Drugs and their use are a negative social phenomenon. The effects of their abuse are far-reaching and include the degradation of family bonds, the destruction of health and an increase in crime. For these reasons, drug crimes are vigorously combated by the relevant services.
If you succumbed to temptation (which happens!) and came into contact with drugs, you are exposed to negative legal consequences. This article will provide you with knowledge on how the responsibility for ownership or/and taking drugs, as well as their consequences. It offers full knowledge of the possible legal consequences of possessing and using drugs.
After having read the article, you’ll learn:
- What are drugs?
- What is drug addiction, drug possession and using?
- Is drug use punishable?
- What are the consequences of narcotic drug and psychotropic substance possession?
- What is a lesser and greater gravity of the crime of possession of these substances and how the sanctions due to them differ?
- Is possession of narcotic drugs and psychotropic substances for own use punishable?
- What are the consequences of possession of new psychoactive substances?
- What are the additional sanctions for drug possession?
- Is attempt to possess drugs punishable?
- Can you be detained for drug possession?
What are drugs?
First of all, I’ll have to explain to you what drugs actually are under the law. This is a much broader term than you’d think…
It is worth mentioning that the basic issues regarding drugs and related criminal liability are regulated by the Act of 29 July 2005 on counteracting drug addiction. Paradoxically, the above legal act does not directly use the term drugs. They consist of three separate groups of compounds:
- psychotropic substances,
- narcotic drugs,
- new psychoactive substances.
They mean any substance or groups of substances of natural or synthetic origin that affect the human central nervous system. They can be found in pure form or as an appropriate chemical preparation (mixture).
The list of substances considered drugs under the law is included in the Regulation of the Minister of Health of 17 August 2018 on the list of psychotropic substances, narcotic drugs and new psychoactive substances. They are arranged according to the groups indicated above and include:
- psychotropic substances – e.g. mephedrone, methedrone, mephylon, amphetamine, methamphitamine,
- narcotic drugs – e.g. benzethidine, desomorphine, etorphine, fentanyl, heroin, coca leaf, cocaine, poppy straw, marijuana,
- psychoactive substances – e.g. etizolam, benzylfentanyl, ethylpentinol;
Currently, a certain type of race is on between legal regulations and the producers of the drugs described – the former do not always keep up with the rapidly emerging new types of drugs (designer drugs).
It should be noted that Polish law also distinguishes the concept of a substitute drug – it is a product containing a substance with an effect on the central nervous system, which can be used for the same purposes as a narcotic drug, a psychotropic substance or a new psychoactive substance. It is therefore a preparation that has an effect similar to the substances listed in the cited regulation. An example of such a measure are the so-called designer drugs – special substances whose effects are often much more hazardous than those of “classic” drugs.
What is drug addiction, drug possession and using?
You must know that the above-mentioned act offers detailed definitions of social phenomena related to drugs. As is usually the case with regulations, they are quite complicated. However, I must use them to precisely explain whether the committed act is punishable.
And so, drug addiction is the constant or periodic use of narcotic drugs, psychotropic substances, substitutes or new psychoactive substances for non-medical purposes, as a result of which addiction to them may or has occurred.
In turn, using a narcotic drug, a psychotropic substance, a substitute drug or a new psychoactive substance means introducing them into the human body, regardless of the route of administration.
When it comes to drug possession, no legal provision clearly defines what it means. This issue is clarified by case law and legal doctrine, to which I will refer on many occasions, as they are of fundamental importance for the issues described.
At what point does drug possession begin?
Possession of a narcotic drug or psychotropic substance within the meaning of the Act on Counteracting Drug Addiction is any possession, i.e. possession of such a drug or substance, and therefore also related to its use or intention to use it. It should be added that from the legal point of view, possession means conscious and actual disposal of the item, regardless of its duration.
It is assumed that possession constituting a crime is the possession of at least an amount of a drug that is theoretically capable of intoxicating one person. Thus, this means one deck of a given drug. For example, in the case of marijuana, it is a portion weighing about 0.5 grams. Thus, only the residue of this substance remained in the glass barrel, or trace amounts in the form of its remains in a string bag, will not constitute a basis for accusing the holder of committing a crime.
So what is the difference between taking and possessing drugs? This issue has been clarified in judicial practice. The mere fact of detecting the presence of drugs in a given person’s body cannot, by a kind of automaticity, deduce the fact that that person possesses them. Therefore, literally speaking, use is not equivalent to possession.
Is drug use punishable?
Using drugs, and therefore being under their influence, is not punishable (unless, of course, you drive a motor vehicle under their influence). No legal provision provides for sanctions for this situation. However, in judicial practice it was found that the process of taking a drug is always inextricably linked to some form of possession, disposition, wielding, or simply keeping, while at the same time it was concluded that possession related to drug use is not possession within the meaning of the Act on Counteracting Drug Addiction due to a lack of criminal record, i.e. non-criminal drug use.
Therefore, merely being under the influence or using a drug cannot be considered a criminal act. Only their possession (before taking them) is punishable. Therefore, the finding of such a condition cannot be seen as direct evidence pointing to the main fact, namely prior drug possession. This is only circumstantial evidence. It only indicates directly that a given person is under the influence of such a drug, and only indirectly indicates that he or she may have used it previously and, therefore, possessed such a drug. The point, however, is that if it is impossible to exclude the alternative conclusion that the drug was made available to the person in a manner unrelated to their taking control of the drug, this evidence, if it is the only one in the case, is insufficient to establish the committing of a crime.
This means that drug use is not subject to criminal liability. However, this does not exclude sanctions for their previous possession, if, of course, it is proven to you beyond any doubt.
What are the consequences of narcotic drug and psychotropic substance possession?
It is worth noting that almost all drug possession is illegal. Exceptions are provided only for legitimate possession of such drugs for medicinal, industrial or scientific reasons. Therefore, it must be based on the provisions of any legal act, i.e. an act or regulation. Any other possession of such substances is unlawful and, as such, is subject to punishment provided for in the relevant regulations.
So you must know that drug possession is a crime regulated in Article 62 of the Act on Counteracting Drug Addiction. According to it, a person who possesses narcotic drugs or psychotropic substances shall be subject to the penalty of imprisonment of up to three years.
It should be added that drug possession is punishable, regardless of its purpose. Therefore, from the point of view of criminality, the motivation or attitude of the perpetrator of this prohibited act is irrelevant. It is also irrelevant whether the responsible person possesses the drugs for the purpose of selling them, giving them to another person, or for the purpose of using them himself. The occurrence of this crime also has no influence on how the perpetrator stores them, i.e. whether they are in their pocket, a motor vehicle, a basement, an apartment or a garden.
The crime of drug possession itself is intentional. Therefore, its perpetrator must want to commit it, or at least, anticipating such a result, agree to it. In such a case, criminal liability is strictly individualized, so it may apply only to the person who is actually guilty of committing the prohibited act.
It should be noted, however, that the legislator distinguishes various factual states within the scope of possession. Apart from “ordinary possession”, there are cases of greater and lesser gravity.
Case of greater gravity
The crime of possession of the above drugs has its own aggravated form. It occurs when the perpetrator possesses a significant amount of such agents. In such a case, he/she is subject to increased criminal liability, as he/she may be sentenced to imprisonment from one to ten years.
What does significant amount of drugs mean?
It is assumed that it occurs when it is sufficient to cause at least several dozen people to become intoxicated at one time.
Lesser gravity
If the crime of possession of the specified drugs is of a lesser gravity, less severe penal repression is applied to the perpetrator. It is subject only to a fine, restriction of liberty or imprisonment for up to one year.
You must know that in accordance with the provisions of the Penal Code – the fine is imposed in daily rates, specifying the number of rates and the amount of one rate. Unless the Act provides otherwise, the lowest number of rates is 10 and the highest is 540. When determining the daily rate, the court takes into account the perpetrator’s income, personal and family conditions, property relations and earning capacity. The daily rate cannot be lower than PLN 10 or exceed PLN 2,000.
The penalty of restriction of liberty lasts the shortest one month and the longest two years, and is imposed in months and years. It involves the obligation to perform unpaid, supervised work for social purposes or to deduct from 10% to 25% of the remuneration for work on a monthly basis for a social purpose indicated by the court. These sanctions are imposed jointly or separately.
When does a lesser gravity of a prohibited act occur?
It occurs when the degree of social harm and the perpetrator’s guilt are much lower than in the case of the basic form of the crime.
When assessing whether such circumstances exist, courts take into account primarily the amount and type of drug possessed, as well as the perpetrator of the crime – his/her previous attitude, life situation and the context in which he/she came into possession of such prohibited substances.
Is possession of narcotic drugs and psychotropic substances for own use punishable?
Possessing drugs for personal use is also punishable, but in this case relaxed liability rules apply.
Pursuant to Article 62a of the Act on Counteracting Drug Addiction – in the event of possession of narcotic drugs or psychotropic substances in insignificant quantities, intended for the perpetrator’s own use, criminal proceedings may be discontinued before the decision to initiate an investigation or investigation is issued. However, the condition is that it must be supported by the fact that imposing a penalty on the perpetrator would be pointless due to the circumstances of committing the act and the degree of its social harmfulness.
What are the consequences of possession of new psychoactive substances?
Possession of new psychoactive substances is subject to less severe penalties. If, contrary to the provisions of the Act, you have or have them at your disposal, the only sanction is a fine. However, if the amounts are significant, you will be subject to a fine, restriction of liberty or imprisonment for up to three years. If you are found in possession of a small amount of such a drug, the proceedings may be discontinued under the same principles as in the case of narcotic drugs or psychotropic substances.
What are the additional sanctions for drug possession?
Possession of drugs, in addition to the sanctions described above, is also subject to additional, severe repression for the perpetrators.
Thus, in the event of a conviction for this type of crime and in the event of discontinuance or conditional discontinuation of criminal proceedings, the forfeiture of the narcotic drug, psychotropic substance or new psychoactive substance is additionally ordered. This happens even if they were not the property of the perpetrator. This is a mandatory sanction, which means that the court must apply it. When issuing this type of ruling, the court may order the destruction of the seized drugs. In order to prevent possible abuses, an appropriate protocol is drawn up regarding this activity.
Additionally, if you are convicted of the above-mentioned crime, the court may oblige you to pay a fine of up to PLN 50,000. It is intended for the purposes of preventing and combating drug addiction.
In addition, if the perpetrator is convicted of an offense of possession of narcotic drugs or psychotropic substances (except for cases of lesser gravity), or for possessing a significant amount of new psychoactive substances, the court also orders a punitive measure in the form of a cash benefit to the Victims’ Assistance Fund and Post-penitentiary Assistance. Its amount will be at least PLN 1,000 and may even reach PLN 60,000.
This sanction does not apply to the perpetrator of the crime of possession of narcotic drugs or psychotropic substances in their basic form or possession of new psychoactive substances (unless they concern a significant amount), but only if the perpetrator is an addict.
Is attempt to possess drugs punishable?
You must know that even attempting to possess drugs is punishable by law.
It should be recalled that it occurs when the perpetrator intends to commit a prohibited act, and his/her behavior directly leads to its commission, which, however, does not occur.
This will happen, for example, when the person selling the drug you met did not manage to give it to you due to the intervention of the police officers arresting you.
It also occurs when the perpetrator does not realize that the act is impossible due to the lack of an object suitable for committing a prohibited act or due to the use of a means that is not suitable for committing a prohibited act. This is the so-called unsuccessful attempt.
An example of the above would be the situation described earlier, with the proviso that the dealer wanted to commit fraud against you in the form of selling a non-drug substance, such as baking powder or flour.
It should be noted that a person who voluntarily refrained from committing an attempt or prevented an effect constituting the hallmark of a prohibited act is not subject to punishment for an attempt. In turn, in relation to a perpetrator who voluntarily tried to prevent an effect constituting the hallmark of a prohibited act, the court may apply extraordinary leniency.
Everyone is equal before the law. Effective lawyer makes the difference
Can you be detained for drug possession?
The answer to this question must be affirmative!
The rule is that in the case of crimes, the suspected person is detained by the police. Pursuant to the provisions of the Code of Criminal Procedure, the police have the right to detain a suspect if there is a reasonable suspicion that:
- they committed a crime,
- there is a risk of the person escaping or hiding,
- there is a risk of removing traces of the crime,
- their identity cannot be determined,
- there are grounds for expedited proceedings against this person.
What are your rights in such a case?
They are quite extensive, and the most important include the rights to:
- using the help of a lawyer or legal advisor,
- using the free assistance of a translator if the detained does not have a sufficient command of the Polish language,
- receiving a copy of the arrest report,
- access to first medical aid.
In addition, there is an obligation to immediately inform the suspect about the reasons for detention and about the rights indicated above. At their request, the detained person should also be immediately allowed to contact a lawyer or legal advisor.
The detainee should be released immediately when the reason for detention ceases to exist, and if he/she is not handed over to the court along with a request for pre-trial detention within 48 hours from the moment of detention by the authorized body. He must also be released upon order of the court or prosecutor.
A detained person should also be released if, within 24 hours of being placed at the disposal of the court, he/she was not served with the decision to apply pre-trial detention to him or the decision was not announced to him at the meeting.
Even though it looks serious, it doesn’t have to end tragically!
Before you get into possession of drugs, think carefully about whether the game is worth the candle. The sanctions in this respect can be far-reaching and may affect your entire future life.
However, if you have committed such an act, you should consider seeking help from a professional who specializes in such matters. Only this type of specialist, with appropriate knowledge and experience, will be able to protect you from far-reaching criminal reprisals and, in favorable circumstances, even obtain acquittal, extraordinary leniency or at least a suspended sentence.
Are you looking for the appropriate person? You might have already found them – contact us and find out how we will use the acquired knowledge and experience to protect you from criminal liability.
