Definition and General Classification of Intoxicating Substances
In a legal context, intoxicating substances refer to substances that alter human perception, change consciousness, or create a state similar to intoxication. This particularly includes substances that can produce psychoactive effects when consumed. The legal assessment and treatment of intoxicating substances are comprehensively regulated by law in Germany and many other countries, affecting various areas of criminal, administrative, and regulatory law.
Legal Foundations in Germany
Narcotics Act (BtMG)
The Narcotics Act (BtMG) forms the essential framework for the legal regulation of many intoxicating substances. This law defines narcotics as those substances listed in Annexes I to III of the BtMG. It is important to note that not every psychoactive substance automatically falls under the BtMG; rather, the legislator is bound by the substances and groups of substances explicitly named in the law.Examples of relevant substance groups in the BtMG:
- Cannabis and cannabinoids
- Opiates and opioids
- Amphetamines and stimulant substances
- Hallucinogens
Other intoxicating substances not listed in the BtMG may nevertheless be subject to other legal regulations.
New Psychoactive Substances Act (NpSG)
The New Psychoactive Substances Act (NpSG) regulates the handling of so-called ‘legal highs’ or designer drugs that do not fall under the BtMG but are also psychoactive and potentially harmful to health. The NpSG prohibits the manufacture, trade, and possession of certain groups of substances that were previously not explicitly covered by the BtMG.
Medicinal Products Act (AMG)
The Medicinal Products Act (AMG) can also be relevant to intoxicating substances, for example, in regard to substances used as medicinal products or for scientific purposes and which may be subject to abuse. The AMG refers to substances whose misuse for intoxication purposes appears possible.
Road Traffic Law
The Road Traffic Act (StVG), in particular § 24a and § 316 StGB, penalizes participation in road traffic under the influence of intoxicating substances either as a criminal or administrative offence. Proof of intoxicating substances in the blood or breath is sufficient as evidence of a legal violation.
Distinction from Other Substances
Not every psychoactive substance automatically qualifies as an intoxicating substance in terms of liability or criminal law. Legal classification regularly depends on whether the substance is included in the relevant prohibited lists and its ensuing effects. Various laws may classify the same substance differently (e.g. ethanol/alcohol as a legal intoxicant compared to cannabis).
Administrative Aspects and Hazard Prevention
Hazard Prevention Law
Regulations for hazard prevention exist at both state and municipal level, which may restrict or prohibit the handling of intoxicating substances. These allow consumption and possession to be regulated in certain public spaces (schools, public areas).
Youth Protection
The Youth Protection Act (JuSchG) restricts access of persons under 18 years of age to alcoholic beverages and tobacco products. The abuse of other intoxicating substances by minors is often also regulated under the BtMG or AMG.
Criminal Law Relevance
Possession, Acquisition, and Trade
The BtMG penalizes possession, acquisition, and trade of illegal intoxicating substances as criminal offences. Even possession of small quantities of certain substances can be punishable; § 29 BtMG distinguishes between personal use and trade.
Consumption
The mere consumption of an intoxicating substance is not a punishable offence as such under German criminal law. However, prior possession or acquisition is regularly punishable. This results in de facto punishability, as consumption often implies possession.
Negligent or Intentional Commission
Aggravating circumstances apply if a consumer of an intoxicating substance endangers others, for example in road traffic (§ 315c StGB) or when responsible for a protected person (§ 225 StGB).
Medical Use and Special Permits
Some intoxicating substances may be used legally for medical purposes, for example as painkillers on prescription (opioids, medical cannabis). Prescription is subject to strict conditions and documentation requirements; exceptions are reviewed and granted by authorities on a case-by-case basis.
International Aspects
International conventions (e.g., Single Convention on Narcotic Drugs of 1961) regulate the handling of intoxicating substances worldwide and have a significant impact on national legal systems. As a result, numerous substances are internationally controlled.
Legal Assessment of Substitutes and Legal Highs
Manufacturers and distributors of new psychoactive substances often circumvent legal bans by making minor chemical modifications. The NpSG closes these gaps by applying to entire groups of substances, regardless of their precise chemical composition.
Sanctions and Legal Consequences
Violations of the relevant laws concerning intoxicating substances are punished with imprisonment or fines, withdrawal of driving licence, reporting requirements, or revocation of driving privileges. In juvenile criminal law, educational measures or community service may be imposed.
Intoxicating Substances in Labour Law
Employees under the influence of intoxicating substances endanger themselves and others and breach their contractual duties. Warning and immediate dismissal may be legally permissible if workplace safety is at risk.
Specialist Literature and Case Law
The legal situation concerning intoxicating substances is subject to constant change due to new laws and court decisions. Numerous judgments and academic literature deal with individual cases and key decisions regarding the interpretation of the laws.
Summary
Intoxicating substances are comprehensively regulated by law and affect numerous legal fields, including criminal law, administrative law, and labour law. The classification as an intoxicating substance depends on legal definitions, listings, and mechanisms of action. Legislators and courts regularly respond to new developments in the area of psychoactive substances to effectively counter abuse, risks, and legal uncertainties.
Frequently Asked Questions
When does possession of an intoxicating substance constitute a criminal offence?
Possession of an intoxicating substance in the criminal law sense exists when a person has actual control over a substance classified as illegal under the Narcotics Act (BtMG), New Psychoactive Substances Act (NpSG), or other relevant laws. This includes both immediate physical possession (for example, carrying the substance in clothing, bags, or containers) as well as indirect possession, such as storing it in a dwelling, as long as the person can decide what happens to the substance. It is not the acquisition of ownership that is decisive, but solely the opportunity to use or pass on the intoxicating substance at will. Even short-term possession is considered possession if the person is aware of the unlawfulness and nature of the substance as an intoxicating substance. It is also crucial that possession is not covered by a permit; if such a permit exists, criminal liability generally does not apply.
When does consumption of intoxicating substances constitute a criminal offence?
The mere consumption of intoxicating substances is generally not a criminal offence, since criminal law in Germany focuses on preparation, procurement, manufacture, possession, distribution, trading, or production. Exceptions exist, for example, for unauthorized consumption in specially protected institutions (such as schools) or consumption in road traffic, which can lead to endangerment (according to §316 StGB). Possession before or during consumption as well as acquisition for personal use is generally punishable unless an exception (e.g., medical prescription) applies. Accompanying acts such as illegal procurement or possession during consumption can also be punishable. Furthermore, in child and youth protection law, criminal and regulatory provisions apply to the consumption of certain substances.
What legal consequences can result from trading in intoxicating substances?
Trading in intoxicating substances constitutes a serious criminal offence in accordance with § 29 ff. BtMG and is severely punished. ‘Trading’ means any act aimed at placing narcotics on the market for one’s own benefit, whether for payment or free of charge, and includes procurement, sale, or brokering, regardless of whether an actual sale has taken place. Attempted offences are also punishable. Penalties range from fines to several years of imprisonment, depending on the type and quantity of the substance and possible aggravating factors (for example, trading with children or in a gang, possession of weapons, commercial activity). Further consequences may include confiscation of proceeds, bans on driving or commercial activity.
Under what conditions is road traffic with intoxicating substances punishable?
Driving a vehicle under the influence of intoxicating substances is prohibited under § 316 StGB and § 24a StVG. Anyone who, as a result of the effects of intoxicating substances, is unfit to drive but nevertheless operates a motor vehicle on public roads is committing a criminal offence. This includes substances such as alcohol, cannabis, amphetamines, cocaine, opiates, or certain medications. Even small amounts below the legal limits can usually result in administrative proceedings; from certain levels or when impairment is evident, the criminal offence is established. Sanctions include fines, driving bans, license revocation, and imprisonment. In the event of liability in accidents, this can also have civil law consequences.
Is cultivation or home production of intoxicating substances permitted?
Private cultivation or home production of intoxicating substances is generally prohibited unless a governmental exemption (for example, for medical purposes) has been granted. This is especially true for narcotics within the meaning of the BtMG. Illegal cultivation (such as cannabis without a permit) or the production of substances (e.g., synthetic drugs) constitutes a criminal offence under § 29 or § 30 BtMG. The penalty depends on the quantity and purpose, with cultivation or production for trade being particularly severely punished. Only selected scientific, commercial, or medical establishments possess special permits.
What is the role of the ‘small quantity’ in criminal law pertaining to intoxicating substances?
The ‘small quantity’ is a legal term that allows the public prosecutor’s office, in cases of personal use, to refrain from prosecuting under certain conditions (§ 31a BtMG). What constitutes a ‘small quantity’ is regulated differently by states and depends, for example, on the substance (such as cannabis) and its active ingredient content. It serves to mitigate penalties but does not constitute carte blanche for possession, acquisition, or consumption. Possession of a small quantity remains prohibited by law; only the public interest in prosecution may be waived depending on the circumstances. Factors considered include absence of prior relevant convictions, possession for personal use, and fulfillment of certain conditions.
What are the age limits for handling intoxicating substances?
Juvenile criminal law, the Narcotics Act, and the Youth Protection Act regulate the handling of intoxicating substances by minors particularly strictly. As a rule, there is an absolute ban on classic intoxicating substances for minors. Specific age requirements apply for the acquisition, possession, and handling of legal highs, alcohol, and tobacco, which are specified in the Youth Protection Act (e.g., alcohol may be supplied only from age 16 or 18). Violations result in administrative or criminal proceedings against the minors as well as third parties supplying the substances. In addition, educational measures, withdrawal of driving licenses, and other consequences may be imposed.
How are intoxicating substances secured in criminal proceedings and what rights does the person affected have?
If there is suspicion of a criminal offence in connection with intoxicating substances, the police and public prosecutor’s office may order searches and seizures by judicial order or, if there is imminent danger, even without such order (§ 94 ff. StPO). The seized substances are used as evidence and generally destroyed if a judicial prohibition is confirmed. Affected individuals have the right to object to the seizure, to consult legal counsel, and to request access to files. Return is only possible if the legal requirements for a punishable offence are not met, which is extremely rare for narcotics. If planning, possession, or other offences are proven, the substances may be confiscated and permanently seized or destroyed.
