Drug Offence Defence Lawyer in Spain

Most drug files begin with a stop and search, a vehicle search, a package interception or a house search. Each of those has strict requirements, and each is a point of attack.

For a body or vehicle search there must be an objective indication justifying it, not a hunch. For the entry and search of a home, article 18.2 of the Constitution requires either judicial authorisation, the consent of the occupant given free of coercion and properly documented, or a situation of flagrant offence. Judicial authorisation has to be reasoned and specific, and a generic order copied from a template is challengeable.

Telephone interceptions face the same scrutiny under articles 588 ter a) and following of the Criminal Procedure Act. The order must rest on genuine prior indications rather than on the interception itself, must be limited in scope and time, and must be subject to real judicial control.

Where the search or the interception is unlawful, the drugs and everything derived from them can be excluded under the doctrine of the fruit of the poisonous tree, and prosecutions do collapse on this ground.

A prison sentence of up to two years can be suspended under article 80 of the Criminal Code where the defendant has no prior record, which is why reducing the term below that line is frequently the strategic objective. Where the defendant is a drug user, article 80.5 allows suspension linked to a treatment programme even in some longer sentences, and article 21.2 provides a mitigating circumstance for serious addiction.

For non-EU nationals, article 89 allows the substitution of a prison sentence of more than one year by expulsion from Spanish territory, with a ban on return. Whether that is an advantage or a disaster depends entirely on the client circumstances, family ties and residence status, and it has to be argued rather than left to the court.

Beyond the basic offence in article 368, the Criminal Code sets out aggravated forms in articles 369 and 369 bis. Sentences rise where the quantity is of notorious importance, where the substance is distributed in schools, prisons or similar settings, where minors or vulnerable persons are used, and where the accused belongs to an organisation dedicated to trafficking. The most serious form, reserved for those who direct such organisations, carries the heaviest brackets in this area of the Code.

Whether a case falls into the basic or the aggravated bracket often turns on contested facts: the real role of each defendant, whether a loose group truly amounts to an organisation in the legal sense, and whether the quantity crosses the threshold once purity is taken into account. These are precisely the points on which a well-prepared defence concentrates.

An effective defence does not wait for trial. From the investigation stage we scrutinise the legality of the stop, the search and any surveillance or intercepts, the chain of custody of the seized substance and the way the laboratory sample was taken and analysed. Irregularities identified early can lead to evidence being excluded and, in some cases, to the case collapsing before it reaches court.

In the intermediate phase we challenge the charges and the classification of the facts, and we prepare expert evidence on purity and quantity. At trial we test the prosecution witnesses and press every point that separates the basic offence from an aggravated one. Where the evidence is strong, we assess whether a negotiated agreement secures a materially better outcome than contesting to verdict.