Criminal Defence · Offences Against Public Health
Accused of drug trafficking?
A charge under Article 368 of the Criminal Code can mean years in prison, but a charge is not a conviction. Specialist criminal defence for offences against public health, with urgent assistance in arrests and searches and a unique specialisation in cannabis matters. A charge is not a conviction. Specialist criminal defence in drug trafficking, with urgent assistance in arrests and searches.
A drug trafficking charge is not a conviction
The offence of drug trafficking under Article 368 of the Criminal Code punishes cultivation, production, trafficking and any act that facilitates the illegal consumption of third parties, with penalties of 1 to 3 years’ imprisonment for cannabis and 3 to 6 years for substances that cause serious harm, which aggravating circumstances can multiply. But between a charge and a conviction there is a vast territory where the case is decided: the validity of searches and wiretaps, the chain of custody, the weighing and purity of the substance, the drug’s real intended purpose, and personal circumstances. This page, part of our specialist criminal defence for cannabis service, explains what you are facing and how a trafficking case is truly defended.
Trafficking or personal use? The case’s first battle
In Spain, using drugs and possessing them for personal use is not a crime. The offence requires that the substance be intended for trafficking or to facilitate others’ consumption, and that intent is almost never proven directly: it is built on circumstantial evidence. That is why a large part of cases are won or lost on this boundary.
What points to personal use
- An amount compatible with a user’s personal stock (case law uses indicative references by substance).
- Proven status as a user.
- No prepared doses, scales, small-denomination cash, or sales messages.
- Shared-use contexts among users, a doctrine with strict requirements that we know in depth through our work with clubs.
What the prosecution uses as indicators of trafficking
- Amounts exceeding the indicative personal-use references.
- Distribution into doses, wrappers, or baggies.
- Precision scales, account notes, cash in small bills.
- Messages, calls, or prior police surveillance.
One nuance we always repeat: the indicative quantities do not work like an automatic traffic light. You can be below them and still be charged if the indicators support it, and above them with a solid personal-use defence if the context is coherent. If the case stems from a recent arrest, start with our guide on what to do if you are arrested for cannabis: the first hours shape everything that follows.
Penalties for drug trafficking: from 368 to 370
Classification is everything
- The difference between the basic offence, the mitigated offence and the aggravated forms can mean years of difference in prison for the same facts.
- Challenging the classification (type of substance, countable quantity, aggravating factors) is the defence’s absolute priority.
- In cannabis cases, keeping the sentence within the range that allows suspension of enforcement is a realistic and decisive objective.
| Provision | Scenario | Prison sentence |
|---|---|---|
| Art. 368, paragraph 1. | Basic offence involving substances that cause serious harm to health (cocaine, heroin, MDMA). | 3 to 6 years, plus a fine of one to three times the value of the drug. |
| Art. 368, paragraph 1. | Basic offence involving substances that do not cause serious harm, such as cannabis and hashish. | 1 to 3 years, plus a fine of one to three times the value. |
| Art. 368, paragraph 2. | Mitigated offence due to the minor nature of the act and personal circumstances. | A sentence one degree lower than the basic offence. |
| Art. 369. | Aggravating factors: notably large quantity, premises open to the public, involvement of minors, among others. | A sentence one degree higher than the basic offence. |
| Art. 369 bis. | Membership of a criminal organisation dedicated to trafficking. | Aggravated sentences, higher for leaders and those in charge. |
| Art. 370. | Extreme seriousness: very large quantities, ships or aircraft, leaders of international organisations. | A sentence one or two degrees higher than the basic offence. |
Two practical takeaways from this table. First: in cannabis cases, the basic offence starts at 1 year, and with the mitigated form under 368.2 or with the sentence in its lower half it is possible to stay below 2 years, the threshold that opens the door to suspension of enforcement for someone with no prior convictions: a conviction without going to prison. Second: aggravating factors do not apply by themselves; “notably large quantity” depends on countable quantities that the defence can dispute (weighing, moisture, parts of the plant, purity), and knocking out an aggravating factor changes the entire case.
“When someone comes to the firm with a trafficking charge, the first thing I do is get the wrong question out of their head—how many years they’re going to get—and replace it with the right one: what can the prosecution actually prove, and how did they obtain it. I have seen seemingly lost cases fall apart because of an improperly authorised search, and seemingly minor cases become complicated because the person gave a statement without a lawyer on day one. The outcome is almost never decided by the amount of drugs; it is decided by the quality of the defence from the very first hour.”
How we defend a drug trafficking case
The method: challenge the evidence before arguing the narrative
- In drug offences, the evidence almost always arises from an intervention: a stop, a search, a wiretap.
- If that intervention is flawed, the evidence derived from it can collapse entirely.
- That is why the investigation stage, not the trial, is where most cases are won.
The 7 lines of defence we examine in every case
- Validity of searches and interventions: home entries without authorisation or valid consent, phone taps without sufficient reasoning, irregular stop-and-searches and checks. A nullity here drags down everything derived from it.
- Chain of custody: every step of the substance from seizure to the laboratory must be documented. Breaks and contradictions invalidate the prosecution’s main evidence.
- Weighing, purity and countable quantity: gross weight is not the legally relevant weight. Moisture, non-usable parts of the plant and the substance’s potency change classifications and can knock out “notably large quantity” aggravating factors.
- Personal use: proving user status and that the amount is compatible with personal stock makes the facts non-criminal: without intent to traffic, there is no offence.
- Shared consumption: the doctrine that allows consumption among prior users, with strict requirements that we know in detail through our practice with clubs and associations.
- Mitigating factors and the mitigated offence: minor nature under 368.2, addiction, undue delays, confession. When properly developed, they make the difference between going to prison or not.
- Strategic plea agreement: only when it is in your interest. Agreeing to a reduced, suspendable sentence can be the best defence; waiving viable nullities just to sign quickly is the worst mistake. The decision is made once the police report has been reviewed—never before.
The specialisation that makes the difference: cannabis
Any criminal lawyer can handle a drug case. What is rare is genuine specialisation in the substance at the centre of most proceedings: cannabis. Our firm works daily with cultivation, social clubs, associations and companies in the sector, and that practice translates into technical defence that a generalist cannot improvise: the shared-consumption doctrine applied to clubs, plant counting and discounting non-psychoactive parts in cultivation cases, liability of boards of directors, or the growing number of cases of CBD flowers treated as marijuana after STS 301/2026, where proving the product’s origin and lab analyses is the key to the defence.
And if the issue is still preventive (a club or company that wants to protect itself before having a case), that is precisely the scope of our compliance and criminal risk prevention programmes.
“In a cultivation trial, the difference between talking about plants and talking about countable dried buds can be the difference between an aggravating factor and a mitigated offence. That level of detail is not learned in one case; it is learned by living the sector. I have been in the cannabis world since 2012, and that specialisation is exactly what I bring to the table when the prosecution generalises.”
What happens now: the procedure step by step
If you are here, the case is probably in one of these phases. In all of them there is defence work to do, but the earlier we get involved, the greater the margin: in the arrest and the first steps it is decided what the suspect states (or does not state) and what they consent to; in the investigation the battle is fought over evidence, nullities and classification, which is where most cases are won; in the intermediate phase and trial the strategy built earlier is executed, including a plea agreement if that is what is advisable; and in appeals a conviction or its aggravating factors are challenged. Each phase has its deadlines and opportunities, and no important decision should be made without specialist defence at your side.
Frequently asked questions about the offence of drug trafficking
How many years in prison for drug trafficking?
The basic offence under Article 368 carries 3 to 6 years for substances that cause serious harm to health and 1 to 3 years for those that do not, such as cannabis, always with an additional fine. The mitigated form under 368.2 allows the sentence to be reduced by one degree, and the aggravating factors in Articles 369 to 370 (notably large quantity, organisation, minors) increase the sentence, which can far exceed 9 years. The exact classification is the defence’s first battle.
What is the difference between possession for personal use and trafficking?
Possession for personal use is not a crime; the offence requires intent to traffic, which is proven through indicators: quantity, prepared doses, scales, small-denomination cash, or messages. The indicative personal-use quantities used in case law are not automatic: the evidential context decides either way.
It is my first time: will I go to prison if I am convicted?
Not necessarily. With a sentence of up to 2 years and no prior convictions, suspension of enforcement may apply: the sentence is not served in prison if no further offence is committed within the set period. In cannabis cases (base sentence of 1 to 3 years) and with the mitigated offence, keeping the conviction below that threshold is a realistic defence objective, and every procedural decision affects it.
Can I be convicted based only on the amount I was carrying?
Quantity is an indicator, not an automatic conviction. The defence can challenge the weighing, purity, chain of custody, and the validity of searches and interventions, and prove personal use. In cannabis cases, discounting non-usable parts of the plant and the actual THC can change entire classifications. Many acquittals come from these technical details.
Should I accept a plea agreement or go to trial?
It depends on the police report, and you should be wary of anyone who answers without reviewing it. A plea agreement is an excellent tool when it secures a reduced or suspendable sentence, and a mistake when there are viable nullities that could lead to acquittal. The decision is made with you, with the evidence assessed and the risks on the table.
Do you handle emergencies and cases outside Barcelona?
Yes to both. Urgent assistance in arrests and searches is an essential part of the service, with a contact protocol on the contact page. The firm is based in Barcelona, at Av. Diagonal 534, and we take on defence before courts throughout Spain, with in-person or video-conference appointments.
If your search is broader than a specific charge (assistance for detainees, roadside drug tests, administrative appeals, or comprehensive defence for the sector), you will find the full overview on our specialist criminal defence for cannabis page. And if you are in Barcelona, also see our cannabis specialist law firm in Barcelona.
Every hour counts: tell us about your case
Whether you have just received a summons, the case is already underway, or there is an arrest in progress, the time to bring in specialist defence is now. We review your police report, tell you honestly where you stand, and fight every available line of defence.