Cocaine and Substances Causing Serious Harm in Marbella

Reduction to purity: calculating "notoria importancia" (large-scale quantity)

The Agreement of the Plenary Session of the Supreme Court's Second Chamber of 19 October 2001, based on a report by the National Institute of Toxicology, set the threshold for notoria importancia (the "large-scale quantity" aggravating circumstance under Article 369.1.5 of the Criminal Code) at the amount equivalent to 500 daily doses of consumption of each substance. For cocaine, calculated on an average consumption of 1.5 grams per day, the threshold is set at 750 grams of pure substance; for MDMA, at 240 grams; for amphetamines, at 90 grams; for heroin, at 300 grams. The key technical point is that, except for hashish and its derivatives — where the gross weight is counted — these figures refer exclusively to the active ingredient, once the cutting agents used to adulterate the drug for distribution have been discounted. This means that 1,000 grams of cocaine with a purity of 70% do not reach the threshold for notoria importancia, since it is counted as 700 grams of pure substance — a point we work on systematically through independent forensic toxicology expert evidence.

The 5% margin of error: a guarantee in favor of the accused

Case law has recognized, in application of the in dubio pro reo principle, a 5% margin of error in expert analyses of the weight and purity of the substance seized:

"...existe un margen de error de un 5%" en los análisis relativos al pesaje y a la determinación de la pureza de la sustancia.

(The court held that there is a 5% margin of error in analyses relating to the weighing and purity determination of the substance.) This doctrine proves decisive when the quantity seized is only just above the notoria importancia threshold: if, applying the 5% tolerance margin, the quantity could fall below the legal limit, the aggravated subtype does not apply automatically. In every case, we review whether the prosecution's expert report has taken this margin into account and, where it has not, we expressly invoke it during the investigation phase and at trial.

The minimum psychoactive dose: the boundary of non-criminality

At the opposite end of the scale, the Agreement of the Plenary Session of the Supreme Court's Second Chamber of 3 February 2005 set, also on the basis of a report by the National Institute of Toxicology, the minimum psychoactive dose below which the conduct is not criminal, due to the absence of any real capacity to harm the legally protected interest: 50 milligrams of pure active ingredient in the case of cocaine, and 0.66 milligrams in the case of heroin. When the quantity seized is minimal and its purity cannot be established with precision, this doctrine allows the defense to argue that the conduct is not criminal, due to the absence of the minimum risk to public health the offence requires — a point we work on with particular attention in cases involving very small seizures.

Newly emerging substances: the gap in the fixed reference tables

The catalogue of psychoactive substances is constantly expanding with new synthetic compounds — so-called mephedrone, the compound known as "tusi" or pink 2C-B, and other recently emerged substances — for which the Plenary Session of the Second Chamber has not yet set a notoria importancia figure or a reference minimum psychoactive dose. In these cases, the applicable threshold must be determined on a case-by-case basis, through a specific report from the National Institute of Toxicology and Forensic Sciences on the composition, purity, and psychoactive potency of the particular sample, with no automatically applicable table available. This absence of a preset scale is precisely a field of expert discussion that is much more open than for classic substances, and requires a technical defense capable of rigorously challenging the criteria used by the prosecution's expert to set the dose equivalence and the threshold applied.