A house search at six in the morning. Handcuffs. Your phone is seized. Or you are stopped at Vienna Airport with something in your luggage. From one moment to the next, what felt like a private matter has become a criminal case – and if the quantity crosses a certain line, the charge is not simple possession but drug trafficking under § 28a SMG, a felony that starts at up to five years and reaches as far as life imprisonment.

An accusation is not a conviction. The prosecution has to prove that the threshold quantity was exceeded, and that you produced, imported or passed on the drug. The purity of the substance, the question of intent, your exact role in the chain – that is precisely where the defence begins. As a criminal defense lawyer in Vienna, I represent clients in narcotics proceedings from the first police interview to the trial, in English and three other languages.

This page explains, in plain terms, what happens if you get caught with drugs in Austria, how the § 28a SMG penalties are built up, what the threshold quantity (Grenzmenge) is and why it decides the whole case – and what a drug conviction can mean for a foreign national’s right to stay.

Caught with drugs in Austria: what happens next?

What happens depends on one thing above all: the amount. Austria treats drugs on a sliding scale. A small amount for personal use is a misdemeanour that often ends without a conviction; a quantity above the threshold, held or moved with the intent to pass it on, is the felony of drug trafficking. The line between the two is not the type of drug but the pure quantity and your intent.

In practice, a case begins with an arrest, a house search or a package intercepted by customs. The police secure the drugs, scales, packaging and mobile phones and open an investigation. Whether you walk out as a user or are charged as a dealer is decided in the weeks that follow – largely on evidence you can still influence.

Personal use is a different world

If the amount is below the threshold quantity, you are dealing with drug offences under § 27 SMG – a misdemeanour carrying up to one year, where diversion and „treatment instead of punishment“ are the usual outcome for first-time users. Being caught with a small amount is a serious matter, but it is not the subject of this page. This page is about the felony charge: § 28a SMG.

To put the scale in context: in 2024, Austrian authorities recorded 37,310 reports under the SMG (5.3% more than the year before) – more than half of them (54.9%) cannabis-related. Narcotics offences accounted for 13.5% of all criminal convictions in the country (source: BMI Suchtmittelbericht 2024; Statistik Austria).

How a drug trafficking case runs after an arrest

From the arrest to the trial, a § 28a SMG case passes through four stages. Each one offers points of defence – and the first 48 hours matter most.

Drug trafficking under § 28a SMG (Narcotic Substances Act)

Drug trafficking under § 28a SMG is committed by anyone who, without authorisation, produces, imports, exports, offers, supplies or procures a narcotic drug in a quantity exceeding the threshold. It is a felony (Verbrechen), not a misdemeanour – which means a prison sentence is mandatory in principle and the procedural consequences are far heavier.

The six forms of conduct

§ 28a para 1 SMG lists six ways of committing the offence. Each one, on its own, is enough for a conviction:

• Producing (erzeugen): manufacturing the drug – from an indoor cannabis grow to cooking methamphetamine.
• Importing (einführen): bringing it into Austria – by post, in a vehicle or on the body.
• Exporting (ausführen): taking it out of Austria.
• Offering (anbieten): the offer to sell already counts – an actual sale is not required.
• Supplying (überlassen): passing it to another person – even for free.
• Procuring (verschaffen): obtaining it for another – the middleman between seller and buyer.

The three requirements

A conviction under § 28a para 1 SMG needs three elements to come together:

1. Without authorisation (vorschriftswidrig): without a permit under the Narcotic Substances Act.
2. A narcotic drug (Suchtgift): a substance defined as such in the SMG – cocaine, heroin, cannabis, amphetamine, MDMA, LSD and others.
3. Above the threshold quantity: the pure substance must exceed the amount fixed in the Narcotic Drugs Threshold Quantities Ordinance (§ 28b SMG).

Below the threshold, the case falls under § 27 SMG – a misdemeanour with a much milder penalty (up to one year or a fine).

The threshold quantity (Grenzmenge): why it decides everything

The threshold quantity is the single most important number in Austrian drug law. Below it lies a misdemeanour under § 27 SMG (up to one year). Above it begins the felony of drug trafficking under § 28a SMG (up to five years and beyond). The thresholds are set, per substance, in the Narcotic Drugs Threshold Quantities Ordinance to § 28b SMG. This concept has no equivalent in common-law systems, so it is worth understanding precisely.

Threshold quantities of the main substances

The figures always refer to pure substance. The same table also shows the two decisive multiples: 15× (a „large quantity“) and 25×, which raise the penalty dramatically.

Pure substance, not gross weight

What matters is the active-ingredient content, never the total weight on the scales. A laboratory report fixes the purity, and the difference is enormous. 100 g of cocaine at 30% purity is 30 g of pure substance (twice the threshold, § 28a para 1). The same 100 g at 80% purity is 80 g of pure substance – more than five times the threshold. This is why the purity report is so often the real battleground, explained in detail in the dedicated article on drug threshold quantities in Austria.

How much prison time? The § 28a SMG penalty framework

The penalty for drug trafficking is built up in five tiers. The basic offence carries up to five years; each qualification raises the range sharply, up to life imprisonment for those at the top of an organisation. The table below shows the full spectrum.

What that means in practice

A first-time offender who sells cocaine once, just above the threshold, falls under para 1: up to five years. Someone who does the same commercially and has already been convicted of drug trafficking faces one to ten years under para 2. And a person at the head of a drug organisation must reckon with ten to twenty years or life under para 5 – the highest penalty range in the entire Narcotic Substances Act.

The amount still matters inside the range

Even within a single penalty range, the quantity drives the sentence. The Supreme Court (Oberster Gerichtshof, OGH) has confirmed that the extent to which the threshold is exceeded may be weighed at sentencing – so a purity report that lowers the pure quantity has a direct effect on the punishment, not only on the charge.

Possession, preparation, trafficking: § 27 vs § 28 vs § 28a

The Narcotic Substances Act separates three tiers, with rising penalties. Which one applies turns on two factors: the quantity (pure substance) and the intent. The table shows the system at a glance.

The step from § 27 to § 28a is fluid. Someone holding cannabis for personal use but just above the threshold falls under § 28 SMG (preparation, up to three years) if an intent to traffic is proven; if actual passing-on is proven, it becomes § 28a (trafficking, up to five years).

One point is decisive for many clients: the OGH held, in its landmark decision 12 Os 21/17f, that individual part-quantities each below the threshold can be added together where the offender acted with „aggregation intent“ (Additionsvorsatz). So a person who sells small amounts over several weeks – each on its own below the threshold – can still be convicted of drug trafficking if the total exceeds the threshold and the intent existed from the start. Attacking exactly that intent is one of the strongest lines of defence.

Will I be deported? Drug convictions and foreign nationals

A drug conviction can cost a foreign national their residence in Austria – but there is no automatism. A conviction does not deport anyone by itself. It is a separate immigration decision, taken by the Federal Office for Immigration and Asylum (BFA), and the standard depends entirely on your status: third-country national or EU/EEA citizen.

This is a distinct area of law from the criminal case, and it is often overlooked until it is too late. In serious drug cases it can matter more to the client than the sentence itself, which is why the criminal defence and the immigration consequences must be handled together from the outset.

For third-country nationals, § 53 para 3 FPG treats an unconditional prison sentence as an aggravating factor that can justify a long entry ban – and a § 28a SMG conviction routinely carries exactly such a sentence. For EU/EEA citizens the bar is far higher: a criminal conviction on its own is not enough, and the authorities must show a real, present danger arising from the person’s own behaviour. In every case, private and family life under Article 8 ECHR must be weighed. Where a family, a job or long residence in Austria is at stake, this weighing is itself a field of defence.

The practical point: if you are not an Austrian citizen, tell your defense lawyer at the very first meeting. The way the criminal case is resolved – the charge, the type and length of the sentence, whether it is suspended – directly shapes the immigration risk. Coordinating the two is not optional.

Defence strategies against a § 28a SMG charge

A defence against a drug trafficking charge works on several levels at once. As a defense lawyer for narcotics cases, I test each of these systematically:

1. Challenge the purity report

The entire case hangs on the pure substance. A chemical report fixes the active-ingredient content – and it can be contested with a second or third analysis. A difference of just a few percentage points can push the quantity below the threshold and turn a felony into a misdemeanour, or drop the charge from a qualified tier to the basic offence.

2. Contest the aggregation intent

Since OGH 12 Os 21/17f, part-quantities below the threshold can be added up – but only where aggregation intent existed from the start. Was it occasional passing-on among friends? Spontaneous single sales with no overall plan? The burden of proving that intent lies with the prosecution, and it is frequently the weakest link in the case.

3. Personal use instead of intent to traffic

The line between possession for personal use (§ 27 SMG) and possession with intent to traffic (§ 28 SMG) or actual trafficking (§ 28a SMG) is often blurred. Where the quantity is only just above the threshold, it can be argued that the drug was meant for the person’s own consumption – especially where a drug dependency exists.

4. The privileged range for drug-dependent offenders (§ 28a para 3 SMG)

A person who is themselves drug-dependent and commits the offence mainly to fund their own use benefits from a reduced penalty range: up to three years instead of up to five (from para 1), or up to five instead of one to ten (from para 2). An expert opinion on the dependency is the key to this privilege.

5. Treatment instead of punishment (§ 35 and § 39 SMG)

§ 35 SMG allows the prosecution to step back provisionally in favour of a health-related measure – primarily in personal-use cases. § 39 SMG allows the enforcement of a sentence to be deferred for treatment, and it can apply even to § 28a SMG convictions where a dependency exists. The OGH has confirmed that the privileges built around personal use go to the applicable penalty and can also apply to trafficking constellations. An experienced lawyer will check these options systematically.

6. Mitigating factors and diversion

A clean record, a confession, cooperation, a subordinate role such as a courier, young age, difficult personal circumstances – all of these mitigate. In the right constellation, diversion can even come into play at the lower end of § 28a SMG. On a § 28a case, the gap between a suspended and an unconditional sentence often turns on how well the mitigating case is presented.

After an arrest for drug dealing in Vienna

An arrest for drug trafficking sets off a tightly timed sequence, and the first 48 hours are decisive. You are informed of the accusation, you have the right to remain silent, and you have the right to a defense lawyer – use all three.

The sequence in four steps

1. Arrest and interview: the police arrest you and want to question you as a suspect. You may refuse to make a statement and call a lawyer first.
2. The 48-hour limit: within 48 hours the prosecution must either apply to a judge for pre-trial detention (Untersuchungshaft) or release you.
3. The custody hearing: the detention judge examines whether there is a strong suspicion and a ground for custody. In § 28a SMG cases these are typically the risk of reoffending, of flight or of collusion.
4. Detention or release: your lawyer can apply for release and propose more lenient measures – an electronic ankle monitor or reporting obligations – as an alternative to custody.

Because § 28a SMG is a felony carrying more than three years, pre-trial detention is more likely here than for a misdemeanour – particularly where there is a cross-border element, no fixed address, or an ongoing investigation into co-suspects. If a house search took place without an arrest, contact a defense lawyer immediately all the same: the items seized – drugs, scales, packaging, phones – are analysed and become the basis of the charge.

Frequently asked questions on drug trafficking in Austria

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