Common crimes
Drug offences
Defences to possession, supply or use charges
There are a number of circumstances in which you can possess, supply, or use controlled drugs. There are also some situations in which you have a defence against criminal charges in relation to controlled drugs. The explanations below do not cover all possible situations. However, these situations are some of those likely to be most relevant to members of the general public.
Using drugs for medical reasons
Misuse of Drugs Act 1975, ss 7(3A), 8(1)(c)-(d), 24, 24A
You can legally possess and use an controlled drug be a medical practitioner or dentist prescribed it for you and it’s a drug that can legally be prescribed. If you’re too sick to give yourself drugs that have been legally prescribed for you, a person caring for you can legally give you the drug.
If a doctor or nurse knows you’re addicted, it’s a criminal offence for them to supply you with drugs for that addiction – unless they’ve been specifically authorised to do this under an official treatment programme (like the methadone programme).
You can also legally possess or use cannabis if a doctor or nurse has diagnosed you as having a terminal illness or condition and as being near the end of your life.
Taking drugs off others or finding drugs
Misuse of Drugs Act 1975, s 7(3)
It’s a defence to a charge of possessing a controlled drug if you’d taken it off someone to prevent them possessing, using or dealing in the drug. As soon as possible, you must have taken all reasonable steps either to destroy the drug or to take it to the police or someone else who’s authorised to have it, like a doctor.
If you’d simply found the drug, it’s a defence if you’d picked it up with the intention of delivering it to the police or another authorised person, and if you took all reasonable steps to do this as soon as possible after finding it.
Getting your drugs tested by a drug checking service: defence to supply
Misuse of Drugs Act 1975, ss 35DA, 35DD, 35DI
In December 2021, the government legalised drug checking to help people make informed decisions about the drugs they might take. The idea is to check that the contents of the drugs are what you think they are and that they’re not something different that could be really harmful.
It’s now lawful to hand over a small sample (10mg) of your drugs to an official drug checking service. The drug checking service won’t return this sample to you. You can get any drugs or substances tested, including unapproved psychoactives. Once you get your results back, it’s up to you what you do with your drugs. But if the police find more than 10mg in your possession, you won’t be able to get out of it by claiming that you were on your way to get the drugs checked.
Drug checking service providers have to be licensed by the government to operate lawfully. As of March 2022, the legal services you can use are KnowYourStuffNZ, the Drug Foundation, and the Needle Exchange. You can get your drugs checked for free with any of these providers.
For more information about drug checking services and where you can find a drug checking clinic near you, see: “Where to go for more support”.
Note: The drug checking law changes make it lawful to supply your drugs to an approved drug checker for testing or destruction. You’re also protected from having your test results used against you in criminal proceedings. But the new law doesn’t change the fact that it’s unlawful to purchase and be in possession of drugs and “psychoactive substances”.
