What an offence against public health actually is
Article 368 of the Criminal Code punishes growing, producing, trafficking or possessing with that aim any toxic drug, narcotic or psychotropic substance. The penalty depends on the substance: three to six years in prison if it causes serious harm to health (cocaine, heroin, amphetamines) and one to three years if it does not, cannabis and its derivatives, in both cases with a fine proportional to the value of the drugs.
Article 368 itself, in its second paragraph, allows the sentence to be reduced by one degree when the act is of minor significance and the defendant's personal circumstances justify it: this is the point most argued when the quantity seized is small. Above that sits article 369, which increases the penalty for a significant quantity, involvement of minors, or acting in schools or prisons, and article 370, reserved for organised crime and extreme-gravity quantities.
What surprises almost everyoneyou do not need to sell anything to commit the offence. «Possessing with intent to traffic» is enough on its own, and that intent is inferred from indicators (the quantity, how the substance was packaged, whether there were scales or cash split into notes) not from a sale someone had to witness.
The clock: what happens, and when
These are the five real stages of the procedure. The second one, the analysis of the seized substance, is what fixes the legal classification for everything that follows.
The decision: what these cases actually turn on
Almost no drugs case is won or lost by arguing over whether the substance was in the defendant's pocket. It comes down to two technical questions: whether the chain of custody between seizure and analysis stayed intact, and whether the indicators pointing to trafficking, rather than personal use, are actually proven or just an assumption written into the police report.
When there is real technical defence
- There is a gap or an irregularity in the chain of custody between seizure and the laboratory analysis.
- The search was carried out without reasonable grounds for suspicion, or at a home without a court order.
- The quantity is consistent with personal use and there are no scales, dosing bags or cash split into notes.
- There is no official purity report, and without it the actual base substance cannot be fixed.
When it is worth negotiating
- There is police surveillance, witnesses or messages proving a sale beyond mere possession.
- It is a first offence and, after a possible reduction, the sentence falls below two years with suspension available.
- Admitting the facts opens the confession mitigating factor under article 21.4 of the Criminal Code.
- The quantity and personal circumstances fit the reduced sub-type under article 368.2.
What we do, and when
This is the actual work, not a statement of intent:
Before the summons. We obtain the full police report and the chain-of-custody paperwork for the seized substance.
Reviewing the police authority to act. We check whether the stop-and-search or the search had reasonable grounds and, if it was at a home, whether there was a court order.
The purity report. We request the official analysis of the base substance: the classification, three to six years or one to three, depends on it, not on the gross weight seized.
The reduced sub-type. When the quantity and circumstances allow it, we argue for the reduction under article 368.2.
The calculation, in writing. What sentence is left after classification, whether suspension is available, and what happens to any money or items seized. You decide on that basis, not us.
On outcomesno lawyer can tell you in advance what a court will decide, and anyone who does is selling you something. What we can give you before you walk in is the full map of scenarios and what depends on you in each one.
Fees and how to start
A first criminal-law consultation costs €150, VAT included, and covers a review of the documents and an explanation of where the case stands. There is no file-opening charge and no fee for calling to ask the price. The detail is on our consultations and fees page.
If the hearing is tomorrow or someone is in custody, call the urgent line: +34 638 88 64 33, with telephone assistance 24 hours a day for criminal emergencies. Any intervention is subject to availability, conflict-of-interest checks and acceptance of the instruction.
Where we see youRambla Just Oliveras, 64, mezzanine 1, 08901 L'Hospitalet de Llobregat. 32 metres from the L1 metro and 117 from the Renfe station. In person Monday to Thursday 9 am to 6 pm and Friday 9 am to 2 pm.
Frequently asked questions
Is possessing drugs for personal use a crime?
No. Possessing drugs for your own use, with no intention to sell, is not a crime. Using or possessing them in a public place is an administrative offence under the Public Safety Act, punishable by a fine; possessing them at home for private use is not even punishable. The offence under article 368 requires that possession be aimed at trafficking.
How is personal use told apart from trafficking?
Courts weigh indicators: the quantity compared with a person's typical consumption, whether it is split into individual doses, whether there are precision scales or cash in small notes, and Supreme Court case law on the minimum psychoactive dose for each substance.
What is the penalty for drug trafficking?
Article 368 distinguishes by substance: three to six years in prison if it causes serious harm to health, and one to three years if it does not. There are aggravating factors under article 369 —significant quantity, minors, schools— and an extreme-gravity offence under article 370.
Can I get back money or a vehicle that was seized?
Confiscation under article 127 of the Criminal Code only applies to assets that came from the offence or were used to commit it. If that connection is not proven, it can be challenged and its return requested during the proceedings.
Read on
Has a substance been seized from you?
The sooner we see the police report and the chain of custody, the more options are still on the table. The fee is published on our fees page.