By Richard Mann, Contributing Reporter
RIO DE JANEIRO, BRAZIL – The answer is: it depends. Brazil does not have objective criteria regarding the quantity of illegal substances. It is not written in the law. You can carry a given amount of marijuana and it will not be considered trafficking.
So, why the question? Because people may behave similarly and end up answering for possession for personal use or for drug trafficking due to the fact that there are similar criminal offenses within the legal provisions for each of these crimes, such as purchasing, transporting, carrying and planting.
In one scenario, if you plant or if you are carrying the drugs for your own personal use, you are liable to get an admonition penalty, community service, etc.
In another scenario, if you plant or if you are carrying drugs intending to sell or merely to supply to others (with no profit), you are liable to get a prison sentence from five to 15 years in addition to a fine.
And what are the criteria that define whether the individual will answer for trafficking or for carrying for personal use?
Type of Drug
The “heavier” the drug is – the greater potential for harm it holds – the higher the likelihood of framing it as drug trafficking.
Hence it is easier to frame it as carrying for personal use if someone has marijuana in his/her pocket rather than heroin, for example.
In addition, should one be carrying several different types of drugs this may indicate that the individual is seeking to have a greater variety of drugs available to their clients.
Quantity
There is no specific limitation in the law as to how much one can carry and it is left to the judge to decide whether the amount of drugs the individual carries is large or not.
Thus, one gram of drugs would clearly be seen as carrying for personal use, while 20 kg would be seen as trafficking. Seems easy, does it not?
But what if someone is caught carrying one gram and R$3,000 (US$750) in their pocket, which could be money from drugs they have just sold?
What if someone is carrying five kilograms of marijuana, but claims they were bought for year-round use?
In such cases the amount of drugs seized should be assessed together with other factors as alleged by the defense lawyer and the prosecutor.
Location
The third criterion is where the person is detained. If the person is found on an ordinary street near his/her house, it would likely be deemed as carrying for personal use as the individual bought the drugs and would be heading home for consumption.
Should an individual be detained in an area known for drug trafficking then it would likely be deemed as such.
Circumstances
When the individual was detained, was he/she carrying multiple packages of drugs? This may indicate that he/she was prepared to sell each package individually.
Did the person have enough change money? This could show that he/she has just sold several of these packages.
Was this individual carrying only a small amount of drugs, unprepared for consumption and not separated, and only had R$10 in his/her pocket?
Apparently, the person bought the drug for their own personal use. These circumstances and conditions also mark the distinction.
Perpetrator
The fifth and last criteria are the social and personal circumstances of the perpetrator.
The fact that an individual has been arrested for drug trafficking in the past or has been convicted of other crimes does not necessarily mean that he/she has committed the crime for which he/she is being tried.
However, this history is also taken into account when deciding whether or not they will be judged for trafficking or for carrying for personal use.
Furthermore, if the individual has a high standard of living, several properties in his/her name but does not have any employment record, this could also indicate that he/she is involved in drug trafficking.
The fact that the individual is answering for the crime of drug trafficking does not necessarily mean he/she will be convicted for it. The judge’s decision may be to convict him/her for carrying for personal use.
Always contact a lawyer and don’t think you can do it by yourself. It is Brazil, after all.