With the challenging economic times, some people are turning to drug crimes to make ends meet. Peddling illegal drugs or narcotics seems like an easy way for many to make quick money. However, what most people fail to know is that moving or distribution of controlled substances is a crime in California, and it is severely punished. After an arrest or accusation of this crime, you need to rely on your constitutional rights. A criminal attorney is most suitable to protect these rights. To help you understand sales/transportation drug crime, the San Diego Criminal Attorney will discuss the legal definition of sales/transportation of controlled substances, elements of the crime, penalties, aggravating factors, legal defenses, and offenses related to it in the following sections.
Legal Definition of Sale or Transportation of Controlled Substances
California HSC 11352 makes it illegal to sell or transport a controlled substance. The law does not, however, apply to the sale or transportation of marijuana and methamphetamine. Before the amendment of HSC 11352, the shipping of controlled substances included even moving illegal drugs from one location to another for personal use. But after the law was amended, the transportation of narcotics is only a crime if you are moving the drugs from one point to another for sale. You will have violated this Health & Safety Code when you do the following with a controlled substance:
- Cause another individual to consume it by injection or smoking
- Import it into the states
- Offer it to individuals free of charge
- Transport it from one point to another
- Offer to do any of the preceding
Elements of Sales or Transportation of Illegal Drugs Crime
Not many people understand what constitutes HSC 11352. Some of the aspects that you need to know and which the prosecution uses to prove you are guilty of the crime include:
As per California HSC 11352, it is illegal to distribute or move controlled substances. Not every illegal drugs like marijuana and methamphetamine are included in the definition of narcotics under this statute. During prosecution, the prosecution attorney can prove you were selling or moving controlled substances if the drugs in question include but are not limited to:
- Prescription opiates
If you are found moving or selling the above narcotics, then you are liable for violating HSC 11352.
Transporting controlled substance
Transporting drugs, as defined by the California law, means moving controlled substances from one location to another. The distance and the means of moving the drugs don’t count. If you walk, cycle, drive or fly to move an illegal drug from one point to another with the intent to sell, then you have committed a drug crime. If there is no plan to sell the drugs, then you have not violated HSC 11352. Instead, you will have violated HSC 11350, which prohibits simple possession.
The other crucial thing you have to understand about this element is that you cannot be convicted of the crime of drug sale or transportation if you were only found with small traces of the drugs. The amount found on you must be usable. If you are arrested because drug residues were found on you, it will be difficult for the prosecution to prove to the court that the number of drugs found on you was usable. It means you are not guilty of the crime. It is, however, essential to remember that the usable amount only applies to the aspect of transportation not selling. If you are arrested for suspicion of selling and only trace amounts are found on you, the court might find you guilty.
You can only be guilty of violating HSC 11352 if:
- You were fully aware that the drug was present, and
- You knew the drug was a controlled substance
Intent to sell, furnish, or transport
You are guilty of offering to traffic controlled substances if when you made the offer to move or distribute, you had the intent to go through with the action. The judge or the jury will learn of your plan to go through with the criminal act by assessing your determination to sell or furnish the drugs. The prosecutor will have to prove any of these instances:
- General intent
- Specific intent
- Constructive purpose.
Specific intent covers premeditated actions. General intent focuses on the commissioning of an act, while constructive intent focuses on an act with an unexpected outcome.
It is not mandatory when being charged with trafficking of controlled substances that drugs be found in your person. You can be guilty of the crime even if you never handled the drugs directly or had actual possession. What the prosecutor focuses on proving is that you had control over the drugs in person or through another individual.
Building a Drug Trafficking Case
The prosecution and law enforcers have different ways of collecting evidence and creating cases involving drug sales or transportation. Police officers learn about most incidences of drug trafficking through confidential informants, surveillance, or conducting sting operations. Law enforcers can also use undercover police to infiltrate a drug operation and share information essential in arresting drug traffickers.
Penalties for a Conviction for Drug Sales or Transportation
Selling or transportation of controlled substances in the state of California is a felony. If you are a first offender, the potential penalties after a conviction include:
- Formal probation
- No more than dollars twenty thousand in fine
- A sentence of thirty-six months, forty-eight months, and sixty months as per California realignment program.
- You will serve a jail term of three, six, or nine years for transporting large amounts of narcotics, selling drugs to minors, and transporting drugs across two or more county borders in California.
Not everybody is eligible for a suspended sentence or felony probation. You are disqualified from these sentences if:
- You have been found guilty of selling 14.25 grams or more of heroin,
- You have been previously convicted of violating HSC 11352 or 11351 one or more times and got an additional conviction for selling and offering to sell heroin.
- You have been convicted for selling or offering to sell cocaine, cocaine base, methamphetamine, and you have one or more convictions for selling, offering to sell, or possession of drugs.
Judges can give increased or severe sentences for some defendants found in violation of HSC 11352. These harsh penalties are imposed where there are certain aggravating factors. Some of the scenarios that can lead to enhanced penalties include:
Drug trafficking near an addiction treatment center or homeless shelter
If the narcotics involved are heroin, cocaine, or cocaine base or if the sale or transportation of drugs took place near 1000 feet of a detox or addiction treatment center, the judge can give an additional jail sentence of twelve months.
Selling or transporting large heroin or cocaine quantities
A judge will impose an additional fine of between one million dollars to eight million dollars and jail time if you are found guilty for trafficking large amounts of heroin, cocaine or cocaine base. Additional jail sentences include:
- Thirty-six months if the heroin or cocaine weighs not less than one kilogram,
- Sixty months if the substance weighs four kilograms and above,
- One hundred and twenty months if the drugs are more than ten kilograms,
- Fifteen years where the drugs weigh more than twenty kilograms,
- Twenty years where the substance in consideration weighs not less than forty kilograms,
- Where the heroin, cocaine, or cocaine base weighs eighty kilograms and more, the additional jail sentence is twenty-five years.
Having prior convictions
You will be facing an additional and consecutive thirty-six months in jail for each prior conviction if you have been previously convicted of one or more felony drug crimes.
Selling or furnishing drugs to particular people
If you are convicted of selling narcotics to pregnant women, people who have been convicted of violent felonies, and people being treated for drug addiction or mental illness, the judge is also going to impose harsher sentences.
Selling or transporting drugs to minors
California HSC 11353 forbids people from the sale or transportation of illegal drugs to children. You will have violated this statute if you are an adult or above the age of 18 and do the following:
- Hire or use a person under the age of 18 to sell, transport, offer for free, make ready for peddling controlled substance, or
- Sell, furnish, and help inject or smoke any illegal drug to an underage.
The punishment for this crime is a prison sentence of thirty-six months, six years, or nine years. The penalty will be enhanced to twelve or twenty-four months of state imprisonment. You will get this enhanced sentence if:
- The drugs involved are cocaine, cocaine base, and heroin,
- The crime took place within or at 1000 feet close to a school or a facility with minors.
The judge will again impose an additional or separate state sentence of twelve months, twenty-four months, and thirty-six months if the offender is at least four years older than the minor.
Immigrants also face enhanced sentences. If a non-citizen of the United States is convicted of violating HSC11352, he or she will be deported even if they were in the United States legally.
Possible Legal Defenses for Narcotics Sale or Transportation
A conviction for a felony like narcotics sale or transportation in California would have severe consequences on your life. If your criminal record is not clean, no employer or learning institution will be willing to associate with you. Hiring an attorney is therefore critical in this stage because the type of defense you are going to build will determine if your criminal history will be affected or not. Some of the legal argument that you can use to contest this charge include:
When police are very desperate to make an arrest and close a case, they might be tempted to place narcotics in your car or house, use excessive force to get evidence and falsify reasonable belief for arrest. If your attorney can prove that the police engaged in any of these misconduct, then you are going to walk free.
Illegal search and seizure
Many people are arrested and convicted of narcotics sales and distribution after an unlawful search and seizure. If you are facing prosecution because of an illegal search, your attorney can file a motion to suppress the evidence. If the proposal is granted, the judge will dismiss the case entirely. Unlawful search and seizure happen when:
- Law enforcers search your property without a valid search warrant
- Exceed the scope of the search by searching even the places that were not authorized in the search warrant.
- Illegally searching and holding you in custody without probable cause.
Lack of knowledge
Knowledge is one of the critical elements the prosecution uses to put you behind bars. An excellent lawyer can use a lack of knowledge to set you free. He or she can contest that you were not aware you were in actual or constructive possession of narcotics or controlled substances. Also, if you lacked knowledge that the items you were transporting or selling were narcotics, you can walk free so long as you provide evidence to support the claim.
When applying this defense, your attorney can argue or contest that you were coerced, enticed, or lured into violating HSC 11352. The jury will be convinced that you were entrapped if you can prove that the violation of HSC 11352 was not just an offer. Even a reasonable person would not have refused it.
Lack of intent
Lack of intent to sell or move narcotics is a great defense. Remember, you can only be charged with violation of HSC 11352 if you were transporting the narcotics with the intent to sell. If you had no plans to sell illegal drugs, then the crime didn’t occur. You could not be guilty of a crime if you had no plans to execute, effect, or implement the action or offer.
Criminal Offenses Related to Narcotics Sale or Transportation
California HSC 11352 only puts in place the basis for prosecuting those selling and transporting narcotics or controlled substances. The law, however, excludes individuals found in possession of marijuana and synthetic drugs like methamphetamine. Below are the crimes and regulations that relate to sales or transportation of illegal drugs:
Possession for sale
The offense is codified under HS 11351, and it forbids individuals from possessing controlled substances with plans to sell. What makes this law similar to HSC 11352 is the controlled substances. Both laws refer to the same narcotics in their definitions. If you are being charged with narcotics sale or transportation, you can take a plea bargain to have the charges reduced to possession for sale. The reason being HSC 11351 has lighter penalties compared to HSC 11352 because it doesn’t involve actual sale or transportation. It just focuses on possession of narcotics with the intent to sell.
For a prosecutor to convict you of possession of a controlled substance for sale, he or she must prove that:
- You possessed large quantities of narcotics
- The narcotics were packaged in separate baggies
- You had scales
- You had a lot of cash in small denominations
- You had a lot of visitors coming to your place only for a short duration
If the prosecution succeeds in convincing the judge or the jury that you did all the foregoing, you will be convicted of the crime. The potential penalties for a conviction under this law include:
- No more than twenty thousand dollars in fine or
- Twenty-four, thirty-six and forty-eight months jail term
Alternatively, you can get felony probation and a jail sentence of 364 days.
Being accused and charged with possession of narcotics for sale doesn’t make you guilty. You can contest the charges using the following legal defenses:
- You didn’t possess any controlled substance
- The drugs belonged to another person
- The narcotics were not for sale but personal use
- The evidence against you was falsified
- You lack knowledge about the presence of the narcotics
- The drugs were found during an unlawful search and seizure
Selling or transporting methamphetamine
HSC 11379 forbids methamphetamine sale or transportation. The law only differs from HSC 11352 on the narcotics involved. HSC 11379 focuses on Ketamine, PCP, and MDMA. HSC 11352 excludes methamphetamine in controlled substances. Methamphetamine sale or transportation is a felony in California. The potential penalties are harsher than those of sales or shipment of narcotics. If convicted of HS 11379, you are likely to face a jail sentence of 24, 36, or 48 months.
Sale or transportation of marijuana
The crime is codified under HSC 11360. It prohibits people from selling, furnishing, giving away, or administering marijuana. Just like HS 11352, HS 11360 is a felony. The penalty for conviction under this law is a jail sentence of two, three, or four years. The crime can also be grouped or charged as a misdemeanor. This happens if you were selling, moving, giving away, or furnishing marijuana whose quantity is no more than 28.5 grams. The penalty for a misdemeanor conviction is up to one hundred dollars in fine.
Sale of synthetic drug
Both HSC 11357.5 & 11375.5 forbids the sale of synthetic narcotics. The drugs that are included in this definition are:
- Synthetic marijuana and
- Designer stimulants like bath salts
If you are charged and convicted of selling the above narcotics, the potential penalties are:
- Jail sentence of a hundred and eighty days
- A fine of one thousand dollars or less
The offense is charged as an infraction or misdemeanor, depending on the number of times you have been convicted of the crime. Instead of going to jail for six months, the judge can impose summary probation.
The above penalties can be prevented if you build a strong defense. Some of the legal arguments you can apply in this case include contesting that:
- There was no synthetic marijuana or stimulant involved
- You were falsely accused
- There was no possession
Making legal proceeds earned from drug sales
As per HS 11370.9, it is a felony to launder the proceeds from the sale of narcotics. The law forbids you from engaging in a financial transaction that involves money or profits from drug crimes like narcotics sales or transportation intending to hide the money. The policy only applies to financial transactions involving twenty thousand dollars or more within a month’s duration. The crime is a wobbler. In the event the prosecution opts to charge you with a felony, a conviction attracts between twenty-four to forty-eight months state imprisonment or a fine of $250,000 or less. If the charge is a misdemeanor, the penalties include a maximum of one year in jail or a fine of $1,000 or less.
Some of the legal arguments that can apply when contesting these charges include:
- You didn’t engage in the financial transaction to conceal or hide money
- Police misconduct
- Unlawful search and seizure
- The money was not a proceeding from drug sale
Opening and running a drug house
HSC 11366 prohibits individuals from operating a drug house. The definition of a drug house in this statute includes an abandoned building, home, or apartment. The offense is related to HSC 11352 in that it is charged alongside narcotics sale or transportation. When convicted for a misdemeanor HS 11366, the punishment is one year in jail or a fine of $1000 or less. The sentence for a felony conviction is sixteen months, twenty-four, or thirty-six months state imprisonment or a fine of ten thousand dollars or less.
If you have any concerns or questions regarding the sales or transportation of narcotics, do not hesitate to reach out to us at San Diego Criminal Attorney via 619-880-5474. We will address all your concerns about the offense and guide you in case you are being accused of narcotics sales/transportation. Call us for a free consultation on your drug crime.