Transportation Of Controlled Substances

How Health & Safety Code 11352 Is Applied In California

Overview

In California, you can be convicted of transportation of drugs when you move them from one place to another, even if the distance is a short one.  Transportation can be via foot, bicycle, or any other means of transportation.

In order to be convicted of transporting narcotics, you don’t need to intend to sell or distribute them, moving them is all that is required.  In California, the drug laws are designed to punish drug dealers and suppliers rather than users.

Health & Safety Code 11352 HS

Under Health & Safety Code 11352 it is a felony to sell, furnish, administer, give away, transport or import into California an illegal narcotic or any controlled substance.  Many suspects arrested for “selling drugs” were really just the buyers, in possession of drugs or were not even involved in a drug deal at all.

How Does The Prosecutor Prove The Crime?

If you are charged with possessing methamphetamine (for example), a controlled substance, the prosecutor must prove the following elements to establish that you are guilty under Health & Safety Code Section 11352:

  • The defendant sold1, furnished, administered, gave away, transported or imported into California a controlled substance2.
  • The defendant knew of its presence3.
  • The defendant knew of the substance’s nature or character as a controlled substance4.

AND

  •  The controlled substance was in a usable amount5.

Legal Defenses

The controlled substance was prescribed

Under Health & Safety Code § 11352, it specifically provides a legitimate legal defense if the controlled substance in possession is a prescription. It states: “Except as otherwise provided in this division, every person who transports… any controlled substance classified in …which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state.

Example

If you are found in possession of codeine, regardless of whether it is a useable amount, you did not unlawfully possess any controlled substance, if, in fact, your doctor prescribed the medicine to you, in your name, for your use, in treatment of your illness. Under the law, you would only need to raise a reasonable doubt about whether his or her possession of the drug was lawful because of a valid prescription.

You did not transport the controlled substance

An attorney who fully understands drug laws, like Health & Safety Code §11352, can attempt to persuade the prosecutor that, regardless of the amount of movement, or lack thereof, that the element of intent to transport the controlled substance cannot be met. As a result, a charge reduction to simple possession may be possible.

You did not know of the substance’s presence and/or nature and character

This means that, if the arresting officers did not obtain sufficient evidence, such as eyewitness account, fingerprints, etc., which would show that you knew that the substance was present and/or knew of the nature and character of the substance, then a skilled attorney can attempt to persuade the prosecutor that the element of “knowledge” is not met, and thus a charge under Health & Safety Code §11352 cannot be proven.

You were a victim of entrapment by law enforcement officials

The act of law enforcement officers or government agents inducing or encouraging a person to commit a crime when the potential criminal expresses a desire not to go ahead.  Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”

Penalties

Below is a list of possible penalties if convicted of Health and Safety Code 11352.

A Felony Conviction

  • 3-9 years in prison, as specifically enumerated under Section 11352
  • 1 year in the county jail, along with 3-5 years probation
  • Fines up to $20,000, a precise amount as determined by the court
  • Community Service, an amount as determined by the court

NOTE:  Sentences and fines may be increased dramatically, if you have any priorable drug offenses, in addition to a current charge under Section 11352.

Eligibility
  • Is not eligible for an Deferred Entry of Judgment sentence,
  • Is not a “strikeable” offense,
  • Does require registration as a drug offender,
  • Is not eligible for Proposition 36-diversion sentence.

How We Can Help

If you have been arrested and would like to learn more about what attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

Footnotes

  1. Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541] []
  2. Transportation does not require personal possession by the defendant. (People v. Rogers (1971) 5 Cal.3d 129, 134 [95 Cal.Rptr. 601, 486 P.2d 129] [abrogated in part by statute on other grounds].) Transportation of a controlled substance includes transporting by riding a bicycle (People v. LaCross (2001) 91 Cal.App.4th 182, 187 [109 Cal.Rptr.2d 802]) or walking (People v. Ormiston (2003) 105 Cal.App.4th 676, 685 [129 Cal.Rptr.2d 567]). The controlled substance must be moved “from one location to another,” but the movement may be minimal. []
  3. Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578] []
  4. Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578] []
  5. Transportation: Usable Amount. People v. Emmal (1998) 68 Cal.App.4th 1313, 1316 [80 Cal.Rptr.2d 907]; People v. Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567] []