CA HSC 11352

Transporting Controlled Substances

What is California Health and Safety Code11352

It is illegal under California Health and Safety Code 11352[1] to sell or transport a controlled substance in California. California defines a controlled substance as as any drug that is manufactured and regulated by the government. A list of controlled substances that are commonly referred to as narcotics[2] and are illegal under the HS 11350 include, but are not limited to:

  • Opiates
  • Heroin
  • Cocaine
  • Peyote
  • Some hallucinogenic drugs
  • Codeine
  • Vicodin

In order to be convicted for selling or transporting controlled substances the prosecutor must prove the following elements of the crime:

  1. That you engaged in either transporting, importing, selling, administering, or giving away drugs in California
  2. That you knew of the drug’s presence and that it was a drug
  3. That there was enough of the controlled substance to be used as a drug

If the prosecutor cannot prove each of the elements of the crime beyond a reasonable doubt then you will not be convicted of selling or transporting a controlled substance. However, if you are convicted then you will face serious crimes because HS 11352 is a felony. The possible sentencing for HS 11352 is as follows:

  • Up to 5-years in state prison
  • Up to $20,000 in fines
  • Possible deportation if you are immigrant

There are some factors that will increase your sentencing:

  • If you are convicted of selling or transporting a controlled substance for sale then you will face up to 6-years in a state prison and fines up to $20,000.
  • If you are caught selling or transporting heroin, cocaine or cocaine base [3], or if you are arrested within 1,000 feet of a drug treatment center then you will be sentenced to an additional year in prison.
  • If you are arrested with an excessive amount of heroin, cocaine, or cocaine base then your sentence will be heightened depending on the amount of the controlled substance you have:
  • 3-years if the substance exceeded 1kg
  • 5-years if the substance exceeded 10kg
  • 15-years if the substance exceeded 20kg
  • 20-years if the substance exceeded 40kg
  • 25-years if the substance exceeded 80kg
  • If you have a prior drug crime conviction, other than one for personal possession, then you will face an additional 3-year prison sentence.

Prosecuting a Selling or Transporting aControlled Substance Charge

As previously mentioned, in order for you to be convicted for HS 11352 the prosecutor must prove the following elements of the crime beyond a reasonable doubt:

  • That you engaged in either transporting, importing, selling, administering, or giving away drugs in California
  • That you knew of the drug’s presence and that it was a drug
  • That there was enough of the controlled substance to be used as a drug

In order to understand what the prosecutor has to prove it’s important to have a full understanding of the language of the law.

The first element of the crime states that in order to be convicted of the crime you must either transport, import, sell, administer or give away the drugs. California defines transporting a controlled substance as moving them, even a short distance, by some means, either by walking, skateboarding, taking the train, etc. the only requirement is that you moved the drugs.

The second and third elements pertain to knowledge; either knowing that you had control of the drugs and that you knew the drugs were indeed controlled substances. The prosecutor does not need to prove that you knew what kind of drugs they were only that they were drugs. If you have a prior drug conviction then these two elements of the crime are easy for the prosecution to prove.

Defending a Selling or Transporting aControlled Substance Charge

There are legal defenses that your criminal defense attorney can implement to prove your innocence. The first thing that your attorney will investigate is whether or not the evidence acquired against you was collected lawfully. If your attorney can prove that the police exercised any misconduct then the judge will have to drop the charges against you and drop the case.

Next, your attorney will investigate whether you were the victim of entrapment because selling and transporting a controlled substance crimes often involve a police sting operation. If you were coerced into acting differently then you normally would have because of undercover police involvement then it’s likely that you will not be found guilty. It will then become the job of your attorney to point out to the jury and judge that the police lured you into an illegal act that you normally would not have performed.

If you didn’t know that you were carrying the drugs then you cannot be convicted of HS 11352. However, it must be proven in court that you didn’t know about the controlled substances and as previously stated, if you have a prior conviction then this legal defense becomes increasingly difficult for your attorney to prove.

These are only the most common legal defense strategies and might not apply to your case but there’s still hope. If you or a loved one is facing HS 11352 charges then it’s imperative to discuss your case with an effective and knowledgable attorney. Seppi Esfandi is a Certified Specialist in Criminal Law with over 13 years of experience defending people for a variety of crimes, including selling and transporting controlled substances.

 

References

[1] (a) Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, four, or five years.

(b) Notwithstanding the penalty provisions of subdivision (a), any person who transports for sale any controlled substances specified in subdivision (a) within this state from one county to another noncontiguous county shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=11001-12000&file=11350-11356.5

[2] [2] 11019. “Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(a) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.

(b) Any salt, compound, isomer, or derivative, whether natural or synthetic, of the substances referred to in subdivision (a), but not including the isoquinoline alkaloids of opium.

(c) Opium poppy and poppy straw.

(d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.

(e) Cocaine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof.

(f) Ecgonine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof.

(g) Acetylfentanyl, the thiophene analog thereof, derivatives of either, and any salt, compound, isomer, or preparation of acetylfentanyl or the thiophene analog thereof.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=10001-11000&file=11000-11033

[3] Congress used the scientific term “cocaine base,” which describes forms of cocaine that react with acid to form salts…Cocaine can take many forms, some of which are forms of cocaine base, such as coca paste and crack. Other forms of cocaine, however, such as powder cocaine, are not bases. Powder cocaine and cocaine base have distinct chemical formulae, melting points, solubility levels, and molecular weights.

http://lawreview.law.ucdavis.edu/issues/40/2/comment/DavisVol40No2_Cary.pdf

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