During a house search (Hausdurchsuchung), 35 grams of cocaine are seized. That sounds like a manageable amount. But the forensic report shows a purity of 50 percent – and therefore 17.5 grams of pure substance. The threshold quantity for cocaine is 15 grams. Instead of a misdemeanour (Vergehen) under § 27 SMG carrying a maximum of one year, the case is suddenly a felony (Verbrechen) under § 28a SMG – punishable by up to five years‘ imprisonment.

The threshold quantity (Grenzmenge) is the single most important number in Austrian drug law. It separates a misdemeanour from a felony, determines the penalty range and decides whether diversion – a disposal without a conviction – is still possible. What matters is not the total weight, but exclusively the pure substance (Reinsubstanz) of the active ingredient. That distinction can mean years.

On this page I explain, as a criminal defense lawyer for drug offences in Vienna, how § 27 SMG – the basic offence provision of the Narcotic Substances Act (Suchtmittelgesetz, SMG) – fits into the wider tier system, what the threshold quantity is, where it lies for each substance, and what defense approaches exist when it is exceeded.

From the threshold quantity to the penalty range

What is the threshold quantity? – § 28b SMG

The threshold quantity is the statutory minimum amount of the pure substance of a narcotic drug from which the law assumes a large-scale danger to the life or health of human beings. It is set individually for each substance in the Threshold Quantities Regulation for Narcotic Drugs (Suchtgift-Grenzmengenverordnung, SGV) and always refers to the pure active ingredient – not to the total weight including cutting agents.

The legal basis is § 28b SMG. It empowers the Federal Minister of Health, in agreement with the Federal Minister of Justice, to set the threshold quantities by regulation. In doing so, both the dangerousness of the substance and its potential to create habituation must be taken into account.

Two regulations, two spheres

For narcotic drugs (cannabis, cocaine, heroin, amphetamines and so on) the Threshold Quantities Regulation for Narcotic Drugs (Suchtgift-Grenzmengenverordnung, SGV) applies, on the basis of § 28b SMG. For psychotropic substances (certain benzodiazepines, synthetic substances) the Threshold Quantities Regulation for Psychotropic Substances (Psychotropen-Grenzmengenverordnung, PGV) applies, on the basis of § 31b SMG. Both regulations state the threshold quantities in grams of pure substance.

Why the threshold quantity is so decisive

The threshold quantity is the dividing line between a misdemeanour and a felony. Below the threshold, there is a misdemeanour under § 27 SMG – with a penalty range of a maximum of one year. Once the amount exceeds the threshold, the felony provisions of §§ 28 and 28a SMG apply. The penalty ranges rise to up to 5, 10 or even 15 years. Diversion becomes harder. And jurisdiction moves from the District Court (Bezirksgericht) to the Regional Court (Landesgericht).

Threshold quantity table – all key substances

The following table shows the threshold quantities of the narcotic drugs most common in practice. The SGV lists more than 150 substances across several annexes – here the most practically relevant are summarised. A more detailed breakdown, including the large-quantity and extra-large-quantity multiples, is set out on the page on drug threshold quantities in Austria. All figures refer to the pure substance of the active ingredient.

Source: Threshold Quantities Regulation for Narcotic Drugs (Suchtgift-Grenzmengenverordnung, SGV), Federal Law Gazette BGBl. II No. 377/1997 as amended, RIS. The street-quality column is based on typical purity levels and serves only as orientation – for the criminal assessment only the pure substance counts. For salts, the threshold quantity refers to the base of the respective substance.

Cannabis: THCA and Delta-9-THC

For cannabis, two separate threshold quantities apply: 40 grams for THCA and 20 grams for Delta-9-THC. In practice, the question is which value first reaches its threshold. For typical street cannabis with a THCA content of about 10 percent, 40 grams of THCA pure substance corresponds to roughly 400 grams of cannabis herb. Many defendants are not aware of this distinction between the two forms of THC – yet it can decide between a misdemeanour and a felony.

§ 27 vs. § 28 vs. § 28a – the tier system

The Narcotic Substances Act grades criminal liability into three tiers. The decisive factor is the amount in relation to the threshold quantity. Below it, the offence remains a misdemeanour. Above it, felony law begins, with drastically higher penalty ranges.

§ 27 SMG – unlawful handling (below the threshold)

§ 27 SMG covers the acquisition, possession, production and passing on of narcotic drugs below the threshold quantity. It is a misdemeanour. The most common case is possession of a small amount of drugs for personal use, which § 27 para 2 SMG treats more leniently.

For offences under § 27, diversion under § 35 SMG is possible. The public prosecutor may provisionally discontinue the proceedings – for instance subject to the condition of undergoing therapy.

§ 28 SMG – preparation of drug trafficking (above the threshold)

§ 28 SMG covers the acquisition, possession or transport of narcotic drugs above the threshold quantity where there is an intention to put the drug into circulation. It is a felony – no longer a misdemeanour.

§ 28a SMG – drug trafficking (above the threshold, actual trade)

§ 28a SMG concerns actual trafficking: producing, importing, exporting, offering, handing over or procuring narcotic drugs above the threshold quantity. This is where the harshest penalties in Austrian drug law apply.

The tier system at a glance

How is the threshold quantity calculated?

The threshold quantity always refers to the pure substance of the active ingredient. That means: it is not the total weight of the seized substance that counts, but the actual share of the pure active ingredient. A chemical laboratory report establishes the purity.

The formula

Pure substance (g) = gross weight (g) × purity (%)

Worked example 1: amphetamine

• Seized: 200 g of amphetamine (street quality)
• Purity per the report: 15%
• Pure substance: 200 g × 0.15 = 30 g
• Threshold quantity for amphetamine: 10 g
• Result: 3× the threshold → § 28a para 1 SMG (up to 5 years)
• Not yet 15× → § 28a para 2 (large quantity) does not yet apply

Worked example 2: cocaine

• Seized: 30 g of cocaine
• Purity: 60%
• Pure substance: 30 g × 0.60 = 18 g
• Threshold quantity for cocaine: 15 g
• Result: threshold narrowly exceeded → § 28a para 1 SMG

Worked example 3: cannabis

• Threshold THCA: 40 g | threshold Delta-9-THC: 20 g
• Seized: 400 g of cannabis herb
• THCA content per the report: 10% → 400 g × 0.10 = 40 g THCA
• Delta-9-THC content: 5% → 400 g × 0.05 = 20 g Delta-9-THC
• Result: both thresholds exactly reached – it is examined which value is exceeded first

In practice, the purity is frequently the decisive defense approach. Street cocaine is seldom 70 percent pure. Street amphetamine is often only 10 to 20 percent. A low purity can make the difference between a misdemeanour and a felony.

Aggregation intent – when individual amounts are added up

Individual sales that each lie below the threshold quantity can be added together. But not automatically. The Supreme Court (Oberster Gerichtshof, OGH) requires for this the so-called aggregation intent (Additionsvorsatz): from the very outset, the offender must have had the continuous commission and the aggregation effect connected with it within their intent.

Requirements according to the OGH

• An intent formed from the outset to realise the offence on a continuing basis
• A uniform situation and the same underlying motivation
• Mere continuity over time is not sufficient
• A reference to „roughly 25 to 50 individual acts“ without a concrete connection to the offence period is not enough for aggregation intent

Where aggregation intent is missing, the individual sales remain misdemeanours under § 27 SMG – with a maximum penalty range of one year per act instead of up to five years under § 28a SMG.

Adding together different substances

The OGH has confirmed that different narcotic drugs can be added together. Cocaine amounting to three quarters of its threshold plus heroin amounting to two thirds of its threshold produces, in sum, an exceedance. There is, however, a limit: drug quantities that concern different offences of a cumulative combined offence (Mischdelikt) may not be set in relation to the threshold and their percentages may not be added together.

Supreme Court case law on threshold quantities

The following decisions of the Austrian Supreme Court are particularly relevant in practice for threshold-quantity cases. They show how the OGH handles aggregation intent, sentencing and findings on intent.

OGH 12 Os 146/05w (23 February 2006) – aggregation intent

Between the summer and October of 2004, a defendant passed marijuana and hashish in small individual amounts to several buyers – a total of at least 500 g of marijuana and 200 g of hashish. The OGH made clear: combining the individual amounts into a large quantity presupposes that the intent, from the outset, encompassed the continuous commission and the aggregation effect. This decision is the foundation for every aggregation-intent case.

OGH 11 Os 93/21t (2 November 2021) – a single unit of conduct

Where aggregation intent exists from the outset, several successive acts of commission are linked into a single statutory unit of conduct and constitute a single offence. The OGH clarified: the qualification of commercial commission (Gewerbsmäßigkeit) under § 28a para 2 no. 1 SMG comes into consideration only where there are several legally independent offences. In practical terms, this means: where all the part-acts form a single offence, commercial commission cannot be based on that alone.

OGH 11 Os 134/18t (29 January 2019) – sentencing where the threshold is exceeded

Where offences are realised only in their simple form – offences which merely require the exceeding of a single threshold quantity – the court may treat the extent of the exceedance as an aggravating factor in sentencing. That means: a 3× exceedance of the threshold is, in practice, punished more severely than a narrow exceedance, even though formally both fall under § 28a para 1. This does not breach the prohibition on double consideration (Doppelverwertungsverbot, § 32 para 2 StGB).

OGH 13 Os 13/13f (29 August 2013) – intent as to the pure substance

Findings must be made on all elements of the offence – including on the intent regarding the pure-substance content. An acquittal without a full examination of the subjective side of the offence breaches § 281 para 1 no. 9 lit a StPO. That case concerned 8,216 g of cannabis resin with a purity of at least 10.77 percent and a pure Delta-9-THC substance of 884 g – 25× the threshold quantity. The OGH requires the court to establish whether the defendant was at least conditionally aware of the quality and purity.

OGH 13 Os 118/25i (7 January 2026) – a recent confirmation

A recent decision concerned 2,000 g of heroin with a pure substance of 860 g of heroin base – equivalent to roughly 287× the threshold quantity (the threshold for heroin being 3 g). The OGH confirmed the rules on adding up part-quantities across an extended offence period: the intent must encompass the part-quanta and the continuous commission, including the aggregation effect.

Diversion and treatment instead of punishment

For offences below the threshold quantity (§ 27 SMG) there are well-established alternatives to a conviction. § 35 SMG allows the public prosecutor to provisionally discontinue the proceedings – typically subject to a health-related measure such as drug counselling or therapy. § 37 SMG governs court diversion. How this route works in detail is explained on the page on diversion in Austrian criminal law.

Threshold exceeded – is diversion still possible?

Once the threshold quantity is exceeded, diversion becomes considerably harder, but it is not automatically excluded. The mitigated form (Privilegierung) under § 28 para 4 or § 28a para 3 SMG can substantially reduce the penalty range. The requirement is that the act served exclusively the offender’s personal use and that a drug dependency exists. In that case, the range under § 28a para 1, for example, falls from up to five years to up to three years.

On the particular situation of minors, see the German-language page on drug offences committed by juveniles (in German).

What to do if you are accused of drug trafficking?

If you are under investigation for drug trafficking under §§ 28 or 28a SMG, there are concrete defense approaches. Experience shows: the earlier a specialised criminal defense lawyer is brought in, the better the starting position. The most important steps, in order:

1. Remain silent. Make no statements to the police about the amount, the origin, the intended use or your contacts. Any statement about regular sales or a planned passing-on can support the case for aggregation intent. Your right to silence is not an admission of guilt.
2. Challenge the purity. The chemical laboratory report establishes the purity, and that report can be questioned: the methodology of sampling, the storage of the substance, the analytical procedure. A difference of a few percentage points in the purity can decide whether the threshold quantity is exceeded or not.
3. Dispute aggregation intent. If individual part-sales are to be added together, the prosecution must prove that an overall intent existed from the outset. Spontaneous or situational individual sales over a longer period do not establish aggregation intent. Without it, the individual acts remain misdemeanours under § 27 SMG.
4. Dispute intent as to the quantity. The OGH requires that the defendant had at least conditional intent regarding the specific pure-substance amount (OGH 13 Os 13/13f). If the accused was not aware of the quality and purity of the drug, the subjective element required for exceeding the threshold is missing.
5. Assert the mitigated form for personal use. The mitigated form (Privilegierung) under § 28 para 4 or § 28a para 3 SMG substantially reduces the penalty range where the act served exclusively personal use and a drug dependency exists. In practice, this mitigation is invoked too rarely.

Frequently asked questions on drug offences and threshold quantities

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