrative fine only |
Key Defence Strategies
Own-Use Defence (Art. 368 CP)
If the quantity found corresponds to personal consumption patterns and there are no aggravating signs (scales, bags, large amounts of cash), the defence argues the substance was for personal use — not a criminal offence.
Cannabis Social Club Defence
Since the Supreme Court case law of 2015 (including a plenary judgment), ticking a list of formal requirements (adult members, no profit, no advertising) does not make a club lawful: organised distribution to a large and open membership can amount to trafficking. The defence rests on shared consumption within a small, closed group and, where appropriate, on mistake of law.
Challenging the 'Large Amount' Threshold
The threshold (which raises the sentence by one degree) is fixed by case law, not by statute. For cocaine or heroin it is calculated on the substance reduced to purity, so deducting adulterants brings many cases below the line; for hashish and marijuana it is computed on net weight, and the argument is then about the rigour of the weighing.
Breaking the Chain of Custody
Drug evidence is often challenged on chain of custody grounds. Procedural irregularities in seizure, sealing, transfer or analysis can invalidate the forensic evidence.
Criminal Organization: Proving Role
Being part of an organisation requires a group of more than two people, stable or indefinite, with tasks shared out in a concerted and coordinated way (Art. 570 bis CP). Sporadic cooperation or a minor role (driver, lookout) does not automatically trigger Art. 369 bis penalties.
Controlled Delivery and Police Provocation
Where there is police provocation (agent provocateur), the provoked offence is not punishable and what was obtained through the incitement cannot be used as evidence. Distinguish between undercover infiltration (lawful) and provocation of an offence that would not otherwise occur.
Specific Mitigating Factors in Drug Offences
Addiction (Art. 21.2 CP)
Proven drug dependence can operate as mitigating (simple), highly qualified mitigating, or even incomplete defence, significantly reducing the penalty. Requires psychological and medical expert reports demonstrating that the addiction affected the offender's ability to understand the unlawfulness of their conduct.
Active Collaboration (Art. 376 CP)
Provides a 1-2 degree penalty reduction for anyone who has voluntarily abandoned the criminal activity and actively collaborates with the authorities: to prevent the offence, to provide decisive evidence to identify or capture other offenders, or to stop the organisation operating. Strategic assessment is crucial before cooperating.
Shared Consumption Doctrine
The Supreme Court has defined 5 cumulative requirements: habitual identified consumers, closed premises, moderate quantity for immediate use, simultaneous consumption, and absence of profit. Failure of any one requirement converts the conduct into trafficking.
'Notoria Importancia' Thresholds by Substance
| Substance | Threshold | Practical reference | Penalty impact |
|---|---|---|---|
| Cocaine | 750 g reduced to purity | ~3–5 kg gross | 6–9 years |
| Heroin | 300 g reduced to purity | ~1–2 kg gross | 6–9 years |
| Hashish | 2.5 kg (net weight) | Marijuana: 10 kg (net weight) | 3 years and 1 day to 4 years and 6 months |
| MDMA | 240 g reduced to purity | Depends on the content of each pill | 6–9 years |
| Amphetamine | 90 g reduced to purity | ~300 g gross | 6–9 years |
| Methamphetamine | 30 g reduced to purity | Depends on the purity of the sample | 6–9 years |
The figures come from the table annexed to the Agreement of the Non-Jurisdictional Plenary of the Second Chamber of the Supreme Court of 19 October 2001, drawn up on the criterion of 500 daily doses and the report of the National Institute of Toxicology of 18 October 2001. The quantity is determined on the base substance reduced to purity, except for hashish and its derivatives, where net weight is used: that is why marijuana has its own threshold of 10 kg and is not the gross equivalent of the 2.5 kg of hashish.
Key Supreme Court Rulings
The Supreme Court confirms that cannabis clubs are lawful if they are genuinely closed associations, membership is strictly adult, no promotion is carried out beyond the membership, and quantities do not exceed personal consumption patterns. Any failure of these conditions may constitute drug trafficking.
As a rule the threshold is calculated on the pure substance after subtracting adulterants and impurities, so gross weight is not the correct measurement and the defence should request an independent quantitative analysis. The 2001 Plenary Agreement expressly excludes hashish and its derivatives from that rule: there the quantity is computed on net weight, and what the defence must contest is the weighing itself.
If police provocation created the intent to commit the offence (the accused would not have acted without the provocation), the offence is not punishable and the accused must be acquitted; the evidence obtained through the incitement cannot be used either. Mere opportunity provided by an undercover officer does not amount to provocation.
From Arrest to Trial: Key Procedural Stages
Arrest & Police Custody
Maximum 72 hours. Right to a lawyer and to remain silent. Never testify without your lawyer present.
Court Hearing (Art. 505 LECrim)
Within 72 hours. Judge decide: release, bail, or pretrial detention. Critical hearing for drug trafficking cases.
Investigation Phase
Analysis of evidence, expert reports (toxicology, purity). Period to challenge wiretaps and searches. Duration: 6-18 months.
Interim Order / Indictment
Prosecution formalises charges. Defence may request dismissal or downgrading of charges.
Oral Hearing
Trial before the Criminal Section or the Provincial Court depending on the penalty (basic cannabis trafficking goes to the former, substances causing serious harm to the latter), or before the National Court where an organised group acts with effects in several provinces or the offence was committed abroad. Duration: 1 day to several months in macro-cases.
FAQs: Arrested with Drugs
I was caught with drugs, what do I do?
How much drug can I carry without it being a crime?
Can police search me on the street?
Do I have to make a statement at the police station?
What if the drugs were for personal use?
Can I request a court-appointed lawyer at the police station?
Can they keep my mobile phone?
How long can they keep me detained?
Can I go to pretrial detention?
What's the difference between administrative infraction and crime?
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