When you think of drug trafficking, images from media of large-scale drug operations might come to mind.
Although these kinds of operations do take place and are taken very seriously by law enforcement, according to California law, you can be charged with transporting a controlled substance for merely walking across the street with drugs in your pocket. California’s drug laws criminalize the sale, transport, transfer, and import of controlled substances (with some special circumstances for marijuana).
Charges of the sale or transportation of a controlled substance can result in serious penalties. A felony drug conviction may result in hefty fines and months or even years in jail. It can also affect your future employment, education, or immigration status. The best thing you can do if you are charged with the sale or transportation of a controlled substance is to speak with a qualified California criminal defense attorney who can evaluate your case.
What is Drug Trafficking? The Sale and Transportation of Controlled Substances
The sale and transportation of controlled substances is prohibited under California Health & Safety code 11352 and is defined by the following:
- Doing or offering to do any of the following with a controlled substance: Selling it, furnishing it, administering it (to another person, for example, by injecting it), giving it away, transporting it for sale, importing it into California.
- Having had knowledge that the drug was a controlled substance
- Having had knowledge of the drug’s presence
- In the event that you are accused of transporting the substance for sale, there was a “usable amount” of the controlled substance.
Essentially, HS 11352 prohibits the sale of drugs and the moving of drugs by any means. The transportation of controlled substances can be by vehicle, by bicycle, or on foot, thus the law not only applies to large-scale drug trafficking operations. You may still be charged with a felony under HS 11352 for selling a small amount of drugs to a friend.
Federal Drug Trafficking Laws (21 U.S.C. § 841)
Drug trafficking is prohibited under federal law as well. Federal authorities may become involved in a drug trafficking investigation if some combination of the following apply:
- It is suspected that drugs are being distributed across state lines or national borders
- The suspected drug dealing is taking place in an area where federal authorities have increased the level of surveillance due to a high volume of drug-related criminal activity, known as a High Intensity Drug Trafficking Area (HIDTA).
- The trafficking of large amounts of methamphetamine is suspected.
Penalties for a federal drug trafficking conviction are determined by the amount of drugs involved, whether injury or death have occurred as a result of the use of the controlled substance, and certain other circumstances. Possible penalties range from 5 years to life in prison and a $5 million to $20 million fine.
What Drugs Does California’s HS 11352 Apply To?
Health & Safety Code 11352 makes it illegal to sell or transport drugs including (but not limited to) the following:
- Gamma-hydroxybutyric acid (also known as “GHB”)
- Certain prescription drugs including oxycodone (Oxycontin) and hydrocodone (Vicodin)
The sale and transport of certain other drugs including marijuana and methamphetamine are not prohibited by HS 11352 but are prohibited by other California legal codes (further explained in “Relates offenses,” below).
What violations are covered under HS 11352?
Health & Safety Code 11352 covers a broad range of possible circumstances that have to do with the sale or transport of controlled substances. Below are some examples of possible HS 11352:
- A man sells his elderly mother’s expired Vicodin to make some extra cash
- A man sells peyote that he has grown himself to his friends and neighbors
- A woman agrees to drive cocaine from one place to another for her boyfriend who is a drug dealer
There are two main categories of HS 11352 offenses, transportation of controlled substance and offering to sell, furnish, or transport a controlled substance.
Transportation of a controlled substance
- “Transportation” of a controlled substance is defined as the moving or carrying of drugs from one place to another.
- You an be charged with transporting a controlled substance even if the distance that the drugs are transported is very short.
- The means of transportation may include car, plane, bicycle, or walking.
- In order to be convicted of transportation of a controlled substance, it must be proven that it was your intent that the drugs would eventually be sold.
- In order to be convicted of transportation of a controlled substance, you must be found to be transporting a “usable amount” of the drug. Transporting trace amounts of a drug, such as drug residue on an object, doesn’t count as an HS 11352 violation. This only applies to transportation of a controlled substance and not to selling a controlled substance.
- Offering to sell, furnish, or transport a controlled substance
Offering to sell a controlled substance
- You can also be charged with violating HS 11352 if you offer or agree to sell, transport, administer, or even give away a controlled substance.
- You are only guilty of offering to sell, furnish, or transport a controlled substance if you intended to follow through on the offer or agreement.
You do not actually need to personally handle drugs to be convicted of trafficking a controlled substance. By having control over the drugs you may be guilty through something called “constructive possession.” You may be guilty of constructive possession if, for example, you pay someone else to obtain the drug and transport it for you, and you get paid upon its delivery.
- Sale or transportation of marijuana HS 11360: This law is specific to HS 11352 but is specific to the transportation, sale, furnishing, and giving away of marijuana. An HS 11360 violation is a felony and could result in penalties of 3, 3, or 4 years in jail.
- Sale or transportation of methamphetamines HS 11379: This law is similar to HS 11352 but is specific to the sale and transportation of methamphetamines such as PCP, MDMA (aka ‘ecstasy’) and ketamine. Although a violation of HS 11379 is a felony, the penalties are less serious than the penalties for HS 11352 violations—generally 2, 3, or 4 years in jail.
- Sale of synthetic, or “designer” drugs HS 11357.5 and HS 11375.5: The sale of synthetic drugs such as “potpourri,” “spice,” or “bath salts” is illegal in California and could result in a misdemeanor charge and penalties of up to 6 months in county jail and/or a fine of up to $1,000.
- Possession for sale HS 11351: A somewhat less serious offense than HS 11352, this law involves the same drugs, but doesn’t actually involve the sale or transport of drugs. Instead, this violation involves the possession of drugs with the intent to sell them.
Penalties for Drug Trafficking Violations in California
In California, the sale or transportation of drugs under HS 11352 is a felony. The standard penalties for these types of code violations could include one or both of the following:
- Jail time of 3 to 9 years
- A fine of up to $20,000
There are aggravating factors to violations of HS 11352 that could add additional penalties to your conviction. Some aggravating factors include:
- Transporting certain quantities of controlled substances (including specific penalties for certain types of drugs such as heroin or cocaine)
- Selling controlled substances to a minor
- Drug trafficking near drug treatment facilities
- Selling or furnishing drugs to certain people such as an individual who was pregnant, someone with a mental health disorder, or someone who has previously been convicted of a felony
Additional penalties for aggravating factors could include:
- 3 to 5 years in county jail
- A fine of up to $20,000
- Felony probation
Other Consequences of an HS 11352 Conviction
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A felony conviction for the sale or transportation of a controlled substance can have last negative effects on your personal and professional life, including:
- The suspension or revocation of professional licenses
- A permanent felony record as a drug offender, even after completing your sentence
- Denial of an immigration application or visa if you are not an Americanized citizen
- Difficulty getting federally backed financial aide if you attend college
- A 10-year ban from owning a firearm
- Difficulty receiving or retaining custody of your children
Legal Defenses for HS 11352 Charges
If you have been charges with the sale or transportation of a controlled substance in California, there are many legal strategies that your attorney may use in your defense, including:
- Your intentions to sell or transport drugs were misunderstood
- The drugs in your possession were for your own personal use and you did not intend to sell them (a lesser offense)
- Entrapment or other forms of police misconduct
- Lack of knowledge (if you didn’t know about the presence of the controlled substance or you did not intent to sell, transport, furnish, or administer the drugs)
Even if you are charged with playing a minor role in a drug crime, you may be facing some very serious penalties. A drug trafficking conviction can not only result in hefty fines and jail time, but can have lasting affects on your personal life, career, education, and immigration status. As a tough, knowledgeable, California drug crimes attorney with over 30 years of experience, I can help you to obtain the best possible outcome in the face of drug trafficking or related charges.