Criminal Lawyers for Street-Level Drug Dealing

Street-level drug dealing (menudeo) refers to the retail distribution of narcotics in small quantities, typically in public spaces. It is the most common form of drug trafficking prosecution in Spain, often targeting vulnerable individuals who sell to fund their own addiction.

Street Dealing Law

Street dealing is the retail sale of drugs: small quantities, street transactions, usually to end consumers. Legally it remains a trafficking offence under Art. 368 CP —there is no autonomous "street dealing offence"—, but its minor nature is precisely what opens the door to the mitigated subtype. These proceedings usually begin from police surveillance at specific points of sale, which places the identification of the seller and the reliability of what the officers observed at the centre of the case. Distinguishing the small seller —often a consumer too— from organized trafficking is essential to situate the reproach correctly.

Penalties

The base penalty is 1 to 3 years for substances that do not cause serious harm and 3 to 6 years for those that do. The decisive tool, however, is Article 368.2 CP, which allows courts to impose a penalty one degree lower when the facts are of "lesser significance", considering the small quantity, the offender's personal addiction, the absence of an organizational structure and a first offence. Its application is not automatic: it requires a joint assessment of these circumstances, and it marks the frontier between a suspendable sentence and actual prison entry, since sentences under two years can have their imprisonment suspended.

Defense Options

Our defense combines the goal of qualification with the attack on the evidence: applying for the mitigated type (Art. 368.2) based on quantity and personal circumstances; challenging police surveillance evidence (observation conditions, identification reliability —especially in operations with multiple suspects—, chain of custody); presenting drug addiction as a mitigating circumstance (Art. 21.2 CP); and negotiating alternative sentences (drug treatment programmes, community service) that avoid imprisonment, including the suspension conditioned on treatment of Art. 80.5 CP.

Procedural stages and the competent court

Drug-trafficking offences against public health are generally processed through the abbreviated procedure. The investigation is conducted by the Investigating Court (Juzgado de Instrucción) of the district where the offence took place, which carries out the necessary steps (statements, analysis of the substance, ratification by the officers) and, once concluded, issues the orders transforming the case and, where appropriate, opening the oral trial. The intermediate phase is decisive: it is the moment to seek dismissal, to challenge evidence obtained in breach of fundamental rights, and to settle the charge that will frame the trial.

Trial competence is allocated according to the penalty in the abstract. The Criminal Court (Juzgado de lo Penal) hears offences carrying a custodial penalty of up to five years, which covers the second paragraph of Article 368 and the basic offence involving substances that do not cause serious harm. The Provincial Court (Audiencia Provincial) tries cases where the penalty exceeds five years, as is usual with the aggravated subtypes of Articles 369 and 370.

One exception must be made clear. Where drug trafficking is committed by gangs or organisations and produces effects across the territory of more than one Provincial Court, or has an international dimension, jurisdiction to investigate and try the case lies with the National Court (Audiencia Nacional) under Article 65.1.d of the Organic Law of the Judiciary. In those scenarios its competence cannot be denied. Identifying the correct court from the outset avoids nullities and helps shape the procedural strategy.

Forensic analysis of the substance and lawfulness of searches and wiretaps

A trafficking conviction requires proof that what was seized was genuinely a controlled substance, in what quantity and at what level of purity. The expert report from the official laboratories must specify the net weight (not the gross weight, which includes wrappings and adulterants) and the percentage of active ingredient. The defence can challenge the methodology, request a counter-analysis and require the expert to appear and ratify the report, since purity is decisive for setting the penalty and for whether the threshold of notorious importance fixed by the case-law of the Supreme Court is reached.

The chain of custody is another essential front. Any break in the traceability of the sample (from seizure to the laboratory and the courtroom) can undermine the reliability of the evidence or deprive it of effect. The weighing records, seals, signatures and transfers should be reviewed, because unremedied defects can give rise to reasonable doubt.

Entry to and search of a home is protected by Article 18 of the Constitution and requires consent, flagrancy or a reasoned judicial order. Telephone and electronic interceptions are governed by Article 588 bis and following of the Criminal Procedure Act, which demand proportionality, specificity and judicial control. Evidence obtained in breach of fundamental rights is null and taints any evidence derived from it; challenging it in good time can be the cornerstone of the defence.

Personal use, minor significance and addiction-based mitigation

The line between shared consumption or personal use and trafficking is not always clear-cut. Mere possession of drugs for one's own use is not an offence. The case-law weighs indicators such as the quantity held in relation to proven personal consumption, the way the substance is presented, the presence of distribution tools, fragmented amounts of cash, or the context of the seizure. Establishing that someone is a user and that the substance was not intended for sale can place the act outside the criminal type.

The second paragraph of Article 368 allows the court to impose the penalty one degree lower than that of the first paragraph where, given the minor significance of the act and the personal circumstances of the offender, this is warranted. It is not a standalone offence but a discretionary mitigation that the defence must raise and support with facts: a small quantity, the absence of any structure, personal vulnerability. This power cannot be used where any of the circumstances of Articles 369 bis (criminal organisation) or 370 (extreme gravity) are present.

Substance addiction may carry additional weight. Where it cancels the capacity to understand or to act freely, the full defence of Article 20.2 may apply; where it merely diminishes it, the mitigating factor of Article 21.2 operates, which can be reinforced by the circumstance of acting under severe addiction. These avenues require evidence (medical reports, treatment histories) and, properly built, can reduce the penalty appreciably.

Prescription and plea agreements

Limitation periods are calculated on the maximum penalty in the abstract, under Article 131 of the Criminal Code, which contains no three-year bracket. The basic offence involving substances that cause serious harm to health (three to six years' imprisonment) prescribes after ten years. The offence involving substances that do not cause serious harm, as well as the minor-significance scenario of the second paragraph (one to three years' imprisonment in its basic band), prescribes after five years, falling within the residual category of all other offences.

The aggravated subtypes of Articles 369 and 370, which impose a penalty raised by one or two degrees, can reach limitation periods of ten or fifteen years depending on the resulting maximum penalty. Verifying the date of commission and the acts that interrupt the period is an early check that can sometimes support an application to close the case.

A plea agreement (conformidad) is an option to weigh where the prosecution evidence is solid and lawfully obtained. It allows the penalty to be reduced within the legal margins and brings the proceedings to an early close, with the certainty that this entails. It should be negotiated from an informed position, after analysing the strength of the accusation, the mitigating factors available and the accessory consequences. The decision to accept an agreement or go to trial always rests with the person, who is given technical advice on each scenario.