The Comprehensive Dangerous Drugs Act of 2002 (Republic Act No. 9165) remains the primary penal law governing drug-related offenses in the Philippines. Among its provisions, Section 5 (Sale, Trading, Administration, Dispensation, Delivery, Distribution, and Transportation of Dangerous Drugs) and Section 11 (Possession of Dangerous Drugs) are the most frequently litigated.
Navigating these charges requires an understanding of the strict procedural requirements imposed on law enforcement and the evolving jurisprudence regarding bail and plea bargaining.
Section 5: Sale and Delivery of Dangerous Drugs
Section 5 is a non-bailable offense when the quantity involves any amount of dangerous drugs, provided the evidence of guilt is strong.
- The Elements: To convict, the prosecution must prove: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment.
- Penalty: Life imprisonment and a fine ranging from ₱500,000 to ₱10,000,000.
- Bail Status: Generally, Section 5 is "bailable as a matter of discretion." This means that while the law classifies it as non-bailable, an accused can petition for bail. If the prosecution fails to prove that "evidence of guilt is strong" during a bail hearing, the court may grant provisional liberty.
Section 11: Possession of Dangerous Drugs
The penalties and bailability of Section 11 depend entirely on the weight of the drugs seized.
| Quantity (Shabu/Marijuana) | Penalty | Bailability |
|---|---|---|
| 50g or more (Shabu) / 500g or more (Marijuana) | Life Imprisonment & Fine | Non-bailable (unless evidence is weak) |
| 10g to less than 50g (Shabu) | Life Imprisonment & Fine | Non-bailable (unless evidence is weak) |
| 5g to less than 10g (Shabu) | 20 years and 1 day to Life | Bailable (Matter of right) |
| Less than 5g (Shabu) / Less than 300g (Marijuana) | 12 years and 1 day to 20 years | Bailable (Matter of right) |
Critical Legal Defenses and Options
1. The Chain of Custody Rule (Section 21)
The most potent defense in drug cases is the failure of law enforcement to comply with Section 21 of RA 9165. Because the "corpus delicti" (the body of the crime) is the drug itself, the prosecution must prove an unbroken chain of custody.
- The Three-Witness Rule: Under RA 10640 (which amended Section 21), the seizure and inventory must be done in the presence of:
- The Accused (or their representative/counsel).
- An Elected Public Official.
- A Representative from the National Prosecution Service OR the Media.
- Immediate Marking: The drugs must be marked immediately upon confiscation at the place of arrest, unless safety or distance makes it impossible.
- Effect of Non-Compliance: Failure to follow these steps creates "reasonable doubt," often leading to an acquittal based on the integrity of the evidence being compromised.
2. Plea Bargaining
Following the landmark Supreme Court ruling in Estipona v. Lobrigo (2017), plea bargaining is now allowed in drug cases. This allows an accused to plead guilty to a lesser offense to avoid life imprisonment.
- From Section 5 to Section 12: Often, an accused charged with "Sale" (Section 5) may bargain to plead guilty to "Possession of Equipment/Paraphernalia" (Section 12), which carries a much lower penalty and allows for probation.
- From Section 11 to Section 12: If the quantity is small (e.g., less than 5 grams of shabu), the accused may plead to a violation of Section 12.
- Requirements: Plea bargaining requires the consent of the handling prosecutor and the offended party (the State).
3. Petition for Bail
As noted, for offenses punishable by life imprisonment, bail is a matter of discretion. An accused must file a Petition to Admit to Bail. The court will then hold summary hearings where the prosecution bears the burden of showing that the evidence against the accused is "strong." If the prosecution relies on a flawed "buy-bust" operation or a broken chain of custody, the court may grant bail.
4. Demurrer to Evidence
After the prosecution finishes presenting its witnesses, the defense can file a Motion for Leave to File Demurrer to Evidence. This essentially argues that even if all the prosecution's evidence is true, it is legally insufficient to convict. If granted, the case is dismissed, and the dismissal operates as an acquittal.
Summary of Procedural Remedies
- Inquest Proceedings: The first opportunity to challenge the legality of the arrest (Warrantless Arrest/Buy-Bust).
- Preliminary Investigation: If the arrest was via warrant, the defense can submit counter-affidavits to prevent the filing of an Information in court.
- Motion to Quash: Filed before Arraignment if the facts charged do not constitute an offense or if the court lacks jurisdiction.
- Application for Probation: Only available if the final penalty imposed is imprisonment of not more than six (6) years. Note: Direct violations of RA 9165 were previously excluded from probation, but certain plea-bargained lesser offenses now allow for it.