In this article I will discuss the crime of drug trafficking and try to resolve all those doubts and myths about what are typical behaviors, i.e., that constitute crimes punishable by imprisonment, and those that are not, such as possession for own consumption or shared consumption.

Toxic drug concept

From a technical legal point of view, the first and most important thing is to determine the concept of toxic drug. The WHO defines a drug as any substance that, when introduced into the organism by any route of administration, produces in some way an alteration in the natural functioning of the individual’s central nervous system and is also susceptible to creating dependence, whether psychological, physical or both.

In a broad sense, alcohol, tobacco, even coffee could be understood as a drug. However, what interests us here is the criminal legal concept of toxic drug. And here we would turn to the Penal Code itself, in the sense that we would be dealing with substances that are harmful and cause damage to health, informed by international conventions, to whose lists jurisprudence usually refers to in order to qualify a substance as a toxic drug.

Typical action or conduct

In short, the typical action or conduct that is considered a crime is practically any activity that leads to or contributes to the toxic drug being destined for sale and distribution to third parties, in any of the phases of this process, be it production, processing, transportation, possession, storage, promotion, marketing and sale.

Atypical possession: self-consumption and shared consumption

In the previous section we talked about possession. It is important to distinguish possession intended for trafficking or sale to third parties, from possession for personal consumption. Let us remember that the protected legal right is public health. Thus, mere possession for self-consumption would not be punishable in the criminal sphere, only in administrative proceedings and provided that such possession occurs in public places, not in a private home.

This is where it gets complicated. For both law enforcement and judicial authorities, the question of whether or not a cache is preordained for trafficking is made on the basis of indications and presumptions. Let’s look at some of them:

Quantity: In judicial practice, the quantity seized from a person can be decisive in determining whether the drug was intended for trafficking. The international conventions establish for each drug the daily dose of the average consumer. Based on this dose, if an individual carries more than the daily consumption foreseen for 5-7 days, it is understood that it is for trafficking and not for personal consumption. That said, in several rulings the Supreme Court has already stated that such thresholds are not immutable and different factors must be taken into account, such as the existence of other indications and, of course, the degree of addiction or tolerance of the possessor. Obviously, not everyone has the same degree of daily consumption and tolerance, so that sometimes a file or acquittal can be obtained with stashes whose quantity slightly exceeds the rigidity of the tables:

In view of the above, in most of its rulings, the Supreme Court has required the presence of a plurality of indicia (SSTS of February 26, 1997 (RJ 1997\1388); of March 15, 1995 (RJ 1995\1888); of October 10, 1994 (RJ 1994\7885); of December 22, 1994 (RJ 1994\10257); of November 2, 1993 (RJ 1993\8275); of October 20, 1993 (RJ 1993\7801); of March 11, 1991 (RJ 1991\1959) and of May 9, 1988 (RJ 1988\3512)) stating that “The isolated evidence is generally inconsistent and ambiguous, and must be given in competition or plurality with others, and the indicative or directing force that is recognized to them lies in their coincidence or significant affinity”. (STS of October 4, 1996 (RJ 1996\7022).

Thus, for example, with regard to hashish, in relation to the quantity and type of drug seized, the Supreme Court, although there is a generalized belief in forensic practice that as of 50 grams it can be automatically inferred that the drug was intended for distribution, there are not few rulings that extend this limit to ONE HUNDRED (100) grams (SSTS of June 20, 1996 (RJ 1997\4852); of October 29, 1994 (RJ 1994\8332) and of November 5, 1981 (RJ 1981\4295) or even to 150 grams (STS of February 9, 1996 (RJ 1996\835)) being that such figures are not permanent or immutable, but are in relation to the importance of the addicted person – STS 19/4/2002 -, but that ordinarily has been fixed from 3 to 12 days as maximum – STS 17/6/2004 -, with a daily dose of about 5 grams for hashish – STS 5/4/2004, still compatible with the thesis of self-consumption reported by my client.

Purity: This is an important element in some drugs. In cases in which the only indication is the possession of a quantity that slightly exceeds the quantity ordered for personal consumption, purity analysis can reduce the quantity to be taken into account and distort the only indication, thus also affecting the aggravated type of notorious quantity. Purity analysis is important for toxic substances such as cocaine or heroin. This is not the case with marijuana or hashish, where we do not speak so much of purity as of delta9-THC concentration, although it does not affect the quantity to be considered, except that, for example, in hashish, an excessively low concentration of delta9-THC may lead us to speak of another classification such as “griffin”, a resin of very low quality in which the daily dose considered by international sanitary conventions differs substantially from that of hashish, also substantially modifying the thresholds of possession presumably preordained for trafficking and of quantity of notorious importance, which is why the practice of this analysis is also important, above all from the point of view of the defense.

Mere possession or “pass”: The first thing I ask the instructing officer when I assist someone for public health is whether it is a “pass.” A “pass” is what is known in police jargon as a drug delivery. If the police authority witnesses a “pass,” the quantity for purposes of determining whether or not it is a crime is no longer secondary. However minimal it may be, the delivery of the drug to a third party is a pretty strong indication that the destination was not for self-consumption.

Other indications: The intervention of money in extraordinary amounts or elements for the preparation of doses for presentation and sale, such as bags, zippers, precision scales may indicate that the destination of the drug is not self-consumption.

Shared consumption

In the field of atypicality we also find the figure of shared consumption or “common bag”, which comes to respond to those situations in which the stash found exceeds the amounts to presume self-consumption by a single individual, precisely because it belongs to a common bag that, exceeding those limits, is not intended for trafficking but for a form of consumption in which several individuals participate. However, the appreciation of a shared consumption and not a drug trafficking crime is quite restrictive, according to the prevailing jurisprudential criteria. There are three main requirements:

Habitual users: The owners of the drug to be consumed must be habitual users. This circumstance must be accredited in some way.
Immediate consumption: The drug must be consumed at the moment. Here, judicial practice has sometimes been flexible, admitting as immediate consumption a short period of time, such as a party, a trip or a few days, but in any case, the consumption should be limited to a short period of time.
Consumption in a closed place: The jurisprudence requires to appreciate the shared consumption or the “common bag” that such consumption is made in a closed place, so that third parties are not exposed to toxic drugs. Like the previous one, this requirement has become more flexible, allowing certain licenses in the rigidity of the application of this doctrine in some cases where it is common, such as with designer drugs, whose consumption takes place in “relatively closed” places such as a discotheque or a festival. The purpose is none other than to preserve the exposure of consumption to third parties.

Having said the above, on a daily basis, we find the most varied combinations, so that we have to be on a case-by-case basis to determine whether we are dealing with a possession for own consumption, shared consumption or pre-ordered to traffic.

In conclusion, although quantity may be an important indication to take into account when determining whether possession is punishable, it must be connected with a plurality of elements and indications to be able to formulate a solid conclusion as to whether or not we are dealing with a drug trafficking crime.

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