Drug trafficking lawyer in Alicante

What the offence of drug trafficking is

Article 368 of the Criminal Code (Código Penal) punishes anyone who engages in the cultivation, production or trafficking of toxic drugs, narcotics or psychotropic substances, or in any other way promotes, encourages or facilitates their illegal use, and also anyone who possesses them for those purposes.

That last phrase is the key to many cases. Having drugs is not a crime in itself: having them with the intention of supplying them to others is. Possession for personal use does not fall under article 368, although it may lead to an administrative penalty. That is why the prosecution tries to prove intent to supply through circumstantial evidence: quantity, purity, packaging in individual doses, scales, cash in small denominations, notes or messages. And the defence works precisely on that evidence.

Alongside trafficking, the Code also punishes manufacturing, transporting or possessing precursors and equipment knowing they will be used to produce drugs (art. 371), with three to six years in prison.

Penalties for drug trafficking

Article 368 distinguishes according to the type of substance:

For the purposes of the fine, the value of the drugs is the final price of the product or the profit obtained or that could have been obtained (art. 377). In addition, the drugs and the assets, instruments and proceeds of the offence are confiscated (art. 374).

Article 368 itself allows the court to impose the penalty one degree lower where the offence is minor in scale, taking into account the defendant’s personal circumstances, unless the aggravating factors in articles 369 bis or 370 apply. It is one of the most important tools for the defence in small-scale dealing cases.

Aggravating and mitigating factors

When the penalty increases

• Penalty one degree higher and a fine of up to four times the value (art. 369) where, among other cases, the quantity is of significant size (notoria importancia), the drugs are supplied to under-18s, they are sold in premises open to the public by those running them or their employees, in or near schools, prisons or rehabilitation centres, they are adulterated so as to increase the harm, or violence or weapons are used.
• Membership of a criminal organisation (art. 369 bis): nine to twelve years in prison if the substance causes serious harm to health and four years and six months to ten years in other cases. For leaders, the penalty one degree higher.
• Extreme seriousness (art. 370): penalty one or two degrees higher where the quantity far exceeds the significant-size threshold, ships, boats or aircraft are used, international networks are involved, or three or more of the aggravating factors in article 369 apply.

When it can be reduced

• Addiction: acting because of a serious addiction is a mitigating factor (art. 21.2) and, in cases of full intoxication or withdrawal syndrome preventing the person from understanding what they are doing, it can exempt them from liability (art. 20.2).
• Completed treatment: penalty one or two degrees lower for anyone who was drug-dependent at the time of the offence and proves they have successfully completed a detoxification programme, except in cases of significant quantity or extreme seriousness (art. 376).
• Cooperation: the same reduction for anyone who abandons the activity and actively cooperates with the authorities (art. 376).

How we defend you

In drug offences, the way the evidence was obtained matters as much as the evidence itself. Our work starts at the police station:

1. Immediate assistance on arrest: we advise you on whether or not to give a statement and make sure your rights are respected.
2. Lawfulness of the search: no one may enter a home without consent or a reasoned court order, except in the cases provided by law (arts. 545 and 550 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal, LECrim). An irregular search can invalidate the evidence.
3. Phone tapping and devices: we check that the interception of phones or messaging was authorised and supervised by a judge (art. 588 ter a et seq. LECrim).
4. Chain of custody and analysis: we review the weight, purity and traceability of the substance from seizure to laboratory.
5. What the drugs were for: where appropriate, we provide evidence of personal use or addiction (medical reports, treatment).

If you have been summoned without being arrested, read our page on being summoned as a suspect. And if money or assets are involved, the prosecution may add a charge of money laundering, which should be prepared for from the outset.

Pre-trial detention and trial

After arrest you will be brought before the duty court (juzgado de guardia), now the investigating section (Sección de Instrucción) of the Court of First Instance (Tribunal de Instancia). In serious cases, the public prosecutor may request pre-trial detention (prisión provisional); we prepare for that hearing with evidence of your ties, work and family and, if detention is ordered, we appeal against it.

Cases involving substances that do not cause serious harm to health, under the second limb of article 368, can be dealt with as a speedy trial (art. 795 LECrim). Where the penalty exceeds five years in prison, as with substances causing serious harm, the trial is heard by the Provincial Court (Audiencia Provincial); if not, by the criminal section (Sección de lo Penal) of the Court of First Instance (art. 14 LECrim).

Prison, suspension of sentence and foreign nationals

Suspension: prison sentences of up to two years can be suspended if it is your first offence and the requirements of article 80 of the Criminal Code are met. In addition, if you committed the offence because of your drug dependency, suspension can extend to sentences of up to five years where an accredited centre certifies that you have overcome the addiction or are undergoing treatment (art. 80.5).

Serving the sentence: if you have to go to prison, we support you with leave, prison classification and parole. We explain this on our prison law page.

Foreign nationals: prison sentences of more than one year imposed on a foreign national are, as a rule, replaced by expulsion from Spain, with exceptions based on ties to the country and specific rules for European Union citizens (art. 89 of the Criminal Code). We explain this on our page for criminal lawyer for foreign nationals. Our team can assist you in your language.