Narcotics Criminal Law
Narcotics Criminal Law
Criminal Defense Lawyer Munich
Attorney for Criminal Law Munich
The drug law is changing. Everyone has probably noticed that the possession and cultivation of cannabis have been partially legalized. But what are the consequences of this?
What rules do I have to follow when possessing and growing cannabis? What happens if I violate them?
The trade and import of cannabis from abroad are still punishable, as are “harder” drugs, with the latter in particular regularly resulting in prison sentences and pre-trial detention.
When defending in drug law, special attention must also be paid to the client’s driver’s license.
Because it can be taken away from you more quickly than you think. For this, it is sufficient, for example, to have taken a harder drug once, even outside of traffic.
Narcotics Criminal Law Munich
On the partial legalization of cannabis
The following questions in particular arise in criminal proceedings for a violation of drug law:
Why should I hire a criminal defense attorney from your firm in drug law?
A successful defense in drug law requires a lot of experience and regular participation in further training.
As lawyers who work exclusively in the field of criminal law, we have for many years represented criminals who were accused of violating the drug law. Many of them were initially in custody, and quite a few of them were subsequently released at our instigation. Other clients have been accused of armed trafficking, for which the law provides for a minimum prison sentence of 5 years. In this respect, it is particularly important to “defend away” the feature of the weapon. In one case that dragged on for years, our client received a suspended sentence of 2 years instead of a minimum prison sentence of 5 years.
In drug law, it is important to exhaust all possibilities, as there are significantly more possibilities for ending proceedings in specific paragraphs than in other areas of law, such as waiving punishment, reducing the sentence or waiving prosecution, etc.
Specialist criminal lawyers are also subject to an annual training requirement in the field of criminal law, so that we are of course always up to date with the latest legal developments in the area of drug law, which is particularly important at this time after the partial legalization of cannabis.
Can I possess cannabis legally and in what quantities?
Since April 1, 2024, a person aged 18 or over may possess up to 25 grams of cannabis for personal consumption (Section 3, Paragraph 1 of the KCanG).
At their place of residence, each person may possess a total of 50 grams of dried cannabis for personal consumption and up to three living cannabis plants (Section 3 Paragraph 2 KCanG).
Under what conditions can I buy cannabis?
Here, a distinction must be made between cannabis seeds and dried cannabis.
Cannabis seeds:
- They may be imported from EU member states for the purpose of private cultivation (Section 4 Paragraph 2 KCanG),
- A maximum of 7 cannabis seeds or 5 cuttings or a maximum of 5 seeds and cuttings in total per month may be passed on by cultivation associations to members and adult non-members, provided that the cannabis seeds and cuttings were produced during collective cultivation (Section 20 Paragraph 1, 3 KCanG).
Dried cannabis:
- You must be a member of a cultivation association,
- Every person may only be a member of one cultivation association (Section 16 Paragraph 2 Sentence 2 KCanG),
- Only those who are at least 18 years old and have a residence or habitual abode in Germany may be accepted as a member (Section 16 Paragraph 4 KCanG),
- A maximum of 25 grams of cannabis per day and a maximum of 50g per month may be passed on to each member who is at least 21 years old for their own consumption (Section 19 Paragraph 3 Sentence 1 KCanG),
- For 18 to under 21 year olds, the maximum monthly amount passed on is 30g and may not exceed a THC content of 10% (Section 19 Paragraph 3 Sentences 2 and 3 KCanG).
- The cannabis received may not be passed on to other people (Section 19 Paragraph 4 Sentence 1 KCanG).
How much cannabis can I grow?
- Adults who have had a residence or habitual abode in Germany for at least six months may cultivate up to three cannabis plants at the same time at their residence or habitual abode for the purpose of personal consumption (Section 9 Paragraph 1 KCanG).
- Cannabis from private home cultivation may not be passed on to third parties (Section 9 Paragraph 2 KCanG).
Where can I consume cannabis?
- Consumption in the immediate presence of persons who have not yet reached the age of 18 is prohibited (§ 5 para. 1 KCanG).
- Public consumption of cannabis is prohibited:
- In schools and within their sight,
- on children’s playgrounds and within their sight,
- in children’s and youth facilities and within their sight,
- in public sports facilities and within their sight,
- in pedestrian zones between 7 a.m. and 8 p.m.,
- within the protected property of cultivation associations and within their sight (§ 5 para. 2 KCanG).
- Sight means up to 100 meters away from the entrance area.
- It should be noted that there are regional differences: in Bavaria, for example, the consumption of cannabis is prohibited at folk festivals such as the Oktoberfest, as well as in the English Garden, for example. A lawsuit against the special rules is currently pending.
Will medical cannabis continue to be available in pharmacies on prescription?
Yes, medical cannabis should be clearly separated legally from cannabis for non-medical purposes – the regulations remain unchanged.
What happens if I possess more cannabis than I am allowed to?
- If the amount of cannabis is not exceeded by too much, it is only an administrative offence and a fine must be paid:
- Anyone who possesses more than 25 grams and up to 30 grams of cannabis in a place that is not their place of residence or habitual abode (Section 36 Para. 1 No. 1 KCanG).
- The same applies to anyone who possesses more than 50 grams and up to 60 grams of cannabis at their place of residence or habitual abode.
- If these limits are exceeded, this is a criminal offence, but it is punishable by lower penalties than the possession of other drugs. Anyone who possesses more than 30 grams of cannabis outside of their place of residence or more than 60 grams of cannabis at their place of residence will only be punished with a fine or a prison sentence of up to 3 years (§ 34 para. 1 no. 1 KCanG).
- There is the possibility of a reduced sentence, waiving punishment and waiving prosecution (§§ 35, 35a KCanG).
What happens if I exceed the cultivation quantity?
Anyone who owns or grows more than 3 living cannabis plants or does not grow them for personal consumption will also be punished with a fine or a prison sentence of up to 3 years (Section 34 Paragraph 1 No. 1c KCanG).
What penalties do I face if I supply cannabis to minors or trade it commercially or in a not insignificant quantity?
Commercial trade in cannabis, supplying cannabis to under-18s by a person aged at least 21 or trading in a not insignificant quantity (at least 7.5 grams) can result in a prison sentence of three months to five years (Section 34, Paragraph 1). 3 KCanG).
If I was convicted of possession of cannabis under the old law, can my sentence be changed?
Yes, the sentence can even be waived if the act is no longer punishable under the new law and is not subject to a fine, as long as the sentence has not yet been enforced (Art. 316p EGStGB in conjunction with Art. 313 EGStGB). In the case of an unjustified prison sentence, there is even a claim to compensation for imprisonment.
If, for example, a criminal has been convicted of three different offenses, and one of them concerns cannabis, a new verdict must be issued, which often leads to an acquittal for the accused in the case of cannabis.
Can previously recorded convictions or previous convictions be deleted?
Yes, recorded convictions from the Federal Central Register that are recorded for the illegal handling of cannabis or propagation material, for which the The law no longer provides for a penalty in the future, must be deleted (Section 40, Paragraph 1 of the KCanG).
This does not apply if the conviction was also based on other crimes (Section 40, Paragraph 3 of the KCanG).
In this respect, an application must be made to the public prosecutor’s office to determine whether the entry can be deleted (Section 41 KCanG).
Can I now drive a car or bicycle while under the influence of cannabis?
In future, there will be a limit of 3.5 nanograms of THC per milliliter of blood for cannabis while driving, which corresponds to a value of approximately 0.2 per mille alcohol. However, this does not apply to young people under 21 years of age or novice drivers on probation, i.e. in the first two years after obtaining their license. For them, a limit of 1.0 nanograms of THC per milliliter of blood applies.
After consuming cannabis, alcohol is prohibited in traffic.
Am I allowed to consume narcotics legally?
Yes, consuming narcotics is not a criminal offense. However, the Narcotics Act is also constructed in such a way that practically every other activity involving drugs is criminalized, especially acquisition and possession. It is therefore of little use if consumption itself is not punishable.
For example, the mere detection of narcotics in a blood or urine sample or the discovery of traces of narcotics (e.g. hashish pipe or injection equipment) does not constitute a criminal offense. Narcotics residues can only prove consumption, nothing more. However, the purchase and possession of narcotics is punishable.
What penalties are there for the possession, purchase, trade, import of narcotics?
a) Minor offenses
Even for minor offenses, such as the purchase and possession of drugs as an occasional user, the law provides for penalties ranging from a fine to a prison sentence of up to 5 years. (Section 29, Paragraph 1 of the Narcotics Act).
According to the rules of general criminal law, the prison sentence can of course also be suspended on probation, provided it is not longer than 2 years. For prison sentences of more than 2 years, a suspended sentence is not possible.
The court then decides which sentence is ultimately imposed within this range. In this respect, it is quite possible that comparable crimes are punished with different degrees of severity in one federal state or another. In every judicial district, there are certain “tariffs” for certain crimes and certain types of drugs that have become established in practice. In this respect, other aspects must also be taken into account: not only the quantity and type of drugs, but also the circumstances of the crime, the person of the offender and, last but not least, his previous history, such as previous convictions, are taken into account in the assessment.
b) Somewhat more serious violations
The law provides, for example, for a prison sentence of at least one year in the case of commercial dealing in narcotics (Section 29, Paragraph 3 of the Narcotics Act). This can also include a small-time dealer who uses the sale of drugs to obtain the means to satisfy his addiction in the form of drugs or money. For example, it is sufficient if you give some of your drugs to friends for a small premium over a certain period of time. The income does not have to be the main source of income.
The legislator considers it particularly punishable if people over the age of 21 give drugs to people under the age of 18. This is a crime with a minimum prison sentence of one year (Section 29a, Paragraph 1, No. 1 of the Narcotics Act).
Another regulation provides for a prison sentence of at least 2 years if a significant amount of narcotics is imported, for example when returning from a holiday in the Netherlands (Section 30 Paragraph 1 No. 4 Narcotics Act).
c) Serious violations
The law provides for a minimum (!) sentence of 5 years if the offender illegally traffics in a significant amount of narcotics and carries a firearm or other objects that are suitable and intended to injure people (Section 30a Narcotics Act). For this to happen, it is sufficient if the police find a significant amount of drugs during a search of the home and there is a small knife or pepper spray near the drugs. In most cases, you will be taken away by the police immediately and taken into custody.
What can I expect if I am convicted?
In addition to a fine or prison sentence, a conviction is accompanied by the following aspects:
If there is evidence of drug use other than cannabis, even just once, your driving license can be revoked, even if the use lasted for days or even weeks ago. This applies regardless of whether you were driving under the influence of drugs or not.
If you are convicted a second time for any crime, this will result in an entry in your criminal record if there is not too much time between the two crimes. If the fine is higher than 90 daily rates (equivalent to three net monthly salaries), the first offense will appear on your criminal record.
To determine the active ingredient content, which is taken into account when determining the sentence, the police hand over the seized drugs to a chemical laboratory. This produces a so-called active ingredient report. The costs incurred, which can be considerable, will be charged to you as part of the procedural costs in the event of a conviction.
You may also be ordered to be placed in a rehabilitation facility, which can lead to a much earlier release from prison if you successfully complete the therapy. During therapy, there are so-called relaxations that lead to more and more freedom, such as going out, accompanied or unaccompanied. However, since the amendment of the relevant Section 64 of the Criminal Code on October 1, 2023, the requirements for such detention have increased considerably.
What does “not a small amount” mean and what are the consequences?
Apart from the health risks, the criminal risks associated with drug use are also very high. However, if you are still a drug user – whether regularly or just occasionally to “relax” or for a night of partying – then you should be warned against handling “not insignificant quantities” of drugs. The police, public prosecutors and courts are not joking here. This is especially true for so-called “hard drugs” such as heroin and cocaine, due to their high addictive potential.
In the case of possession of not insignificant quantities, the court can in certain cases refrain from punishment if the offender only cultivates, produces, imports, exports, carries, acquires, obtains in any other way or possesses the narcotics in small quantities for personal use (see Section 29 Paragraph 5 of the Narcotics Act).
For common narcotics, case law has set the following so-called limits, i.e. at least this value is considered a “not insignificant amount”.
For amphetamines, for example, the limit is currently 10 grams of amphetamine base, for heroin 1.5 grams of heroin hydrochloride, for ecstasy 35 grams of MDE hydrochloride or 30 grams of MDMA base, for LSD 6 milligrams of pure LSD or at least 300 LSD trips and for cocaine 5 grams of cocaine hydrochloride. In addition, the limit is often three times a consumption unit of the respective narcotic for an average consumer – for example, when determining a not insignificant amount.
It is therefore not recommended to exceed the amounts mentioned above, but this can happen quickly in individual cases, especially because you usually do not know how high the active ingredient content of the drugs you have purchased really is, so you cannot accurately estimate the risk.
Regardless of the applicability of a specific regulation, if you are in possession of large quantities of narcotics, the public prosecutor and the court will regularly conclude that you intend to trade them, which usually leads to harsh penalties and pre-trial detention.
Should I remain silent or provide information?
Silence is (almost) always golden.
As an accused person, you have the right to remain silent. You should use this especially if you are accused of drug-related offences – whether you have something to blame yourself for or not!
Most drug-related proceedings begin with the accused being found in possession of a certain quantity of drugs. However, this alone often does not prove much. Apart from personal consumption, almost every other activity involving drugs is punishable. When you first meet the police, you cannot know what you are specifically accused of, what the investigating authorities actually know, what any witnesses have said and what accusations are ultimately on the table. But one thing is certain: your statement can and will be used against you.
Even if it is just a stupid excuse, it can have serious consequences for you. If, for example, you say that you don’t actually consume that much, it will be difficult to argue later that you are not a dealer. It can also be advantageous not to make a statement, as the substances found in your apartment could also belong to your roommates. If neither you nor your roommates provide information, it may be difficult to prove that a specific person has possession of the drug.
“31er”
Section 31 of the Narcotics Act (BtMG) will be familiar to most people, the “traitor paragraph”. If you “snitch” someone to the police, you can then hope for a lighter sentence or even a waiver of punishment for your own crime.
It is not that simple, however.
In this respect, it must be taken into account that the court does not have to reduce the sentence and even if it does reduce the sentence, it can still sentence the convicted person to several years in prison; there are no fixed rates in this regard.
In this case, you must also expect to be seen as a “traitor”, especially since the supplier is often a member of your own circle of friends. The friends will also know who has set them up, since as accused in criminal proceedings they will be given access to your statement via their lawyer. If the friend’s crime is charged, you are usually obliged to testify against your friend in court.
In addition, the friend could reveal other business dealings of yours that the public prosecutor’s office was previously unaware of. This could lead to further proceedings being initiated against you and thus nullify the hoped-for reduction in sentence.
Fellow inmates don’t like traitors either. This means that things could get unpleasant in prison too. Other clients (rightly) fear reprisals from their former friend or his colleagues as soon as they are released from prison.
For this reason, you need a knowledgeable, experienced defense attorney who can assess the value of your background knowledge and who can try to negotiate a concrete commitment to the sentence to be imposed on your behalf from the prosecutor and/or the court. If you use up your (perhaps valuable) “powder” by making a statement to the police without consulting a defense attorney, you are completely at the mercy of the public prosecutor and the court.
