Criminal Lawyers for Self-Use vs Trafficking Defence

The distinction between personal drug use (decriminalized) and drug trafficking (criminal offence) is one of the most critical determinations in Spanish drug law. Personal consumption is only an administrative infraction (fine), while trafficking carries prison sentences of 1-6 years depending on the substance.

You have been reported with drugs and you do not know whether it is personal use: what it means and what happens next

Possession for one's own consumption is not an offence; Art. 368 CP punishes acts of promotion, facilitation or favouring of consumption by others. Because intention cannot be observed directly, courts work from indicators: the quantity held against average consumption, the way it was divided up, the presence of scales or cash, and whether the person is an established user. Each of those indicators can be explained, and that is where the defence operates.

What to do (and what not to do) before making a statement

• Do not make a statement without a lawyer of your own choosing. Articles 118 and 520 of the Criminal Procedure Act (LECrim) give you the right to remain silent, not to incriminate yourself and to speak with your lawyer in private before the statement. What is said in the first appearance conditions the whole case.
• Obtain evidence of your own consumption where it exists: medical or addiction-service reports, treatment records, hair or urine analysis. This is the single most effective element against an inference of trafficking.
• Do not delete messages, files or records. Deletion is read as an indication of guilt and, in a forensic image, it is almost always recoverable.
• Check how the search was carried out. A search made without the required grounds or authorisation can exclude the seizure and everything derived from it.

Legal Distinction

The key to most of these cases is a frontier that is not one of quantity, but of purpose. Possessing drugs for one's own consumption is, at most, an administrative infraction under the Citizen Security Law (fine and forfeiture); allocating them to trafficking or to facilitating the consumption of third parties is an offence under Art. 368 CP. The problem is evidentiary: since intent cannot be seen, the courts infer the destination to trafficking from indicators, and quantity is the first of them. Hence the system operates with a presumption of trafficking when certain thresholds are exceeded —a presumption that, in any case, admits evidence to the contrary. Dismantling that inference, indicator by indicator, is the essence of the defence.

Supreme Court Criteria

The Supreme Court established consumption guidelines based on average daily consumption multiplied by 5 days: hashish (~7.5g), marijuana (~25g), cocaine (~1.5g), heroin (~0.6g), MDMA (~0.48g). Quantities below these thresholds create a strong presumption of personal use. However, these are guidelines, not absolute limits — a heavy user may legitimately possess quantities above these thresholds. It must also be stressed that the calculation is made on the active ingredient, not on the gross weight, and that exceeding the threshold does not by itself determine a conviction: it merely shifts to the defence the burden of establishing the destination to consumption.

Defence Approach

Our defence builds a comprehensive personal use profile: documenting the client's consumption history (medical records, witness testimony); demonstrating the absence of trafficking indicators (no scales, no individual packaging, no client lists, no large cash amounts); presenting expert testimony on consumption patterns —a proof of tolerance showing that the seized quantity is compatible with the level of a chronic user—; and arguing that the specific circumstances (buying in bulk for economy, upcoming trip, weekend supply) explain the quantity without trafficking intent. Where it fits, the shared consumption doctrine —joint acquisition for immediate consumption among habitual users in a closed place— can redirect to atypicality situations the prosecution presents as a delivery to third parties.

The line between personal use and trafficking: what the prosecution must prove

Personal drug use and possession intended for one's own consumption are not criminal offences. What Article 368 of the Criminal Code punishes are acts of cultivation, processing, trafficking, promotion, encouragement or facilitation of unlawful consumption by third parties, together with possession aimed at that purpose, that is, with intent to distribute. Mere possession, even of a noticeable quantity, is therefore not enough on its own: the prosecution must establish that the drugs were destined for trafficking. Without that intent to pass them to others, the conduct falls outside the criminal type, regardless of any administrative consequences.

In public spaces, use or possession for personal consumption may be penalised as an administrative infringement under Organic Law 4/2015 on the protection of public safety. This is a response of a different nature from criminal liability; it must not be confused with an offence, nor should it generate a criminal record. The defence works precisely along that dividing line, showing where appropriate that the facts fit within the administrative sphere or amount to non-criminal conduct, rather than the criminal reproach of Article 368.

To infer that drugs were destined for trafficking, the courts assess a range of indicators: the quantity seized in relation to the person's consumption pattern, the way the substance is presented (for example, individual doses), the presence of scales or cutting tools, fragmented sums of cash, or the circumstances of the seizure. None of these is conclusive in isolation; it is their reasoned combination that may support the inference. The defence strategy is to explain each indicator in a manner consistent with personal use and to challenge any logical leaps that are not properly justified.

Expert evidence and the lawfulness of searches and wiretaps

The seized substance is almost always at the heart of the case. Expert analysis must determine its nature, the net weight (excluding wrappings and inert adulterants) and, most importantly, its purity or active-ingredient content. These figures are not a mere formality: they shape the legal classification, because the notable-quantity thresholds set by Supreme Court case-law are calculated on pure substance, not gross weight. The defence scrutinises the laboratory methodology, the traceability and the chain of custody from seizure to report, since any break may compromise the evidential value.

Much of the evidence in these proceedings comes from interferences with fundamental rights: home searches and, above all, the interception of communications. Article 18 of the Constitution protects the inviolability of the home and the secrecy of communications, and Articles 588 bis a) and following of the Criminal Procedure Act require a reasoned judicial authorisation, subject to the principles of speciality, suitability, exceptionality, necessity and proportionality. Prospective interceptions based on mere suspicion are not permitted.

Where the authorisation lacks sufficient reasoning, rests on unverified data or is exceeded in its execution, the resulting evidence may be declared void. Under the exclusionary rule and the doctrine of connected unlawfulness, that nullity can extend to derived evidence. Reviewing the initial police request, the enabling judicial order and the court's supervision of the interception is therefore one of the most significant technical tasks of the defence in public-health offences.

Mitigating the sentence: minor significance of the act and drug addiction

The second paragraph of Article 368 allows the courts to impose the penalty one degree lower, having regard to the minor significance of the act and the personal circumstances of the offender. Minor significance is associated with trivial or isolated conduct, without organisation or any aim of sustained activity as a source of income. It is a regulated power that does not apply where the aggravating circumstances of Articles 369 bis or 370 are present, but in many small-scale cases it is decisive in substantially reducing the sentencing range.

Where the conduct is linked to addiction, the law provides specific responses. Article 20.2 of the Criminal Code may operate as an exempting circumstance, full or partial, where the person acts under a serious alteration of consciousness caused by withdrawal syndrome or full intoxication. At a lower intensity, Article 21.2 sets out the mitigating circumstance of acting on account of a serious addiction to such substances, which may even be treated as highly qualified depending on the degree of impairment proven.

These avenues require evidence: medical and psychosocial reports, treatment history and, where appropriate, expert assessment of the link between the dependence and the specific act. Evidence of an ongoing detoxification process carries added weight, both for individualising the sentence and for supporting forms of enforcement geared towards rehabilitation. The defence coordinates this evidence with the legal classification in order to build a sentencing outcome proportionate to the client's actual situation.

Procedural stages, competent court, prescription and plea agreement

The investigation is conducted by the Investigating Court, which directs the inquiry, orders the procedural steps and decides on the personal situation of the accused. The trial depends on the penalty: the Criminal Court hears cases carrying a penalty of up to five years, while the Provincial Court tries those exceeding that limit. There is, moreover, a significant exception: where drug trafficking is committed by organised gangs or groups and produces effects in places belonging to different Provincial Courts, jurisdiction lies with the National Court under Article 65.1.d of the Organic Law on the Judiciary. Both requirements are cumulative: an international dimension is not in itself a criterion, and only where the offence was committed outside national territory does the National Court hear it on grounds of internationality (Article 65.1.e LOPJ).

Limitation periods are governed by Article 131 of the Criminal Code, which no longer includes a three-year bracket. The basic offence under Article 368 concerning substances that cause serious harm to health, carrying a penalty of three to six years, becomes time-barred after ten years; the modality involving substances that do not cause serious harm, with a penalty of one to three years, after five. The aggravated offences of Articles 369 and 370, by raising the penalty by one or two degrees, may place prescription at ten or fifteen years. Verifying the applicable period and how it is counted is essential in protracted cases.

A plea agreement allows the proceedings to be resolved through an agreed sentence, with the corresponding reduction and the certainty it provides. It is not a suitable course for every case: it should be considered only where the incriminating evidence is solid and the agreement is more favourable than the likely outcome of a trial. The decision is always taken on full information, after analysing the classification, the available mitigating circumstances and the procedural risks, and respecting the will of a properly advised client.