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AWARD WINNING SAN DIEGO CRIMINAL ATTORNEY

San Diego Sales & Transportation Attorney

Legal Definition of Selling or Transporting Controlled Substances

The sale or transportation of a controlled substance is defined under the section 11352 HS of the California Health & Safety Code, which defines the following:

You did one of the following with a controlled substance covered by this law

  • Sold it.
  • Furnished it (by any means, sale or otherwise).
  • Administered it (that is, caused another person to use the drug by injection or another means).
  • Gave it away.
  • Transported it for sale.
  • Imported it into California.
  • Offered to do any of the above.
  • You knew of the drug's presence.
  • You knew of its nature or character as a controlled substance.
  • The controlled substance was in a “usable amount,” if you are accused of transporting it for sale.

To fully understand what constitutes the crime of selling or transporting controlled substances under the HS 11352, it is important to master all and each one of the elements of the crime.

Controlled Substances

Since the text of HS 11352 cites the words “controlled substances”, it is important to understand what kind of substances fulfills this element. The code lists come of the following common controlled substances, but not limited to:

  • Opiates and opiate derivatives.
  • Cocaine (including cocaine base).
  • Heroin.
  • Peyote.
  • Gamma-hydroxybutyric acid, known as “GHB”.
  • Certain prescription drugs such as codeine and hydrocodone. Known as “Vicodin”.

Here is one example of behavior that could lead to criminal liability under HS 11352:

Example: A small-time drug dealer that unlawfully sells Hydrocodone, known as “Vicodin”. He will be charged under the HS 11352.

Knowledge

Before entering the other elements of the HS 11352, must be clear that a person can only be charged under the section of the California health and Safety Code if he or she have the knowledge that 1) the drug was present and 2) the nature of the drug as a controlled substance.

Transporting Controlled Substances

Transporting means to move something from point A to point B, being it a short or long distance, walking or driving, cycling or flying.

HS 11352 does not prohibit all circumstances of transporting controlled substances. To be a crime under HS 11352, the transporter of the controlled substance must have the intent to eventually sell them. Transporting controlled substances without the intent to sell might be a crime of possession, but will not be a crime of transporting and selling.

Another important aspect of the transportation element is that the transporter will not be charged if he possesses only traces of the controlled substance. It is imperative that the transporter have a “usable amount” of the controlled substances to enable the transporting element of the crime.

Offering for sale, furnishing

A person will be charged under the HS 11352 if he/she is offering controlled substances for sale and has the intent to actually follow through on it.

The constructive possession

 One can be charged under the HS 11352 without never handling the controlled substance. All that matters for the concept of constructive possession is that the person was in control of the substance, either personally or through another person.

For instance, a person who order someone to obtain a specific controlled substance, pack it and send them for sale through ground transportation. When the controlled substance is sold, the person who ordered the whole scheme gets paid. As you can note, one never actually touched or handled the controlled substances, but definitely had control of then, fulfilling the requirements of the constructive possession, and being liable under the HS 11352.

Penalties

Selling and transporting controlled substances under the HS 11353 is a felony under California Law, and the possible penalties for first offender 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 you are found to have transported controlled substances for sale across two (2) or more county lines within California.
  • A fine of up to twenty thousand dollars ($20,000).

A person is not going to eligible for a sentence of felony probation or a suspended sentence if any of the following is true:

  • Convicted of violating HS 11352 for selling or offering to sell 14.25 grams or more of a substance containing heroin.
  • Convicted of HS 11352 for selling or offering to sell any amount of heroin, and you have one or more prior convictions for either HS 11352 or HS 11351 possession of controlled substances for sale.
  • Convicted of HS 11352 for selling or offering to sell cocaine, cocaine base or methamphetamine, and you have one or more prior convictions for selling, offering to sell or possessing for sale any drug.

Aggravating Factors

1.Drug trafficking near drug treatment facilities or homeless shelters.

A person may facean additional one (1) year in jail for a Health & Safety Code 11352 HS conviction if both of the following are true:

  • The controlled substance involved was heroin, cocaine or cocaine base.
  • The trafficking took place upon the grounds of or within one thousand (1,000) feet of a drug treatment center, a “detox” facility or a homeless shelter.

2.Sales or transportation of large quantities of heroin or cocaine.

Someone will get addition fine additional ranging from up to one million ($1,000,000) to up to eight million ($8,000,000) and additional jail time if charged under HS 11352 and was carrying large quantities of heroin, cocaine or cocaine base.

  • Three (3) years if the substance weighs more than one (1) kilogram.
  • Five (5) years if it weighs more than four (4) kilograms.
  • Ten (1) years if it weighs more than ten (10) kilograms.
  • Fifteen (15) years if the drug weighs more than twenty (20) kilograms.
  • Twenty (20) years if it weighs more than forty (40) kilograms.
  • Twenty-five (25) years if the substance exceeds eighty (80) kilograms.

Prior Convictions

In the case of a prior felony conviction for a drug crime, other than for personal use, who was charged under the HS 11352 will face an additional and consecutive three years of jail time for each prior conviction.

Selling or furnishing controlled substances for certain people

One will probably face enhanced sentencing if knew that was selling, furnishing, administering or giving away controlled substances to someone who 1) was pregnant, 2) had previously been convicted of a violent felony, and 3) was being treated for a mental health disorder or a drug problem.

Immigration Consequences

Non-US-citizens need to concerned about the HS 11352 conviction especially because it is, like many drug crimes, a deportable crime under the federal immigration law, meaning that one can be deported if convicted, even if the immigration status was perfectly legal.

Transport or sale of controlled substances involving minors

As a distinct offense under HC 11353, an adult can be under the said section if:

Hire, employ or use a minor (that is, a person under 18) to sell, transport, give away, prepare for sale or peddle the controlled substance

Sell, furnish, administer or give away, or offer to sell, furnish, administer or give away, any controlled substance to a minor.

The conviction under HS 11353 will result in a sentence of state prison for three, six or nine years, facing a possible addition one or two years if:

The drugs involved were heroin, cocaine or cocaine base, and

The illegal activity took place at or within one thousand (1,000) feet of a school, place of worship, or essentially any other facility where minors are regularly present.

And additional one, two or three years of state prison if the offender is four years older than the minor involved.

Legal Defenses

The crime of sales and transportation is a felony crime in California Law, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is offense registered, it is likely that the employer won't hire someone with a felony background.  If you were charged with this offense, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and it can help you to build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful our staff to help you with your legal problems. 

To contest the charges of assault with deadly weapon, San Diego Criminal Attorney would be able to use the following legal defenses

  • Illegal search and seizure:

Searching you or your property without a valid California search warrant.

Exceeding the scope of a search warrant (for example, searching your car when the warrant only authorized a search of your office).

Unlawfully detaining and searching you without probable cause.

  • Police Misconduct
  • "Planting" evidence (that is, placing drugs on a person, or in his/her apartment or car, in order to make an arrest).
  • Lying about where they found the controlled substance (for example, saying they found it in your purse when in reality they found it on the ground near where you were standing).
  • Falsifying the probable cause that led to the arrest.
  • Using excessive force to obtain a confession or other evidence.
  • Entrapment

If one only committed the offense described under HS 11352 because and officer enticed, coerced or harassed the innocent into committing it. Must be more than a suggestion or offer, and must constitute a situation that would be hard for a reasonable person to refuse of doing it.

  • Lack of knowledge
  • One didn't know about the drug's presence.
  • One didn't know that the item you sold or transported was a controlled substance.
  • Lack intent

One of the first elements of the offense described in the section 11353 of the California’s Health & Safety Code, together with knowledge, is the intent to sell, transport or furnish controlled substances. Without the intent to actually execute one of this actions, one might use the lack of knowledge as a defense.

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