When does a previous conviction for unlawful use of addictive substances appear in the criminal record?
Do you need a criminal record certificate ("Leumundszeugnis") for your new employer?
A sentence of more than three months imprisonment appears in the "Leumundszeugnis". Prison sentences of up to three months are also entered in the criminal record, but these only appear within the authorities and are not listed in the "Leumundszeugnis".
A special feature applies to the Narcotic Substances Act. In the case of convictions under Section 27 of the SMG (personal use of small quantities of narcotic drugs) and Section 30 (illicit handling of psychotropic substances), the "restricted information" also applies to convictions with a custodial sentence of up to six months.
Is substance use a reason for discharge?
There is no explicit legal regulation on the consequences of the consumption of addictive substances on the employment relationship. However, the Supreme Court also applies the case law on alcohol abuse to the consumption of addictive substances.
The off-duty use of addictive substances (e.g. cannabis) may well lead to dismissal or termination.
Will my driver's license be suspended if I am caught with drugs?
A blood alcohol level of 0.8 per mille or more is considered unfit to drive. There is no such guideline value for the consumption of addictive substances. Austria is one of the few countries in Europe that have not yet introduced a limit value for THC in road traffic. Recent attempts by the Ministry of Transport to introduce such a limit did not find a majority within the federal government.
According to case law, the degree of impairment due to alcohol or narcotic drugs alone is not decisive. It is sufficient that the impairment is due to alcohol or addictive substance consumption and further causes such as fatigue, illness or the influence of medication. This means that in practice, the consumption of addictive substances often leads to a violation of the Road Traffic Act (StVO) in the overall picture, even if the amount of addictive substance consumed alone would not have caused an inability to drive.
Can I lose custody of my child if I am caught with drugs?
If the best interests of the child are endangered, the court shall make the necessary orders to safeguard the best interests of the child. The court shall transfer custody to another person if the best interests of the minor child so require. A criminal lifestyle of the custodian can endanger the best interests of the child (e.g. pre-trial detention of the mother for drug abuse). The ability to raise a child is also considered impaired in the case of constant alcoholism or regular consumption of addictive substances, which can lead to the withdrawal of custody.
Can I lose my business license if I am caught with drugs?
A court conviction exceeding three months' imprisonment or 180 daily sentences constitutes grounds for disqualification from exercising a trade (Section 13 GewO). Furthermore, the exercise of a trade is excluded in the case of a conviction for narcotics trafficking. A diversionary settlement is not a court conviction and therefore does not constitute grounds for disqualification from exercising a trade.
If the prognosis is positive, there is a possibility that the authority may exercise leniency from the revocation of the business license.
Passport withdrawal for large quantities of narcotic drugs
The issuance, renewal and amendment of a passport or ID card shall be refused by the authorities if the assumption is justified that the passport applicant will export, import or put into circulation narcotic drugs in a larger quantity contrary to the existing regulations. Case law tends to consider a final conviction in connection with drug trafficking as sufficient grounds for refusing a passport or withdrawing a passport.
If the passport has been revoked for narcotics trafficking, a new passport can usually only be applied for after several years of "good behavior."
Weapons law and the use of addictive substances
For the issuance of a firearms pass or firearms possession card, the reliability of the applicant must be verified. No reliability according to the WaffG exists if someone is alcoholic or addicted. Not every person who consumes narcotic drugs is also addicted. This means that a person who consumes narcotic drugs but is not addicted is basically reliable in the sense of the Weapons Act. A weapons ban can only be justified if there are additional dangers in addition to the consumption of addictive drugs, for example in the case of aggressive behavior after the consumption of addictive drugs.
- Birklbauer/Machac, Suchtmittelrecht für die Praxis3
- Birklbauer/Hofer, JSt 2021, 115
- Deixler-Hübner (ed.), Handbook of Family Law2