All drug-related crimes are severely punished in California. According to the Health and Safety Code section 11352, selling, transporting, administering, gifting, or furnishing of controlled substances is illegal. When you are accused of this offense, a conviction can alter the rest of your life. You must fight these allegations against you to avoid the harsh penalties or wrongful conviction. Getting a criminal lawyer will give you the best chance of fighting the claims. At California Criminal Lawyer Group, we have experience defending our clients against drug-related claims and getting a favorable outcome.
Proving the Case
An accusation on this offense does not mean that one is guilty of it. The prosecution must prove various elements of the crime to receive a conviction. These elements are:
The prosecutor must provide evidence to support the allegations of selling, administering, furnishing, transporting, or importing controlled substances according to the law
That you knew there was the presence of the controlled substances and
You were aware of the nature of control of the substance under the the law
You had it in a usable amount
When the prosecutor can prove these elements, the court will convict you of the offense, and the penalties, as stated, can be severe.
Penalties for Violating HS 11352
When accused of violating HS 11352, the offense gets prosecuted as a felony. A conviction will see you sentenced to state prison for three or four or five years and a fine of $20,000 or less.
If you are charged with transporting controlled substances for sale over two county lines, you will be prosecuted on felony charges. A conviction will see you ace state incarceration for three or six or nine years. Additionally, you will be ordered to pay a fine of $20,000 or less.
If you bought and are transporting the substance controlled by the law for private use, you will be sentenced to probation instead of imprisonment, according to PEN 1201.1. However, you may be needed to complete a program on drug diversion to be eligible. If at the time of committing the offense and getting convicted, you were below 21 years, your driver’s license will be suspended according to VEH 13202.5.
HS 11352.1 also prohibits engaging in a business that manages or dispenses and furnishes dangerous drugs. If you are accused of these offenses, you will be prosecuted on misdemeanor charges. A conviction will see you serve one-year county jail imprisonment with a $5,000 fine. If you commit a repeat of this offense, for each subsequent conviction, you will serve a one-year jail sentence and $10,000 fine or less.
If you are found transporting heroin for sale, according to HS 11352.5, you will be prosecuted on felony charges. A conviction for when accused of transporting 14.25 grams or over will earn you a$50,000 fine or less, on top of your prison sentence.
The Various Options Available to the Court when Sentencing
When found guilty of transporting controlled substances for sale, the court is given leeway in deciding your sentence based on the facts of your offense. The options available to the court include:
Transporting for sale within the same county, you will be sentenced to state imprisonment for three, four, or five years when found guilty
A guilty verdict for transporting the controlled substance across counties will earn you state incarceration for three, six, or nine years
You can be sentenced to probation with a year of county jail imprisonment
You may be sentenced to probation but avoid jail time and instead be ordered to community service, attend substance abuse or drug counseling classes, and join a work-release program
You being sentenced to formal probation with an appointed probation officer
Terms of Probation
When the court sentences you to probation, specific terms or conditions of probation accompany the sentence. The conditions are usually according to the offense you got convicted of committing. These terms include:
You will be prohibited from committing any other crime in California unless an infraction
You must ensure to see the probation officer assigned to you at all the times stated on your probation conditions
You must be involved in community service as stated
You must submit to random and unexpected drug testing
Probation terms can be many more depending on your offense. When you violate any of the terms, you risk revocation of your probation and reinstatement of your maximum jail sentence.
Aggravating Factors that Enhance your Sentence
Some scenarios can result in a defendant facing harsher penalties than the basic ones discussed above. These include:
Trafficking of Drugs Near Homeless Shelters or Drug Treatment Centers
Aside from the above-discussed penalties, you will receive an additional year to your jail sentence if transported and sold drugs to a homeless shelter or drug treatment center. However, the following must be true for the enhancement to your sentence to stick:
The illegal substance you were selling was either cocaine, heroin or cocaine base
When committing the offense, you were at the grounds or at least one thousand feet from a homeless shelter or a detox facility
Selling and Transportation of Significantly Large Amounts of Cocaine or Heroin
Charges for violating HS 11352 can be enhanced sentencing if the amounts found with the defendant are significantly large. When you are convicted of transporting and selling heroin, cocaine, and cocaine base products, your sentence is enhanced when:
The substance weighs one kilogram, you will receive an additional three years to your state incarceration sentence
An additional five years imprisonment if the substance is four kilograms or over
A further ten years if the substance weighed ten kilograms or more
Additional fifteen years to your sentence when the substance weighs twenty kilograms or more
An additional twenty years when the substance weighed forty kilograms or more
An additional twenty-five years if the substance weighed eighty kilograms or more
If a defendant receives sentence enhancement for this offense due to the volume of illegal substances they had, they will also be subjected to an additional fine. The court will order you to pay an additional fine ranging from $1,000,000 and $ 8,000,000.
Having Prior Convictions
Having a prior conviction for violating HS 11352 and another one for a felony drug crime, your sentence will also be enhanced. You will likely be sentenced to an additional three years for each prior conviction to be served consecutively with your current sentence.
Furnishing or Selling of Drugs to Particular People
There are certain people that, if you are found guilty of supplying them with drugs, will lead to the harshest prison sentencing. If you knew who you were selling the drugs to or providing to and you still did to the following people, then your sentence gets enhanced. These are:
Persons with a prior violent felony conviction
A person who is receiving treatment for a mental disorder or drug-related problem
Possible Legal Defenses for Violating HS 11352(a)
As discussed above, a conviction on these charges leads to severe penalties. When charged with this offense, you need to get an experienced defense attorney to fight these allegations on your behalf. Your lawyer will investigate the circumstances of the arrest and crime and formulate defense mechanisms suitable for your case. Some of the defenses used before successfully are:
Requesting for a Motion to Suspend Particular Evidence
According to the fourth amendment, the government is prohibited from carrying out unwarranted searches and seizing of things found during the illegal search. This is a constitutional right of every citizen. The Supreme Court, in the protection of this fundamental right, has issued guidelines that law enforcement officers must comply with when carrying out arrests or traffic stops. Some of the formalities include:
The police must have a probable reason to stop or arrest you
They must read you the Miranda rights before interrogations or searching your car
When the police fail to follow the guidelines, any evidence they find gets obtained illegally. If this is what happened to you or your case is based on acquired evidence unlawfully, your lawyer can request the court to exclude the evidence. When this happens, your probability of winning the case gets significantly increased. Your lawyer can ask for the suppressing of the evidence according to PEN 1538.5.
You Never Sold or Transported any Controlled Substance
If you never transported, sold, given away, administered, or imported controlled narcotics in California, you will not be found guilty of violating HS 11352(a). On many occasions, the police will charge individuals found in a place with narcotics wrongly, especially when many people access it.
Additionally, the police get information on your participation in the selling or transporting of the illegal narcotics that are based on lies. Other times, you may have had the narcotic with you, but your intention was not to sell it but privately use it. If this is the case, your lawyer, after carrying out independent investigations, will present their findings to the jury. If this argument is sufficient, you will not be convicted of the crime.
When a controlled substance was only in your possession for a short period and was to be used legally, you are not guilty of HS 11352(a) violations. If the argument is successful, the defense strategy may result in your acquittal. However, for your lawyer to use this defense successfully, he or she must show:
The controlled narcotics were in your possession for a short moment and
You had the substance with the intention of abandoning it, disposing of it or destroying it
You had no intention of barring law enforcement officers from getting it from you
Most criminal offenses do not require the defendant to prove something. But, for this defense to work, you must show the above elements as true.
You Lacked Awareness of Knowledge
One of the elements of the offense the prosecutor must prove is that the defendant understood the character and nature of the controlled narcotics. If you never knew that you had the drugs or you believed it was a different thing, you will not be found guilty of HS 11352(a). Your lawyer will state that you did not know there were drugs, their nature or character. As such, you are not guilty of transporting them for sale.
For instance, you got employed to drive a commercial truck that engages in the transportation of various things. You will be instructed to stop and college some crates at a particular warehouse. These you are made to understand are spare parts for motorcycles. At a weigh station, the officer requests to check what you are carrying, and you agree. He or she finds narcotics in the crates you just picked up.
In such a case, you will be charged with violating HS 11352(a). However, your lawyer will produce evidence to show that you were unaware you were carrying drugs or the things you were taking were controlled. If the evidence is sufficient, it will lead to the dismissal of the charges against you.
Entrapment happens when a law enforcement officer entices, lures, or coerces a person to commit a crime that they would otherwise not have committed. Entrapment is a sound defense strategy for HS 11352. But, for this offense to be a success, you must demonstrate the officer’s behavior was coercive such that any ordinary person would have been trapped by it. This is not an easy defense to substantiate.
But, if out of the officer’s coercion, you ended up engaging in the sale and transportation of the controlled substances, and outside the officer’s behavior, an ordinary person might not have done it, it is entrapment. This argument can be used sufficiently to result in the dismissal of the allegations against you.
HS 11352 Violations and Prescription Drugs
Some drugs, although prescription, can be categorized as controlled substances. Many people think that controlled substances include only hard narcotics. This assumption is wrong. One of the questions many would ask is if they can be convicted for transporting and selling prescription drugs.
The answer to the question is yes. If you sell or transport prescription drugs without a valid license or prescription, it is an offense, according to HS 11352.
Consequences of HS 11352 Conviction to Your Immigration Status
A conviction on violating HS 11352 is detrimental to your immigration status. This offense gets described as a deportable offense according to the federal immigration law. When you are a non-citizen, you must be careful to avoid getting convicted on violations of HS 11352.
When charged with the offense, you will have an opportunity to take a plea. A guilty plea will result in your deportation, just like a conviction would.
When the Sale and Transportation of Drugs Involves Minors
Sometimes the sale and transport of narcotics or controlled substances can involve minors. This is a unique offense under HS 11353. You will be convicted of this offense when you are an adult aged 18 years and over and have:
Hired, employed or used a child below 18 years to transport, sell, issue or peddle controlled substances
Or you sell, administer, offer, furnish, offer to sell controlled substances to a child
If you are convicted for doing this, you will face state imprisonment for three, six, or nine years.
Additionally, you will be sentenced to an additional one or two years imprisonment if:
The controlled substances in question were cocaine, heroin or cocaine based
You committed the offense while in a school compound or were within a thousand feet from the school, a religious place, or any facility frequented by minors
If you are older than the minor by four years, you will face an additional and separate one, two, or three years in prison.
How a Drug Trafficking Case is Built Against You by the Police and Prosecutors
When law enforcement officers are investigating drug crimes, they often use sting operations. These are attempts at catching the individuals committing the crimes. They often use deception and infiltrate their activity to get them while carrying out their trade. Mostly, the police rely on informants regarding the supposed crimes, and they lay traps to catch the alleged perpetrators.
Some of these informants offer information in exchange for money. Others do it to get leniency against their drug-related cases. Due to this, they often give the officers misleading or false information. If in your case, you suspect an informant gave the police information, your lawyer can petition for the revealing of the informant. When the informant gets revealed, your lawyer can challenge the reliability of their testimony.
Another way police will gather evidence against you for transporting and selling controlled substances is through surveillance or observation. The officers will set up a place where they will observe activities suspected to be drug-related. This is typically near the home of the suspect or their workplace or areas known for actual drug sales.
Another method officers use is to pose as potential or customers. They can use a proxy, a fellow officer that is undercover or order through the internet. Officers can also pose as sellers to lure people to their fake trade.
Related Offenses to HS 11352
Various offenses can be charged alongside those of transporting and selling controlled substances or instead of them. These are:
Possession of Controlled Substances for Sale – HS 11351
The substances that are controlled under this statute are similar to those of HS 11352. However, this is a lesser offense because no actual sale or transportation is involved. The crime is merely having the narcotics with the intent of selling them.
When charged with this offense, you will be prosecuted on felony charges, and a conviction will result in a two or three or four years state incarceration.
HS 11379 – Selling or Transporting of Methamphetamines
This statute prohibits the selling or transporting of methamphetamines. This is a similar statute to that of HS 11352 but involves other drugs. These are ecstasy and Ketamine. If you are accused of this crime, you will be prosecuted on felony charges.
Although it is similar to that of selling or transporting controlled substances, this offense is a slightly lesser one meaning its penalties are less harsh. When convicted of the crime, you will be jailed in the state prison for two, or three, or four years.
HS 11360 – Selling or Transportation of Marijuana
Under this statute, it is a criminal offense to transport, sell, give away, and furnish Marijuana. Similar to the crime of selling or transporting controlled substances under HD 11352, this is a felony offense. When convicted, a defendant will likely be jailed for two or three or four years.
But, if you transport Marijuana to sell or give away in small quantities like 28.5 grams or below, you will be prosecuted on misdemeanor charges. The fine when convicted is $100.
HS 11375.5 and 11357.5 – Selling of Synthetic Drugs
The selling of designer or synthetic drugs in California is an offense. Some of the drugs under this are:
Synthetic stimulants like bath salts
Synthetic Marijuana disguised as potpourri, spice or herbal incense
If you are accused of selling synthetic Marijuana or stimulants, you will face misdemeanor charges. This is, however, a lesser crime to that of selling or transporting controlled substances. When convicted, the misdemeanor penalties, you are likely to encounter include:
Getting sentenced to six months county imprisonment
Getting ordered to pay a fine of $1,000 or less. This is instead of jail time or in addition to jail time
HS 11355 and 10975 – Selling of Imitation Narcotics
Under this statute, it is illegal to sell imitation narcotics or cover the selling of bunk drugs. A bunk narcotic is a drug made to imitate genuine controlled substances. When accused of selling imitation drugs, you will face misdemeanor prosecution. When convicted, the misdemeanor penalties, you would face include:
Getting a county jail sentence of six months or less
Getting ordered to pay a fine of $1,000 or less. The judge can sentence you to either the jail sentence or a fine, or in some cases, to both
Sometimes, the offense under HS 11355 can be more severe, and it becomes a wobbler. This means a defendant gets prosecuted on either a felony or misdemeanor charges. For the offense to become a wobbler, it will involve:
You offered to give away, sell or transport a narcotic
Instead, you plan to deliver or deliver bunk drugs
A conviction on misdemeanor charges will result in a county jail sentence of a year. A felony conviction, on the other hand, will result in sixteen months, two years, or three years of county imprisonment.
Find a San Diego Criminal Lawyer Near Me
Drug-related offenses result in severe penalties for those convicted. Some charges can be out of mistaken identity while others out of false information given to police. Innocent people can quickly be wrongly convicted if not represented by a lawyer to fight the allegations for them. When faced with the charges, your best option is to get a lawyer to defend you. At California Criminal Lawyer Group, we are a team of dedicated and committed lawyers fighting drug-related offenses for our clients. Get in touch with us today at 408-622-0204 and let us defend you.