If a substance is covered by the Narcotic Substances Act, the following is prohibited:

• acquisition (buying, exchanging, receiving as a gift)
• possession (keeping, holding, even smoking a joint in a round)
• transporting (transporting narcotic drugs from one place to another)
• transfer (sell, give away)
• procuring (e.g. providing another person with a genuine, false or falsified identity document to obtain narcotics)
• offering it to someone
• the cultivation of certain plants containing narcotic drugs for the purpose of obtaining narcotic drugs (cannabis, coca bush or opium poppy)
• the production and manufacture (e.g. the extraction of narcotic drugs in the case of cannabis: separating the resin from the plants, purifying narcotic drugs or converting them into other substances)
• import and export.

Although the consumption of an illegal substance is not a criminal offence, it is usually preceded by illegal acquisition and possession.

Even though benzodiazepines are prescription drugs, they fall under the Narcotic Drugs Act as psychotropic substances. However, the acquisition, possession, transport, import or export for personal use is not punishable. Offering, supplying or providing them is also exempt from prosecution, provided no advantage is derived from this.

The NPSG regulates the handling of so-called New Psychoactive Substances (= NPS). These are, for example, research chemicals or incense mixtures. Only authorised persons (e.g. doctors, etc.) may possess these substances. If they are discovered in someone else's possession, they will be seized in any case. If the investigation reveals that the substance was produced, imported, exported or given or procured to another person in order to gain an advantage and thus intoxicate someone else, this will result in criminal proceedings in court. If it is possession for personal use, no further penalties are envisaged.

The NPSG aims to penalise the profitable trade of these substances.

Time and again you read or hear that it is legally unproblematic to carry small amounts of illegal substances. This statement is particularly common in connection with cannabis.

"You are allowed to possess cannabis for personal use."
"As long as you don't exceed the limit, nothing will happen to you."

Is that really true?

Narcotics Act (SMG)

The legal basis can be found in the Narcotic Substances Act (SMG). According to the wording of the SMG, any handling of the drugs covered by the law is illegal. The possession and acquisition, transporting, importing and exporting and offering, transferring or providing certain substances (e.g. THC, cocaine, MDMA, etc.) to others is prohibited.

"Personal use"

The SMG does differentiate between whether a substance is acquired for "personal use" or whether it is offered or passed on to other persons. However, both are punishable. Only the threatened penalties are lower in connection with "personal use". So what is this "limit quantity" all about?

Limit quantity regulation

The Limit Quantities Ordinance specifies for each substance covered by the SMG how many grams of the (pure) substance constitute a "large quantity". If this quantity is exceeded, other sections of the law apply. These are associated with higher penalties. The limits are 40g for THC-A, 15g for cocaine, 10g for amphetamine and 3g for heroin (as of 29 February 2024). However, possession of substance quantities below the specified limit is also a punishable offence.

In practice, this means

If you are caught with an illegal substance, you will be reported to the police! If you are only in possession of it for "personal use", the proceedings must be provisionally suspended with a probationary period of 1-2 years. Apart from a first-time charge for a cannabis consumption offence, a report will be made to the health authorities. This authority can order certain measures (e.g. counselling at a drug rehabilitation centre, substitution treatment, etc.). Failure to comply with the summons to the health authority or to complete the ordered measures may result in a conviction by the court. Prosecution is also temporarily suspended if small quantities (e.g. a few grams of cannabis) are taken for friends/acquaintances without the intention of making a profit. However, if limit quantities are exceeded or substances are not acquired exclusively for "personal use", the competent public prosecutor's office will charge the offender and court proceedings can be expected.

Conclusion:

No matter how much of a substance you possess: If it is listed in the SMG, even possession of the smallest amounts is a criminal offence and will result in charges being brought! Remember: In addition to possible criminal consequences and a report to the health authorities, the driving licence authority, child and youth welfare services or other authorities (trade office, weapons authority, etc.) may also be informed about a report.

The data is also processed by the police. This means that the data can be viewed by the police officers in the event of further official action.

Status: 02/2024

The following applies to users: If you are caught by the police with an illegal substance that is listed in the SMG, a report is made to the health authorities. You will be examined by a public health officer or, in Vienna, by the outpatient centre of the Addiction and Drug Coordination Vienna (Ambulatorium der Sucht- und Drogenkoordination Wien - ASDW). Depending on the assessment, a health-related measure (counselling, treatment or therapy) is prescribed. The prescription of a health-related measure depends on the individual consumption pattern. The public prosecutor's office is then informed about the case and temporarily withdraws from prosecution. If you adhere to the agreed measures, the prosecution will be withdrawn permanently after the probationary period has expired. No entry will be made in the criminal record. However, the incident will be stored for a further 5 years and can be accessed by the police/public prosecutor's office/courts.

If you do not comply with the health-related measures, the public prosecutor's office can bring charges and you will be taken to court.

Criminal proceedings can be expected if it is suspected that the substances are being (re-)sold.

The consequences of a charge or conviction can be far-reaching and serious: Under criminal law, you may be subject to fines and imprisonment. Under administrative law, there may be problems with your driving licence, business licence and passport. Furthermore, you may lose your training or job, or be banned from certain professions - for example in the social sector. In general, the amount of the penalty is linked to the type and quantity of the substance and depends on whether it was a substance for personal use or for transfer and sale. Persons who are used to addictive substances (addiction is not necessary) can usually apply for a deferral of sentence in order to undergo therapy ("therapy instead of punishment"). Furthermore, reduced penalties apply if a person accustomed to addictive substances commits the offence primarily to meet personal needs. Depending on these points, the case may be dismissed or the offender may be sentenced to several years in prison.

If you drive a vehicle after consuming psychoactive substances, you are endangering your life and the lives of others. If the public health officer confirms that you are unfit to drive and the blood test reveals illegal narcotics, your driving licence will be revoked and you will be fined. The costs of the blood test (approx. EUR 800) must also be paid. In order to regain the driving licence, psychiatric and traffic-psychological opinions as well as an official medical report are required.

Whenever you have anything to do with the police, try to remain calm and enquire about the reason for the investigation. During identity checks, it is generally sufficient to state your name, date of birth and place of residence. You have the right to refuse to make any further statements. This does not incriminate you, but you cannot justify yourself either.

As a young person under the age of 18, you have the right to have a trusted person (legal guardian, relative, teacher, youth welfare organisation, etc.) present during questioning and interrogation - with a few exceptions such as great time pressure. In the case of juveniles, legal guardians or relatives are informed at the time of questioning. During questioning, the officers must inform you of the offence you are accused of. If there is suspicion that a crime is being committed (such as drug dealing), a defence lawyer must be consulted during police questioning of juveniles.

Regardless of age, anyone suspected of a criminal offence has the right to a defence lawyer.

If there is reasonable suspicion that you are carrying stolen goods or drugs, for example, the criminal investigation department may search your clothing and luggage. A physical examination, for example of body orifices (e.g. anus), requires a court authorisation. In exceptional cases (e.g. imminent danger), this can also be obtained retrospectively. If this is not granted by the court, the seized items must be returned. Body orifices such as the mouth, anus and vagina can only be "searched" by the responsible public health officer.

Similar regulations apply to house searches as to personal searches. Ask the officers to show you the search warrant. The search warrant will state who is being investigated and which items are to be searched for and confiscated or how long the search warrant is valid for. Here too, however, the criminal investigation department may carry out the search on its own initiative if there is "imminent danger".

Urine tests to detect possible drug use can be requested by medical experts in the course of judicial measures (therapy instead of punishment, enforcement of measures). Amphetamines, ecstasy, cocaine, LSD and opiates can be detected in urine approx. 2 - 7 days, benzodiazepines approx. 7 days and cannabis between approx. 3 and 30 days after consumption.

During a traffic check, the public health officer may take a blood sample if there is a suspicion that you are no longer fit to drive due to drug use. You are obliged to comply with this instruction; refusal is punishable by law and is tantamount to an admission of guilt. A urine test, on the other hand, may be refused.

Cannabis is detectable in the blood for between approx. 12 hours and 3 weeks, ecstasy, cocaine and heroin for approx. 24 hours, LSD for approx. 12 hours, speed for approx. 30 hours and methadone for approx. 48 hours. The duration of the detectability of substances (in urine and blood) depends not only on the substance taken, but is also strongly dependent on the person, the dose, the frequency of use and the type of use!