Home entry
Most seizures happen at home without a warrant. The police must show a well-founded reason existing before entry; an anonymous tip alone is not enough.
Emergency criminal defense · Drug Act
Drug trafficking: how the charge is built and what separates use, trafficking and privileged trafficking
The quantity seized does not decide on its own. Place, packaging, cash, scales, messages and how the police reached the person define the classification and the defense.
Straight answer: what distinguishes use from trafficking
Article 28 of Law 11,343/2006 covers possession for personal use, with no prison sentence; article 33 covers trafficking, with a sentence of five to fifteen years. The law directs the judge to consider the nature and quantity of the substance, the place and conditions of the action, social and personal circumstances, and the conduct and record of the person. For first offenders with a clean record who are not part of a criminal organization, paragraph 4 of article 33 provides for privileged trafficking, reducing the sentence by one sixth to two thirds, which may lead to an open regime and replacement by non-custodial sentences.
This page is for persons arrested in flagrante over drugs and their relatives, as well as suspects in trafficking inquiries. Emergency in-person assistance in the city of São Paulo (East, North and South zones), Guarulhos and the metropolitan area; other cases are handled throughout the State of São Paulo, Brazil, with remote meetings when appropriate.
Points the defense examines in drug cases
Personal and vehicle stops
A personal search requires an objective, well-founded suspicion. Stops based on 'suspicious attitude' without a concrete element are questionable.
Proof of intent to sell
Scales, packaging, small bills and messages are used to claim trafficking. The defense puts each item in context and points out what is missing.
Toxicological report
Proof of the offense depends on a definitive report identifying the substance. A missing or defective report affects the conviction.
Police officers' word
Police statements have weight, but must be consistent with each other and with the other elements. Contradictions are explored in the defense.
Privileged trafficking and regime
Once the privilege is recognized, the sentence may fall below four years, with an open regime and replacement by non-custodial sentences. The Supreme Court removed the heinous classification from this form.
Priorities in the first hours
Custody hearing
It is the moment to show ties and question the lawfulness of the approach. Proof of employment and address must arrive before the hearing.
Do not confess intent to sell
Statements at the station about 'selling to support the habit' are used as a confession of trafficking. Silence is a right.
Preserve cameras and witnesses
Footage of the place of the stop and people who witnessed the home entry must be identified quickly.
How the defense is organized
1. Action in the flagrante
Reading the report, custody hearing and request for provisional release based on the lawfulness of the search and personal circumstances.
2. Evidence phase
Challenging witnesses, requesting expert examinations and footage, and showing the absence of proof of intent to sell.
3. Judgment and appeal
Request for reclassification to personal use, recognition of the privilege, adequate regime and replacement of the sentence.
Relatives should not hand phones or objects to the police without guidance, nor try to 'explain' the situation at the station. Everything said is recorded.
Frequently asked questions about drug trafficking
Is provisional release available in trafficking cases?
Yes. The Supreme Court declared the absolute prohibition unconstitutional. Release depends on the analysis of the requirements for pre-trial detention in the concrete case.
Is a small quantity always personal use?
There is no fixed legal threshold, except the Supreme Court's guidance on cannabis for personal use, which set a quantity parameter. The analysis considers the whole context of the seizure.
What is privileged trafficking?
It is the sentence reduction for a first offender with a clean record who is not engaged in criminal activities or part of an organization. It may lead to a sentence below four years and an open regime.
Official references and related pages
Reference legislation in Brazil. Classification depends on the circumstances of the seizure and the evidence produced.
Has someone been arrested for drug trafficking?
State the police station, the time and how the approach happened through the secure channel. The screening organizes action at the custody hearing and the release request.