Transportation or the sale of controlled substances is one of California's most severe drug offenses. The police devote significant time and resources to investigating drug sales and transportation crimes, and those found guilty can be subject to several years of incarceration.
However, various legal defenses may apply if you are accused of this crime, and a lawyer can help you present them. Therefore, you want to speak with an experienced drug crime attorney as soon as possible if you are under investigation or have been arrested.
At Koenig Law Office, we have several years of experience fighting for clients charged with selling and transporting drugs in Bakersfield. We also defend against any other drug crime described under California law.
We will help you obtain the best possible outcome, regardless of the type of controlled substance involved in your case. Do not hesitate to call if you believe you are facing drug charges, and we will start working on your case immediately.
Defining the Transportation or Sale of Controlled Substances
The California criminal offense of transporting or selling controlled substances is described under HSC 11352. It is defined as selling, furnishing, administering, giving away, transporting for sale, importing a controlled substance, or offering to do the mentioned acts.
A controlled substance is a narcotic regulated by the Federal Controlled Substances Act. Examples of controlled substances include GHB, peyote, cocaine, marijuana, meth, LSD, and heroin.
HSC 11352 does not only criminalize the sale or transportation of street drugs like cocaine or heroin, but it also applies to prescription drugs sold or moved from one place to another without a valid prescription or authorization.
Drugs included under HSC 11352 include, without limitation, cocaine (cocaine base included), codeine, heroin, GHB, peyote, opiates and opiate derivatives, and specific prescription medications like Vicodin and codeine.
Note that the sale or transportation of other regulated substances is criminalized under separate laws. For example, the criminal offense of selling or transporting meth is described under HSC 11379, while the crime of transporting or selling marijuana is defined under HSC 11360. Simply put, HSC 11352 is meant to cover controlled substances not separately covered under other similar laws.
Elements of the Crime
For the judge to find you guilty of violating HSC 11352, the prosecution must prove the following factors, known as the elements of the crime:
- You sold, administered, furnished, transported, or imported a regulated substance, or offered to do any of these acts with it.
- You knew you had the drug.
- You knew about the drug's character or nature as a regulated substance.
- The narcotic you had was of a usable quantity ( if accused of transportation for sale).
Furnishing a drug means supplying or providing it through any means, including selling or otherwise. Administering a drug refers to causing someone else to consume it by injection, swallowing, or other means.
Transporting a regulated substance means moving or carrying it from location to location, regardless of the distance. You can move a drug by riding a bike or motorcycle, walking, or using transportation modes such as an airplane or vehicle.
However, the judge can only convict you of drug transportation if you intended for the drugs to be sold. If you move a controlled substance for another reason—not to sell—the prosecutor can still prosecute you under HSC 11350, the simple possession of a controlled substance.
Additionally, the judge can only convict you of drug transportation if you moved a usable quantity. Trace amounts, such as drug residue discovered on you or an item you were carrying, do not suffice. However, the usable quantity element only applies to drug transportation, not drug sales.
You could also be prosecuted under 11352 HSC for offering to transport, give away, administer, furnish, or sell narcotics. However, the judge can only sentence you for offering to do these acts if you intended to execute your offer when you made it.
As regards knowledge, as mentioned above, the judge can only find you guilty of transporting or selling a drug if you know you possessed the drug and knew of its character as a regulated substance.
You want to remember that the judge can convict you of drug trafficking regardless of whether or not you handled or touched the controlled substances. The prosecutor only needs to prove you did have control of the narcotics, either through someone else or personally. This is called constructive possession rather than actual possession.
Building a Drug Transportation or Sale Case
Drug transportation or sale investigations often entail sting operations. A sting operation is an attempt to catch a person committing an offense, usually through deceptive means. Some drug transportation or sale arrests occur as a result of information obtained from an informant.
However, many times, police informants, who could be working to be paid or obtain clemency in their drug case, provide the police with misleading or false information. Thus, if a police informant contributed to your arrest, your attorney can demand that the informant's identity be revealed by filing a motion. The attorney can then contest the prosecution's argument that the informant is reliable.
The second most common way to obtain evidence in a drug transportation or sale case is via surveillance or observation posts. Surveillance/observation posts are areas where the police set up a camp to monitor suspected drug-related activities, usually close to a drug crime suspect's business or home or where narcotics are sold.
Undercover drug purchases are another prevalent way police arrest drug transportation or sale suspects. Drug purchases can happen in person or through the internet. In either case, a police officer disguises themselves as a drug seller or buyer in the hopes of duping a suspect into engaging in behavior that could result in a criminal arrest for drug transportation or sale.
The Consequences of Transporting/Selling Drugs
California law treats transporting or selling drugs as a felony offense. The possible punishment if it is your first-time crime includes felony probation, a fine not exceeding 20,000 dollars, and five, four, or three years of jail under the realignment program, or nine, six, or three years of a jail sentence if you did transport drugs to sell across more than one county line within California.
Also, you will be ineligible for a suspended sentence or formal probation if:
- You are guilty of a 11352 HSC violation for selling/offering to sell any heroin amount and have been convicted before under either 11352 HSC or 11351 HSC, drug possession for sale law,
- You are guilty of violating 11352 HSC for selling/offering to sell 14.25g or more of a heroin-containing substance, or
- You have been pronounced guilty under 11352 HSC for selling/volunteering to sell cocaine base, meth, or cocaine and have been found guilty before of possessing drugs to sell or selling/volunteering to sell a controlled substance.
Immigrants have to be especially concerned about being convicted under HSC 11352. This is because selling or transporting narcotics, like most other drug violations, is considered a deportable offense under the immigration statute. This means you could be deported indefinitely if found guilty of an HSC violation, regardless of whether your immigration status was otherwise perfectly legal.
There are several instances where you can be subject to more severe punishment for drug sales or transportation than the standard punishment discussed above. These instances include:
Furnishing/Selling Narcotics to Specified Persons
The judge will likely order the harshest possible prison or jail sentence against you if you were aware, or should reasonably have been aware, that you were furnishing, selling, giving away, or administering narcotics to someone who:
- Is pregnant.
- Had been found guilty of a violent felony in the past.
- Was under treatment for a drug-related issue or mental illness.
If the judge finds you guilty of transporting or selling drugs under 11352 HSC and you have a minimum of one past felony conviction for a narcotics-related offense (other than possession for your own use), you face three more years of jail time for every prior conviction you have. The three years are served consecutively.
Selling or Transporting Large Cocaine or Heroin Amounts
If you are convicted of breaking HSC 11352 and the regulated substance contains or is cocaine base, cocaine, or heroin, you will be subject to more time in jail as follows:
- Three years for a substance weighing above 1kg.
- Five years for a drug weighing above 4kg.
- Ten years for a drug weighing more than 10kg.
- Fifteen years for a substance weighing beyond 20kg.
- Twenty years for a substance weighing more than 40kg.
- Twenty-five years for a narcotic weighing more than 80kg.
If subject to more time in incarceration for transporting or selling a regulated substance under any weight enhancements described above, you will also face increased fines that range between one million and eight million dollars.
Trafficking Drugs Near Homeless Shelters or Treatment Facilities
You might be subject to one more year of a jail sentence for a 11352 HSC conviction if the regulated substance in question was cocaine base, cocaine, or heroin and you trafficked it on the grounds of or within 1,000 ft of a homeless shelter, a detoxification facility, or a narcotics treatment center.
Transporting or Selling Drugs Involving Children
Selling or transporting drugs involving children is a separate crime in California, punishable under HSC 11353. You can be convicted of this violation if you are a grown-up (a person eighteen years of age or older) and you:
- Employ, use, or hire a child (a person below 18 years) to give away, sell, transport, peddle the drug or prepare the narcotic for sale.
- Furnish, give away, administer, sell, or offer to administer, give away, furnish, or sell any drug to a child.
Doing this will subject you to three, six, or nine years in prison. Additionally, you will serve one or two more years of a prison sentence if the narcotics in question are cocaine base, cocaine, or heroin, and the unlawful activity occurred within 1,000 ft of or at a place of worship, school, or any facility where children frequent.
If you are older than the involved child by a minimum of four years, you will be subject to a separate, additional prison term of one, two, or three years.
Legal Defenses for Selling or Transporting Drugs
An experienced drug crimes lawyer can use different defense strategies to fight HSC 11352 charges. Since every drug offense has its own set of specific circumstances and evidence, it is critical for your lawyer to thoroughly review all the unique details leading up to your arrest to build a solid defense strategy. Some of the defense strategies your attorney can assert are:
Unlawful Search or Seizure
Most arrests for selling or transporting drugs arise from an unlawful search or seizure. Unlawful search or seizure can happen in many ways, for example:
- Police officers search your person or property when they do not have a valid search warrant.
- Police officers conduct a search that exceeds a search warrant's scope. For example, the police search your house when the warrant only authorizes an office search.
- Illegally arresting and searching your person with no probable cause.
If the police unlawfully searched you or illegally seized your property and you were charged under HSC 11352, your attorney will almost certainly file a motion in court to suppress any evidence obtained. If the judge grants the motion, the D.A. may not have an option but to drop the charges against you.
Misconduct by the police in a drug transportation or sale case may include the following:
- Planting evidence (placing narcotics on someone or in their car or apartment to later arrest them).
- Lying about the location, they discovered the narcotics (for example, stating they discovered the drugs in a person's backpack when in the real sense, they found them on the floor close to where the person was standing).
- Forging probable cause to make an arrest.
- Using more than the necessary force to draw a confession and other evidence.
Entrapment is a valid defense if you can prove you only broke HSC 11352 because the police lured or coerced you into doing that. This situation occurs when a law enforcement officer harasses, coerces, or entices an innocent person into committing an offense. The police officer's conduct should be more than an offer or suggestion. It must be something that would be hard for any reasonable individual to refuse.
You Did Not Have the Knowledge
The judge should acquit you of transportation or sale of regulated substances if you were unaware you possessed the drug or that the substance you transported or sold was a regulated substance.
You Did Not Have the Intent
If accused of selling, transporting, furnishing, giving away, administering a narcotic, or offering to do any of these acts, your lack of intent could be a valid defense to the charges against you. The judge cannot find you guilty of violating HSC 11352 if you did not specifically intend to follow through on your offer.
Related Crimes to an HSC 11352 Violation
Due to shared elements, various crimes can be charged alongside or instead of drug sales or transportation. These violations include:
11351 HSC, Possession of a Controlled Substance for Sale
HSC 11351 criminalizes the possession for sale of the same drugs mentioned under HSC 11352. However, possessing a drug for sale is a less severe violation because it does not involve the actual transport or sale, just possession with the intent to sell. Violating HSC 11351 is considered a felony carrying a possible jail term of four, three, or two years.
11370.9 HSC, Money Laundering Drug Sales Proceeds
HSC 11370.9 is a unique form of money laundering crime. Under this law, it is an offense to participate in a transaction that involves money you are aware was obtained from a narcotics-related crime, such as transportation or sale of a drug, with the intent to hide the source of the money.
This statute covers only those transactions totaling over $25,000 in thirty days. Violating HSC 11370.9 is deemed a wobbler. Felony consequences include two to four years in prison and $250,000 in fines or double the laundering amount, whichever is higher.
11366 HSC, Maintaining or Opening a Drug House
If you continuously or repeatedly give away or sell drugs at an apartment, house, or another specific place, you may face HSC 11366 violation charges. This crime is often charged alongside HSC 11352, transportation, or the sale of controlled substances. Violating HSC 11366 is a wobbler offense, carrying a possible felony prison term of a maximum of three years.
Find a Criminal Defense Attorney Near Me
A drug sales or transportation conviction can significantly affect your life. It can impact your gun rights, immigration status, and ability to find employment. Whether you have been wrongly accused or merely committed a mistake, you want to understand your options for fighting for the best outcome, given your circumstances. You need a lawyer with the experience and expertise to defend you and the aggressiveness to fight for your best interests.
We at Koenig Law Office have been defending against drug sales or transportation crimes for decades and would love to have you as our next client. Do not hesitate to call us at 661-793-7222 for a cost-free consultation if you have been arrested or charged with this or any other drug offense in Bakersfield, CA.