Drug Offenses

The critical distinction: personal use versus possession not for personal use

The Dangerous Drugs Ordinance draws a substantive distinction between two categories, and the difference between them is immense:

Possession for personal use, a maximum penalty of 3 years’ imprisonment. Possession not for personal use, a maximum penalty of 20 years’ imprisonment.

The classification between the two does not depend only on the quantity; it depends on all the circumstances of the case, on the version given in the interrogation, on the evidence, and on the defense strategy. Proper representation at the early stage is what determines which track the case will be classified into.

Table of quantities prescribed by law

• Type of drug: Cannabis (marijuana, grass); maximum quantity for personal use (net): up to 15 grams
• Type of drug: Cannabis resin (hashish); maximum quantity for personal use (net): up to 15 grams
• Type of drug: Opium; maximum quantity for personal use (net): up to 2 grams
• Type of drug: LSD; maximum quantity for personal use (net): up to 3 units
• Type of drug: Cocaine; maximum quantity for personal use (net): up to 0.3 grams
• Type of drug: Heroin; maximum quantity for personal use (net): up to 0.3 grams
• Type of drug: Methadone; maximum quantity for personal use (net): up to 0.15 grams
• Type of drug: Morphine; maximum quantity for personal use (net): up to 0.3 grams
• Type of drug: Methamphetamine (crystal meth); maximum quantity for personal use (net): up to 0.2 grams

Important: the quantities are net, after stems, roots, and elements that are not the drug itself are cleaned out by the drug laboratory at National Headquarters. The prescribed quantities are a rebuttable presumption; even someone caught with a quantity smaller than the threshold may be charged with trafficking if the circumstances of the case prove that the drug was not intended for personal use.

What determines the classification between personal use and trafficking?

Not only the quantity. The court considers: the manner of packaging; the number of separate portions; the presence of cash; means of payment; phone correspondence; witness testimony. Any one of these factors can turn possession for "personal use" into a charge of "not for personal use." And each of these factors is also a point of attack for the defense, if it is handled correctly.

What does the Drugs Ordinance provide?

Section 6 of the Dangerous Drugs Ordinance prohibits the cultivation, manufacture, and production of dangerous drugs without a license, and sets a penalty of up to 20 years' imprisonment, identical to the penalty for trafficking. The law does not distinguish between an industrial greenhouse and a single pot on a balcony: any cultivation of a cannabis plant without a license is ostensibly an offense carrying a maximum penalty of 20 years. In practice, the crucial distinction is between cultivation for personal use and cultivation for trafficking purposes.

Cultivation for personal use: the decisive distinction

Case law and prosecution guidelines recognize that limited home cultivation for personal use is materially different from commercial cultivation. The parameters examined are: the number of plants, cultivation equipment (lighting, irrigation, fans), packaging and weights, sales correspondence, and the quantity of produce. A single cultivation without indications of trafficking may end in lenient punishment and even in arrangements without conviction; a sophisticated greenhouse will be classified as a drug operation. The classification of the case is determined to a large extent during the investigation, and therefore the first version is critical.

The most serious offense in the Drugs Ordinance

Section 21 of the Dangerous Drugs Ordinance provides that an adult who induces a minor to use a dangerous drug, gives it to the minor, sells it to the minor, or solicits the minor to obtain or use a drug, is liable to up to 25 years' imprisonment. This is the most severe penalty in the entire Ordinance, even more severe than drug trafficking, and it reflects the legislature's position: harming minors through drugs is a crime of the highest order.

How easy it is to fall within the scope of the offense

The offense does not require a classic "dealer": a young adult aged 18 and a half who passes a joint to a friend aged 17.5 at a party ostensibly fulfills the elements of the offense. In mixed groups of young people around age 18, the line of majority cuts across the group, and any transfer of a drug from an adult to a minor, even between friends, even for free, is inducing a minor. These are cases in which normative young people find themselves facing a charge carrying a maximum penalty of 25 years' imprisonment.

What determines the actual outcome?

The courts distinguish between a systematic instigator who exploits minors and a one-time sharing between people close in age: the age gaps, the initiative behind the transfer, the consideration, the quantity of the drug, and the relationship between the parties. In less severe cases, it may be possible to seek conversion of the charge to a regular drug offense, more lenient plea arrangements, and at times even conclude the case without a conviction, but this requires proper handling from the very first investigation: a sweeping confession given without understanding its significance closes doors.