The crime of drug trafficking is a crime against public health, the purpose of which is to protect the right to health of citizens.
The concept of drugs includes toxic drugs, narcotic drugs or psychotropic substances.
The conducts of inducing, aiding and abetting and attempting drug trafficking are also considered criminal.

The penalty that may be imposed on the defendant for drug trafficking varies depending on the type of drug involved, the quantity of the substance seized, and other circumstances, such as whether the drug was brought into the national territory or whether a vessel or aircraft was used for the trafficking activity.

In the case of drugs that cause serious damage to health, including morphine, heroin, cocaine, amphetamines, LSD, and designer drugs such as ecstasy, the above conducts are punishable by a prison sentence of between three and six years imprisonment and a fine of three times the value of the drug that is the object of the crime.

In other cases, including soft drugs such as marijuana or hashish, the penalty is imprisonment for one to three years and a fine of one to two times the value of the drug.

These penalties may be reduced, taking into account the small nature of the act and the personal circumstances of the offender, or aggravated in certain cases contemplated in the law, especially in cases of large quantities of drugs.

These are cases in which penalties are aggravated when they are considered particularly serious. The most common cases in which the penalties are aggravated are when:

- The guilty party is an authority, public official, physician, social worker, teacher or educator and acts in the exercise of his position, profession or office.
- The guilty party participates in other organized activities or whose execution is facilitated by the commission of the crime.
- The acts were carried out in establishments open to the public by the persons in charge or employees thereof.
- The drugs are provided to minors under 18 years of age, to mentally handicapped persons or to persons undergoing treatment for addiction or rehabilitation.
- The quantity seized was of notorious importance. The Supreme Court has established from what quantities we are before a "notorious importance": Marijuana: 10 Kg, Hashish: 2.5 Kg, Morphine: 1 Kg, Cocaine: 750 gr, Heroin: 300 gr, Hashish oil: 300 gr, Ecstasy (MDMA): 240 gr, Methadone: 120 gr, Amphetamines: 90 gr, LSD: 300 milligrams.
- The substances are adulterated, manipulated or mixed with each other or with others, increasing the possible damage to health.
- The conducts take place in educational centers, in military centers, establishments or units, in penitentiary establishments or in centers of detoxification or rehabilitation, or in their proximities.
- The use of violence or the exhibition or use of weapons.

The penalties are more significantly aggravated in the following cases:

- If the persons committing the crime do so belonging to a criminal organization.
- The use of minors under 18 years of age to commit the trafficking.
- The quantity of the substances significantly exceeds the quantity considered to be of notorious importance.
- Vessels, boats or aircrafts have been used to commit the crime.

Self-consumption of drugs is not considered a crime, as long as certain requirements, established by the Supreme Court, are met. Therefore, it is possible to possess certain quantities of drugs as long as:

- Certain quantities are not exceeded. The following quantity limits have been established: Marijuana: 100 gr., Hashish: 25 gr., Cocaine: 7.5 gr., Heroin: 3 gr., Ecstasy (MDMA): 1.4 gr., Methadone: 1.2 gr., Amphetamine: 0.9 gr., LSD: 3 milligrams (0.003 gr.).
- Do not find together with the drugs elements that indicate that the drugs are not for self-consumption, despite the fact that the limit quantities indicated are not exceeded.
For this purpose, the following should be taken into account:

- The attitude of the subject before the police presence.
- The place where the drugs are found.
- Whether the substance has been handled or not.
- The form of distribution of the drug (if it is separated in small quantities).
- The amount of money the subject is carrying and its distribution (if he/she is carrying small bills).
- The variety of drugs in his possession.
- Whether he is carrying materials for weighing the substances.
- Whether the possessor is a habitual user.

At SMK Abogados we recently defended a client who was stopped at a police traffic stop and a bag of marijuana weighing 92.60 grams was seized.

In a case like this, in which the possession of marijuana by our client was beyond doubt, the defense had to focus on the fact that the possession of the substance was not intended for trafficking but for personal consumption.

The jurisprudence of the Supreme Court establishes that the quantity of the drug seized is relevant to determine whether the possession of the drug was intended for trafficking or for personal consumption, setting limits for each of the substances. If these limits are exceeded, it must be understood that the quantity of drugs seized was intended for trafficking and not for personal consumption, and, therefore, it will constitute the crime of drug trafficking.

However, the indication of the quantity of drugs seized from the detainee must be evaluated together with other elements, so that an acquittal for drug trafficking can be handed down for a high quantity of drugs and, on the contrary, a conviction can be handed down in cases of small quantities. The circumstances that must be taken into account to decide whether it is an activity of trafficking or possession for own consumption are, in addition to the amount of substance seized, the attitude of the subject before the police presence, the place where the drugs are found, whether the substance is found together or separated in small quantities, the amount of money the subject is carrying, whether the subject is carrying small bills (in retail cases), the variety of drugs in his possession, whether he is carrying materials for weighing the substances, or whether the possessor is a habitual consumer of drugs.

In the case of our client, the sentence acquitted him because we were able to demonstrate that he was a habitual consumer of marijuana, which showed that the marijuana was for him and not for sale, and because there were no other indications that could show that his intention was to traffic it.

As we have seen, simple possession of drugs does not constitute a crime. Likewise, cases in which a person acquires the substance with the purpose of sharing it with his group of friends and at their request do not constitute a crime either, provided that the consumption must be joint and immediate, and provided that there is no intention to sell the drug. In other words, the very common case in which several friends ask one of them to fetch the drug that they will all share later does not constitute a drug trafficking crime.

A particularly curious case that we have handled at SMK Abogados was that of a client who was prosecuted for sending 30 grams of marijuana to a friend of his by means of a deliveryman of the company Glovo. Our client had bought marijuana in a cannabis club with the intention that part of it, those 30 grams, would go to his friend, also a consumer, who could not go to the club due to the confinement by the COVID-19.

The sentence acquitted our client because it was not proven that the shipment favored consumption or that the marijuana was destined for illicit trafficking. The sentence established that there was no incitement to consumption because both were regular consumers for more than ten years, and they were friends and members of the same club, which they regularly attended together. In this case, due to the confinement, the shared consumption was to be carried out via video connection, each one from his home, since consuming marijuana together in the same place was unfeasible due to the confinement.