When a Drug Trafficking Charge Requires Immediate Action
A drug trafficking case may begin with an arrest, a search of a residence, the impoundment of a vehicle, or the seizure of a cell phone. At this stage, the person under investigation may not know what role the police attribute to them, what conversations have been intercepted, or even what connection the police are seeking to establish with other individuals.
The most immediate concern is imprisonment, but orders for asset freezes, forfeitures, wiretaps, and device analyses may be issued, all of which shape the case from the very outset.
The sentence does not depend solely on the drugs seized. The substance, quantity, purity, prior record, and the possible existence of an organized network all matter. The manner in which evidence is obtained is also important. Any search and seizure procedure, wiretap, or access to a mobile device must comply with the legal requirements established for each case.
What Is Meant by Drug Trafficking and When Does It Go Beyond Personal Use
Article 368 of the Penal Code
Article 368 of the Penal Code criminalizes the cultivation, production, and trafficking of drugs, as well as any conduct intended to promote, facilitate, or in any way ensure the illegal use of drugs. The article does not refer solely to the sale of drugs; it also encompasses transportation, delivery, storage, and possession when there is evidence that the substance was intended for others.
Circumstantial Evidence and the Intended Use of the Substance
Mere possession for personal use does not in itself constitute the crime of drug trafficking. What must be determined is the intended use of the substance. Direct evidence regarding this is, with rare exceptions, difficult to obtain. Generally, the prosecution relies on various circumstantial evidence: quantity, purity, portions, scales, bags, money, notes, or messages related to a possible sale.
None of these elements should be analyzed in isolation. A scale, cash, or a conversation may be incriminating in one case but not in another.
The Importance of Where the Drugs Are Found
The location where the drugs are found is also important. Finding them among the suspect’s personal belongings is not the same as finding them in a shared residence, a vehicle used by multiple people, or a place accessible to outsiders.
The Criteria of the National Institute of Toxicology
The criteria of the National Institute of Toxicology regarding estimated consumption over several days are merely guidelines. Exceeding these quantities does not necessarily mean that possession becomes trafficking, just as falling below these quantities does not necessarily mean that the intent to sell is absent. This is something that can only be determined based on the evidence.
How Long Is the Prison Sentence for Drug Traffickers?
The Penal Code distinguishes between substances that cause serious harm to health and those that do not.
Basic Offense Penalties
The former fall under the basic offense category and may carry sentences of three to six years. For the others, the general sentence would be one to three years. In addition, fines are imposed based on the value of the drugs.
Sentence Reduction for Minor Offenses
Article 368 also allows for a reduced sentence when the conduct is minor and the defendant’s personal circumstances warrant it; however, this is not an automatic reduction, nor does it depend solely on the quantity. It must be justified based specifically on the individual case and cannot be applied to aggravated cases.
Two cases involving a substance with certain similarities and a similar quantity can end very differently. The role the defendant plays and the strength of the evidence completely change the scenario.
Circumstances That Aggravate the Sentence for Drug Trafficking
The sentence will be aggravated under circumstances that the law identifies as particularly serious. These include supplying drugs to minors, trafficking drugs in or near educational institutions, the use of violence or weapons, adulterating the substance—thereby increasing the health risk—and the involvement of sufficiently large quantities.
Membership in a Criminal Organization
Membership in a criminal organization is also punishable by a more severe penalty; however, the mere fact that several individuals appear in the same investigation does not establish the existence of a criminal organization. Rather, it is essential to prove that a specific structure existed, with a certain degree of stability, coordination, and division of roles.
In major cases, this is often a decisive factor. The police may attribute a specific role to an individual based on wiretaps, travel patterns, or personal relationships. The defense must verify whether such evidence demonstrates stable integration rather than merely an occasional or peripheral relationship.
Extreme Cases
The law provides for even higher penalties in extreme cases, such as amounts far exceeding those considered significantly large, the use of ships or aircraft as a specific means of transport, or the concurrence of various aggravating factors.
Factors That May Lead to a Reduced Sentence
Drug Dependence
Drug dependence may be a mitigating factor in determining culpability, but it is not sufficient to merely demonstrate that the defendant used drugs. Rather, it must be shown that there was significant dependence and a genuine connection between this dependence and the acts in question. It is generally considered sufficient to present medical reports, treatment records, toxicology test results, and documentation from specialized treatment centers.
No Prior Criminal Record and Other Circumstances
As for the absence of a criminal record, it will not be considered a mitigating factor, but it may have an impact on the determination of the sentence and, where applicable, on a significant suspension of the execution of the imposed sentence if the legal requirements are met. The minor nature of the offenses, as well as the existence of undue delays due to extraordinary delays not attributable to the defendant, may also be taken into account.
Cooperation with the Justice System
It is important to note that cooperating with the justice system can lead to a significant reduction in the sentence, but it must be kept in mind that much more is required than a simple confession of the facts. The law requires active and effective conduct: ceasing to commit the punishable act, attempting to avoid committing the punishable act, providing decisive evidence, and facilitating the identification of other individuals involved. This option cannot be pursued without first fully understanding the case and its implications.
When Does the Statute of Limitations Expire for a Drug Trafficking Offense?
There is no single statute of limitations that applies to all drug trafficking offenses, as this period is contingent upon the maximum penalty prescribed for the specific type of offense. A basic case would not have the same statute of limitations as an offense committed as part of a specific organization or an extremely serious case.
Furthermore, the statute of limitations may be interrupted when proceedings are specifically directed against a particular individual through a judicial ruling attributing possible involvement in the acts to that person.
Consequently, it is not sufficient to simply count the years that have elapsed since the operation or seizure. It is necessary to review the rulings issued, verify when proceedings were formally initiated against the person under investigation, and analyze whether this interrupted certain legal effects.
How and Where to Report Suspected Drug Trafficking
Anyone aware of suspected drug trafficking may contact the National Police, the Civil Guard, the Public Prosecutor’s Office, or the on-call court. If there is an imminent risk, you should contact emergency services or the appropriate law enforcement agency.
There are also ways to make a confidential or anonymous report. However, this type of report is not equivalent to a formal complaint, in which the complainant is typically required to identify themselves.
Useful information should consist of specific details: locations, times, vehicles, or events observed directly. You should not follow suspicious individuals, attempt to purchase drugs to obtain evidence, or confront them.
What the Supreme Court Says About These Cases
The Supreme Court acknowledges that the intent to traffic can be established through circumstantial evidence, which, however, must be consistent and evaluated as a whole.
The quantity involved is significant, but it is not sufficient on its own. It must be considered in relation to purity, packaging, the money seized, the messages themselves, all aspects related to the items found, as well as the explanation provided by the defendant.
Practice shows us that it is not just a matter of knowing what was found during a particular search, but of determining what reasonable conclusion can be drawn from all that material evidence. A high degree of suspicion cannot substitute for the prosecution’s evidence.
What to Do If You Are Accused of Drug Trafficking
The initial decisions can shape the entire proceedings; it is important to review the police report, understand the evidence cited against you, and know what role the investigation assigns to the detainee.
It is also advisable to review the legality of searches, wiretaps, and access to specific documentation; in cases involving multiple suspects, it is important to distinguish between the facts pertaining to your own actions and those attributed to third parties.
The same quantity of drugs may be assessed based on purity, the location where it was found, the form in which it was discovered, and all the circumstantial evidence; conversely, merely appearing in a conversation or having a connection to another suspect does not, by itself, prove membership in an organization.
A specialized criminal defense team must begin the process by distinguishing between the established facts and the interpretations put forward by the police, examining how the evidence was obtained, and evaluating all available options before finally establishing a strategy. At Larios Penal, we handle these proceedings from the very first steps, since in drug trafficking cases, the decisions made at the outset carry weight throughout the entire process.
