Drug and designer drug offenses. Liability and defense in cases related to drugs and designer drugs.

Questions regarding the penalties for drug trafficking or the punishment for possession of illegal substances are a common concern for many people. Allegations related to the supposed commission of drug-related crimes or offenses involving so-called “legal highs” are, in practice, among the most frequent issues clients bring to law firms. This is partly because the criteria for determining whether a crime has indeed been committed are highly ambiguous and unclear, often depending on the individual perspective of the prosecutor or, in the longer term, the court, thus creating a significant opportunity for a lawyer specializing in such cases. Additionally, in the case of some drug-related offenses, we can discuss defense methods that are atypical and characteristic of the specific type of prohibited act. Due to the complexity of the matter at hand, this article will focus on only a few key issues related to drug and “legal high” crimes. Among other things, I will explain what penalties apply for drug trafficking, the potential punishment for drug possession, and what constitutes a significant quantity of drugs.

Responsibility for the production, trafficking, and trade of drugs or legal highs – what penalty applies for committing a drug or legal high-related crime? What quantity of drugs or legal highs can be legally possessed?

The issues concerning how many years one can face for drug trafficking or legal highs, as well as the permissible quantity of such substances that can be legally possessed, are highly complex. According to the law currently in force in Poland, it can be stated with confidence that engaging in any of the actions I listed above, both with narcotic substances (such as cocaine, morphine, heroin, or opium), psychotropic substances (such as marijuana – weed, hashish, amphetamines, LSD, mephedrone, MDMA – ecstasy, psilocybin – magic mushrooms), and new psychoactive substances, i.e., various kinds of legal highs, is illegal. However, it is a fact that “legal high” offenses are treated somewhat more leniently by Polish legislators than narcotic drug offenses (i.e., those related to narcotics and so-called psychotropics). The production, distribution, etc., of these substances are only legal when carried out by entities holding the proper permits obtained through a complex qualification procedure.

I would like to emphasize that, in principle, the aforementioned activities are illegal with regard to any, even minimal, quantity of drugs or legal highs. However, if we find ourselves in a situation where trace amounts of a drug or legal high (e.g., so-called remnants) have been seized from us, in an amount that de facto prevents the achievement of the intended goal (i.e., for example, in simplified terms – intoxication of at least one person), we can preliminarily consider the conditions favorable for preparing a defense aimed at even acquitting the alleged perpetrator of such an act.

In the case of charges related to the production, processing, or alteration of drugs, the initial penalty is up to 3 years of imprisonment. However, considering the relevant provisions of the penal code, favorable factual circumstances in the case, and the prompt actions of a lawyer, provided the case does not qualify for a fight for acquittal, it could end with only a fine. In relation to legal highs, the penalty is lower than for narcotics and starts with a fine, followed by restriction of liberty, up to 3 years of imprisonment. It is worth noting, however, that we will face a completely different situation if the charge involves a significant quantity of drugs or legal highs, as in such a case the potential penalty becomes severe – ranging from 3 years to, following the amendment of the law on October 1, 2023, even 20 years of imprisonment. I will explain what constitutes a significant quantity of drugs in the next part of this article.

As for charges related to smuggling (whether from Poland to another EU country, from another EU country, such as the Netherlands, to Poland, or from outside the customs area of the European Union, such as Morocco, the USA, Mexico, Brazil, to Poland and vice versa, etc.), the penalty is a fine and imprisonment for up to 5 years, unless there are favorable circumstances relating to both the act and the perpetrator (material for analysis by the potentially appointed lawyer of the alleged perpetrator), in which case we could be looking at a fine, restriction of liberty, or imprisonment for up to one year. Also in this case, if we are dealing with a significant quantity of drugs or legal highs being smuggled, the penalty becomes severe, ranging from 3 years to, after the law amendment of October 1, 2023, up to 20 years of imprisonment. It is important to remember that preparing for smuggling, as well as preparing to introduce drugs or legal highs into circulation (including trafficking), is already a criminal offense.

What penalty can we face for drug or legal high trafficking? In the case of introducing drugs or legal highs into circulation, including trafficking such substances, the penalty starts with a fine combined with imprisonment from 6 months to 8 years. However, similarly to the production charges, considering the relevant provisions, favorable factual circumstances, and prompt action by a lawyer, this penalty can be reduced to a fine, restriction of liberty, or imprisonment for up to 1 year. What penalty does one face for trafficking legal highs or selling drugs in significant quantities, or, more broadly, introducing such large amounts of prohibited substances into circulation? In such cases, the penalty increases to a fine and imprisonment from 2 to 12 years.

Providing and possessing drugs or legal highs – what is the role of a lawyer in drug-related cases?

We already know the penalties for drug and legal high trafficking and other offenses in this area. While the drug or legal high offenses mentioned above are frequently charged to individuals involved in organized criminal groups or criminal associations (though certainly not exclusively), providing and possessing drugs or legal highs is increasingly common among individuals who are not professionally engaged in committing crimes, often previously unpunished, and frequently brought before the justice system due to circumstances, unfortunate coincidences, etc. It is common for police officers to conduct searches of individuals behaving oddly or suspiciously (for example, one of the most popular rappers today) and discover small amounts of drugs or legal highs on them. As mentioned, possessing or providing even small amounts of drugs or legal highs is generally considered an offense, but each such case should be thoroughly consulted with a lawyer specializing in criminal cases, particularly drug-related offenses, due to the variety of defense methods that can be applied in such cases.

Initially, providing drugs or legal highs without payment – for example, offering a friend drugs at a party in a club or at a house party – carries a penalty of up to 3 years of imprisonment in Poland, while providing them without payment to a minor, i.e., someone under 18, carries a penalty from 6 months to 8 years of imprisonment. With even higher penalties, we are dealing in the case of providing drugs for payment (including so-called dealing), where the penalty starts at 1 year of imprisonment and can go up to 10 years. For providing drugs for payment to a minor, the penalty range increases, with a penalty from 3 years to, after the amendment of the law on October 1, 2023, even up to 20 years of imprisonment.

Another important issue is the penalty for possessing drugs. This penalty is imprisonment for up to 3 years, although with the application of the relevant provisions of the penal code, favorable factual circumstances, and prompt action by a lawyer, if the case does not qualify for a fight for acquittal, it could end with only a fine. As mentioned, the penalty for possessing legal highs is significantly more lenient, and the case could, in principle, end with a fine. However, when it comes to possessing drugs in significant quantities, the penalty is much more severe. In such a case, the penalty ranges from 1 year to even 10 years of imprisonment (for legal highs, it is a fine, restriction of liberty, or imprisonment for up to 3 years).

After determining the penalty for possessing drugs or legal highs, it is worth considering whether simply being under the influence of such substances constitutes a crime. An interesting issue is the potential liability of an individual who is under the influence of drugs or legal highs but no longer physically possesses them, however, due to the intended length of this article, which is already quite extensive, this matter is not discussed here and is left as a subject for individual consultation.

In the case of an offense committed by a minor, i.e., a perpetrator who has not yet reached the age of 17, including the possession or distribution of drugs or legal highs by such a teenager, it is advisable to seek additional information in another publication by the law firm: Criminal Responsibility of Minors. Offense or misdemeanor of a minor – at what age can a child be criminally liable?

What constitutes a significant amount of drugs or legal highs?

In the earlier part of the article, I referred several times to the concept of a significant amount of drugs or legal highs, due to the fact that the law associates the presence of such a significant quantity with severe consequences for the accused in drug-related offenses.

What is considered a significant amount of drugs or legal highs? Although this issue is fundamental, there is no statutory definition of this term. Moreover, there is no clear definition of it in the case law of common courts or the Supreme Court. Thus, the determination of whether the amount involved in a particular case is considered significant (or less than significant) primarily depends on the individual views of the prosecutor and, subsequently, the court’s perspective on the case.

In the simplest terms, as the issue is exceptionally complex, unless the case clearly involves a situation where the amount of drugs or legal highs could intoxicate tens of thousands of people (e.g., dozens or hundreds of people), there is a possibility to apply a defense strategy aimed at demonstrating that the case does not involve a significant amount, and therefore the charge should be qualified as involving a lesser quantity. It is also important to note that the significant quantity refers to the net amount of the drug or legal high (pure substance), not the amount mixed with a substance used for dilution or increasing the volume of the product (such as powder, dried herbs, etc.).

What are the criminal consequences for failing to report a drug-related or legal high offense?

If you are the owner, manager, or head of a hospitality, entertainment, or recreational establishment, it is important to remember that the narcotics law imposes special duties on such entities regarding the prevention of drug addiction. If you come into possession of reliable information that in such an establishment there is or has been involvement in the sale, distribution, or even non-commercial sharing of drugs or legal highs, the manager is required to report this information to the authorities immediately, under the threat of a fine, restriction of freedom, or imprisonment for up to 2 years.

SURÓWKA Law Firm offers professional assistance in drug and legal high-related cases. Our practical experience and knowledge in drug and legal high offenses allow us to: thoroughly assess the client’s situation, prepare a high-quality defense strategy, and provide comprehensive handling of the case until its conclusion, both for serious drug offenses and smaller cases related to possession or distribution of minor quantities of drugs or legal highs.

It is worth emphasizing that expert services in criminal law in Krakow are not the only area of our specialization. As SURÓWKA Law Firm, we also specialize in the following areas:

• business law in Krakow,
• divorce cases in Krakow.

Also read:

• What should a person do if they are detained?
• How to check if someone has been detained by the police? What can family and friends do for the detained person?
• Voluntary submission to punishment (VSP) – is it worth it?