Attempted Drug Trafficking: Is It a Crime Without a Sale?

Every year, thousands of drug trafficking proceedings are followed in Spain. The 2025 Report of the Special Anti-Drug Prosecutor’s Office, with data from 2024, indicates that drug trafficking proceedings increased from 23,949 in 2023 to 29,758 in 2024, with an increase of 23.21%. Additionally, cases involving substances that cause serious harm to health grew by 53.59%, largely due to the increase in cocaine trafficking.

We are not, therefore, talking about a residual crime. We are talking about one of the criminal areas with the greatest police pressure, more investigations and a real risk of serious convictions.

In this article, as a criminal defense attorney expert in crimes against public health, I am going to answer a very common question: whether you can be convicted of drug trafficking even if you have not actually sold the substance.

What is drug trafficking?

Drug trafficking is the crime that punishes any conduct aimed at introducing, moving or facilitating the circulation of narcotic substances in the illegal market. It is not limited to selling drugs. It also includes actions such as transporting, storing, distributing or intermediating between people who participate in that activity.

In Spain, this crime is regulated in article 368 of the Criminal Code, which sanctions those who cultivate.

What does the Supreme Court say about attempted drug trafficking?

In the analyzed case, two defendants went to a residence to extract cocaine hidden inside an engine. They carried written instructions and tools to do so. However, the Police had already seized the substance beforehand and both were arrested when they were about to access the residence.

The Public Prosecutor’s Office maintained that a completed crime should be found. But the Supreme Court rejected that approach and confirmed the conviction for attempted offense because it had not been proven that those defendants had participated in the shipment from Panama, nor that they were recipients of the drugs, nor that they had come to have effective control over them.

The judgment explains it clearly: if a person intervenes late, without prior agreement, without being a recipient and when the drugs are already under police control, we can speak of attempt and not completion.

Why is it so difficult for attempt to be found in drug trafficking?

This is not coincidental. The Supreme Court has insisted that drug trafficking is a crime that is punished before the harm actually occurs.

It is sufficient that there exists conduct oriented toward trafficking for Criminal Law to intervene. Therefore, as soon as a person possesses, transports or receives drugs with the purpose of trafficking, the crime is considered completed.

This explains why, in most proceedings, the prosecution directly maintains the completed crime and not the attempt.

Where then is the key for the defense?Penalties for completed drug trafficking offense

To understand the difference well, it is first worth remembering the penalties for the completed offense:

Drugs that do not cause serious harm to health

Marijuana, hashish or cannabis, among others.

The prescribed penalty is 1 to 3 years of imprisonment and a fine of double the value of the drugs.

Drugs that cause serious harm to health

Cocaine, heroin, ecstasy, amphetamines and other similar substances.

The prescribed penalty is 3 to 6 years of imprisonment and a fine of triple the value of the drugs.

Aggravated circumstances

If there is also notorious importance, organization, criminal group or other aggravating circumstances, the penalties for drug trafficking can reach from 9 to 12 years of imprisonment.

Penalties for attempted drug trafficking offense

If the crime does not reach comple