What is Health and Safety section 11352 HS?
Under health and safety code section 11352 HS, it is a felony to transport, sell, administer, furnish, or import drugs. If an individual is convicted of this offense, he or she faces as many as nine years in prison or jail, as well as fines that can be as much as $20,000.
Generally, 11352 HS applies to common street drugs including heroin, cocaine, LSD, and peyote. It also applies to drugs that are commonly prescribed, including Oxycontin, Vicodin, and codeine.
HS 11352 does not concern the transport or sale of methamphetamine, marijuana, or other kinds of drugs.
According to the law, the following actions are illegal:
- Transporting drugs with the purpose of selling them
- Selling drugs
- Administering or furnishing controlled substances to other individuals
- Giving away drugs
- Making an offer to perform the above
Before 2014, taking a drug somewhere for one’s own use qualified as transportation of a controlled substance. Things have since changed, with the California legislature making transport a crime under section HS 11352 if an individual only moves controlled substances from one location to another with the intention of selling them.
The following are a few examples of transporting or selling drugs that would violate 11352 HS in California:
- A university freshman, in want of pocket money, sells cocaine to his friends.
- In exchange for a few thousand dollars, a single unemployed mom agrees to drive methamphetamine from one location to another for a drug dealer.
- Having cultivated himself, a man gives peyote to his friends at a birthday party.
According to HS 11352, transporting or selling drugs qualifies as a felony. The consequences listed in health and safety code 11352 typically include:
- A fine of a maximum of $20,000
- Anywhere from three to nine years in jail
There are certain sentence enhancements and aggravating factors under HS 11352 that can significantly increase both an individual’s fine and jail sentence. These include transporting certain amounts of drugs and selling controlled substances to minors.
Luckily, an experience San Diego drug trafficking defense attorney can employ a number of legal defenses on behalf of a person accused of drug crimes under 11352 HS. The following are some of these defenses:
- The controlled substances were for an individual’s personal use.
- The individual didn’t offer to transport or sell the drugs.
- The individual’s intentions were misinterpreted.
- The controlled substances were identified in the course of an unlawful search and seizure.
- There was police misconduct or entrapment.
What does California law say about the sale of a controlled substance?
According to California health and safety code section 11352 HS, the definition of transporting or selling controlled substances is:
- An individual performed one of these actions with a drug described by the law:
- furnished it
- sold it
- gave it away
- administered it
- brought it into California
- transported it for sale
- offered to take any of the previous actions
- An individual knew about the presence of the drug
- An individual knew about the character or nature of the drug
- the drug was in a usable quantity, if an individual is charged with transporting it for the purpose of sale.
It is important to understand the elements of drug transportation or sales crimes under HS 11352, so let’s take a closer look.
According to Health and Safety Code 11352, it is illegal to transport or sell the following popular kinds of drugs:
- Cocaine
- Opiate derivatives and opiates
- Peyote
- Heroin
- GHB (gamma-hydroxybutyric acid)
- Some prescription drugs like Vicodin and codeine
If an individual is charged with transporting drugs under 11352 HS, this means that they were moving or carrying the drugs from one place to another. The distance does not matter. An individual may transport controlled substances by driving, flying, walking, or riding a bike. That said, you can only be found guilty of transporting a drug under HS 11352 if you had the intention of selling the drugs, or knew the drugs were for sale. If you transport the drugs but do not have the intent to sell them, you can still be accused under Health and Safety Code Section 11350 of simple possession.
An individual can only be convicted of transporting controlled substances under HS 11352 if he or she is discovered to have moved a usable quantity. Small, or trace, amounts, such as residue from a drug discovered on a separate object, do not qualify. However, the usable quantity requirement only applies to moving drugs, not selling them.
Under HS 11352, an individual may also be accused of offering to transport, cell, administer, giveaway, or furnish drugs. That said, an individual may only be convicted of offering to transport or sell controlled substances if, when he or she offered, he or she actually meant to make good on the promise.
As indicated above, an individual is not guilty of transport or sale of narcotics under 11352 HS unless he or she was aware the substance was present and of its nature as a drug.
Importantly, an individual may be found guilty of drug trafficking under HS 11352 even if he or she never themselves touched the drugs. The only element that is required for a guilty conviction is that the individual had control over the narcotics, either through another individual or personally. This is known as constructive possession, as compared to actual.
Investigations into the transportation or sale of a drug commonly involve stating operations. These are attempts to arrest the people as they are engaging in crimes, often using deception.
Some arrests under HS 11352 happen when the police collect details from a secret informant.
Another typical way of collecting proof for a transportation or sale of drugs case is through surveillance posts or observation. This is when officers camp out to observe alleged drug activities, usually near the home of a suspect or their company, or in a place where drug deals commonly occur.
Another well-known way to making arrest for the sale of drugs under 11352 HS is to perform an undercover controlled purchase. These can happen both in person and online. In this situation, an officer pretends to be a seller or buyer of drugs, hoping to encourage a target into participating in behavior that would justify an arrest for the transportation or sale of narcotics.
What are the penalties attached to HS 11352?
Under Health and Safety code 11352 HS, transporting or selling controlled substances qualifies as a felony in California. For a first offense under HS 11352, the basic possible penalties include:
- formal, or felony, probation
- three to five years in jail according to California’s realignment program; three to nine years in jail if an individual is found to have transported drugs for sale across 2 or more county lines in California
- a fine with a maximum of $20,000
An individual will not be recommended for a suspended sentence or sentence to felony probation under 11352 HS if any of these are true:
- An individual is convicted of breaking HS 11352 for offering to sell or selling 14.25 grams or more of heroin.
- An individual is convicted under HS 11352 of offering to sell or selling any quantity of heroin, and he or she has at least one prior conviction for possession of drugs for sale under HS 11352 or HS 11351.
- An individual is convicted of selling or offering to sell methamphetamine or cocaine, as described under HS 11352, and he or she has at least one prior conviction for offering to sell, possessing for sale, or selling any drug.
A number of situations exist in which an individual may come up against far more significant penalties for transporting or selling drugs under 11352 HS. These scenarios include the following:
- Trafficking drugs near homeless shelters or drug treatment centers
- An individual may face an further year in jail if the drug involved was cocaine or heroin, and the trafficking happened within one thousand feet of a homeless shelter, a detox center, or a drug treatment center.
- Transportation or sales of large amounts of cocaine or heroin
- If an individual is convicted of breaking Health and Safety code 11352 HS and the drug involved contains cocaine or heroin, there will be a further sentence of:
- three years if more than one kilogram
- five years if more than 4 kilograms
- ten years if more than 10 kilograms
- fifteen years if more than 20 kilograms
- twenty years if more than 40 kilograms
- twenty-five years if more than 80 kilograms
- If an individual gets a further sentence for transportation or sale of a drug under one of the weight enhancements, he or she will also get an additional fine that will be anywhere from $1 million to $8 million.
- Prior convictions
- If an individual is convicted of transporting or selling drugs according to HS 11352, and he or she has a minimum of one previous felony conviction for a narcotics crime, then he or she will face a further three years in jail for every prior conviction.
- Furnishing or selling controlled substances to particular people
- If an individual was aware or should have known that they were furnishing, administering, selling, or giving away controlled substances to a person who was either pregnant, had been convicted of a violent felony, or was receiving treatment for a drug or mental health issue, the judge in their case will likely give them the harshest penalty or prison terms.
People who are not citizens of the United States should be particularly wary of HS 11352. This is because the transportation or sale of a drug is considered a deportable crime according to federal immigration law.
If an individual is convicted or pleads guilty to a crime under HS 11352, even if their immigration status is perfectly legal, they may be deported at any time.
The transportation or sale of drugs involving minors is a particular crime in California and is mentioned in HS 11353.
An individual may be convicted of this offense if he or she is an adult, meaning eighteen or older, and they do one of the following:
- Employ, use, or hire a minor to transport, sell, prep for sale, giveaway, or pedal the drug.
- Furnish, sell, giveaway, administer, or offer to do any of these things, to a minor.
Such conduct will result in a state prison sentence of three to nine years for conviction under HS 11352. Further, an individual my face one or two more years in prison if the substances involved were heroin or cocaine, and the unlawful behavior occurred within 1000 feet of a church, a school, or any other location where minors are typically present.
If an individual is a minimum of 4 years older than the involved minor, he or she may face a further prison sentence of 1 to three years for violating under 11352 HS.
What are the best defenses to present in court?
Luckily, an experienced California criminal defense lawyer can present a number of legal defenses to counter a drug charge under HS1135. These may include the following:
Unlawful search and seizure
Under HS 11352, a number of arrests in California for transportation or sale of a drug come from unlawful search and seizure, including:
- Searching an individual or their property without a legitimate search warrant
- Going beyond a search warrant’s scope
- Illegally searching and detaining an individual without probable cause
Police misconduct
In a transportation or sale of drugs case, police misconduct might include:
- Planting evidence, such as placing drugs in an individual’s car or apartment or on their person.
- Lying about the probable cause that resulted in the arrest.
- Not telling the truth about where the drug was found.
- Using excessive force to get evidence or confession.
Entrapment
An individual can use entrapment as a legal defense to argue that they were coerced or lured by police into violating HS 11352.
This scenario comes about when a police officer coerces, harasses, or lures an innocent individual into committing a crime. The officer’s behavior should be more than a suggestion or offer. Their conduct must reach a level where it would be hard for a reasonable individual to refuse.
Lack of knowledge
If either of the following is true, a person should be found not guilty of transportation or sale of controlled substances under 11352 HS:
- You were not aware of the drug’s presence
- You were not aware that the thing you transported or sold was a drug
Lack of intent
If you are charged with selling, furnishing, or transporting a drug, your lack of intent can be a defense against 11352 HS.
You cannot be guilty of this charge without the intention of making good your offer.
Are there associated crimes?
Possession for sale
Generally, 11351 HS that concerns the same illicit controlled substances as are included in 11352. However, this crime is a less significant offense since it does not pertain to the actual transport or sale of drugs, simply the possession with the intent to sell.
Under HS 11351, it is a felony to possess drugs for sale. The offence carries a possible jail sentence of between two to four years.
Transportation or sale of methamphetamine
11379 HS is the law in California prohibiting the transportation and sale of methamphetamines. Similar to 11352 HS, this law covers different controlled substances including MDMA, ketamine, and PCP.
The punishments for the transportation and sale of methamphetamine our not as significant as those for the controlled substances under 11352. An individual can go to jail for this offense for between two to four years.
Transportation or sale of marijuana
11360 HS is responsible for prohibiting the transportation for sale, the sale, giving away, or furnishing marijuana. The transportation or sale of marijuana qualifies as a felony, and the jail sentence ranges from two to four years period that said, if an individual gives away or transports for sale 28.5 grams or less of the drug, the offense only counts as a misdemeanor and has a fine of $100.
Sale of synthetic drugs
The sale of synthetic drugs is a crime in California. These so-called ‘designer’ drugs include synthetic stimulants and synthetic marijuana.
According to California law, selling synthetic stimulants or cannabis qualifies as a misdemeanor, and therefore is a less serious crime than drug trafficking as described under HS1135 two. For breaking this law, an individual may face up to six months in jail, as well as a fine of $1000.
Sale of imitation drugs
According to sections 109575 and 11355 of the California Health and Safety Code, it is illegal to sell an imitation drug. This offense is a misdemeanor and can result in up to six months in jail or a fine of $1000.
11355 HS describes the more serious crime oh offering to sell, transport, or give away a controlled substance, but instead delivering an imitation drug instead. If an individual is charged with a misdemeanor, they may receive one year in jail. If they are charged with a felony, they may face between two to three years in jail.
Money laundering drug sale proceeds
According to HHS 11370.9, it is a crime to involve oneself in a financial transaction that uses money that was knowingly derived from a drug crime such as the transportation or sale of controlled substances. This law pertains to transactions of over $25,000 during a period of 30 days.
Laundering drug proceeds is a felony that will earn an individual two to four years in prison or a fine of as much as $250,000 or double the amount of money that was laundered.
Opening or running a drug house
If an individual gives away our cells drugs at an apartment, house, or another location, and he or she does so continuously and repeatedly, he or she may be charged with running a drug house, as described under HS 11366.
Often, an individual also receives a charge under HS 11352, for the transportation or sale of drugs.
There is a possible felony prison sentence of three years.
