Cocaine Possession as a Narcotics Offence in Germany

Lawyers for German Criminal Law

Cocaine Possession as a Narcotics Offence in Germany

Lawyers for German Criminal Law

Cocaine use has meanwhile become a socially relevant problem in Germany, with the number of offences related to it increasing noticeably. Therefore, it is crucial to know the laws on dealing with such narcotics as cocaine in detail.

Even though the Narcotics Act (BtMG) names relatively basic formulas for narcotics offences, this fact should not obscure that each offence consists of several inherently complex elements. Due to the constantly evolving case law, many “unwritten” aspects of the crime must be considered. Thus, a sound knowledge of substantive criminal law is regularly necessary to assess the individual case correctly.

Schlun & Elseven Rechtsanwälte offers persons accused of a narcotics offence or against whom preliminary proceedings are already pending equally competent and committed legal assistance. Our criminal law team comprises experienced defence lawyers, including former public prosecutors. Our in-depth expertise and years of experience ensure the best possible results for our clients.

Please do not hesitate to contact us to benefit from our expertise and commitment.

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The Legal Status of Cocaine in Germany

Cocaine belongs to a series of narcotics that are classified as prohibited substances under German law. For the classification of narcotics as prohibited substances and the standardisation of the associated punishable acts, the German Narcotics Traffic Act (BtMG) applies.

According to § 29 BtMG, the production, possession, acquisition and sale of cocaine, as well as advertising for cocaine, is punishable. In addition, driving under the influence of cocaine can also lead to punishment, e.g. under § 316 German Criminal Code, depending on the facts of the case and the amount consumed.

The penalty for such a traffic offence ranges from a fine to five years imprisonment. In addition, driving under the influence of cocaine can result in the revocation of the driving licence.

All in all, apart from the basic punishability of handling cocaine according to § 29 BtMG, there are numerous provisions in which the sentence is aggravated or lightened or in which proceedings can be dropped. Depending on the circumstances of the individual case and the particular additional prerequisites or elements of the offence, the sentence for crimes involving cocaine can thus vary considerably.

The main factors that are taken into account when classifying the facts under a criminal provision of the Narcotics Act include:

  • First offence: Has an offence or drug offence been committed for the first time, or is it a repeat offence?
  • Commercial activity: If the offender wanted to obtain a continuous source of income of some duration and size through repeated drug offences, they acted commercially. If the offender wanted to obtain a continuous source of income of some period and size through repeated drug offences, they acted commercially. It is assessed according to whether it is the primary source of income of the offender, how high the income and whether there is an organised distribution network.
  • Quantity of cocaine found: A distinction is made between the “small quantity for personal use” with the possibility of discontinuing the proceedings or waiving the penalty, the “normal quantity” and the “not small quantity“, for which the penalty is increased in comparison to the “normal quantity”.
  • Gang membership: Was the drug offence committed in the context of organised crime?

What are the Sanctions and Penalties for Cocaine Offences in Germany?

Numerous factors play a role in determining the penalty for a cocaine offence. The range of punishment to be expected depends on the circumstances of each case.

For the punishability of cocaine possession and drug offences under the BtMG in general and their sentencing, the quantity established is particularly decisive. The Narcotics Act standardises three different concepts of quantity, which can be structured differently concerning concrete gram numbers in the German states.

Based on these quantity concepts and other requirements, we would like to present the possible penalties under the Narcotics Act:

  • “Normal quantity”: First of all, there is the “normal quantity”, i.e. the quantity of narcotics, the possession, production, acquisition, sale, etc., which regularly fulfils the primary offence of § 29 BtMG. The “normal quantity” limit is approximately 5g of pure cocaine. Thus, it is not the total amount of the narcotic substance that is decisive, but only the amount of active substance it contains, i.e. cocaine hydrochloride. The “normal quantity” always applies if no particular quantity is mentioned in the offence, such as the “small amount for personal use” or “not a small quantity”. According to § 29 BtMG, the penalty ranges from a fine to a five-year prison sentence.
  • “Small amount for personal use”: In addition, there is the “small amount for personal use”, which can vary according to the federal state (e.g. 1g in Hamburg, Hesse and Niedersachsen or 3g in Schleswig-Holstein) but must be less than 5g of pure cocaine. The presence of such a “small amount” does not mean that the offence is, in principle, unpunishable because it is a drug offence under the BtMG and fulfils the corresponding elements of the crime. However, if there is proof of personal consumption and no public interest in prosecution, the authorities can discontinue the criminal proceedings according to § 29 (5) BtMG or waive prosecution according to § 31a BtMG.
  • “Not small quantity”: An increased penalty exists for these acts in the case of a “not small quantity” in the sense of § 29a (1) no. 2 BtMG, which starts at 5g pure cocaine. For this, a custodial sentence of not less than one year is ordered, thus a considerable increase in the sentence compared to the “normal amount”.
  • As a member of a gang: Trafficking, cultivation and production of cocaine as a member of a gang which has joined forces to commit such drug offences continuously are punishable by a prison sentence of not less than two years, according to § 30 (1) No. 1 BtMG. If a “not small quantity” is established, the standardised punishment increases to a minimum of five years imprisonment under § 30a (1) BtMG.
  • Supply of minors: If it has been established that a person over 21 years of age has supplied cocaine to a minor or has given or given it to them for consumption, the penalty is increased to five years imprisonment. If it is established that a person over 21 years of age has supplied cocaine to a minor or has given it to them for consumption, they are generally punished with imprisonment of not less than one year, according to § 29a (1) no. 1 BtMG. If the offender induces the minor to trade in cocaine or otherwise to put it into circulation, the standardised penalty increases to a minimum of one year. The penalty increases to a minimum of five years imprisonment according to § 30a (2) no. 1 BtMG.
  • Commercial: Commercial handling of cocaine is punishable by imprisonment of not less than two years according to § 30 para 1 no 2 BtMG.
  • Reckless causing of death: Likewise, anyone who recklessly causes the death of another person by supplying or administering cocaine or giving it to another person for immediate consumption is punished under § 30 (1) no. 3 BtMG.
  • For the generally increased custodial sentences, the custodial sentence may be reduced in less severe exceptional cases.

Driving under the Influence of Cocaine in Germany

Another area where dealing with cocaine can lead to a criminal conviction is driving under the influence of cocaine.

Anyone who drives a vehicle in road traffic, although they cannot drive safely due to taking intoxicating substances, such as cocaine, is liable to prosecution under § 316 German Criminal Code and faces a fine or imprisonment of up to one year. In addition, the driving licence may be revoked on this basis.

Driving under the influence of cocaine also becomes particularly relevant if the person concerned is involved in a traffic accident. This is because if the influence of cocaine causes an accident in which the life and limb of another person or property of others are concretely endangered, the penalty under § 315c German Criminal Code is up to five years imprisonment.

The person’s punishability under § 316 and § 315c StGB depends on whether the driver was “fit to drive”, i.e. able to drive their vehicle safely. The respective amount consumed can be decisive for this.

To determine the consumption of cocaine, a so-called “drug wipe test” is first carried out on the suspected person, with which it can generally be determined whether narcotics have been consumed at all. A blood test can be ordered to determine the specific value if this test is positive. In the case of such an order, it is recommended to contact an experienced criminal lawyer to secure one’s rights vis-à-vis the prosecution authorities.

Irrespective of the amount consumed, a misdemeanour according to § 24a para. 2 StVG (German Road Traffic Act) may be committed, which may result in a fine of up to 2000 Euros. According to this, it is an administrative offence to drive a motor vehicle while under the influence of an intoxicating substance such as cocaine. The effect is indisputable if the substance can be detected in the blood.

Therefore, the question of “fitness to drive” does not arise in the law on administrative offences. Furthermore, a driving ban can be legally ordered according to § 25 StVG, and the driving licence can be withdrawn.

In such cases, the driving licence is threatened, and personal mobility is at stake. It is essential to contact an experienced legal expert in German criminal law for further information and support.

Cocaine Possession in Germany

One of the primary offences in connection with cocaine is, among many other forms of manners, such as production and trafficking, possessing cocaine, according to § 29 BtMG.

What is striking about this primary offence is that the pure consumption of cocaine is not listed among these punishable acts. However, the distinction between pure consumption and possession for personal use is often complicated and raises some evidentiary problems in criminal proceedings.

In principle, possession of cocaine requires that the accused carries the substance on his body and can control for which use the cocaine is in his area of responsibility, i.e. for their own use or consumption or commercial purposes. Therefore, the accused must be aware of the fact that the cocaine is in their bodily sphere.

 The offence can, therefore, fail if the accused carries the substance with them for destruction or if it was planted on them without their knowledge or conspicuousness. However, the accused must be able to prove these opposing motives or disprove the intent resulting from the finding of cocaine.

If cocaine is found on the suspect during a house search, they are presumed to po