Transportation for sale of a controlled substance is a violation of Health and Safety Code 11352. The law prohibits transporting, supplying, selling, exposing, and importing controlled substances. The abuse of Penal Code 11352 HS is a felony and subject to 3 to 5 years in jail and a fine of $20,000. Illegal transportation is a crime that involves moving drugs from one place to another. The drugs are not limited to the likes of heroin and cocaine, prescribed medications are also included. Drugs that are transported without a valid prescription are highly penalized. If you are charged with Health and Safety Code 11352 offense, talk to our Orange County Criminal Defense Attorney Law Firm. We will review the criminal police records, investigate your case, and identify possible defenses to keep you out of jail and ensure you have a clean criminal record.
What is Transportation For Sale of a Controlled Substance Under The Law
Transportation of drugs for sale simply means moving the drugs from one place to another to sell. Transport does not require long transit from one state to another. Even the movement for small distances is considered as a violation of California Health and Safety Code 11352. However, the Transportation of marijuana and methamphetamine have separate provisions and other certain drugs. The most common prohibited drugs under this section are narcotics like cocaine, heroin, peyote, and LSD. Other drugs in the list include opiates like codeine, oxycodone, fentanyl, and hydrocodone.
The law also prohibits the following:
- Selling of illegal drugs
- Transportation of controlled substances for selling
- Supplying or delivering controlled substances to other people
- Giving away the controlled substances
Controlled Substance Act (CSA) Covered By Code 11352 HS
The federal government CSA classifies drugs that are illegal to transport or sell, categorized by section 11352 HS. The drugs are classified according to their medical uses, safety level, and potential of abuse.
- Some drugs are considered to have no valid medical purpose with a high potential of abuse like mescaline.
- Some are believed to have a high possibility of abuse and have medicinal value like fentanyl.
- Some are considered safer and are medically accepted with a possibility of abuse, for example, steroids.
- Others have a lower potential for abuse than other scheduled drugs such as some prescribed cough medicine and valium.
Investigations for Transportation for Sale of a Controlled Substance
The police officers with the prosecutors often use sting operations to investigate the Transportation for sale of a controlled substance. In other words, they use deceptive means to get those who commit crimes. Some violators of HS 11352 arrests involve a confidential informant who gives information to the police. These informants provide information to the police to gain money or get leniency in their drug cases.
The police also use observation or spying to gather evidence for code 11352 HS crimes. They can spy the offices where a suspect is believed to conduct drug business, the suspect's home, or the area where the substance sales take place. They camp around those places and take note of what goes on, as a daily routine.
Another standard method that the police use in their investigations is undercover buying. It involves police disguised as an ordinary person and buys the drugs either in person or online. The police can also pose as a seller to lure a target into behavior.
In all the methods, the police try to get information that can be used against Transportation for sale of a controlled substance. They record strong evidence to be used in court in judging the defendant. Fortunately, an excellent criminal defense attorney can challenge the prosecutor's case claiming the sources were not reliable.
Penalties for Transportation for Sale of a Controlled Substance Conviction
Transporting drugs with an intent to sell is a felony in California law. For a first time crime, a conviction can result in three to five years in jail, felony probation, a $20,000 fine, and three to nine years in prison if the accused transported the drugs for sale across two or more county lines.
If the accused purposefully possesses, runs, or controls and engages in distributing and supplying a controlled substance business, he/she commits a misdemeanor offender. The accused faces a one-year in prison sentence with a $5,000 fine. The following offense will come with one-year imprisonment and a $10,000 fine.
Enhanced sentences may be imposed concerning the aggravating factors like the number of drugs transported. The higher the quantity, the higher the fine added to the underlying prison sentence. Here are some aggravating factors that are taken into consideration:
- The amount and type of drugs transported for sale
- The scene of the crime, that is whether it occurred near a homeless shelter or a rehab.
- If the drugs were sold to a minor
- Whether the accused had any legal relevant criminal convictions
There are other increased penalties for convictions of crimes depending on the weight of the confiscated drugs. The amounts are determined by kilograms. The violators of this law also get an additional fine ranging from $1,000,000 to $8,000,000 if they receive another sentence for code 11352 HS. For instance, cocaine, heroin, or cocaine base have an additional jail term as follows:
- If the substance exceeds one kilogram by weight, the defendant receives a three-year additional jail term.
- If the substance exceeds four kilograms, the accused gets an addition of five years in jail.
- If it exceeds ten kilograms, an addition of ten years in prison
- If the drugs exceed twenty kilograms, an addition of fifteen years in jail
- If the drugs exceed forty kilograms, an addition of twenty years in prison
- If the substance exceeds eighty kilograms, an addition of twenty-five years in jail
Some defendants are not eligible for felony probation or a sentence suspension. Notably, an accused who has been convicted for transporting and selling more than 14.25 grams of a substance containing heroin, has prior related convictions or offered to sell, sold, or possessed the drug for sale.
Other penalties go beyond jail time and fines, whereby a conviction leaves the defendant with a criminal record, thus creating difficulties in getting job opportunities or renting an apartment. Additionally, the defendant becomes ineligible to get some government benefits. The defendant may also be prohibited from owning or possessing a firearm in Orange County for no less than ten years.
According to immigration law, violation of Code 11352 HS leads to deportation. It involves both a legal immigrant and an illegal alien. Furthermore, aliens convicted of transporting and selling unlawful drugs face mandatory deportation without lawful re-entry.
Note that a crime against Health and Safety code 11352 is punished under California's three strikes regime. Three-Strikes Law refers to a habitual offender. They involve a severe violent felony and two prior convictions. Therefore, if you receive three strikes on your record for committing violent offenses, you face up to at least twenty-five years in state prison.
Possession of controlled substances places the defendants at a higher risk of extensive incarceration and monetary fines. There might be a national discussion around how to change punishments for Transportation for sale of an illegal substance, but these severe penalties still exist. Every criminal is subjected to substantial sentencing if found guilty.
Defenses to Transportation for Sale of a Controlled Substance Under 11352 HS
Defending against Health and Safety code 11352 charge requires one to have all potential defenses explored. Your attorney needs to attack the offense's elements to hinder the prosecution's ability to prove your charges. Remember, each case is different and must be carefully inspected by an experienced criminal defense attorney. The primary purpose is to have an appropriate defense strategy that is vigorously pursued. Some of the best defenses that could result in a reduction or dismissal of your charges include:
Police misconduct may include planting evidence, that is placing a drug on the defendant's car or house to make an arrest. They may also lie about the location of the substance and falsify the probable cause. In some instances, they may use excessive force to get a confession.
Police officers are required to investigate crimes with specific procedures and formalities. The formalities involve reading Miranda rights to the suspect, possessing probable cause to make an arrest, and search your home or office for the evidence of the controlled substance only. If they fail to perform any of the mentioned formalities, your criminal defense attorney can request the prosecutor to do away with the evidence, through a pitchess motion as stated under California Evidence Code 1043-1046. Your chances of winning your case will significantly increase.
Lack of knowledge
Your attorney can argue that you did not have the requisite knowledge of the controlled substance's presence. Neither did you know the drug's status, whether it was an illegal controlled substance. The court must give evidence that you knew the type and classification of the drug to establish a conviction. If you did not know the presence, type, and category of the drug you possessed, you could not be guilty of Penal Code 11352 HS.
For instance, you are an Uber driver involved in transporting people from one place to another. You pick a client who wants to go to John Wayne Airport. The passenger has a small bag on his back and a suitcase. You help him pack his luggage and head on to his destination. On reaching the airport, you are stopped for the usual search. A quick search of the suitcase reveals that it contains a pack of cocaine. In this case, you were not involved in the Transportation of the illegal drug. Neither did you know its presence. Therefore, you cannot be sentenced for this crime.
Lack of Intent
One of the acts prescribed by code 11352 HS is intent to sell. The prosecution has to prove that you had the intent to transport drugs for sale. Your criminal defense attorney can challenge the trial that you did not have the plan to carry out the actions. The defense can be based on an offer that was made out of a threat, fear, coercion, or part of a joke.
A situation where you are sharing an office with several people and drugs were found. You were not aware of the drugs, as well as their presence. This scenario mostly happens with sting operations, where most people end up being charged wrongly. The innocent one expects officers to identify them, but they rarely get a benefit of the doubt. The officers will instead gather evidence against them and wait for the defense attorneys and prosecutors to hammer out the details. A defense based on mistaken identity can be argued to assert that you were neither involved in the drug distribution nor selling. Moreover, it can also be argued that you were in the right place at the wrong time and avoid conviction.
Entrapment is a tough defense to establish due to its requirement to show extreme coerces on the part of the police officers. The police use entrapment to lure, coerce, harass, or entice a law-abiding citizen to engage in illegal activities. If a police officer's conduct caused you to participate in the Transportation for sale of a controlled substance, your attorney could argue that entrapment occurred, and you should not be convicted. The officer's conduct towards your arrest should be more of an offer or suggestion.
You Did Not Transport or Sell The Controlled Substance
If you did not participate in selling, importing, furnishing, administering, or transporting a controlled substance, you could not be guilty of Penal Code 11352 HS. Most times, the police get the wrong information regarding your involvement in the transport and sale of drugs. It is possible, too, that you may have possessed a controlled substance for personal use. Your attorney should conduct a private investigation of the facts. He or she should present substantial evidence to the jury that indicates that you should not be convicted of this crime.
Momentary possession is not unlawful. If you possessed the drug for a lawful purpose and only for a short moment, you may use this defense. A successful momentary possession defense leads to charges dismissal. For you to prove this defense, you must do the following:
- Prove that you only possessed the drug for a brief period
- Prove that you purposed to dispose or destroy the drug
- Prove that you were not to hinder law enforcers from getting the drug
Keep in mind, and you are not obliged to prove anything as a defendant. However, to assert this defense, you must confirm each outlined element by a burden of proof. In short, you should prove each of the three facts is true.
Illegal Search and Seizure
Most defendants arrested for transportation for sale of a controlled substance coming from illegal search and seizure. These are situations where the police search you with an invalid police search warrant, exceed the search, detain you unlawfully, or search you without probable cause. Your defense lawyer can lodge a proposal to suppress evidence. If the proposal succeeds, the prosecutor dismisses the charges.
What The Prosecutor Must Prove to Convict Crimes Against Code 11352 HS
You need to understand what the offense requires if you face charges of transporting for sale of a controlled substance. The prosecution must prove some of the factors to demonstrate that you committed a crime against Health and Safety Code Section 11352. Here are some of the elements:
Transportation For Sale
For you to be convicted of the code 11352 HS crime, the prosecutor must prove that you :
- Administered (applied the drug personally to another person's body through jab, inhalation, or ingestion)
- Sold (exchanged the drug for money)
- Furnished (supplied the drug)
- Imported (brought the drug from outside the state)an illegal drug.
The prosecution must prove that you were aware of the controlled substance's nature or character to convict you. In simple terms, the prosecutor must prove that the drug you possessed could be used as a narcotic. He also must demonstrate your awareness of the substance presence in your area or an area you exercise control. Otherwise, you cannot be convicted for this crime if there is no knowledge evidence.
Usable amount refers to enough quantity of controlled substances for personal use. Therefore, traces that cannot be used and debris cannot be considered usable amounts mainly because they are not counted for in violation of the Health and Safety Code 11352. The more considerable the amount, the more severe the consequence. However, any amount and quantity can be used as evidence by the prosecution for your conviction.
Related Crimes To Penal Code 11352 HS
Here are closely related crimes that are prosecuted with Transportation for sale of a controlled substance:
Possession For Sale
Possession for sale crime is under code 11351 HS. It includes the same controlled substances as in code 11352 HS. Though this crime is slightly less as an offense since it does not include actual sale but the intent to sell, this crime is a felony with a potential jail term of two to four years.
Sale or Transportation of methamphetamine
Sale and Transportation of methamphetamine crime are covered by Health and Safety Code 11379. This statute controls different drugs such as ecstasy, ketamine, and PCP, and prescribes that the crime is a felony with less severe charges. The defendant faces a necessary jail sentence for two to four years.
Sale or Transportation of Marijuana
Code 11360 HS prohibits the sale and Transportation of marijuana. One is not supposed to trade, transport, supply, and give marijuana. The crime is a felony with a possible jail term for two to four years. If cannabis is less than 28.5 grams, the offense is a misdemeanor and carries a fine of one hundred dollars.
Sale of Synthetic Designer Drugs
The statute that covers the sale of synthetic designer drugs is prescribed under Health and Safety code 11357.5 and 11375.5. Synthetic narcotics include artificial stimulants and marijuana. This law is a misdemeanor that carries up to six months in prison and a $1,000 fine.
Sale of Imitation Drugs
The sale of imitation drugs is covered by the Health and Safety code 10975 and 11355. An imitated drug is one that resembles the original one, but it's not genuine. The sale of an imitated drug is a misdemeanor and carries up to six months in jail and a $1,000 fine. Code 11355 HS controls a more severe crime involving the sale of an imitated drug. Under this section, the offense is a wobbler. As a misdemeanor, the violator faces one year in prison. A felony, the violator faces sixteen to three years in jail.
Money Laundering the Proceeds of Drug Sales
Health and Safety section code 11370.9 controls the crime of money laundering the proceeds of drug sales. It is an offense for anyone to participate in a financial transaction that involved money laundering. The law covers deals that are higher than twenty-five thousand dollars in one month. The drug proceeds laundering is a wobbler. For felony penalties, one faces two to four years in county jail and a $250,000 fine or two-times the laundered money depending on which is higher.
Opening or Maintaining a Drug House
Health and safety code 11366 covers the crime of opening and maintaining a drug house. You are charged with this crime if you continuously sell or give away drugs at a particular home. The offense is a wobbler with a possible felony of three years prison sentence.
Contact an Orange County Criminal Defense Attorney Law Firm Near Me
A criminal charge against Transportation for sale of a controlled substance can be overwhelming and stressful. It is vital to engage with a professional criminal defense attorney who will examine the evidence placed against you in court and best prepare your criminal defense. Hence, if you are confronted with these accusations, contact the Orange County Criminal Defense Attorney Law Firm team at 714-740-7848 for a consultation, and together we will plan on how to win your case.