The criminal offence of drug trafficking in Spain, set out in Article 368 of the Spanish Criminal Code as an offence against public health, is one of the most heavily prosecuted and severely punished crimes. If you’ve been arrested, are under investigation, or have a family member involved, it’s completely normal to feel confused or worried.
As a criminal defence lawyer specialised in these types of cases, I answer the most frequently asked questions about drug offences in plain and simple terms. This article is aimed at people with no legal background who need to understand their situation and know how to act.
What is considered drug trafficking?
It refers to any activity involving the sale, transport, distribution, sharing or cultivation of illegal substances (such as cocaine, cannabis, hashish, etc.) with the intent to traffic.
You don’t have to sell to be charged with this offence. It’s enough to possess a quantity that exceeds personal use or have other clear signs of trafficking, such as individual doses, weighing scales, packaging materials, large sums of cash or cutting agents.
Is drug trafficking the same as an offence against public health?
Yes. Legally, it’s known as an offence against public health, specifically in the form of drug trafficking, and is regulated by Article 368 of the Criminal Code. Informally, it’s often referred to as “narcotrafficking” or simply “drug dealing”.
When is someone considered to be trafficking drugs?
Each case is assessed individually. Some typical signs of trafficking include:
- Possession of quantities beyond personal consumption.
- Drugs divided into individual doses.
- Presence of weighing scales, customer notes, packaging or preparation tools.
- Prior police surveillance, phone taps, or witness testimony.
What are the penalties for drug trafficking?
Penalties vary depending on the type of substance, quantity, context, and whether there are aggravating or mitigating factors. Below is a reference table taken from the National Plan on Drugs (Ministry of Health):
| Case Type | Harmfulness of the Substance | Prison | Fine |
|---|---|---|---|
| General (no aggravating or mitigating factors) | Serious harm (cocaine, heroin, ecstasy…) | 3 to 6 years | Up to three times the value of the drug |
| Less serious harm (e.g. cannabis) | 1 to 3 years | Up to double the value of the drug | |
| Specific Mitigated (minor offence or personal circumstances) |
Serious harm | 1 year and 6 months to just under 3 years | From half to full value of the drug |
| Less serious harm | 6 months to just under 1 year | ||
| Specific Aggravated (large quantities, minors, etc.) |
Serious harm | 6 years and 1 day to 9 years | Up to four times the value of the drug |
| Less serious harm | 3 years and 1 day to 4.5 years | ||
| Criminal Organisation (Participants) | Serious harm | 9 to 12 years | Up to four times the value of the drug |
| Less serious harm | 4.5 to 10 years | ||
| Criminal Organisation (Leaders, etc.) | Serious harm | 12 to 18 years | 4 to 6 times the value of the drug |
| Less serious harm | 10 to 15 years |
- General (no aggravating or mitigating factors)
- Serious harm (cocaine, heroin, ecstasy…): 3 to 6 years in prison, fine up to three times the value of the drug.
- Less serious harm (e.g. cannabis): 1 to 3 years in prison, fine up to double the value of the drug.
- Specific Mitigated (minor offence or personal circumstances)
- Serious harm: 1 year and 6 months to just under 3 years in prison, fine from half to full value of the drug.
- Less serious harm: 6 months to just under 1 year in prison, no fine.
- Specific Aggravated (large quantities, minors, etc.)
- Serious harm: 6 years and 1 day to 9 years in prison, fine up to four times the value of the drug.
- Less serious harm: 3 years and 1 day to 4.5 years in prison, no fine.
- Criminal Organisation (Participants)
- Serious harm: 9 to 12 years in prison, fine up to four times the value of the drug.
- Less serious harm: 4.5 to 10 years in prison, no fine.
- Criminal Organisation (Leaders, etc.)
- Serious harm: 12 to 18 years in prison, fine 4 to 6 times the value of the drug.
- Less serious harm: 10 to 15 years in prison, no fine.
Source: National Plan on Drugs – Spanish Ministry of Health
Which drugs are most severely punished?
Those that cause serious harm to health, such as:
- Cocaine
- Heroin
- MDMA (ecstasy)
These substances carry harsher penalties. In contrast, drugs like cannabis or hashish, considered less harmful, are punished less severely in basic cases.
What circumstances increase the penalty?
Some factors that aggravate the sentence include:
- Dealing near schools or involving minors.
- Being part of a criminal organisation.
- Use of weapons, violence or threats.
- Large quantities of drugs.
- Involving vulnerable persons.
These factors can lead to sentences of over 9 years in prison.
What can reduce the sentence (mitigating circumstances)?
- Drug addiction (if proven and under treatment).
- Cooperation with the authorities or genuine remorse.
- Being under external pressure, fear or coercion.
- Low severity of the offence.
Mitigating factors must be proven and will be assessed by the judge. Proper legal advice is essential to ensure they are taken into account.
What’s the difference between shared consumption and trafficking?
Shared use is not a criminal offence if the following conditions are met:
- All participants are regular users.
- The substance is used in a private space.
- The quantity is small and for immediate use.
If these conditions are not met, it may be considered trafficking.
Can I avoid prison if I admit the offence?
In some cases, yes — especially if you have no criminal record. Common routes include:
- Plea agreements with the prosecution (admitting guilt in exchange for a reduced sentence).
- Suspended sentences if the term is under 2 years and you have no prior convictions.
- Substitution with rehabilitation treatment in proven addiction cases.
Each case must be assessed carefully by your lawyer.
Do criminal records worsen the situation?
Yes. If you have a criminal record, it is more difficult to:
- Avoid a prison sentence.
- Access benefits like suspended sentences or treatment alternatives.
Can the police search my home or car without a warrant?
Only in the following cases:
- Flagrant offence (e.g. caught selling on the spot).
- Risk of evidence being destroyed.
In all other cases, a court warrant is required.
What if the drugs were just for personal use?
If the quantity is small and for immediate personal use, it’s not a criminal offence, but it is:
- An administrative offence, punishable by a fine and possible seizure of the substance.
However, if there are signs of trafficking (division into doses, cash, scales…), you may face criminal proceedings.
Three real-life examples
- Young person found with 5g of cocaine, regular user with no prior convictions: Minor form of trafficking. Sentence replaced with detox treatment.
- Person caught selling hashish near a school, with prior record: Aggravated offence due to school proximity. Sentence: 6.5 years in prison.
- Person found with 2 kg of cannabis in a car, no record and no direct sale evidence: Basic trafficking with mitigating factor.
What should I do if I’m arrested for drugs?
- Remain silent until you speak with your lawyer.
- Ask for a criminal lawyer specialised in drug offences.
- Do not sign or say anything without legal advice.
- Wait for your lawyer before making any statement.
Contact our criminal defence firm
If you or a relative are involved in a case related to drug trafficking, criminal organisations, money laundering or related offences, contact us:
📞 +34 633 933 547
- We operate throughout Spain
- Experts in drug trafficking and criminal law
Quick action and expert legal advice can make all the difference in your case.