Sale/Transportation of Drugs Criminal Attorney
The California Health & Safety Code Section 11352 defines the sale or transport of a controlled substance, such as are prohibited by the U.S. Controlled Substances Act. Banned narcotics and other drugs include: opiates, cocaine, heroin, “peyote,” GHB, various hallucinogens, and drugs such as codeine and hydro-codone when used without a proper prescription.
Activities related to the sale/transportation of drugs that are specifically banned by HSC Section 11352 include:
● Moving a controlled substance from place to place, regardless of how small the distance
● Importation of a controlled substance into the state of California
● Selling or exchanging controlled substances for other goods/services
● Supplying illegal drugs by any means, including by giving them away free
● Administration of illegal drugs to another via injection, ingestion, inhalation, or any other means
Who Can Be Charged?
Anyone who even attempts to sell or transport a controlled substance can be charged under HSC 11352- it need not have actually been accomplished but only “specifically intended.” Also note that “transportation” of illegal substances can take place by vehicle, bicycle, on foot, or any other means, and the distance moved is irrelevant. Those who transport illegal drugs need not have intended to sell them to be convicted- it is enough that they moved the drugs.
The elements of the crime include:
● You did, intended to, or offered to sell and/or transport illegal drugs.
● You were aware of the presence of the drug and that it was a controlled substance.
● The drugs involved were in “usable amounts.”
What Must the Prosecution Prove?
The prosecutor needs to prove all three elements of the crime as listed just above, but he does not need to prove you physically possessed the drug. “Constructive possession,” wherein you use another person to sell/transport the drugs is sufficient. It is also not necessary that you knew the name or the chemical composition of the drug, so long as you knew it was an illegal substance. If you made attempts to conceal the drugs or acted in a suspicious or guilty manner, this will be evidence you knew the drugs’ nature.
It is true that the drug must have been present in “usable amounts,” but this only excludes small traces and residues of a drug rather than require it have been enough to intoxicate someone. Also be aware that the usable quantity statute only applies to transporting drugs but not to selling them or administering them.
Possible Legal Defenses
Some of the most common legal defenses used against charges of sales/transportation of an illegal narcotic include:
● Lack of knowledge: You did not know the drug was present or that it was an illegal substance.
● Lack of intent: You offered to sell or transport drugs out of fear, police entrapment, or jokingly, but you never actually intended to do it.
● Mistaken identity: While an illegal substance was found on your premises or person, they were not yours. It could also be that an unscrupulous police informant invented bogus charges or that police were simply mistaken due to dimly lit stake-out conditions or other factors.
● Illegal search and seizure: Evidence was obtained by overstepping the bounds of a search warrant or without one or was otherwise illegally obtained. This evidence is inadmissible in court.
● Evidence planting: Supposing you were guilty but being unable to prove it, police planted evidence or simply lied to make you look guilty in court.
Selling or transporting a controlled substance as defined in HSC 11352 is a felony-level offense that is punishable by:
● A one-year term in the county jail with probation afterwards
● OR 3, 4, or 5 years in county jail
● AND/OR a fine of up to $20,000
For transporting illegal drugs over three or more county lines, the jail sentence is increased to 3, 6, or 9 years. Furthermore, legal aliens can be deported if convicted on these charges.
Aggravating factors that can lead to additional punishment upon conviction of sales/transportation of drugs include the following:
● In accordance with HS Section 11380.7, if the crime was committed within a thousand feet of a rehab center or homeless shelter or on school grounds, there is an additional year of prison time for selling or trafficking in cocaine or heroin.
● As per HS 11370.4, “mass sales” of heroin or cocaine add extra prison-term years as follows: for more than one kilo- 3 extra years; for over 4 kilos- 5 extra years; for above 10 kilos- 10 years; for 20+ kilograms- 15 years; for 40+ kilograms- 20 years; and for 80 or more kilograms- 25 extra years.
● Under HSC 11370.2, you receive three extra years in prison for each previous drug-related felony conviction if convicted of sales/transport of drugs. For this (and the next two crimes below), you could also be fined up to $8 million.
● Under HSC 11366.7, those retailers and wholesalers who sell drugs, chemicals, or lab equipment knowing it will be used to produce a controlled substance can receive a one-year term in the county jail, 16 months, 2 years, or 3 years in state prison, and/or a fine of up to $25,000.
● Under HSC 1170.82, those who sell or otherwise provide illegal drugs to a person who was pregnant, had a violent felony conviction, was being treated for a drug-abuse problem, or was under treatment for a mental health issue can be sentenced to a three-year prison term. It is also necessary that the violator knew or should have known that the person to whom he provided drugs had one of the above-listed conditions.
● While those convicted of nonviolent drug possession can qualify for drug diversion programs that help them avoid jail time and a badly damaged criminal record, those found guilty of selling and/or transporting drugs are not eligible for such leniency.
How We Can We Help
We at the Law Offices of David J. Givot have long served the people of Long Beach and Southern California with expert legal defense, including against allegations of selling or transporting illegal drugs. Call us at 888-293-0396 for a free legal consultation and answers to all of your pertinent questions. We are standing by 24/7 and are committed to helping you obtain the best possible outcome to your case.