Health and Safety Code Section 11352 contains California's criminal law prohibition on the sale or transportation for sale of controlled substances. Controlled substances are those narcotics or drugs covered by the federal Controlled Substances Act.
In other words, HS 11352 makes it a crime to sell, furnish, administer, give away or transport controlled substances.
This includes street drugs such as cocaine and heroin, but also more exotic hallucinogenic substances such as peyote and “date rape” drugs such as GHB.
Note that certain specific controlled substances are separately prohibited by other California statutes, such as methamphetamine and marijuana.
In effect, HS 11352 is a catchall provision to cover illegal drugs which are not specifically covered individually under other provisions.
Health and Safety Code 11352 prohibits:
- Selling a controlled substance
- Transporting drugs with intent to sell
- Furnish, administer, or give drugs to other people
- Making an offer to perform these acts
Selling or transporting drugs under HS 11352 is a felony drug crime that carries a sentence of up to nine years in jail and a fine up to $20,000.
To give readers a better understanding of HS 11352 sale or transportation of a controlled substance, our Los Angeles criminal lawyers are providing a review below.
What Must a Prosecutor Prove for an HS 11352 Conviction?
In order for a prosecutor to obtain a conviction for Health and Safety Code Section 11352, they must prove the “elements of the crime” under CALCRIM 2300:
- You sold, furnished, administered, gave away, transported, or imported into California, a controlled substance, and
- You knew of the drug's presence
- You knew of the substance's character and nature as a controlled substance
- There was a usable amount of the controlled substance
Several threshold inquiries must be made before a case can be brought under HS 11352.
- Was the substance prohibited by law?
- Was there a usable amount?
- Can sales or transportation be proven?
The first, of course, is whether a given substance is in fact prohibited under either California or federal law.
Typically, this will not be a point of disagreement between the prosecution and defense as the crime lab will have identified the substance chemically as, for example, cocaine.
In rare cases, however, there may be a good faith disagreement about the actual chemical nature of the substance seized from the defendant which may require competing expert testimony.
The second question is whether the defendant was:
- selling or transporting
- a “usable amount” or the substance
If, for instance, the defendant was transporting a small amount of residue on a piece of tinfoil that was insufficient for anyone to use to get “high,” it is unlikely that the prosecution could sustain a charge under HS 11352.
A prosecution for sale or transportation is directed generally at defendant's involved with large quantities of narcotics.
If a defendant has a useable, but still relatively small amount of substance, they can plausibly argue that they are guilty only of simple possession of narcotics and not of either sale or transportation.
Proving sales or transportation
Having established that a defendant has a useable amount of a controlled substance, the question then becomes whether or not sales or transportation can be proven.
Contrary to the title of the statute, defendants can also be prosecuted under Health and Safety Code 11352 for giving away or furnishing controlled substances, meaning there is:
- no requirement that the defendant earn a profit, or
- receive anything of value in exchange for the controlled substances
Additionally, prior to 2014 a defendant could be prosecuted for transportation under HS 11352 for transporting only a personal use amount of narcotics.
This is no longer the case. Therefore, we are left with a relatively common-sense set of elements.
If the defendant is selling, giving away, furnishing, or transporting a sales-level quantity of narcotics, their conduct is punishable under Section 11352 of the Health and Safety Code.
What are the Penalties for an HS 11352 Conviction?
A violation of Health and Safety Code 11352 is a straight felony under California law.
This means it must be filed as a felony rather than a misdemeanor and cannot later be reduced to a misdemeanor under other provisions of California law.
The punishments associated with a conviction for sale or transportation of a controlled substance include:
- Up to nine years in the California state prison (though this time is typically served in local custody following California sentencing realignment program)
- A fine of up to $20,000
- Formal felony probation
Aggravating Factors for Enhanced Sentences
These sentences can be further enhanced if certain aggravating factors are proven by the government.
- If the sale or transportation occurs near a drug treatment facility or homeless shelter, an additional one year of jail time is imposed.
- Where the substance at issue is heroin or cocaine and the quantity is large, massive sentencing enhancements may be imposed.
- If the weight of substance involved exceeds 80 kilograms, for example, a twenty-five-year jail sentence may be imposed in addition to an up to $8,000,000 fine.
- Additional enhancements of between three and twenty years can apply for large quantities, with the amount of jail time increasing with the weight of the cocaine or heroin.
- Finally, defendants with prior drug-related convictions face a consecutive and additional three-year jail term if convicted of a subsequent offense under HS 11352.
What are the Related California Offenses?
Health and Safety Code 11351 – drug possession for sales
Health and Safety Code 11359 – possession of marijuana for sales
Health and Safety Code 11360 – sell or transporting marijuana
Health and Safety Code 11366 – operating a drug house
Health and Safety Code 11370.9 – money laundering from drug sales
Health and Safety Code 11378 – possession of meth for sales
Health and Safety Code 11379 – sell or transporting methamphetamine
How Can I Fight HS 11352 Drug Transportation Charges?
Our California drug crime lawyers can use a variety of defenses to a charge under Health and Safety Code 11352 of sale or transportation of a controlled substance:
- Unlawful search and seizure by law enforcement
- Lack of a useable amount of substance present
- Defendant's lack of knowledge that the substance was present (for instance in a motor vehicle stop)
- Lack of intent to sell perhaps based on the personal use nature of the substance
- Failure of police to follow procedures
Clearly, the facts and circumstances surrounding your case will determine which defense above would be the most appropriate.
If you, or someone you know, is charged with sale or transportation of controlled substance under California Health and Safety Code Section 11352, contact our experienced team of Los Angeles criminal defense attorneys for an initial consultation.
Eisner Gorin LLP is a top-rated criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Our main office is next to the Van Nuys Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our firm at (310) 328-3776.