Can Purchasing Drugs for Personal Use Result in Criminal Liability? Distinguishing "Use" from the Offense of Illegal Possession of Narcotics

"I only bought drugs for my own use, I didn't sell them to anyone. Have I committed a crime?" This is a question lawyers frequently encounter when advising clients in drug-related cases. Many people believe that only traffickers can be held criminally liable, while users, at most, face administrative penalties or mandatory rehabilitation. This belief is not entirely wrong, but it is not as accurate as many assume and the gap between the two is precisely where a great many people unwittingly find themselves entangled in criminal proceedings.

The legal narrative surrounding this offense is, in fact, not entirely new. Looking back, the 1999 Penal Code once devoted a separate provision - Article 199 criminalizing the illegal use of narcotics, applicable to individuals who had already received repeated counseling and had already been subject to mandatory treatment measures but continued to relapse into use. This provision did not remain in force for long. In the very next amendment to the Penal Code in 2009, this offense was abolished, reflecting the view that a person with substance dependency should be regarded as a patient in need of treatment rather than an offender in need of punishment. When the 2015 Penal Code (as amended and supplemented in 2017) was enacted, the group of drug-related offenses under Chapter XX likewise did not reinstate this offense. Throughout that period, the illegal use of narcotics was addressed solely through administrative measures, specifically under Decree No. 144/2021/ND-CP, by way of warnings, fines, confiscation of exhibits, or deportation where the violator was a foreign national.

More recently, however, at its 9th Session, the 15th National Assembly passed the Law Amending and Supplementing a Number of Articles of the Penal Code, formally reintroducing the offense of "Illegal Use of Narcotics" in the form of an entirely new provision, Article 256a. Effective from July 1, 2025, Article 256a on the "Offense of Illegal Use of Narcotics" officially took effect. It is important to note that this offense does not apply to every instance of drug use, but targets a fairly narrow category of individuals: those currently undergoing a term of mandatory rehabilitation or substitution treatment for addiction, those currently subject to a period of post-rehabilitation supervision, those still within two years of the expiration of such a post-rehabilitation supervision period, or those who voluntarily abandoned their rehabilitation process and continued to use drugs. The prescribed penalty for a first offense is 2 to 3 years' imprisonment, and for a repeat offense, 3 to 5 years' imprisonment.

Accordingly, the Penal Code does not, in itself, treat the act of drug use as a criminal offense. Users are typically subject only to administrative penalties or mandatory rehabilitation measures under specialized legislation, rather than being brought before a court merely for having used drugs. In other words, this provision is a tool for addressing individuals who have already passed through the rehabilitation system but relapsed into use, not a general provision criminalizing every instance of drug use in society. For the majority of individuals who purchase drugs for personal use, particularly first-time offenders who have never undergone rehabilitation, the act of "use" itself is still not, on its own, grounds for criminal prosecution.

1. So why are people who buy drugs for personal use still often prosecuted?

This is the crux of the matter that many overlook. It is not because they "used drugs," but because before using them, they almost invariably had to go through an intermediate step: purchasing, receiving, carrying, or storing that narcotic substance on their person, in their bag, or in their home. And it is precisely this act of storage — not the act of smoking, injecting, or ingesting that follows, may constitute the offense of illegal possession of narcotics under Article 249 of the Penal Code.

Possession is understood simply as the unlawful storing or concealment of narcotics anywhere: in a shirt pocket, trouser pocket, wallet, vehicle trunk, or even swallowed to conceal it, provided this is not for the purpose of trafficking, transporting, or manufacturing. In essence, a person who buys drugs for personal use and a person who possesses drugs for sale share the same physical act: holding narcotics in their possession. The sole distinction lies in their purpose and subjective intent, yet that distinction has no bearing on whether they have committed the offense of possession, since the offense of possession was, by its very nature, designed to apply to those who hold narcotics for their own use rather than for sale.

2. Where is the line between "use" and "possession"?

To determine whether a person who buys drugs for personal use will face criminal liability, four questions must be answered: whether the person is currently holding narcotics; whether they knew the substance was a narcotic; whether the quantity held reaches the statutory minimum threshold (or whether they have previously been administratively sanctioned or convicted of a drug-related offense with the conviction not yet expunged); and whether that possession was genuinely not intended for resale.

If all four elements are satisfied, the act of possession is sufficient to constitute an offense, regardless of whether the person intended to consume the entire quantity or had, in fact, already used any of it. This is why so many people are caught in the act with the narcotics still intact in their pocket, sometimes without having used any of it even once.

3. Guidance from the Judicial Council of the Supreme People's Court

Clause 3, Article 7 of Draft No. 2 of the Resolution guiding the application of Penal Code provisions on drug-related offenses, issued by the Judicial Council of the Supreme People's Court in 2023 (currently under consultation), sets out a fairly illustrative example: a person purchased heroin and brought it home, used part of it, and kept the remaining 1.3 grams; that person subsequently purchased additional heroin to use gradually, retaining a further 4 grams, and was then apprehended. As a result, this person was prosecuted for the offense of illegal possession of narcotics based on a total quantity of 5.3 grams then in their possession, even though the original intent had only been to purchase for personal use, with no intention of selling to anyone.

This example makes one point clear: the law is not concerned with whether part of that quantity had already been used. As long as, at the moment of detection, the person is still unlawfully holding a quantity of narcotics that meets the statutory threshold, they must bear criminal liability for possession based on the aggregate quantity held, including any portion already consumed, where this can be established.

Conversely, in a case where a person uses drugs on the spot, consuming the entire amount immediately upon receiving it and retaining nothing that could later be discovered, prosecution becomes considerably more difficult, since there is no longer any act of possession to address, unless that person falls within the category governed by Article 256a discussed above, or some other accompanying offense arises.

4. Common misconceptions clients often have

"Buying it for personal use means it's not a crime" is inaccurate. The act of use itself may, in most cases, escape criminal liability, but the act of storing the narcotics prior to use may fully constitute the offense of possession if the statutory conditions are met.

"Only sellers go to prison" is incorrect. A person who buys drugs solely for personal use may still face imprisonment of three years or more under Article 249 of the Penal Code, depending on the quantity involved and the specific circumstances.

"Using drugs is always a crime" is also incorrect, since in the majority of cases, simple use is addressed through administrative penalties and rehabilitation measures; only the narrow category of individuals within the post-rehabilitation supervision system who relapse into use are directly prosecuted for this act under Article 256a.

Conclusion

Vietnam's Penal code, even following the 2025 amendments, still does not criminalize the act of drug use across society as a whole. In practice, however, nearly anyone who purchases drugs for personal use must pass through a stage of holding or storing them and it is precisely this stage that gives rise to criminal liability, through the offense of illegal possession of narcotics. The right question, therefore, is not "does using drugs constitute an offense," but rather "am I illegally in possession of narcotics"  for it is this question that ultimately determines whether a person must face criminal prosecution.

This article is for reference purposes only. It is based on the legal provisions in effect at the time of publication and does not substitute for specific legal advice tailored to any individual case. Please contact the lawyers of Davilaw Law Firm directly for appropriate and detailed consultation.