Health & Safety Code § 11352 HS – Sale or Transportation of a Controlled Substance

Health and Safety Code § 11352 HS makes it a felony offense to sell, transport, furnish, administer, or import a controlled substance. If convicted, you face up to 9 years in jail or prison and fines of up to $20,000.00.

The statute applies to street drugs such as

• cocaine,
• heroin,
• peyote, and
• LSD,

as well as to commonly prescribed drugs such as

• codeine,
• oxycodone (Oxycontin) and
• hydrocodone (Vicodin).

HS 11352 does not apply to the sale and transport of marijuana, methamphetamine, or certain other drugs. For information on other California drug laws, please see:

• Health & Safety Code 11379 HS (sale or transportation of methamphetamines),
• Health & Safety Code 11360 HS (sale and transportation of marijuana),
• California GHB laws,
• California ecstasy laws,
• California PCP laws, and
• California ketamine laws.

What is prohibited?

The statute prohibits:

• Selling drugs,
• Transporting controlled substances with the intent to sell them;
• Furnishing or administering drugs to other people;
• Giving controlled substances away; or
• Offering to do any of the above acts.¹

Prior to 2014, transportation of a controlled substance included taking drugs somewhere for personal use. Since then the California legislature has amended HS 11352. “Transport” is now a crime under Section 11352 only if you move drugs from one place or another with the intent to sell them.

Examples

Below are some examples of selling or transporting drugs in violation of California law:

• A college student sells cocaine to his classmates to make pocket money;
• An unemployed single mother agrees to drive heroin from one place to another for a local drug dealer in exchange for several thousand dollars; or
• A man gives away peyote that he has cultivated himself to friends at a party.

Penalties

Selling or transporting drugs under HS 11352 is a felony.³

Consequences under Health and Safety Code 11352  normally include:

• 3, 6, or 9 years in jail, and/or
• up to $20,000.⁴

However, aggravating factors and sentence enhancements for things like selling drugs to minors or transporting certain quantities of drugs can greatly increase both your jail sentence and the maximum fine.

Note that now that Proposition 36 has passed, selling certain drugs like fentanyl, heroin, cocaine, or methamphetamine carries a state prison rather than county jail sentence.

Defenses

Fortunately, there are many legal defenses that a skilled California drug attorney can present on your behalf, such as:

• The drugs were for your personal use;
• You did not offer to sell or transport drugs;
• Your intentions were misunderstood;
• The drugs were found during an illegal search and seizure;
• There was entrapment or other police misconduct.

In order to help you better understand the crime of sale or transportation of a controlled substance, our California criminal defense attorneys will address the following:

• 1. HS 11352 Elements
• 2. Penalties
• 3. Defenses
• 4. Related Crimes

1. HS 11352 Elements

For you to be convicted under California Health & Safety Code 11352, prosecutors have to prove beyond a reasonable doubt the following elements of the jury instructions.

1. You did one of the following with a controlled substance covered by this law:
   1. Sold it;
   2. Furnished it (by any means, sale or otherwise);
   3. Administered it (that is, caused another person to use the drug by injection or another means);⁵
   4. Gave it away;
   5. Transported it for sale;
   6. Imported it into California; or
   7. Offered to do any of the above; and
2. You knew of the drug’s presence; and
3. You knew of its nature or character as a controlled substance; and
4. The controlled substance was in a “usable amount,” if you are accused of transporting it for sale.⁶

Let’s take a better look at these elements of the crime of drug sales or transportation, in order to better understand their meaning.

A Controlled Substance Covered by HS 11352

The drugs that are unlawful to sell or transport under Health & Safety Code 11352 include (but are not limited to):

• Opiates and opiate derivatives;
• Cocaine (including cocaine base);
• Heroin;
• Peyote;
• Gamma-hydroxybutyric acid (“GHB”), and
• Certain prescription drugs such as codeine and hydrocodone (“Vicodin”).⁷

Transporting Controlled Substances

“Transporting” drugs means carrying or moving them from one location to the other, even if the distance is short. You can transport drugs by:

• walking,
• riding a bicycle, or
• by means of transportation like a car or plane.⁸

However, you are guilty of transportation of a controlled substance only if your intent was that the drugs were going to be sold eventually. (If you transport drugs other than for sale, you can instead be charged with simple possession under Health & Safety Code 11350 HS.)⁹

Also, you are guilty of transporting drugs only if you are found to have transported a “usable amount.”¹⁰ Trace amounts—like drug residue found on another object—do not count.¹¹

This “usable amount” requirement applies only to transporting controlled substances—not to selling them.¹²

Offering to Sell, Furnish or Transport Controlled Substances

You can also be charged under HS 11352 for offering to sell, transport, furnish, administer, or give away controlled substances. However, you are guilty of offering to sell or transport drugs only if, when you made the offer, you actually intended to follow through on it.¹³

Example: Denise is trying to make friends with the “popular” kids at her school. She lies and tells one of them that if they will invite her to an upcoming party, she will bring cocaine.

If Denise is invited, her plan is to make up a story about her source for the cocaine not coming through. Because she did not intend to actually bring cocaine, she is not guilty under HS 11352.

Knowledge

As noted above, you are not guilty of sale or transport of a controlled substance unless you knew both:

1. That the drug was present; and
2. Of its nature as a controlled substance.¹⁴

Example: Laura pays Alex to drive a car into California for her. She does not tell Alex that a suitcase in the car’s trunk contains large quantities of cocaine that a contact of hers will sell in California.

Then Laura hires Jad to drive a car into California for her. Jad is curious and looks inside the suitcase. Laura tells Jad that the contents are buttons are an exotic vegetable when in fact they are peyote buttons.

Neither Alex nor Jad is guilty of importing controlled substances because Alex did not know the drugs were in the car, and Jad did not know that the items he was transporting were drugs.

Constructive Possession

It is important to note that you can be guilty of trafficking in controlled substances even if you never personally touched or handled the drugs. All that is needed is that you have control over the drugs through either:

• actual possession (such as personally carrying the drugs) or
• constructive possession (such as having them stored in your safe or car).¹⁵

How Prosecutors and Police Build a Drug Trafficking Case

Investigations for the sale or transportation of a controlled substance routinely involve sting operations—that is, attempts to catch individuals committing crimes, often through deceptive means.

Some HS 11352 arrests come about because the police gained information from a confidential informant cooperating with police to get a lenient sentence in their own case.

Another common way of gathering evidence is through observation or surveillance posts. These are places where officers “set up camp” to observe suspected drug activities—often near a suspect’s home or business, or in an area where drug sales typically take place.

Undercover “controlled buys” are another common way to make an arrest for drug sales. These can occur in person or over the internet. In either case, an officer poses as a buyer or seller of controlled substances, hoping to lure a target into behavior that can support an arrest.

2. Penalties

Selling or transporting controlled substances under Health & Safety Code 11352 HS is a felony in California law.¹⁶

The basic potential penalties for a first offense are:

• Felony (formal) probation;
• 3, 4, or 5 years served in county jail under California’s realignment program—or 3, 6, or 9 years in jail if you are found to have transported controlled substances for sale across two or more county lines within California; and/or
• A fine of up to $20,000.¹⁷

You will NOT be eligible for felony probation or a suspended sentence if any of the following is true:

• You are convicted of violating HS 11352 for selling or offering to sell 14.25 grams or more of a substance containing heroin;
• You are convicted of HS 11352 for selling or offering to sell any amount of heroin, and you have one or more prior convictions for either HS 11352 or HS 11351 (possession of controlled substances for sale); or
• You are convicted of HS 11352 for selling or offering to sell cocaine, cocaine base or methamphetamine, and you have one or more prior convictions for selling, offering to sell or possessing for sale any drug.¹⁸

Aggravating Factors and Enhanced Sentences

There are a variety of scenarios in which you can face far more severe penalties for selling or transporting controlled substances than the basic penalties. The enhanced sentences are described below.

Drug Trafficking Near Drug Treatment Facilities or Homeless Shelters

You face an additional one year in jail for a Health & Safety Code 11352 HS conviction if both:

1. The controlled substance involved was heroin, cocaine or cocaine base; and
2. The trafficking took place upon the grounds of or within 1,000 feet of a drug treatment center, a “detox” facility or a homeless shelter.¹⁹

Sales or Transportation of Large Quantities of Heroin or Cocaine

If you are convicted of violating Health and Safety Code 11352 HS, and the controlled substance is or contains heroin, cocaine or cocaine base, you face an additional jail sentence of:

• 3 years if the substance weighs more than one kilogram;
• 5 years if it weighs more than four kilograms;
• 10 years if it weighs more than ten kilograms;
• 15 years if the drug weighs more than twenty kilograms;
• 20 years if it weighs more than forty kilograms; and
• 25 years if the substance exceeds eighty kilograms.²⁰

If you receive an additional sentence for sale or transportation of a controlled substance under one of these weight enhancements, you will also face an additional fine ranging from up to $1,000,000 to up to $8,000,000.²¹

Prior Convictions

If you are convicted of drug sales or transport under HS 11352, and you have at least one prior felony conviction for a drug crime (other than for personal use), then you face an additional and consecutive three years in jail for each such prior conviction.²²

Selling or Furnishing Drugs to Certain People

The judge in your case is likely to impose the harshest of possible jail or prison terms if you knew or reasonably should have known that you were selling, furnishing, administering or giving away drugs to an individual who:

1. Was pregnant;
2. Had previously been convicted of a violent felony; or
3. Was being treated for a mental health disorder or a drug problem.²³

Immigration Consequences

Non-US-citizens need to be particularly concerned about a Health & Safety Code 11352 HS conviction. That is because the sale or transportation of a controlled substance is a “deportable crime” under federal immigration law.²⁴

This means that you may be deported at any time if you plead guilty to or are convicted of HS 11352—even if your immigration status was otherwise perfectly legal.

 Sale or Transport of Drugs Involving Minors

Sale or transportation of controlled substances involving minors is a distinct offense in California, covered under Health & Safety Code 11353 HS.²⁵

This crime carries a state prison sentence of three, six, or nine years.²⁶ You face an additional one or two years in prison if:

1. The drugs involved were heroin, cocaine or cocaine base, and
2. The illegal activity took place at or within 1,000 feet of a school, place of worship, or essentially any other facility where minors are regularly present.

If you are at least four years older than the minor involved, you face a separate and additional prison sentence of one, two, or three years.²⁷

3. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with drug crimes such as selling and transporting. In our experience, the following defenses have proven very effective with judges, juries, and prosecutors at getting these charges reduced or dismissed.

Illegal Search and Seizure

Many California arrests for sale or transportation of a controlled substance stem from an illegal search and seizure—such as:

• Searching you or your property without a valid California search warrant,
• Exceeding the scope of a search warrant (for example, searching your car when the warrant only authorized a search of your office); or
• Unlawfully detaining and searching you without probable cause.

According to drug crimes defense attorney Michael Scafiddi²⁸:

“If you were the victim of an unlawful search and seizure and were charged with sale or transportation of a controlled substance as a result, your California drug crimes defense lawyer will most likely file a motion to suppress evidence. If this motion is successful, the prosecutor may have no choice but to dismiss the charges.”

Police Misconduct

Police misconduct in a sale or transportation of controlled substances case could include:

• “Planting” evidence (that is, placing drugs on you or your apartment or car, in order to make an arrest);
• Lying about where they found the controlled substance (for example, saying they found it in your purse when in reality they found it on the ground near where you were standing);
• Falsifying the probable cause that led to the arrest; or
• Using excessive force to obtain a confession or other evidence.

If we can show the judge the police abused their authority, the D.A. may be forced to dismiss your case.

Entrapment

Entrapment serves as a legal defense when you can show that you only violated Health and Safety Code 11352 HS because you were coerced or lured into doing so by the police.

This situation arises when an officer entices, coerces or harasses an otherwise innocent individual into committing a crime. The officer’s conduct must be more than a suggestion or offer. It must rise to a level that would be difficult for a reasonable person to refuse.²⁹

Lack of Knowledge

You should be acquitted of sale or transportation of controlled substances if either of the following is true:

1. You did not know about the drug’s presence; or
2. You did not know that the item you sold or transported was a controlled substance.³⁰

Lack of Intent

Prosecutors have no way of getting inside of your head and knowing what you were thinking. Unless they can prove beyond a reasonable doubt that you never intended to sell, transport, etc., a controlled substance, criminal charges cannot stand.³¹

4. Related Crimes

• Health & Safety Code 11351 HS –  Possession of a controlled substance with intent to sell
• Health & Safety Code 11357.5 HS – Sale of synthetic (“designer”) drugs
• Health & Safety Code 11360 HS – Sale or transportation of marijuana
• Health & Safety Code 11366 HS – Opening or maintaining a drug house
• Health & Safety Code 11370.9 HS – Money laundering involving drug proceeds
• Health & Safety Code 11379 HS – Sale or transportation of methamphetamines
• Health & Safety Code 109575 HS and 11355 HS – Sale of imitation drugs

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