To prove you guilty of sale or transportation of a controlled substance under Health and Safety Code section 11352, the prosecutor must prove beyond a reasonable doubt the following: a) you sold, furnished, administered, gave away, imported, or offered to do any of the aforementioned; b) you knew of the drug’s presence and nature as a controlled substance; c) the controlled substance in your possession was a “usable” amount.
Substances that are unlawful to sell or transport under code section 11352 include opiates and opiate derivatives, cocaine, heroin, and prescription drugs such as codeine and hydrocodone. For example, Jack was caught with both marijuana and cocaine in his possession. The investigating officer found evidence that Jack was attempting to transport the cocaine and marijuana for sale. Jack can be charged with HS 11360 for selling marijuana, and 11352 for unlawfully transporting cocaine. .
“Transporting” in the context of 11352 means carrying or moving a controlled substance from one location to another. Even if the distance within which the drug is carried from one location to another is short, the transportation element of 11352 is satisfied. Note that a required element of 11352 is that you transport the drug in order to sell it. If you transported the drug with no intention of selling it, then you cannot be found guilty of 11352. For example, Joe calls Jack and begs Jack for some cocaine. Jack transports the cocaine to Joe but has not intention or plan to sell to Joe. Jack is caught by the police. Because he had not intent to sell the cocaine to Joe, he cannot be charged with 11352. He can, however, be charged with possession of a controlled substance under 11351.
You cannot be found guilty of transporting a controlled substance unless the controlled substance in your possession was a “usable” amount. The quantity of the controlled substance that you possess has to be such that it can actually be consumed as a drug by the person to whom it will be sold. Residues or traces of a drug that cannot produce the intended effect of the drug are not sufficient to satisfy this “quantity” element of code section 11352.
“Offering” to sell, furnish, or transport a drug
Sheer offering to sell, furnish, or transport a controlled substance is enough to trigger a 11352 charge. You need not actually commit the act. However, you are guilty of offering to sell, furnish, or transport a controlled substance only if you had the actual intent of carrying out the offer. For example, to increase his popularity amongst his high school friends, Jack boasts that he can provide them with cocaine. In reality, Jack has no idea how to acquire cocaine and is simply boasting. Jack’s “offer” to furnish cocaine is insufficient for a 11352 conviction because he had no intention of carrying out the offer.
You had the requisite “knowledge”
The prosecutor must prove that you knew you possessed the controlled substance and that you knew of the drug’s nature as a controlled substance. For example, you borrow a friend’s car. Unbeknownst to you, your friend had placed a bag of cocaine in the glove compartment of the car. You cannot be found guilty of an 11352 offense because you did not know that the cocaine was in your possession.
To prove that you knew that the substance you had in your possession was a controlled substance, the prosecutor need not prove that you knew the exact name of the drug, the chemical composition of the drug, or the drug’s effects. All that the prosecutor has to prove is that you knew that the substance was a controlled substance. This “knowledge” can be inferred or deduced from your conduct. For example, Jack is driving when he realizes that a police car is attempting to stop him. He immediately takes a bag of cocaine from his glove compartment and attempts to discard it. This act reveals that Jack knew that what was in his possession was a controlled substance.
It is a felony to sell or transport a controlled substance under code section 11352. If convicted of this offense, you face 3,4, or 5 years in county jail, and 3, 6, or 9 years if the alleged transportation was across two or more county lines within California. You will be deemed statutorily ineligible for felony probation or suspended sentence if any of the following is true: you sold or offered to sell 14.25 grams or more of heroin; you sold or offered to sell any amount of heroin, and you have a prior conviction for 11352 or 11351; or you sold or offered to sell cocaine or a cocaine-based substance or methamphetamine, and you have a prior conviction under 11352, 11351, or 11359.
In addition to basic penalties above, you are subjected to increased, harsher penalties under the following circumstances:
- The controlled substance that you allegedly transported or sold was heroin, cocaine, or cocaine based, and the transportation or trafficking took place within 1000 feet of a detox or drug treatment center, or a homeless shelter. In this circumstance, you face an additional one year in jail.
- The controlled substance that you allegedly transported or sold was heroin, cocaine, or cocaine based. In this circumstance, you face 3 years if the substance was above 1 kilogram, 5 years if it was above 4 kilograms, 10 years if it was above 10 kilograms, 15 years if it was above 20 kilograms, and 25 years if it exceeded 80 kilograms.
- You have at least one prior felony conviction of a drug crime that was either for sale or transportation. In this circumstance, you face an additional 3 years for each prior felony conviction.
- You sold or transported drug to an individual whom you knew or reasonably should have known was pregnant, had a prior violent felony conviction, or was being treated for a mental health disorder or a drug addiction. Under this circumstance, you face the harshest of possible jail or prison sentence.
You are a victim of illegal search and seizure
If the police conducted an improper warrantless search of your person, vehicle, or home, or if their search of your vehicle and home exceeded the scope of the warrant, then you are a victim of illegal search and seizure. In that circumstance, your attorney needs to file the proper motions to challenge the admissibility of the evidence discovered as a result of the police’s improper conduct. An improper search and seizure of your person or vehicle can also constitute leverage that your attorney can use to negotiate a better disposition on your behalf.
You did not know that the drug in your possession was a controlled substance
You might not have realized that what you had in your possession was a controlled substance. This defense is most apt when you do not have a history of drug related offenses.
You were entrapped
If you an undercover cop coerced or lured you into violating code section 11352, then you have an entrapment defense. This defense works only if the officer’s conduct was actual coercion, and not just a mere suggestion or offer. In addition, you must show that you had no proclivity or disposition to committing the offense.
You did not have the requisite intent
If, for example, you did not have the intent to carry out your offer to furnish or provide a controlled substance, you cannot be found guilty of a 11352.
HOW CAN WE HELP YOU
Police officers do not always accurately interpret a set of circumstances and sometimes have a tendency to exaggerate or omit key facts in order to reach a certain desired conclusion. This is especially pertinent in arrests for code section 11352, as factors that might otherwise indicate possession for personal use or no unlawful conduct at all can be easily distorted, taken out of context, or omitted in order to secure a conviction for 11352. For that reason, Negin never takes a police report at face value. She will conduct any and all independent investigations, and seek all discovery, in order to thoroughly examine the specifics of your case and litigate any and all legal defenses on your behalf.