My Korean girlfriend is under investigation for drug use and police want me to come in "as a witness" — can they make me, and what if I've used with her?

You can decline to attend as a witness, and if you attend you can decline to answer any question that would incriminate you; that right exists in Korean law and it is exactly the right for your situation. What you cannot do safely is attend as a witness and improvise, because the investigator's questions about her "associates" are questions about you, and a witness who admits use becomes a suspect in the same interview. You are not merely a witness; you are a person with your own exposure, and you need your own lawyer — separate from hers — before you decide whether to go at all. And there are things you must not say to her from today, because the two of you are now on opposite sides of an investigator's table whether you feel that way or not.

What this is under Korean law

Her case is use of a psychotropic substance under Article 60 of the Narcotics Control Act (마약류관리법, mayangnyu gwalli-beop) — up to ten years' imprisonment or a fine of up to KRW 100 million. Your handful of uses over the last year is the same offense, and a hair test would show it. The investigator's interest in "who she associates with" is the standard step of building the user's network: who supplied, who used with her, who else to test. You are on that list because you are her partner.

A "reference person" (참고인, chamgoin) is a witness. Attendance is voluntary; a witness cannot be compelled to attend a police interview, and a witness who attends is not obliged to answer questions that would expose him to prosecution. Investigators may seek a court order to examine a witness in certain circumstances, but that is rare and does not override the privilege against self-incrimination.

If you go

You may be accompanied by counsel. You may decline any question about your own use. You may decline a drug test; a test requires your consent or a warrant, and a warrant against a person who has been invited as a witness needs grounds — which your own answers would supply if you gave them. The moment a witness says "I've used too," the interview changes: the investigator is required to inform you of your rights as a suspect, and everything after is a suspect's statement. A witness who says "I decline to answer that" has said nothing usable.

Whether attending helps her is doubtful. What helps her is her own counsel, her own treatment record and her own cooperation; a partner who confirms her use adds nothing to a case that already has a positive test, and a partner who describes her supplier is a partner who has described his own.

Separate lawyers

Yes, and now. Your interests and hers diverge on the question the investigator most wants answered — who used with whom, and who supplied — and one lawyer cannot advise both of you on it. Her lawyer will, correctly, advise her to cooperate about her network if it helps her; that network includes you. Your lawyer will advise you on whether attending as a witness, declining to attend, or presenting yourself with a plan is the right move — and for a person with a handful of uses who has stopped, there is sometimes a case for the third option, on terms, with a treatment record already begun.

What not to say to her

Do not discuss the investigation with her, at all: not what the investigator asked you, not what you will say, not what she should say. Messages between you are in her phone and in yours, and the police have or may obtain hers. A message that reads as coordinating statements is evidence of obstruction and it converts two use cases into something worse. Support her; do not strategize with her.

Your situation as a foreign national

An F-2 is a residence status with fewer immediate dependencies than an E-2, but a drug conviction is a fact the Immigration Office weighs in any status review, and use offenses are within the deportation-review grounds; a suspension of indictment is not a conviction. A departure suspension would follow if you became a suspect. MEGA X handles your side; where status is affected, we coordinate with an immigration specialist as part of the defense.

What to do now, and what not to do

Retain your own counsel before responding to the investigator. Do not use. Begin a treatment or counseling program and keep the record; it is the thing that most changes a user's outcome and it is yours to start today. Preserve nothing new; delete nothing old. Let counsel respond to the investigator on the question of your attendance.

From a former police investigator's perspective

"Come in as a witness" to the partner of a user is a standard move and it works: partners come in to help, and they help by describing evenings that included themselves. Investigators do not resent a partner who sends a lawyer to say he declines; they expect it, and they move on to the next name. What they pursue is the partner who came in and half-answered, because half an answer is a suspect who has started talking.

Contact us before you reply to the investigator — text consultation or +82-2-522-3959.

— MEGA X Law Firm Korea, Criminal Defense Team