Sales and Transportation of Drugs
The sales and transportation of controlled drugs are generally prohibited in California. A conviction of this offense often implies severe penalties that include long-term confinement in jail or prison and fines. Although certain amounts of marijuana can be transported or distributed, the law limits it to adults above 21 years of age. Our LA Criminal Defense Attorney Law Firm will explain in detail every aspect of the drug sales and transportation charge, the defense strategies against this offense, how you can contact us, and other details related to this crime below.
The Legal Definition of Drug Sales and Transportation
Selling and transportation of drugs are governed by the Health and Safety Code 11352 of California. The section views it as a crime to furnish, sell, transport, or administer a controlled drug. Among the drugs regulated by this section are cocaine, heroin, peyote, some forms of hallucinogens, opiates, GHB, codeine and hydrocodone.
To convict you of HS 11352, the prosecution must confirm that;
- You engaged in any of the activities above with the intent to sell or transport the controlled drugs;
- You knew of the presence of the drug in question;
- You knew the characteristics and the nature of the drug;
- The drug was in a form that can be used, that is “usable amount” especially if you were to sell it.
Explaining some of the terms in the above definition will help in understanding the above elements:
- Controlled substance/drug
According to HS 11352, “controlled drugs” are drugs that are considered as a crime to sell, transport or distribute. They include cocaine, heroin, opiates, and others as listed in the above definition. Unlike in other states where marijuana is illegal, California has legalized it although it is restricted to a certain amount. Also, it is illegal for an underage person, that is someone below the age of 21, to purchase or carry marijuana.
- Transporting of a controlled drug
To transport a drug simply means moving or carrying a controlled drug from one given location to another. It does not matter whether the distance you moved the drug is short or long. Therefore, you can be accused of transporting controlled drugs by riding, walking, or using other means of transport like vehicles, planes ship, and any other means. However, you should note that you will only be charged with drug transportation if the ultimate end of the transported drugs was to sell. If that is not the case, you may still face another charge under HS code 11352 – possession of a controlled drug.
Drug transportation charge applies only if the controlled drug you are accused of transporting is in “usable amounts”. As such, if you are found with traces or residues of the drug, you will not be accused of drug transportation. The condition, however, applies to drug transportation charge alone, otherwise, you would still be charged with selling the drug if you were arrested for the sale of the drug.
- Offering to furnish, transport or sell a controlled drug
HS 11352 can also incriminate you if you make an offer to furnish (give/supply), transport, sell or administer the controlled drug. Though, it will only be possible if after offering to do so, you follow into it and did as you promised. Therefore, if you just offered to sell, transport or administer but you ended up not doing so, you will not be convicted.
- Knowledge/ or awareness
You will be charged with this crime if you knew of the presence of the drug. In addition, you must have been aware that the drug was classified as “controlled” substance.
- Constructive Possession
With respect to drug crimes, constructive possession refers to a state in which one is accused of possessing a drug even if he or she has no physical control over the drug. Simply put, you are in control over the substance indirectly or through other people. For example, if you pay some individuals to transport controlled drugs to your drug selling enterprise, and on the way they are arrested, you will still be charged with transporting the drugs. This is because the people transporting them were under your control.
Building a Drug Trafficking Case
The police and the prosecution often gain information about drug transport and selling through two major ways: sting operations and surveillance posts.
In a sting operation, the police employ deceptive methods to find out about drug selling and transport operation. An officer (undercover police), a willing member of public or a journalist pretentiously joins and works with the suspect. During this period, the person collects information about the dealers’ operation and relays them to the police together with hard evidence collected during the investigation. Such information will then be used to support the case in the court by the prosecution.
Surveillance posts involve the process where the police set investigation camps or posts near or at the residence of suspected drug dealers. They then observe, record and ultimately arrest the suspect.
What are the Penalties for Sale and Transportation of Drugs; HS 11352?
Under HS 11 352 of California, selling or transporting controlled drugs is a felony. The penalties often include:
- Maximum of 20,000 dollars fines;
- Possible county jail terms of three, four or five years. However, if you transported or sold drugs across two or more counties within the state of California, the penalties will differ. Particularly, you will be confined in county jail for three, six or nine years;
- Felony probation which will serve as an alternative to the jail term and can be viewed as being jailed outside the court. Felony probation usually lasts for about three to five years. During this time, there are some conditions otherwise called probation conditions which you must adhere to. Some of the include reporting on a regular basis to a probation officer, and doing some works in county jail, and in some cases, paying some restitution fees especially if, during your arrest, some people were injured. If you violate any of the probation condition, the probation officer can decide to revoke the term. Consequently, the officer sends you to the jail and possibly, ensure that you receive the maximum jail term possible for the offense.
Some circumstances may, however, bar you from receiving felony probation upon conviction of violating HS 11352; selling or transporting controlled drugs. For instance:
- If the substance in question contains 14.5 and above grams of heroin;
- If you offer to sell or transport heroin regardless of the amount when you have a prior conviction of the same offense; or of possession of drugs;
- If the drug in question is cocaine, methamphetamine, or cocaine base and you have a prior conviction for transporting or selling any of the controlled drugs.
There are situations in which you will face severe penalties for transporting or selling controlled drugs. These are commonly referred to as aggravating or sentence-enhancing factors. The factors/conditions are discussed below:
- Trafficking drugs near homeless shelters or treatment facility
On top of the usual penalty for HS 11352, you will face an additional one-year jail term if;
- You sell or transport heroin, cocaine or cocaine base; and
- The trafficking took place in or within 1000 feet from a drug treatment facility or homeless shelters.
Drug treatment facilities include rehabs where drug addicts go for addiction treatment and recovery. Homeless shelters, on the other hand, encompass agencies set by either government or non-profit organization to offer temporary residence for the homeless- commonly known as refugees’ camps. The inhabitants of these areas are viewed as disadvantaged or vulnerable thus drugging them or offering them controlled drugs is worsening their situation.
- Trafficking or transporting a substantial amount of heroin or cocaine
Where the drug you are accused of transporting or selling is large amounts of cocaine or cocaine base, you will receive additional penalties. Specifically;
- Three years if the drug/ substance weighs more than a kilo;
- Five years if it weighs four and above Kilograms;
- Ten years if it weighs above ten kilograms;
- Fifteen years for drugs weighing over 20 kilograms;
- Twenty years if the substance drugs’ weight is above forty grams; and
- Twenty-five years if the weight of the drugs is above eighty kilograms.
Alongside additional sentences, you will also be subjected to hefty fines ranging from 1,000,000 to 8,000,000 dollars.
- Prior conviction
Prior drug convictions will also enhance your penalties for HS 11352. For instance, where you have a felony conviction for any drug crime, you will receive an additional sentence of three years. The sentence will be administered consecutively for every conviction of such kind.
- Selling, furnishing or transporting drugs to certain people
There are group/categories of people in every contemporary society that the law considers them special. These people include pregnant women, the mentally incapacitated, those under medical treatment from drug-related disorders, and individuals who have once been convicted of felony crimes. If you knew of their state, or should have reasonably known, but still supplied drugs to them, the jury is expected to give you the harshest penalty possible for that offense.
What are the Migratory Consequences Of HS 11352 Conviction?
Federal law considers drug transport and sale as a deportable crime like any other drug conviction. California as well reinforces such laws and hence, put emphasis on non-Americans. In particular, you will be deported to your home country if you are found guilty. The deportation occurs even if you were in the state legally.
Possible Legal Defense against Sale or Transportation of Drugs
- You had no intent
One of the key element for drug selling and transportation charges is the presence of intent to do so. You or through your attorney can refute the charges by claiming that you really had no intention to traffic drugs.
- Lack of knowledge
There are situation one may not be knowledgeable of the presence of a controlled drug. In some cases, the person may be aware of the presence but doesn’t know the illegal nature of the drug- that is, doesn’t know that it is a controlled substance. If that is your case, you should be acquitted from HS 11352 conviction. This is because, to be charged, you should be aware of the drug and its nature.
- Misconduct by the police
There are a number of activities which when done by the police, ruins the eligibility of drug selling and transportation charges. Such deeds in most cases provide strong grounds from which a strong defense can be formulated. Among police misconduct are as follows:
- Applying or imposing excessive force to have you confess that indeed you committed the crime;
- Providing false or untrue probable cause or suspicion linking you to the arrest;
- Planting or installing on you drug-related evidence which in reality, did not exist. For example, dropping drugs near your house, inside your car or in your pockets so as to substantiate or justify your arrest;
- Propagating lies on where they actually found the drug. For instance, they may claim that they found the drugs in your pockets yet in the real sense, they found it elsewhere or somewhere else besides where they have stated.
This is another defense avenue though for it to suffice, it must be supported strongly. Primarily, the entrapment must have been engineered by the police or powerful individual who lured or coerced you into committing the drug crime. Your attorney, however, must prove that you were put in a situation in which an ordinary person could not reasonably avoid or refuse to commit the crime. As such, the conduct of the officer who entrapped you, must extend beyond mere offer and involve such serious actions like threats and use of force.
- Unlawful search and arrest (seizure)
The officers conducting drug-related searches and seizure must have a legal search warrant. The documents contain instructions including who to search, where to search, and the scope or the extent of the search. If the police lacked the warrant, exceeded the scope or had no probable cause to arrest you, your charges against drug crimes should be dropped.
Crimes Related to HS 11352
California law recognizes some offenses which are closely related to HS 11352 selling or transportation of drugs. Such offense serves as substitutes to HS 11352 or in some cases, they may be charged alongside it. Knowing the charges could be of help when determining the most lenient charge when a plea bargain is your option. Some of the offenses are:
Drug Possession for Sale; HS 11351,
HS 11351 prohibits the possession of controlled drugs with a view of selling them. The drugs in question involve the ones we have discussed above, that is, heroin, cocaine, codeine, peyote, among other drugs. Unlike drug selling and transport charges, this section comes with a bit lenient penalties if convicted of it. This is because the `offense involves the mere possessing of the drug. Nonetheless, the offense is treated as a felony with possible jail terms of two, three or four years. You can also be fined at most 20,000 dollars.
To convict you of the offense, the police considers the evidence which indicates that you possessed drugs for sale. Some of them include the presence of large sums of money of varied denominations, scales or measuring devices, and drugs that are packaged in small sellable bundles or packages. They can also suspect your drug possession for sale from frequent visits of people to you dwelling who spent a shorter time there. The suspicion is further enhanced by the presence of narcotics drugs in large quantities beyond the expected amount for personal use.
Your attorney can defend you against HS 11351 charges by claiming that;
- You were not in possession of any controllable drugs;
- The drugs you possessed were for your own use;
- You weren’t aware of the presence of controlled drugs;
- The evidence presented by the police against you were false;
- You were subjected to an unlawful search and arrest.
Sale or Transportation of Methamphetamine; HS 11379
It is a felonious crime according to the Health and safety code of California HS 11379 to transport methamphetamine for sale or simply selling it. The same legal section also makes it a crime for you to administer meth to another individual. In addition, just offering to transport or sell the drug qualifies you to be an offender of this law.
The penalties for HS 11379 include a jail term of two, three, or four years. However, the penalties are increased or enhanced if you engage in selling or transporting meth across various counties. You also face increased penalties if you transport or sell large amounts of the drug or if you involved minors in the illegal act.
Fortunately, there exist defense for the offense. Your experienced attorney can apply any of them to have your case dismissed or penalties significantly reduced. He or she can argue that;
- You did not intend to sell methamphetamine you were transporting;
- You were entrapped; that is, the undercover police or a powerful person coerced you into selling or transporting the drug you were possessing;
- You were misunderstood. For instance, you did not have an intention to sell methamphetamine.
Sale or Transportation of Marijuana; HS 11360
This section prohibits any activity involving selling, transportation, furnishing or giving marijuana/pot. It also incriminates selling or transporting any substance or concentrates of marijuana such as the hashish. It, however, allows transportation or selling of medical marijuana. Individuals who play the role of caregivers to these patients are also allowed to transport medical pot to their patients. HS 11360, unlike sale and transportation of controlled drugs in California, is treated as a wobbler offense hence you can be charged with a misdemeanor of a felony.
As a misdemeanor, the penalties include a maximum of six months in county jail and a fine of 500 dollars. As a felony, the penalties include 2, 3 or 4 years in county jail and a maximum of 10000 dollars fines.
Among the defense against HS 11360 include;
- You were not aware of the presence of pot/marijuana
- You were a mere caregiver and that you were selling, transporting or giving medical marijuana to a patient;
- You were transporting marijuana; not for sale but for personal consumption;
- The police entrapped you and forced or coerced you to confess that you were transporting the drug;
- The police subjected you to illegal search or seizure and as such, should be acquitted.
Sale of Imitation Drugs; HS 10975 and 11355
The health and safety code of California under this section makes it a crime for you to sell substances that imitate any controlled drugs. For the purpose of this article, such imitation drugs are called ‘bunk’ drugs and are designed in a manner that looks identical to the genuine form of the drug.
HS 10975 views selling of bunk drugs as a misdemeanor and consequently, penalizes you with a maximum of six months in the county jail and fines not exceeding 1000 dollars. HS 11355, on the other hand, views the offense as wobbler especially if you had initially offered to deliver or sell drugs but finally, delivered bunk drugs instead. If treated as a misdemeanor, you will face one year term in the county jail. If treated as a felony, the penalties will be sixteen months, two or three year’s term in county jail.
There are several defense strategies which your attorney can take to protect you against the selling of imitation drug charges:
- The substance (bunk drug) was for your own use;
- You did not know or was not aware that you were dealing with bunk drugs;
- You did not sell such substances;
- The buyer or the person you were giving the bunk drugs to, was aware that the substance was an imitation;
- Though the substance was an imitation, it doesn’t imply that you offered to sell an imitation drug;
- You were unlawfully searched by the police, especially when there was no search warrant.