February 12, 2018
R.A. 9165 Importation Sec 4
Comprehensive Dangerous Drugs Act of 2002
Approved: January 23, 2002
RA 6425
RA 7659
RA 9165 RPC does not have any application in RA 9165, purely Mala
Prohibita
Who are the Offenders? (5)
1. Direct Participant or Violator; sells uses possess
delivers imports, the one who carries out the act
2. Conspirator- (Section 26);
3. Broker (Section 5)- the one who secures the success of
the transaction.
4. Financier -You are penalized by the maximum of the
penalty provided by the law; Any person who pays for,
raises or supplies money for, or underwrites any of the
illegal activities prescribed under RA 9165.
5. Protector/Coddler – punished with 12 years and 1 day
to 20 years and a fine ranging from 100,000 to 500,000.
Any person who knowingly and willfully consents to the
unlawful acts provided for in this Act and uses his/her
influence, power or position in shielding, harboring,
screening or facilitating the escape of any person he/she
knows, or has reasonable grounds to believe on or
suspects, has violated the provisions of RA 9165 in order
to prevent the arrest, prosecution and conviction of the
violator.
Punishable Acts
RA 9165 is framed in such a way that it is harsh to pushers than to
users. User is punished for 6 months rehabilitation in a
government facility.
DOJ issued guidelines for Plea bargaining; plea bargain for a lesser
offense; It allowed Plea Bargaining. One of the instances is possession;
you can bargain for possession to use of dangerous drugs.
2 category
-Dangerous Drugs
-(controlled precursor and essential chemical) CPEC.
ACTS PUNISHED BY COMPREHENSIVE DANGEROUS
DRUGS ACT of 2002
1. Importation (S4)
2. Sale, Trading, Administration, Dispensation, Delivery,
Distribution and Transportation (S5)
3. Maintenance of a DDR (S6)
4. Being Employees or visitors of a DDR (S7)
5. Manufacture (S8)
6. Illegal Chemical diversion of CPEC (s9)
7. Manufacture or delivery of EIAand otherP for (s10)
8. Possession (s11)
9. Possession of EIAP for DD (s12)
10. Possession during parties, social gatherings, or meetings
(s13)
11. Possession of EIAP for DD during parties, S or M (s14)
12. Use of DD (s15)
13. Cultivation or culture of plants classified as DD or sources
thereof (s16)
14. Failure to maintain and keep original record of
transactions on DD CPEC (s17)
15. Unnecessary prescription of DD (s18)
16. Unlawful Prescription of DD (s19)
Bringing drugs inside the customs territory of the Philippines
Life Imprisonment to Death
500,000 – 10,000,000 pesos (for dangerous drugs)
12 years and 1 day to 20 years
100,000 to 500,000 (CPEC)
Maximum Penalty – If the importation is through the use of a
diplomatic passport, diplomatic facilities or any other means involving
his/her official status intended to facilitate the unlawful entry of the
same. In addition, the diplomatic passport shall be confiscated and
canceled.
Financier and coddler punished accordingly
Sale Trading, administration dispensation, delivery, Distribution,
and transportation. Sec 5
Regardless of the quantity. Regardless of the purity.
NON-BAILABLE
Life Imprisonment to Death
500,000 – 10,000,000 pesos (for dangerous drugs)
12 years and 1 day to 20 years
100,000 to 500,000 (CPEC)
MAXIMUM PENALTY: If made within 100 meters from the school
MAXIMUM PENALTY: For drug pushers who use minors or
mentally incapacitated individuals as runners, couriers and
messengers, or in any other capacity
MAXIMUM PENALTY: If victim is a minor or mentally
incapacitated individual
MAXIMUM PENALTY: If a dangerous drug or CPEC is the
proximate cause of death of a victim
Financier, Protector, coddle punished
Sell. – Any act of giving away any dangerous drug and/or controlled
precursor and essential chemical whether for money or any other
consideration. Drugs, services,
Deliver. – Any act of knowingly passing a dangerous drug to another,
personally or otherwise, and by any means, with or without
consideration.
Trading. – Transactions involving the illegal trafficking of dangerous
drugs and/or controlled precursors and essential chemicals using
electronic devices such as, but not limited to, text messages, email,
mobile or landlines, two-way radios, internet, instant messengers and
chat rooms or acting as a broker in any of such transactions whether
for money or any other consideration
Administer. – Any act of introducing any dangerous drug into the
body of any person, with or without his/her knowledge, by injection,
inhalation, ingestion or other means,
-or of committing any act of indispensable assistance to a
person in administering a dangerous drug to himself/herself unless
administered by a duly licensed practitioner for purposes of
medication. It’s not necessarily self, you can also assist in
administering or taught him how to ingest. Such as in using a pipe,
tooter, improvised lighter, aluminum foil,
Dispense. – Any act of giving away, selling or distributing medicine
or any dangerous drug with or without the use of prescription.
Distribute – to spread our to disperse
Transport – to carry or convey from one place to another.
Elements of Sale:
1. Identity of the buyer and the seller.
2. The object and consideration
3. The delivery of the thing sold and the payment therefor.
Should payment be made?
No the commission of the offense of illegal sale requires merely the
consummtion People v. Simon.
Even without the money to buy.. People v. Lakibul 1993
Is it necessary to present buy bust money in evidence?
The usual marking in a buy bust money is dusted with fluorescent
powder that is detected by ultra-violet light; when you look at hands of
offender his hands will be marked.
How to mark Buy Bust money? You take note of the serial number
and take note of it in the police report; the serial number is unique;
People v. Rebotazo 192913 The Court has been categorical in
declaring that neither law nor jurisprudence requires the presentation
of any money used in a buy-bust operation.32 Failure to mark the
money or to present it in evidence is not material, since failure to do
so will not necessarily disprove the sale.33 If at all, the marked money
merely serves as corroborative evidence in proving appellant’s
guilt.Stated differently, in prosecuting a case for the sale of dangerous
drugs, the failure to present marked money does not create a hiatus in
the evidence for the prosecution, as long as the sale of dangerous drugs
is adequately proven and the drug subject of the transaction is
presented before the court.(the testimony proves, the presentation of
marked money is merely corroborative you can dispense with it)
If at all the marked money merely serves as corroborative evidence in
priving appellant‘s guilt .. presented before the court
If there is no payment, it qualifies as delivery.
People Ponferada 101004 In order to sustain conviction for selling
prohibited drugs, the element of sale must be unequivocally
established. Also, what the law proscribes is not only the act of selling
but also, albeit not limited to, the act of delivering.
There must be intent to deliver – you must know that what you are
delivering is dangerous drugs. There must be knowledge of contents
or package.
People v. Jumao-as 101334 “Delivery” necessarily involves the
knowledge on the part of the one delivering is dangerous drugs. If there
is no evidence to show this.. with or without consideration.
Is it necessary that offender personally make the act of delivery in
order to be criminally liable?
People v. Santos 93520 No.
The act of "delivering" prohibited drugs penalized by Sec. 4, Art. II, of
R.A. No. 6425, and defined in Sec. 2 thereof, 8 is not limited to
deliveries made personally by the accused but covers those effected
through other means as well. Therefore, assuming that it was indeed
another person, not
accused-appellant, who delivered the marijuana, such fact will not
make the latter less liable since the delivery was at his behest. What is
material is that the giving of the prohibited drug was pursuant to the
instruction of the accused even if he did not himself personally deliver
the same.
In transportation of dangerous drugs, must offender be actually
arrested in transit?
Transport, to carry or convey from one place to another.
Situation: Accused were seen in a parked Toyota Corolla car..
When you are inside the car, and you are searched does that qualify
as transportation? No.
Transport as used under the Dangerous Drugs Act is defined to mean:
to carry or convey from one place to another. The essential element
of the charge is the movement of the dangerous drug from one place
to another. In the present case, although petitioner and his co-accused
were arrested inside a car, the car was not in transit when they were
accosted. From the facts found by the RTC, that car was parked and
stationary. The prosecution failed to show that any distance was
travelled by petitioner with the drugs in his possession. The conclusion
that petitioner transported the drugs merely because he was in a motor
vehicle when he was accosted with the drugs has no basis and is mere
speculation. (San Juan v. People 177191)
Transportation includes carrying shabu in airport.
In People v. Lara 199939 Wearing oversized shoes, the offender was
caught in possession of three plastic sachets of shabu while being
frisked Davao City. (he hid drugs in oversized shoes)
Total amount of shabu confiscated is 196.63 grams
In this case, appellant was apprehended inside the airport, as he was
intending to board his flight bound for Davao City with a substantial
amount or 196.63 grams of methylamphetamine hydrochloride or
shabu in his possession, concealed in separate plastic bags inside his
oversized Spicer rubber shoes. While it may be argued that
appellant was yet to board the aircraft or travel some distance with
the illegal drugs in his possession, it cannot be denied that his
presence at the airport at that particular instance was for the
purpose of transporting or moving the dangerous drugs from one
place to another.
In San Juan, there must be proof that you moved from a certain
distance
In people v. Lara the SC used the intention or purpose of person in
transporting dangerous drugs.
Moreover, it may be reasonably inferred from deliberations of the
congress that if a person is found to have… sell it
Representative cuenco. The technical committee that has been
assisting us ni carpentering this bill tells us that a habitual user of, let’s
say, shabu, one of the …. He is out to traffic the rest of it.
Presumption that if a person carries MORE THAN 5 GRAMS HE
IS GOING TO TRANSPORT IT.
The presumption of the law is if he carries more than 5 grams then he
is out to traffic it.
People v. Dimaano 174481- clarification of both cases
We agree with the trial court and the Court of Appeals that accused-
appellant is guilty beyond reasonable doubt of attempting to transport
dangerous drugs. The prosecution proved the essential element of
the crime; accused-appellant would have successfully moved 13.96
grams of methamphetamine hydrochloride from Manila to Cebu
had she not been apprehended at the initial check-in area at the
Manila Domestic Airport Terminal 1. The prosecution need not
present the airline ticket to prove accused-appellant’s intention to
board an aircraft; she submitted herself to body frisking at the airport
when 13.96 grams of methamphetamine hydrochloride was found in
her person
SC held her liable for attempt to transport dangerous drugs. This
is the proper offense. Penalty is similar life imprisonment to death
under section 5.
February 15,2018
In sale, trading, administration, dispensation, delivery,
distribution, and transportation
Is it necessary to present confidential informant?
NO. It is not necessary; ONLY WHEN THE INFORMANT IS THE
DRUG PUSHER
People v. Rosauro G.R. 209588
the presentation of an informant as witness is not regarded as
indispensable to the success of a prosecution of a drug-dealing
accused. As a rule, the informant is not presented in court for security
reasons, in view of the need to protect the informant from the
retaliation of the culprit arrested through his efforts. Thereby, the
confidentiality of the informant’s identity is protected in deference to
his invaluable services to law enforcement.
Employed without compensation is included! With or without
compensation; employee must be aware of nature of place as such.
Who is the visitor?
Any person who is not an employee and aware of nature of the place.
Penalty: 12 yrs and 1 day to 20 years 100k-500k
Manufacture of Dangerous drugs and or controlled precursors
and essential chemicals
Penalty- life imprisonment to death , 500k-10M dd
12 yrs 1 day to 20 years cpec 100-500k cpec
Presumption: the presence of any controlled precursor and essential
chemical in a clandestine laboratory is prima facie proof of
manufacture of dangerous drug
Clandestine laboratory?
Any facility used for illegal manufacture of dangerous drug or
controlled precursor and essential chemical.

Only when the testimony of the informant is considered absolutely
essential in obtaining the conviction of the culprit should the need
to protect his security be disregarded.
When is testimony indispensable? If the confidential informant himself
is the drug pusher; if he acts as a pusher buyer and confidential
informant you have to present that person to meet elemnts of sale
People v. Andaya 183700
The non-presentation of the confidential informant as a witness does
not ordinarily weaken the State's case against the accused. However, if
the arresting lawmen arrested the accused based on the pre-arranged
signal from the confidential informant who acted as the poseur buyer,
his nonpresentation must be credibly explained and the transaction
established by other ways in order to satisfy the quantum of proof
beyond reasonable doubt because the arresting lawmen did not
themselves participate in the buy-bust transaction with the accused.
The confidential informant is the pusher buyer hence you must present
It is not indispensable if there are other confidential informant.
Aggravating
- Any phase conducted in presence or help of minors
- Within 100 meters of residential business church or school
premises. Not only school
- Secured or protected with booby traps.
- Concealed with legitimate business operations
- Employement of practicioner.
FINANCIER PROTECTOR CODDLER
Illegal chemical diversion of controlled precursors and essential
chemicals
What is chemical diversion?
….
PDEA gives licenses to accredited importers of CPEC; if you use there
importers as sources of raw materials; you are diverting the CPEC
from legitimate to illegitimate, for use of illegal purposes. You deliver
for illegal use use such is considered as Illegal chemical diversion.

Maintenance of a dangerous drug den, dive, or resort (Sec 6) Penalty:

What is a Den, Dive, Resort:

A place where any dangerous drug or CPEC is administered delivered Manufacture or delivery of equipment instrument…
stored for illegal purposes distributed sold or used in any form.
Overt acts:
Penalty: Life imprisonment to death 500k-10M Dangerous Drugs 1. Deliver
12 years and 1 day to 20 years 100k-500k CPEC 2. Posses with intent to deliver
3. Manufacture with intent to deliver
Maximum Penalty: if sold to minor allowed to use the same in such
place Objects
1. Equipment
Death and fine of 1M-15M dangerous drug be proximate cause of 2. Instrument
death of person using the same in such place. 3. Apparatus
4. Other paraphernalia for dd
If place is owned by a third person; confiscated and forfeited in favor Knowledge: there must be knowledge
of gov; provided owner willingly devoted it to such use; prosecution
must prove intent of the owner. Penalty:

Financier protector coddler punished accordingly MAXIMUM PENALTY

Employees visitors of den dive or resort Possession of Dangerous Drugs

Who? Penalties are categorized into 4 depends on quantity of dangerous

Caretaker helper watchman lookout and other persons working in the drugs.
den dive or resort employed by the maintainer owner and operater
where any dangerous… Do you have to memorize weight with penalty;
 Penalties
POSSESSION
OTHERS SHABU MARIJUANA PENALTIES 1st offense – 6 months rehabilitation
10g up 50g up 500g up Life Imprisonment 2nd offense – imprisonment
to Death; 500k-
10M Benefits of Section 15 are not applicable if
10g up Life Imprisonment; Caught in possession of tooter (section 12), shabu (section11),
400k-500k confirmatory test positive (wala na because you were caught in
5g up 5g up 300g up 20yrs1d to 12yrs; violation of section 11)
400k-500k
12yrs1d to 20yrs; This only applies to violation in section 11; not in section 12.
300k-400k
Problem: A with four others is caught in flagrante delicto having
It does not consider purity; it only depends on quantity; shabu pot session inside A’s house
QUIZ NEXT MEETING !!!! Objects confiscated:
- Empty plastic sachets
Offender must not be authorized by law and must know that what he - Deveral pieces of rolled aluminum foil containing shabu
is possessing are dangerous drugs; if he is custodian he is not liable residue
Does prosecution have to prove knowledge on your part? What is the charge?
No. possession constitutes prima facie evidence of knowledge or Empty plastic saches – wala
animus possidendi sufficient to convict an accused in the absence Aluminum- section 12
of a satisfactory explanation of such possession. Hence, the Pot session – section 14
burdern of evidence is shifted to accused to explain absence of Shabu residue – if you consider this section 11, then you are deprived
knowledge. of opportunity to rehabilitate.

Maximum penalty: (under section 11 life imprisonment to death.) In section 11 no matter how small it is it can still be punishable.
if possession is during party. Then it will not be nonbailable because Shabu residue no matter how miniscule. 12 years and 1 day to 20 years
of your companions. imprisonment.

Possession may be actual or constructive. Answer/ Solution: is shabu residue proper basis to charge offender
Ex: Search warrant. Drug items were located in your bag in your under section 11? Yes. It is considered as illegal drugs. The law may
room; its not actual possession it may qualify as contructive be harsh but that is the law. Even if ou cannot see it but positive then
possession; section 11.

Actual possession- In People v. Martinez 191366

Constructive possession-
Possession of equipment Section 12
For example nag raid ang pulis and confiscated tooter, glass tooter,
aluminum foil and weighing scale, severall opened sachets; which of
those are considered as paraphernalia?
You have to test it to test of specific characteristic fit or intended for
smoking consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body; hence wehging scale
or sachet is a problem because they cannot be used to administer drugs
into the body. It must be accompanied with specific characteristic
Court notes practice of of law enforcers of filing charges under section
11 incases where the presence of dangerous drugs….. provided that
there is a positive confirmatory test result as required under sec 15.
If residue you charge under section 15; but it is not incorrect to charge
under section 11; but in keeping with the intent of law to rehabilitate
then prosecution has discretion. It would be more prudent to file under
section 15.
Cultivation or culture of plants
Ex: 1 marijuana you are already cultivating regardless of quantity;
Exception medical laboratories.

Weighing scale may be used under section 20. Because it may be used Cultivate or Culture-
for packing. For example in your garden you have marijuana that is cultivation,
Sealer also can be under 10 possession with INTENT TO DELIVER;
Forfeiture – confiscated and escheated in favor of the state.
Presumption.
If paraphernalia fit or intended for injesting inhaling there is a Except: if owner can prove lack of knowledge depite exercise of due
presumption that you have violated section 15 that you used this to use diligence on his part.
dangerous drugs.
Maximum penalty: if land is used in public domain
Use of Dangerous Drugs under Section 15
FINANCIER PROTECTOR CODDLER
Screening test- preliminary; if positive then specifimen is sent to
laboratory for confirmatory test; Maintenance and keeping of original records
Confirmatory – conclusive test
Duty to certain persons to keep records of dangerous drugs;
There is no need of confirmatory test if there is presumption udner Pharmacist;
section 12. Physician
Dentist
What is a confirmatory test? Veterinarian
What is a screening test? Practitioner authorized to prescribe any dangerous drug
Penalty.
Unnecessary prescription of dangerous drugs
Addressed to medial practicioners; you are authorized to prescribe but
the person does not need it medically;his physciological condition
does not need it.
Unlawful prescription of dangerous drugs
You are not authorized at all to give a prescription involving
dangerous drugs;
Confiscation and forfeiture of the proceeds or instruments of the
unlawful act
Every penalty under section 4, 5, 6, 16, 12, 14
Shall carry with the confiscation and forfeiture in favor of the
government …
Exception: if they are the property of a third person for the unlawful
act; those which are not of lawful commerce shall be ordered
destroyed without delay.
2 Reasons;
- The proceeds arise from unlawful acts they are considered
illicit offender should not be allowed to profit;
- You cannot return it because upon return it would give rise
to another violation of law. (illegal possession of dd) (PDEA
v. Brodett 196390. This involved the infamous Alabang boys
who are zions of rich familes. Who were acquitted;
As justification for the first…. Unlawful act
As justification for second…. Contraband again
SECTION 20. It cannot be released during the pendency of the
case. No bond shall be admitted for the release of the same. Your
taxi cannot be released even if case goes on for 20 years;
Reason: item must always be accessible in case there is a need by court
to examine.
Photographs are not enough
NO.
Another reason: Court cannot pre-empt judgement.
What to do with confiscated proceeds or instruments?
Section 21. next meeting
February 19, 2018
Chain of Custody Section 21
This is the most common question under dangerous drugs; and the
most common defense.
3 types of evidence
Documentary – written paper where rights are created and
extinguished
Testimonial – evidence coming from witness who has knowledge of
facts of case
Object
1. Readily Identifiable – Example: Hand gun is readily
identifiable because it has a serial number; money has a
serial number;
2. Made readily identifiable – Example: murder
weapon/bladed weapon; a knife has no distinguishing marks
from all other knives; the blood marks of the knife make it
readily identifiable. OR you stab your classmate with
signpen and such is difficult to distinguish from all others,
but if it is splattered with blood then it can be
distinguished;OR if officer affixes his mark on the object
3. Cannot be identified and cannot be marked. – Example:
Dangerous drugs; you cannot distinguish a granule of shabu
from others; and you cannot mark them. The rule of chain
of custody applies to these objects.
Chain of custody – evidence must be authenticated; you have to prove
that such is the same murder weapon used; how do you prove? By
markings, blood; how do you prove drugs are same drugs used? Drugs
are fungible in character.
Reason: not readily identifiable and are subject to scientific analysis
to determine their composition and nature.
How do you know its shabu by mere appearance? If nahulog sa pocket
white crystalline? You can only say that it is shabu after laboratory
examination; appearance? It can be anything. “White crystalline
substance was confiscated”
For example you are caught in a buy bust operation 1st buyer you were
caught; what do you do with 4 other samples? Are those included in
sales? No. those are included under possession because you did not
involve it under transaction
You delineate. Only 1 sachet was used in sale; others are for
possession.
You should not allowed specimen to be comingled with other
specimen. Hence important of chain of custody.
Chain of custody sets a uniform standard.
“Chain of Custody” duly recorded authorized movements and custody
of seized drugs from seizure to receipt in laboratory to safekeeping to
presentation in court for destruction.
Best evidence of compliance? – Chain of custody form; from
apprehending officer chemist to custodian; time when you received
evidence. Time when you conveyed and receipt. There should be no
gap; if thereis a gap of 2 mins or 3 minitues it gives rise to doubt of
integrity of evidence.
Malilin v. People insert. 172935.
The following links must be established:
1. The seizure and marking if practicable of the illegal drug
recovered from the accused by the apprehending officer
2. The turnover of the illegal drug seized by the apprehending
officer
3. Third the turnover to lab
4. From forensic chemist to court
(check slides)
LINKS
FIRST LINK: Seizure and marking
Section 21; after seizure and confiscation conduct a physical inventory
of the seized items and photograph the same.
Must be made in presence of
- Accused or the persons from whom such items were
confiscated or his representative
- Elected public official, representative of national prosecuton
service or media
Should everybody be present? Section 21 requires at least 3.
1. Accused; OR alternitavely representative or counsel
2. Elected public official – any incumbent public official
regardless of place where he is elected
3. Representative of national prosecution. OR alternitavely
media. Anyone from its employees and any media
practicioner; (not blogger)
In photographing they should be present; and they should sign the
inventory.
Marking – placing by apprehending officer his or her initial and
signature on the items seized over the plastic bag with tape.
Place of marking? – place where search warrant is served;
In case of warrantless seizure in nearest police station or the nearest
office of the apprehending officer…
How important is marking? Marking is different from inventory and
photographing; it is affixing certain features on the container to
segregate it from others; this is the starting point od the custodial
link; marking will be used as evidence; to separate it from the corpus
of other similar evidence; thus preventing switching planting or
contamination.
Marking is not found in RA 9165 or RA 1064;
Even if it is not mentioned; it is the most important link.
When you are not able to make inventory or photograph in place
where objects are seized or in the nearest police station or member
of NPS or media was not present? Would that affect legality?
Under Sec 21 as amended by 10640; non-compliance under justifiable
grounds; as long as integrity is properly preserved shall not render void
custody and seizure;
What is an example of justifiable ground?
There are cases when there are threats to security of place; what if you
enter a compound with armed men; it will be impracticable to conduct
there;
REMEMBER: you must prove
1. Threat to security or life
2. You must prove that there is compliance with the
preservation of evidentiary value.
General rule on non-compliance
Failure to comply produces doubt as to origins of seized items;
Exceptions
Justifiable grounds; Section 21 requires substantial and not
necessarily.
Minor deviations will not automatically exonerate accused from
crime; there must be a showing that police officers intended to comply
with procedure but were thwarted by justifiable reason.
Substantial compliance is sufficient for so long as integrity is
preserved;
Failure to photograph and conduct physical inventory is not fatal
to case against the accused and does not ipso facto render
inadmissible in evidence the items seized. For so long as you were
able to explain justifiable grounds.
In evidence, there is admissibility – whether or not it can be permitted
to be part of records of case; appreciation – whether ornot it has
sufficient probative value; It may be admissible but not be appreciated.
Non-compliance with section 1 may be admissible but may have doubt
as to probative value.
On presumption of regularity of official functions
Presumption stands when no reason exists in the records by which to
doubt the regularity of the performance of the official duty
People v. Mendoza insert.
 SECOND LINK:
Turnover of the seized drugs by apprehending officer to
investigating officer.
People v. Martinez. Insert.
The competent officer must have possession and transfer it to chemist;
THIRD LINK:
Turn over by the investigating officer of the illegal drugs to
forensic chemist
Section 21(2)
(2) Within twenty-four (24) hours upon confiscation/seizure of
dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same shall
be submitted to the PDEA Forensic Laboratory for a qualitative and
quantitative examination;
Qualitative examination – determine nature of drug
Quantitative examination – determine weight
Forensic chemist not only attests to result of quantitative and
qualitative; he has taken possession of dangerous drugs; part of his
testimony is that he received it and turned it to somebody.
Defense; would the prosecutor stipulate as to genuiness of the forensic
test. You must present the forensic chemist.
People v. Beran involvedirregularites in the third link ; police officer
claimed that he personally took drugs to laboratory for testing; no
record showed that he submitted the sachet to the laboratory only on
the enxt day. Acused acquitted.
Under Section 21(3) (3) A certification of the forensic laboratory
examination results, which shall be done under oath by the forensic
laboratory examiner, shall be issued within twenty-four (24) hours
after the receipt of the subject item/s
What if the subject items are voluminous? You can make partial
examination.
Provided, That when the volume of the dangerous drugs, plant sources
of dangerous drugs, and controlled precursors and essential chemicals
does not allow the completion of testing within the time frame, a partial
laboratory examination report shall be provisionally issued stating
therein the quantities of dangerous drugs still to be examined by the
forensic laboratory: Provided, however, That a final certification shall
be issued on the completed forensic laboratory examination on the
same within the next twenty-four (24) hours;
FOURTH LINK:
TURNOVER OF THE MARKED ILLEGAL DRUG SEIZED
BY THE FORENSIC CHEMIST TO THE COURT
SECTION 21 (4) After the filing of the criminal case, the Court shall,
within seventy-two (72) hours, conduct an ocular inspection of the
confiscated, seized and/or surrendered dangerous drugs, plant sources
of dangerous drugs, and controlled precursors and essential chemicals,
including the instruments/paraphernalia and/or laboratory equipment,
and through the PDEA shall within twenty-four (24) hours
thereafter proceed with the destruction or burning of the same, in the
presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the DOJ, civil society groups and
any elected public official.
72 hours from filing of case; from the time criminal information
was filed in Court.
You should not destroy everything you should retain a representative
sample;
Purpose of the ocular inspection is for PDEA to proceed with
destruction of evidence. .
The Court shall then issue a sworn certification of the fact of
festruction or burning.
After case; representative items are destroyed; items seized are
forefeited in favor of the government.
SECTION 22:
GRANT OF COMPENSATION REWARD AND AWARD
The Board shall recommend to the concerned government agency the
grant of compensation reward and award to any person providing
information and to law enforcers participating in the operation,
which results in the successful confiscation, seizure or surrender of
dangerous drugs, plant sources of dangerous drugs and controlled
precursors and essential chemicals.
SECTION 23:
PLE-BARGAINING PROVISION
SEC 23. Plea Bargaining shall not be allowed.
Estipona v. Hon Lobrigo G.R. 226679. Section 23 was declared
unconstitutional for being contrary to rule making authority of the
Supreme Court under Section 5(5), Article Viii of the 1987
Constitution.
Plea Bargaining is procedural in nature; any alteration with respect to
plea bargaining is within the province of the SC: Legislature has no
authority to alter the application of plea-bargaining.
SECTION 24:
NON-APPLICABILITY OF THE PROBATION LAW FOR
DRUG TRAFFICKERS AND PUSHERS
If you are convicted of Drug trafficking or drug pushing you cannot
avail of probation;
Any person convicted fro drug trafficking under RA 9165 regardless
ofpenatly shall not avail of probation law.
Illegal Trafficking - it covers everything
Pusher – distributing dispensing to the public the dangerous drugs.
SECTION 25:
QUALIFYING AGGRAVATING CIRCUMSTANCES IN THE
COMMISSION OF A CRIME BY AN OFFENDER UNDER
THE INFLUENCE OF DANGEROUS DRUGS
Increases penalty to the maximum; and cannot be offset.
SECTION 26:
ATTEMPT FOR CONSPIRACY
Know the attempt of conspiracies.
February 22, 2018
OFFENSES RELATIVE TO LAW ENFORCEMENT UNDER
RA 9165
Section 27. Criminal Liability of a Public Officer or Employee for
Misappropriation, Misapplication or Failure to Account for the
Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment Including the Proceeds or Properties Obtained from
the Unlawful Act Committed
Law enforcement agents cannot appropriate the confiscated items or
use; it is in custodial egis it must be preserved.
Also money; In one case, case was dismissed because money was not
presented; it was used to buy cigarette; If you misappropriate
dangerous drugs;
Penalty:The penalty of life imprisonment to death and a fine ranging
from Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00),
Additional Penalty: in addition to absolute perpetual disqualification
from any public office
(Section 27 para 2) Any elective local or national official found to:
-have benefited from the proceeds of the trafficking of dangerous drugs
as prescribed in this Act,
-or have received any financial or material contributions or donations
from natural or juridical persons found guilty of trafficking dangerous
drugs as prescribed in this Act,
Consequence:
-shall be removed from office and
-perpetually disqualified from holding any elective or appointive
positions in the government, its divisions, subdivisions, and
intermediaries, including government-owned or –controlled
corporations.
CRIMINAL LIABILITY OF GOV AND EMPLOYEES
Section 28. Criminal Liability of Government Officials and
Employees. – The maximum penalties of the unlawful acts provided
for in this Act shall be imposed, in addition to absolute perpetual
disqualification from any public office, if those found guilty of such
unlawful acts are government officials and employees.
How do you distinguish this from protector or coddler? The person
in Section 28 is the offender himself who is a government employee.
Protector does not apply to the offender himself. Protector is not
punished by maximum penalty
Protector/Coddler. – Any person who knowingly and willfully
consents to the unlawful acts provided for in this Act and uses his/her
influence, power or position in shielding, harboring, screening or
facilitating the escape of any person he/she knows, or has reasonable
grounds to believe on or suspects, has violated the provisions of this
Act in order to prevent the arrest, prosecution and conviction of the
violator
CRIMINAL LIABILITY FOR PLANTING OF EVIDENCE
Section 29. Criminal Liability for Planting of Evidence. – Any
person who is found guilty of "planting" any dangerous drug and/or
controlled precursor and essential chemical, regardless of quantity and
purity, shall suffer the penalty of death.
What is Planting of Evidence. – The willful act by any person of
maliciously and surreptitiously inserting, placing, adding or
attaching directly or indirectly, through any overt or covert act,
whatever quantity of any dangerous drug and/or controlled precursor
and essential chemical in the person, house, effects or in the
immediate vicinity of an innocent individual for the purpose of
implicating, incriminating or imputing the commission of any
violation of this Act. (sec3)
PENALTY: Death, regardless of quantity and purity.
SPECIAL OFFENDERS
Section 30. Criminal Liability of Officers of Partnerships,
Corporations, Associations or Other Juridical Entities. – In case
any violation of this Act is committed by a partnership, corporation,
association or any juridical entity, the partner, president, director,
manager, trustee, estate administrator, or officer who consents to or
knowingly tolerates such violation shall be held criminally liable as a
co-principal.
The penalty provided for the offense under this Act shall be imposed
upon the partner, president, director, manager, trustee, estate
administrator, or officer who knowingly authorizes, tolerates or
consents to the use of a vehicle, vessel, aircraft, equipment or other
facility, as an instrument in the importation, sale, trading,
administration, dispensation, delivery, distribution, transportation or
manufacture of dangerous drugs, or chemical diversion, if such
vehicle, vessel, aircraft, equipment or other instrument is owned by or
under the control or supervision of the partnership, corporation,
association or juridical entity to which they are affiliated.
Who shall be liable? the partner, president, director, manager, trustee,
estate administrator, or officer who consents to or knowingly tolerates
such violation shall be held criminally liable as a co-principal.
Aliens can be liable, with additional penalty of Deportation.
Section 31. Additional Penalty if Offender is an Alien. – In addition to
the penalties prescribed in the unlawful act committed, any alien who
violates such provisions of this Act shall, after service of sentence, be
deported immediately without further proceedings, unless the penalty
is death.
IMMUNITY FROM PROSECUTION
Who can avail?
Any person who has violated Sections
7, 11, 12, 14, 15, and 19, Article II
What are the conditions?
who voluntarily gives information about any violation of Sections 4,
5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of
the offenses mentioned if committed by a drug syndicate, or any
information leading to the whereabouts, identities and arrest of all or
any of the members thereof
and who willingly testifies against such persons as described above,
shall be exempted from prosecution or punishment for the offense with
reference to which his/her information of testimony were given, and
may plead or prove the giving of such information and testimony in
bar of such prosecution:
Provided, That the following conditions concur:
(1) The information and testimony are necessary for the
conviction of the persons described above;
(2) Such information and testimony are not yet in the possession
of the State;
(3) Such information and testimony can be corroborated on its
material points;
 (4) the informant or witness has not been previously convicted
of a crime involving moral turpitude, except when there is
no other direct evidence available for the State other than the
information and testimony of said informant or witness; and
(5) The informant or witness shall strictly and faithfully comply
without delay, any condition or undertaking, reduced into
writing, lawfully imposed by the State as further
consideration for the grant of immunity from prosecution
and punishment.
Provided, further, That this immunity may be enjoyed by such
informant or witness who does not appear to be most guilty for the
offense with reference to which his/her information or testimony were
given:
Provided, finally, That there is no direct evidence available for the
State except for the information and testimony of the said informant or
witness.
Drugs syndicate?
Any organization of two or more persons forming for violation og this
act.
Defendant is exempted from prosecution… (check slides)
How is it terminated?
Check slides
What is the effect?
Check slides
Other grounds for termination?
Failureor refusal to testify without just cause;
Violation of any condition accompanying such testimony.
DRUG TESTING
Who are authorized to conduct drug testing?
Any government forensic laboratories or by any of the drug testing
laboratories accredited and monitored by the DOH to safeguard the
quality of test results.
What methods are employed?
Screening test; and type of drug use;
And Confirmatory test that is necessary for conviction.
Do drug tests have a validity period?
Yes for 1 year from the date of issue
Who are subjected to undergo?
(a) Applicants for driver's license. – No driver's license shall be issued
or renewed to any person unless he/she presents a certification that
he/she has undergone a mandatory drug test and indicating thereon that
he/she is free from the use of dangerous drugs;
- Applications for drivers license; repealed by RA 10586;
under section 19; No longer required for renewal or
application of license.
-
RA 10586
Pertinent provisions under RA 10586
check Section 5.
How to determine if he is under the influence of dugs or alcohol?
Apparent indications or manifestations overspeeding, weaving, lane
straddling, sudden stops, swerving, poor coordination, evident smell
of alcohol, sight of drugs; they are mandated to conduct field sobriety
tests..
Field sobriety tests are? Check provision
EYE TEST, WALK AND TURN, ONE-LEG STAND.
If you fail; breath analyzer or similar measuring instrument shall be
used.
If the law enforcement officer has probable cause to believe that he
was driving; law enforcement officer shall bring him to the nearest
police station for screening test and if necessary confirmatory test.
Penalties; 3months imprisonment 20k-80k
If it resulted to physical injuries; 3 months imprisonment 100k-200k
If it resulted to Homicide; 249 of RTC- Reclusion Temp 300k-500k
Additional penalty; nonprofessional drivers license confiscated and
confiscated for 12 months;
Professional – perpetually revoked.
DRUG TESTING (ART 36)
Other persons subjected to drug testing
(b) Applicants for firearm's license and for permit to carry
firearms outside of residence. – All applicants for firearm's license
and permit to carry firearms outside of residence shall undergo a
mandatory drug test to ensure that they are free from the use of
dangerous drugs: Provided, That all persons who by the nature of their
profession carry firearms shall undergo drug testing;
(c) Students of secondary and tertiary schools. – Students of
secondary and tertiary schools shall, pursuant to the related rules and
regulations as contained in the school's student handbook and with
notice to the parents, undergo a random drug testing: Provided, That
all drug testing expenses whether in public or private schools under
this Section will be borne by the government;
Challenged in SJS v. PDEA; this does not violate the right to privacy;
schools and administrators stand in loco parentis; (check slides there
are 3 reasons) Drug Testing must be RANDOM and
SUSPICIONLESS
-within the prerogative of educational institutions to require as a
condition for admission, compliance with reasonable school rules
and regulations and policies.
- right to enroll is not absolute it is subject to fair and reasonable and
equitable requirements.
(d) Officers and employees of public and private offices. – Officers
and employees of public and private offices, whether domestic or
overseas, shall be subjected to undergo a random drug test as contained
in the company's work rules and regulations, which shall be borne by
the employer, for purposes of reducing the risk in the workplace. Any
officer or employee found positive for use of dangerous drugs shall be
dealt with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor Code
and pertinent provisions of the Civil Service Law;
Drug test here is random and suspicionless
NOTE: both public and private offices are applicable.
Access to drug records;
Need to know basis subject to protect confidentiality of test records.
Employer is not positively obliged to report you under RA 9165.
(e) Officers and members of the military, police and other law
enforcement agencies. – Officers and members of the military, police
and other law enforcement agencies shall undergo an annual
mandatory drug test;
Annual and mandatory drug test
(f) All persons charged before the prosecutor's office with a criminal
offense having an imposable penalty of imprisonment of not less than
six (6) years and one (1) day shall have to undergo a mandatory drug
test; and THIS WAS PROVISION WAS DECLARED
UNCONSTITUTIONAL.
Because it is not random and suspicionless; it is antithetical to their
being made defendants in a criminal complaint. They are not
randomly picked.
(g) All candidates for public office whether appointed or elected both
in the national or local government shall undergo a mandatory drug
test. THIS WAS STRUCK DOWN AS UNCONSTITUTIONAL.
Because this allegedly adds to the qualifications of being a senator;
this cannot modify the qualifications required in SEC 3 ART VI;
(SJS v PDEA)
What is the consequence for issuing false or fraudulent drug test
results?
Section 37. Issuance of False or Fraudulent Drug Test Results. – Any
person authorized, licensed or accredited under this Act and its
implementing rules to conduct drug examination or test, who issues
false or fraudulent drug test results knowingly, willfully or through
gross negligence, shall suffer the penalty of imprisonment ranging
from six (6) years and one (1) day to twelve (12) years and a fine
ranging from One hundred thousand pesos (P100,000.00) to Five
hundred thousand pesos (P500,000.00).
An additional penalty shall be imposed through the revocation of the
license to practice his/her profession in case of a practitioner, and the
closure of the drug testing center.
You should also be subjected to Drug testing; this is with respect
to apprehension or arrest for violation of 9165; it does not apply
for conviction of other crimes
Section 38. Laboratory Examination or Test on Apprehended/Arrested
Offenders. – Subject to Section 15 of this Act, any person
apprehended or arrested for violating the provisions of this Act
shall be subjected to screening laboratory examination or test
within twenty-four (24) hours, if the apprehending or arresting
officer has reasonable ground to believe that the person
apprehended or arrested, on account of physical signs or symptoms
or other visible or outward manifestation, is under the influence of
dangerous drugs.
If found to be positive, the results of the screening laboratory
examination or test shall be challenged within fifteen (15) days after
receipt of the result through a confirmatory test conducted in any
accredited analytical laboratory equipment with a gas
chromatograph/mass spectrometry equipment or some such modern
and accepted method, if confirmed the same shall be prima facie
evidence that such person has used dangerous drugs, which is
without prejudice for the prosecution for other violations of the
provisions of this Act:
Provided, That a positive screening laboratory test must be
confirmed for it to be valid in a court of law. (confirmatory test)
Dela Cruz v. People G.R. 200748
The drug test was not valid because he was not caught because of RA
9165 but for extortion. (check slides)
PROGRAMS FOR TREATMENT AND REHABILITATION
OF DRUG DEPENDENTS
Who is a drug dependent
You can no longer function without drugs;
You must be examined by at least 2 competent…
Section 54. Voluntary Submission of a Drug Dependent to
Confinement, Treatment and Rehabilitation. – A drug dependent or
any person who violates Section 15 of this Act may, by himself/herself
or through his/her parent, spouse, guardian or relative within the fourth
degree of consanguinity or affinity, apply to the Board or its duly
recognized representative, for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall bring forth the
matter to the Court which shall order that the applicant be examined
for drug dependency. If the examination by a DOH-accredited
physician results in the issuance of a certification that the applicant is
a drug dependent, he/she shall be ordered by the Court to undergo
treatment and rehabilitation in a Center designated by the Board for a
period of not less than six (6) months: Provided, That a drug dependent
may be placed under the care of a DOH-accredited physician where
there is no Center near or accessible to the residence of the drug
dependent or where said drug dependent is below eighteen (18) years
of age and is a first-time offender and nonconfinement in a Center will
not pose a serious danger to his/her family or the community.
Confinement in a Center for treatment and rehabilitation shall not
exceed one (1) year, after which time the Court, as well as the Board,
shall be apprised by the head of the treatment and rehabilitation center
of the status of said drug dependent and determine whether further
confinement will be for the welfare of the drug dependent and his/her
family or the community.
Section 55. Exemption from the Criminal Liability Under the
Voluntary Submission Program. A drug dependent under the voluntary
submission program, who is finally discharged from confinement,
shall be exempt from the criminal liability under Section 15 of this act
subject to the following conditions: (1) He/she has complied with the
rules and regulations of the center, the applicable rules and regulations
of the Board, including the after-care and follow-up program for at
least eighteen (18) months following temporary discharge from
confinement in the Center or, in the case of a dependent placed under
the care of the DOH-accredited physician, the after-care program and
follow-up schedule formulated by the DSWD and
approved by the Board: Provided, That capability-building of local
government social workers shall be undertaken by the DSWD; (2)
He/she has never been charged or convicted of any offense punishable
under this Act, the Dangerous Drugs Act of 1972 or Republic Act No.
6425, as amended; the Revised Penal Code, as amended; or any special
penal laws; (3) He/she has no record of escape from a Center:
Provided, That had he/she escaped, he/she surrendered by
himself/herself or through his/her parent, spouse, guardian or relative
within the fourth degree of consanguinity or affinity, within one (1)
week from the date of the said escape; and (4) He/she poses no serious
danger to himself/herself, his/her family or the community by his/her
exemption from criminal liability
if you are not qualified under Section 55 you should be filed under
9165; but shall be placed on probation and undergo a community
service in lieu of imprisonment.
Section 61. Compulsory Confinement of a Drug Dependent Who
Refuses to Apply Under the Voluntary Submission Program. –
Notwithstanding any law, rule and regulation to the contrary, any
person determined and found to be dependent on dangerous drugs
shall, upon petition by the Board or any of its authorized
representative, be confined for treatment and rehabilitation in any
Center duly designated or accredited for the purpose.
A petition for the confinement of a person alleged to be dependent on
dangerous drugs to a Center may be filed by any person authorized by
the Board with the Regional Trial Court of the province or city where
such person is found.
After the petition is filed, the court, by an order, shall immediately fix
a date for the hearing, and a copy of such order shall be served on the
person alleged to be dependent on dangerous drugs, and to the one
having charge of him.
If after such hearing and the facts so warrant, the court shall order the
drug dependent to be examined by two (2) physicians accredited by the
Board. If both physicians conclude that the respondent is not a drug
dependent, the court shall order his/her discharge. If either physician
finds him to be a dependent, the court shall conduct a hearing and
consider all relevant evidence which may be offered. If the court finds
him a drug dependent, it shall issue an order for his/her commitment
to a treatment and rehabilitation center under the supervision of the
DOH. In any event, the order of discharge or order of confinement or
commitment shall be issued not later than fifteen (15) days from the
filing of the appropriate petition.
Art 63. A drug dependent committed under this particular Section who
is finally discharged from confinement shall be exempt from criminal
liability under Section 15 of this Act, without prejudice to the outcome
of any pending case filed in court. On the other hand, a drug dependent
who is not rehabilitated after a second commitment to the Center shall,
upon conviction by the appropriate court, suffer the same penalties
provided for under Section 15 of this Act again without prejudice to
the outcome of any pending case filed in court.
DANGEROUS DRUGS BOARD
Section 77. The Dangerous Drugs Board. – The Board shall be the
policy-making and strategy-formulating body in the planning and
formulation of policies and programs on drug prevention and
control. It shall develop and adopt a comprehensive, integrated,
unified and balanced national drug abuse prevention and control
strategy. It shall be under the Office of the President.
To establish a framework by which Philippine gov tackles problem of
dangerous drugs
PHILIPPINE DRUG ENFORCEMENT AGENCY
Section 82. Creation of the Philippine Drug Enforcement Agency
(PDEA). – To carry out the provisions of this Act, the PDEA, which
serves as the implementing arm of the Board, and shall be responsible
for the efficient and effective law enforcement of all the provisions on
any dangerous drug and/or controlled precursor and essential chemical
as provided in this Act.
Section 84. Powers and Duties of the PDEA
Some were highlighted in the slides check those please.
Is it fatal if the law enforcement officer agency fails to coordinate
ith PDEA in enforcing provisions of 9165?
No. People v. Rebotazo G.R. No. 192913;
Check slides
RESPONSIBILITY OF GOV OFFICIALS IN TESTIFYING AS
PROSECUTION WITNESS
Section 91. Responsibility and Liability of Law Enforcement
Agencies and other Government Officials and Employees in
Testifying as Prosecution Witnesses in Dangerous Drugs Cases. –
Any member of law enforcement agencies or any other government
official and employee who, after due notice, fails or refuses
intentionally or negligently, to appear as a witness for the prosecution
in any proceedings, involving violations of this Act, without any valid
reason, shall be punished with imprisonment of not less than twelve
(12) years and one (1) day to twenty (20) years and a fine of not less
than Five hundred thousand pesos (P500,000.00), in addition to the
administrative liability he/she may be meted out by his/her immediate
superior and/or appropriate body.
The immediate superior of the member of the law enforcement agency
or any other government employee mentioned in the preceding
paragraph shall be penalized with imprisonment of not less than two
(2) months and one (1) day but not more than six (6) years and a fine
of not less than Ten thousand pesos (P10,000.00) but not more than
Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute
disqualification from public office if despite due notice to them and to
the witness concerned, the former does not exert reasonable effort to
present the latter to the court.
DELAY AND BUNGLING IN THE PROSECUTION OF DRUG
CASES.
Section 92. Delay and Bungling in the Prosecution of Drug Cases.
– Any government officer or employee tasked with the prosecution of
drug-related cases under this act, who, through patent laxity,
inexcusable neglect, unreasonable delay or deliberately causes the
unsuccessful prosecution and/or dismissal of the said drug cases, shall
suffer the penalty of imprisonment ranging from twelve (12) years and
one (1) day to twenty (20) years without prejudice to his/her
prosecution under the pertinent provisions of the Revised Penal Code.
JURISDICTION
Section 90. Jurisdiction. – The Supreme Court shall designate special
courts from among the existing Regional Trial Courts in each judicial
region to exclusively try and hear cases involving violations of this
Act. The number of courts designated in each judicial region shall be
based on the population and the number of cases pending in their
respective jurisdiction.
De Lima v. Guerrero G.R. No. 229781 (2017)
They challenged the RTC that it should be Sandiganbayan that should
have jurisdiction; WON Sandiganbayan or RTC has jurisdiction;
(please check slides)
Under RA 9165 even if penalty is not more than 6 years jurisdiction is
still with RTC.
LIMITED APPLICABILITY OF THE REVISED PENAL
CODE
Section 98. Limited Applicability of the Revised Penal Code. –
Notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code (Act No. 3814), as amended,
shall not apply to the provisions of this Act, except in the case of minor
offenders. Where the offender is a minor, the penalty for acts
punishable by life imprisonment to death provided herein shall be
reclusion perpetua to death.
People v. Cabugatan G.R. No. 172019
(check slides)
People v. Mantalaba G.R. No. 186227 20 July 2011
(check sides)
READ THE CASE OF DE LIMA
-nature of illegal trading as an offense; de lima was charged with
illegal trading; they moved for the quashal of information because they
alleged that it did not spell out the elements of illegal sale. But SC said
that illegal sale is not an indispensable element of illegal trading; in
fact you may commit illegal trading without selling drugs.
In illegal trading you may be charged if you are a broker;
Sale need not be consummated; for so long as you have brought the
buyer and seller for the consummation of the offense and ACTED
AS A BROKER.