The state of California has stringent laws against the use and sale of controlled substances. Anyone found guilty of any offense relating to such drugs as cocaine, heroin, ecstasy, and methamphetamine is likely to face a long time behind bars or be required to pay a hefty fine. When met with such a severe punishment, it is advisable to work alongside an experienced criminal lawyer. At Orange County Criminal Lawyer, we have a team of competent attorneys that are well versed with the state's drug laws that could help ensure that you are not facing a harsher sentence than you deserve.
Legal Definition of Transportation for Sale of Controlled Substances
California has several laws in place that govern certain drugs, referred to as controlled substances. The use of these drugs is usually controlled by law, mainly because of their effects on the consumers. When a government controls a particular drug, it means that the government will regulate its manufacture, use, possession, or sale.
Section 11352 of California Health & Safety Law is among the many laws we have in California against controlled substances. This particular law makes it unlawful for any person to transport an illegal drug with intent to sell, give away, or administer it. To understand this law better, let us look at its legal definition. The definition gives us the elements of the offense, which are the facts that the prosecutor must prove beyond a reasonable doubt for the offender to be found guilty in a criminal court. These are:
That the offender did one or more of these with controlled substances in his/her possession:
Furnished them, which could mean selling or otherwise
Administered them, which could mean that he/she caused someone else to use those drugs through an injection or any other means
Gave them away
Brought them into the state
Moved them from one place to another for sale
The offender offered to carry out any of the acts above.
That the offender was well aware of the presence of the controlled drug in his/her possession
That he/she was aware of the nature of the substance
That the controlled drugs were in usable amounts
Let us look further into the meaning of some of the statements used in the legal definition:
Section 11352 of the California Health & Safety Code only covers the controlled drug and not all drugs in general. The controlled drugs, whose transportation for sale is made illegal by this law, could mean one or more of the following drugs:
Opiates and their derivatives
Cocaine, including its base
Gamma-hydroxybutyric acid, popularly known as GHB
Some prescription medicines such as hydrocodone and codeine
Transportation of Controlled Drugs
Section 11352 of the California Health & Safety Code only requires the offender to transport the controlled drug for sale for them to be found guilty. Transportation, in this case, means moving the drugs from one place to another. The distance here does not matter as long as the drug’s position has shifted. A person can transport a controlled substance by walking, driving, or even when riding a bike. Note that any means of transport can be used here, including by place or bus.
However, it is worth noting that a person can only be charged under this law if the transportation of the illegal substances was done so that he/she could sell the drugs. If the shipping were done for other reasons save for sale, the person would face charges under another law, such as possession of illegal substances, provided under Section 11350 of California Health & Safety law.
Again, note that a person can only be found guilty under this law if the drugs found to have been transported were in usable amounts. If the police only found some trace amounts of illegal substances, the offender may not be guilty of moving the drugs for sale but could be guilty of possession of illicit substances.
Offering to Transport, Sell or Furnish Illegal Substances
A person could also be found guilty under this law if it is established that they had offered to transport, sell or furnish, give away or administer illegal substances. However, the court must be convinced that you indeed intended and could carry through with the offer.
Knowledge of the Existence and Nature of the Drugs
This is another fact of this law that the prosecutor must prove before a court supports his/her arguments and causes the offender to be convicted. First, there must be proof that the offender was well aware of the drugs' existence in his/her possession. Secondly, the offender must have been aware of the nature of the drugs as controlled substances. Suppose another person put the drugs in the offender's vehicle without their knowledge or was given some drugs to transport but was not aware of the nature of these drugs. In that case, he/she will not be found guilty under California Health & Safety law Section 11352.
Possession of Illegal Substance
A person can only be charged with the transportation of illegal substances for sale if the drugs were in their possession. There are two types of possessions used to convict drug-related offenders in California. There is the actual possession, in which case the drugs are found in the offender’s person. It could be in their pockets, in a package they had in their hands or a backpack that they were carrying.
Secondly, there is constructive possession, which refers to indirect possession of illegal drugs. People can still be found guilty of possession of controlled drugs even if they do not handle or touch them in person. The court needs proof of constructive possession because he/she was in control of the drugs. It could have been direct control or control through another individual.
How Do the Police and Prosecutors Build Such Cases?
Cases involving illegal possession and sale of illegal substances must be investigated so the prosecutor can have a solid case in court. However, this is always challenging, especially if the prosecutor is expected to prove an offender's intent. The person has to be found in possession of the said substances, which may involve some operation for the offender to be caught in committing the offense. Cases involving the transportation of illegal materials for sale will require the prosecutor to find the offender in the act of transportation or disposal. For that to happen, the police may have to take some deceptive measures.
An offender may be arrested for violating Section 11352 of the California Health & Safety Code after the police get a tip from the public. A trusted informant, who is familiar with the acts of the offender, may provide a substantial lead, which might lead to an arrest. Sometimes, the police are not allowed to disclose such informants' identities, not even before the criminal court. However, some informants, especially those who give out such tips to gain some favor from law enforcement officers, may lie. It includes those that ask for money in exchange for information, or lenience in their sentencing after getting convicted of a particular offense.
If an offender is aware that they were sold out to the police by an informant, their defense attorney could take that chance to dispute the information given to the police. It may work in your favor, especially if the said informant has a history of lying in the past. If the court realizes that there is a chance the said information was false, it will not accept it as evidence, and the offender may be acquitted due to a lack of substantial evidence.
Thus, the police and prosecutors have to be very careful when gathering proof for drug-related crimes. The most reliable method they use is personal observation or the use of surveillance posts. Sometimes the police may set up a camp in a particular area suspected of holding such criminal activities to catch offenders in the act. It could be near the suspect's home, in their place of work, or in a place where most drug-related crimes occur. It requires the police to work as undercover and engage criminals, and then strike once the crime has been committed.
While this may seem like a sure way to catch criminals in the act, it could be risky for the undercover officers. Again, the police may be accused of entrapment, in which case evidence gathered against the offender will be disputed.
Penalties for California Transportation for Sale of Controlled Substances
California law against transportation for sale of controlled drugs is a felony offense, a fact that places it among the most severe crimes in the state. Thus, the penalties will be more severe than those an offender is likely to get after committing a misdemeanor offense. The most likely punishments for this offense include:
Felony or formal probation
Three, four, or five years of incarceration under the state's realignment program
Three, six, or nine years of incarceration if you have been convicted for transporting dangerous substances across two or more counties within California
Fines of not more than $20,000
However, the offender may not be sent on probation or given a suspended punishment if any of these is true:
That he/she was found guilty of selling or proposing to sell controlled drug-containing heroin weighing at 14.25g or more
That he/she was convicted for selling any quantity of heroin yet, they have a prior conviction(s) of either possessing or possessing for sale of dangerous substances.
That the offender was convicted for sale or proposing to sell methamphetamine, cocaine or cocaine base yet, they have a previous conviction(s) of Health & Safety Code 11352
Enhanced Sentence for Those Convicted of California Section 11352 of Health & Safety Code
Like most felony offenses in the state, Section 11352 of California Health & Safety Code carries an enhanced sentence for aggravated crimes. It means that certain situations in which the offender can face more penalties than those listed above for the same crime of transporting for sale of controlled drugs. Some of these aggravating factors include:
Trafficking drugs in or near a drug treatment facility or a shelter for the homeless
If you are convicted under this situation, you could face an additional one year of incarceration if the drug in question was cocaine, heroin, or cocaine base. Again, there will be another one-year imprisonment if the offense was committed inside or within 1000 feet of a homeless, or drug treatment center or detox facility.
If the offense involved a large number of controlled drugs
In this case, the offender is likely to face:
Additional three years of incarceration if the type of drugs in their possession was cocaine, heroin, or cocaine base and is weighing above one kilogram.
Additional five years behind bars if the amount of drug exceeded four kilograms.
Additional ten years if the amount of drugs goes up to 10kilograms
Additional fifteen years if the quantity of drugs was more than 20 kilograms
Additional twenty years if the quantity of drugs exceeded 40 kilograms.
Additional twenty-five years if the amount of drugs exceeds 80 drugs
Anyone receiving a heightened sentence for transportation for sale of dangerous substances is also likely to face additional fines, ranging from 1 million dollars to 8 million dollars.
A Previous HS 11352 Conviction
If you have a previous conviction for the same or similar offense, you are also likely to receive a heightened sentence on your current conviction. In this case, California law requires the offender to get a consecutive three-year incarceration punishment for every prior conviction.
Sale of dangerous drugs to specific people
An offender is likely to face harsher penalties if he/she committed the offense against certain people such as:
People who have previously been sentenced to a violence-related felony offense
people who are under treatment for a drug issue or a mental disorder
Immigration Consequences for a Conviction
If you are not a US citizen, there is a reason to worry if you are facing a conviction for transportation for sale of controlled substances. This offense, like other drug-related offenses, is classified under deportable crimes under the Federal Immigration law.
Therefore, if you agree to commit the offense or are sentenced to the crime, you will likely be deported even if you have legal immigration status.
Transport for Sale of Controlled Substances Involving Minors
California has a separate offense for sale or transport for sale of dangerous drugs involving minors. The offense is explained under Section 11353 of the state Health & Safety Code. a person can be found guilty of this offense if they are adults of 18 years and above found guilty to have done any of the following:
Hired, employed or used a minor, of below 18 years, to transport, sell, prepare for the sale, peddle or give out controlled substances
Sold, furnished, gave away, or administered or offered to sell, give away, provide or dispense controlled substances to minors
If this is true, the offender is likely to face a prison verdict of three, six, or nine years. He/she could face additional one or two years of a prison sentence if the drugs in question were cocaine, heroin, or cocaine base or the offense was committed at or within 1000 feet of a place of worship, school, or any other place minors are present.
If the offender is, on the minimum, 4 years elder of the minor, they will face an additional and separate one, two, or three years prison sentence.
Possible Legal Defenses to Charges for Transportation for Sale of Controlled Substances
From the penalties above, it is clear that this is among the most severely punished felony offenses in California. Thus, it is advisable for anyone facing charges today to fight so as not to get a conviction. For that to happen, you need the help and expertise of an experienced criminal lawyer. With the right attorney working on your side, you may be able to have your charges dropped altogether or convince the judge to reduce them. Some of the defense strategies your attorney can use for your defense include:
The police subjected you to an unlawful search and seizure
As mentioned above, one way the police can gather evidence against people suspected of committing drug-related offenses is by searching for their property or person. For this to happen, the police need a search permit from the court, without which the search conducted will be illegal. Suppose a search was held without authorization and some drugs were found in your possession. In that case, the evidence may not be useful to the prosecutor if there are claims of an illegal search by your prosecutor.
Again, search warranties could limit the extent of their search. If the police search more than their warranties allow, the evidence gathered in such a search may be dismissed in court. Your attorney could take advantage of that too, to have much of the evidence against you thrown out of court, for your charges to be dismissed.
The police misconducted themselves during the investigation
Law enforcement officers have a massive mandate of ensuring that the laws of the land are adhered to by all and sundry. However, there are guided by specific guidelines that they should adhere to when relating to the public's members. For instance, the police are not allowed by law to mishandle any person, even if they are a wanted felon.
When it comes to cases involving drugs, police misconduct may manifest in so many ways, including planting evidence to make an arrest. Some officers also lie regarding where the controlled drugs were found to build a case against a suspected criminal. If the police obtain a warrant to search a person's property, they need to give a probable cause for wanting to search. An officer acting on suspicion or rumors may not have probable cause, and they might lie about it.
Other ways in which the police may conduct themselves illegally is by use of force during arrests. Suppose you feel that the police misconducted themselves while arresting you. In that case, your lawyer may take that opportunity to compel the court to remove any evidence they might have gathered against you.
The police entrapped you
Entrapment happens when the police have no other way of catching a criminal in the act other than luring him/her to commit the offense in their presence. An officer working undercover may be used to entrap a suspected criminal, especially one who has eluded arrest for a long time. However, entrapment may not work well, because the offender may argue that he/she only committed the offense because the police entrapped him/her.
Police officers use several tricks to entrap suspected criminals, such as harassment, coercion, or enticement. Some of these tricks may be very alluring even to cause an innocent person to commit an offense. An experienced attorney will know how to argue your case to prove to the court that you are incapable of committing such a crime without the entrapment.
That you were not aware of the nature or existence of the drugs
As earlier mentioned, a person will not be found guilty of moving a controlled substance for sale if they were not aware of the existence of the drugs in their possession, or the nature of the drugs. Sometimes a person is set up by a friend or family to transport illegal drugs on their behalf. One person may plant drugs in your car without your knowledge, for instance, so that you can move them from one location to another. Other people are given sealed packages to transport without being told precisely what is in those sealed packages.
However, your attorney must convince the court that you lacked knowledge about the drugs’ existence or nature, for your charges to be dismissed.
Find an Orange County Criminal Lawyer Near Me
If you are facing charges for transporting illegal drugs for sale in Orange County, CA, you need to work alongside a competent criminal lawyer. It is the only way to avoid a conviction, and the severe penalties it comes with. At Orange County Criminal Lawyer, we have a team of competent attorneys that could help you develop a strong defense against your charges. Call us at 714-262-4833, and let us walk with you through the legal process.