Section 11352 of the California Health & Safety Code makes it illegal to transport, import, sell, supply, administer, or simply to give away a controlled substance.
District Attorney is Required to Prove These Elements:
1. That the defendant actually (or indicated that he/she would) transported, imported, provided, or sold a controlled substance, and,
Selling or transporting a drug is defined as either:
- Transporting controlled substances from one destination to another;
- Importing the controlled substance from another location outside California;
- Possessing the drugs with the intent to resell;
- Giving doses of the drugs to someone else; or,
- Offering the controlled substance to someone else, at no charge.
One is only guilty of transportation of a controlled substance if the defendant's intent was that the drugs were going to be sold eventually. (If drugs are transported other than for sale, one can still be charged with simple possession under Health & Safety Code 11350).
The defendant does not need to directly handle the substance to take part in administering, transporting, selling or furnishing. One can be guilty of trafficking in controlled substances even if the defendant never personally touched or handled the drugs. All that is needed is that there be control over the drugs, either personally or through another person. Drug defense attorneys from our offices in Santa Rosa, Napa, San Rafael, Lakeport, Ukiah, and Eureka can provide substantial assistance in the analysis of whether the District Attorney is in a position to prove this element beyond every reasonable doubt.
Sale or transportation of controlled substances involving minors is a distinct offense in California, covered under Health & Safety Code 11353.
2. That the defendant knew the substance was illegal.
It is not required that the prosecutor show that the defendant knew exactly what illegal substance was possessed. It is sufficient that the defendant knew that the substance was some kind of illegal drug, and,
3. Defendant's knowledge that it was present or within his control.
The defendant does not need to directly handle the substance to take part in administering, transporting, selling or furnishing, and,
4. That the substance at issue is indeed a controlled substance.
The United States Controlled Substances Act makes several distinctions or specifications about what a controlled substance is. Some of these include Opiates and opiate derivatives, cocaine (including cocaine base), heroin, peyote, gamma-hydroxybutyric acid (“GHB”), and certain prescription drugs such as codeine and hydrocodone (“Vicodin”), and,
5. That there was a sufficient, i.e. usable, amount of the narcotic to be used as a drug.
A usable amount is something more than debris or residue. It must be enough for a person to use as intended (for drug effect purposes) but does not have to actually intoxicate the user. If the defendant is charged with transporting a drug, the usable amount requirement still applies.
Sale of a drug does not require that it be a usable amount.
Drugs Involved in H&S 11352:
And there are many drugs that qualify for treatment for inclusion in the statute, along with their isomers, assaults, etc. The primary drugs are heroin, cocaine, cocaine base, methamphetamines, opiates, opium derivatives, depressants, etc. The primary laws that specify the drugs included in this statute are HS 11054, HS 11055 and any controlled substance classified in Schedule III, IV or V which is a narcotic drug.
Drug Lawyer Defenses:
- The defendant did not have the requisite knowledge of the drug's presence, or of its status as an illegal substance.
- An illegal search and seizure occurred (which led to the discovery of the illegal drugs) in violation of the personal protections provided by the 4th Amendment of the U.S. Constitution.
- The defendant did not actually have the “intent” to carry out such actions. This lack of intent can be based on an offer made out of fear, duress, or as part of a joke.
- The defendant did not have anything to do with the illegal drug activity, and the police have identified the wrong person, such as when there is a shared residency.
- An entrapment defense if the police caused an otherwise law-abiding person to engage in illegal activities (a somewhat difficult burden of proof).
Defenses in serious felony drug cases can be sophisticated in their application and use. Drug defense attorneys from our Santa Rosa, Napa, San Rafael, Lakeport, Ukiah, and Eureka are always available to discuss these defenses.
Alternatives to Criminal Prosecution and Conviction:
Some defendants who suffer from PTSD or other qualifying mental conditions may qualify to participate in a Mental Health Diversion program. Participation in a Mental Health Diversion Program is an alternative to criminal prosecution. If a defendant is qualified by the Court and successfully completes the program, they may very well be eligible for a Petition to Seal which, if granted by the court, effectively eliminates any record whatsoever of the criminal charges or arrest in criminal records that are available to the public.
Criminal History/ Criminal Record Improvement:
Even if someone is convicted of HS 11352, upon successful completion of probation, a defendant can file a Petition to expunge their record and dismiss the charges. This adds a very favorable entry to their criminal record and is extremely helpful when applying for employment, housing, etc.
Penalties for Violations of HS 11352:
As a felony, a conviction can result in three to five years in prison and up to $20,000 in fines. The basic potential penalties for a first offense are:
- Felony (formal) probation;
- Three (3), four (4) or five (5) years served in county jail under California's realignment program—or three (3), six (6) or nine (9) years in jail if found to have transported controlled substances for sale across two (2) or more county lines within California; and/or a fine of up to twenty thousand dollars ($20,000).
- Per Penal Code 1203.076 the mandatory minimum has been eliminated and someone who is eligible for probation and who is granted probation may be confined in the county jail for at least 180 days.
One is not eligible for a sentence of felony probation or a suspended sentence if any of the following is true:
- Selling or offering to sell 14.25 grams or more of a substance containing heroin;
- Selling or offering to sell any amount of heroin while having one or more prior convictions for either HS 11352 or HS 11351 possession of controlled substances for sale; or
- Selling or offering to sell cocaine, cocaine base or methamphetamine, while having one or more prior convictions for selling, offering to sell or possessing for sale any drug.
Alternatively, one can receive a term of probation with a maximum of one year in jail. Enhanced sentences can be given for crimes involving transporting for sale across different county lines.
There could be far more severe penalties for selling or transporting controlled substances if any one or more of the following factors are relevant:
- Drug trafficking near drug treatment facilities or homeless shelters;
- The controlled substance involved was heroin, cocaine or cocaine base, and the trafficking took place upon the grounds of or within one thousand feet of a drug treatment center, a detoxification facility, or a homeless shelter; or,
- Sales or transportation of large quantities of heroin or cocaine.
If convicted of violating Health and Safety Code 11352, and the controlled substance is, or contains heroin, cocaine or cocaine base, an additional jail sentence could be imposed, as follows:
- Three years if the substance weighs more than one kilogram;
- Five years if it weighs more than four kilograms;
- Ten years if it weighs more than ten kilograms;
- Fifteen years if the drug weighs more than twenty kilograms;
- Twenty years if it weighs more than forty kilograms; and
- Twenty-five years if the substance exceeds eighty kilograms.
Remember, Ronald Dinan and Associates is a firm of experienced and aggressive criminal drug lawyers who can help in achieving the best outcome in your case. Many times, criminal drug case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.
To get immediate help with your criminal drug matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.
- Santa Rosa - 707-571-5550
- Napa - 707-252-0102
- Marin - 415-491-0223
- Lakeport - 707-262-0503
- Ukiah - 707-462-5950
- Eureka - 707-445-1348
The Actual Law: California Health & Safety Code 11352
(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 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.
(c) For purposes of this section, “transports” means to transport for sale.
(d) This section does not preclude or limit the prosecution of an individual for aiding and abetting the commission of, or conspiring to commit, or acting as an accessory to, any act prohibited by this section.
(Amended by Stats. 2014, Ch. 54, Sec. 7. (SB 1461) Effective January 1, 2015.