You were stopped at a police check with a small amount of cannabis, cocaine or another substance. The officer seized the drugs, you were questioned. Now you are asking yourself: Will I go to prison? Will I get a criminal record? What happens next?

The clear answer: if the drugs were exclusively for your personal use, in Austria you will as a rule not end up in court. The Narcotic Substances Act provides a separate route for personal use: diversion instead of conviction, a probationary period instead of a penalty. In its decision 11 Os 21/18z, the Supreme Court (Oberster Gerichtshof, OGH) made clear that the public prosecutor is obliged to deal with a case of personal use by way of diversion.

But be careful: possession remains a criminal offence. There is no punishment-free „small amount“ in Austria. On this page I explain, as a criminal defense lawyer in Vienna, what actually happens after you are caught, what rights you have, and why a lawyer in drug cases can make the difference.

Is possession of a small amount exempt from punishment? The biggest myth

No. In Austria there is no punishment-free „small amount“ and no „permitted personal use“. The possession of narcotic drugs is in principle punishable under § 27 SMG – even for the smallest amounts.

What does exist, however, is a privilege for personal use. Anyone who possesses narcotic drugs exclusively for their own consumption falls under § 27 para 2 SMG. Instead of up to one year, the maximum is then six months‘ imprisonment or a fine of 360 daily penalty units (Tagessätze). And, more importantly still: for personal use the public prosecutor must dispose of the case by way of diversion (§ 35 para 1 SMG).

What „personal use“ means in law

Personal use under § 27 para 2 SMG covers two constellations: own consumption and the altruistic passing on to another person for that person’s personal use (OGH 11 Os 21/18z). The possessor must not have drawn any advantage from it – neither financially nor in any other way.

Important: there is no upper limit on quantity for acquisition and possession for personal use. Even the acquisition and possession of a large quantity of narcotic drugs falls under § 27 para 2 SMG if it serves exclusively this purpose. The law names no quantity there. Possession above the threshold quantity is only punishable as preparation of drug trafficking if the drugs are to be put into circulation (§ 28 para 1 SMG). What is decisive is exclusively the purpose.

What „small amount“ means in practice

The law does not define the term „small amount“. The current Narcotic Substances Act no longer uses it at all: until the end of 2007 it was a condition for diversion under § 35 SMG. Since 2008 only the purpose counts: anyone who acquires or possesses drugs exclusively for their own use falls under § 27 para 2 SMG, whatever the quantity. The threshold quantity (§ 28b SMG) is an element of § 28 and § 28a SMG: it matters where drugs are passed on, imported, exported or produced (§ 28a SMG) or where someone possesses them in order to put them into circulation (§ 28 SMG). No quantity is exempt from punishment. Possession for your own use also remains punishable. The offence is punished more leniently if it is committed exclusively for personal use (§ 27 para 2 SMG).

What happens if you are caught with a small amount?

Here are the six steps that, in practice, lie ahead of you – from the moment of the police check to the final dismissal of the proceedings.

1. Police check and seizure. The police seize the narcotic drugs. You are questioned on the spot or at the station. For § 28 and § 28a SMG the active-substance content matters: the threshold quantity refers to the pure substance (§ 28b SMG), not to the gross weight. A criminal complaint (Anzeige) is filed against you in any case. If the investigation only gives rise to the suspicion that the drugs were exclusively for personal use and nobody drew an advantage from them, the police then notify the health authority and report to the public prosecutor (Abtretungsbericht, § 13 para 2b SMG). Your most important right at this stage: you do not have to incriminate yourself. Use your right to remain silent and tell the police that you first wish to speak to a lawyer.
2. The public prosecutor reviews the case. The prosecutor examines two questions: Were the drugs exclusively for personal use, yours or someone else’s (§ 27 para 2 SMG)? And did you draw no advantage from them? Prior convictions are not a criterion for this, and for possession for your own use neither is the quantity. Where the drugs were exclusively for personal use without any advantage, the next step is clear: the prosecutor must provisionally withdraw from prosecution (§ 35 para 1 SMG). That is not discretion – it is a statutory duty. After an Abtretungsbericht the prosecutor withdraws immediately, unless it considers further clarification of the facts necessary (§ 35 para 9 SMG).
3. The health authority (notified by the police). The district administrative authority (in Vienna: the Magistrat) acting as the health authority receives the notice from the police (§ 13 para 2b, § 14 para 2 SMG). If specific facts suggest that you are misusing drugs, it has you examined by a doctor (§ 12 SMG). Exception for cannabis: where the case concerns only cannabis, psilocybin mushrooms or psychotropic substances for personal use, the health authority does not have to have you examined (§ 13 para 3 SMG).
4. Provisional withdrawal and probationary period. The public prosecutor provisionally withdraws from prosecution and sets a probationary period of one to two years. You receive written notification of this. If charges (Strafantrag) are brought against you for a narcotics offence during this period, the proceedings can be set in motion again (§ 38 para 1 no 1 SMG).
5. Health-related measure (or plain probation). Whether you need a health-related measure under § 11 para 2 SMG, and which one, follows from the medical assessment (§ 35 para 3 no 2, para 5, § 12 SMG) – for example medical monitoring of your state of health, medical treatment including withdrawal and substitution treatment, clinical-psychological counselling, psychotherapy or psychosocial counselling. The prosecutor does not order the measure. It makes the withdrawal conditional on your agreeing to undergo it (§ 35 para 6 SMG). Where you need no such measure, none is imposed.
6. Final dismissal. If you have observed the probationary period and have not reoffended, the public prosecutor withdraws from prosecution definitively (§ 38 SMG). The proceedings are dismissed. You have no criminal record. The proceedings are only resumed for specific reasons: if, during the probationary period, charges (Strafantrag) are brought against you for a narcotics offence or for an offence linked to your habituation to narcotics, if you persistently evade the health-related measure and resuming appears necessary to keep you from further narcotics offences, or if you apply for it yourself (§ 38 para 1 SMG). After an Abtretungsbericht, the only grounds are that the health authority reports within one year that you are not undergoing the medical examination or the measures, or that you apply for resumption yourself (§ 38 para 1a SMG).

Special case: already charged

Where charges have already been brought, the court must provisionally discontinue the proceedings by order up to the end of the main trial hearing if the conditions that apply to the public prosecutor are met (§ 37 SMG). §§ 35 and 36 SMG are applied by analogy.

Threshold quantities in Austria – the table

The threshold quantity under the Narcotics Threshold Quantity Ordinance (Suchtgift-Grenzmengenverordnung, SGV) is an element of § 28 and § 28a SMG. It decides whether passing on, import, export or production counts as drug trafficking (§ 28a SMG) and whether possession with intent to put the drugs into circulation is punishable as preparation of drug trafficking (§ 28 SMG). Anyone who possesses drugs only for themselves remains under § 27 SMG even above the threshold quantity. What is always decisive is the active-substance content in pure substance, not the gross weight of the material.

What happens below vs. above the threshold quantity?

„Therapy instead of punishment“ – § 35 SMG explained

§ 35 SMG is the centrepiece of Austrian narcotics criminal law. The statute is built on the principle of health before punishment. Where drugs are possessed for personal use, the focus is not on the penalty but on diversion, combined with a health-related measure where needed (§ 35 para 6 SMG).

When MUST the public prosecutor use diversion?

Under § 35 para 1 SMG, the provisional withdrawal from prosecution is mandatory where the offence was committed exclusively for personal use and the accused drew no advantage from it. The probationary period is one to two years. That is not discretion, not an act of grace – it is a statutory duty of the public prosecutor.

When MAY the public prosecutor use diversion?

Under § 35 para 2 SMG, the prosecutor may also withdraw provisionally in the case of other offences under §§ 27, 30–31a SMG, and for §§ 28 and 28a SMG only if the accused is habituated to narcotics (an Suchtmittel gewöhnt). The conditions: the offence does not fall within the jurisdiction of the lay-judge or jury court, the accused’s guilt would not be regarded as serious, and the withdrawal appears no less suitable than a conviction to deter the accused from such offences (§ 35 para 2 nos 1 to 3 SMG). Here the public prosecutor has a margin of discretion (RIS-Justiz RS0121807; cf. OGH 11 Os 119/25x of 16 December 2025).

Which health-related measures exist?

The catalogue in § 11 para 2 SMG lists five measures:

1. Medical monitoring of the state of health
2. Medical treatment including withdrawal and substitution treatment
3. Clinical-psychological counselling and care
4. Psychotherapy
5. Psychosocial counselling and care by qualified persons

The specific measure depends on the need for treatment that has been established. In addition, the prosecutor can make the withdrawal conditional on your agreeing to be supervised by a probation officer, where this is appropriate (§ 35 para 7 SMG).

Special rule for cannabis

Where the case concerns only cannabis for personal use, the public prosecutor must dispense with the medical opinion (§ 35 para 4 SMG). The same applies to psilocybin mushrooms and psychotropic substances, to passing them on without advantage and to growing them for personal use. Exception: an investigation for a narcotics offence was already conducted against you within the last five years.

Prior convictions and personal use – diversion despite a record?

Yes. In its decision 12 Os 146/18i of 24 January 2019, the OGH made clear beyond doubt: a record of prior convictions does not stand in the way of a provisional dismissal of proceedings under § 35 para 1 SMG. § 35 para 1 SMG contains no special-prevention grounds for exclusion.

This means: even a person who is already convicted of drug possession or of other offences is, in the case of personal use, entitled to the diversion under § 35 para 1 SMG. The public prosecutor may not refuse diversion on the sole ground of a prior conviction.

The difference: § 35 para 1 vs. para 2

The prior-conviction question concerns above all the distinction between para 1 and para 2:

• § 35 para 1 (mandatory): personal use – prior convictions irrelevant, diversion is a duty
• § 35 para 2 (discretion): other SMG offences – prior convictions can be taken into account in the discretionary balancing

This is precisely where the defense comes in: where the public prosecutor disputes personal use and wants to apply § 35 para 2 instead of para 1, the hurdle for diversion rises. An experienced lawyer for drug offences will establish personal use in order to enforce the compulsory character of para 1.

What penalty do you face for drug possession?

The penalty range for drug possession in Austria depends on three factors: the purpose of the possession, the quantity and the surrounding circumstances. Here is the overview:

Diversion as the normal outcome for personal use

The penalty ranges in the table are theoretical maximum values. In practice, for personal use the normal outcome is diversion under § 35 para 1 SMG: provisional withdrawal, probationary period, dismissal – no criminal record, no hearing, no judgment.

Deferral of enforcement of the sentence in cases of drug dependence

Even where a conviction does result: the enforcement of a fine or of a prison sentence of up to three years must be deferred for up to two years if the convicted person is habituated to narcotics and agrees to undergo a health-related measure (§ 39 para 1 no 1 SMG; not for § 28a paras 2, 4 and 5 SMG). Where the prison sentence exceeds 18 months for an offence connected with obtaining narcotics, this applies only if enforcement is not required in view of the offender’s dangerousness (§ 39 para 1 no 2 SMG).

Why a lawyer is decisive in drug cases

Many accused persons believe that a drug-possession case involving a small amount is dismissed automatically. In practice, the outcome depends on the correct classification – and that is exactly where an experienced lawyer for drug possession makes the difference.

What a defense lawyer actually does

• Establish personal use: the distinction between § 27 para 1 and para 2 SMG decides whether diversion is a duty or a matter of discretion. A lawyer in drug cases documents own consumption and rebuts allegations of dealing.
• Check the substance analysis: the threshold quantity refers to pure substance. Laboratory results must be checked for accuracy – errors in the analysis can make the difference between § 27 and §§ 28, 28a SMG where you are accused of passing on drugs or of intending to deal.
• Steer your statements: spontaneous statements to the police can undermine personal use. A lawyer ensures that you say only what serves your defense.
• Enforce diversion: where the public prosecutor refuses the mandatory diversion under § 35 para 1 SMG, the lawyer can challenge this.
• Check the aggregation: where you are accused of drug trafficking, small quantities are only added together if your intent was directed from the outset at continuous commission and at exceeding the threshold quantity in total (RIS-Justiz RS0124018). This finding is exactly what the defense attacks.

Frequently asked questions on drug possession and personal use

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