What Is Transportation of a Controlled Substance (H & S 11352)?
This charge, however, can be for far more minor or seemingly even trivial conduct. Before a recent change in the law that required the transportation to be for the purpose of sales of the controlled substance, this charge was routinely alleged for anyone simply caught in possession of a controlled substance while driving their car or riding their bike, for example.
Now, however, the allegation is charged less frequently, but still is common. It can be alleged whenever a controlled substance is moved from one place to another, no matter how small the distance, for purposes of sales. Transportation can be by a car, plane, boat, bicycle, foot (walking) or mail carrier.
A controlled substance is a listed drug or ingredient for a drug listed under the United States Controlled Substances act. California law incorporates most of this act and categorizes the controlled substances into five “schedules.”
Examples of such substances include, but are not limited to codeine without a valid prescription, heroin, PCP, LSD, mushrooms, cocaine, ecstasy, GHB, Vicodin without a valid prescription, ketamine, Xanax, Ativan and many others.
Methamphetamine and marijuana are not covered by Health and Safety Code § 11352. Separate code sections address the transportation of such drugs for sale.
The “for purposes of sale” is often proven by evidence from a cell phone showing text messages asking about prices and the defendant arranging sales. There also may be simply so much of a particular drug that it is too much for personal use. The defendant may also have no explanation for why he or she had such drugs or may have an implausible explanation that he or she was on his way to the police station to turn in the drugs, which is a defense.
The baseline, or starting penalties for transportation of a controlled substance for sales is three years minimum in state prison, four years mid-term and five years maximum. This sentence may or may not be served in county jail under AB109, depending upon the defendant’s prior history and whether there are other facts to the case.
When the quantity of drugs found is large, there can be sentencing enhancements that apply. When heroin is being transported, there are especially harsh, separate penalties. If someone is convicted of transporting 14.25 grams or more, there is an additional penalty of up to $50,000.
Likewise, when the transportation is from one county to another county that is not contiguous, i.e. from Orange County to Kern County, there is a minimum sentence of three years, a mid-term sentence of six years and a high-term of nine years, plus a possible maximum fine of $20,000.
The defenses to such charges are similar to those the reader of this article may have seen in other articles involving a drug offense. Most commonly, the defendant will claim he or she had no knowledge of the drugs being present. They were tricked into moving something that they simply did not know was a controlled substance. This does happen, but not too often.
Second, police may have searched for the evidence in violation of the Fourth Amendment, i.e. without a warrant and without an applicable exception to the warrant requirement. Sometimes, similarly, there may be an entrapment defense insofar as police cajoled or tricked the defendant into moving the drugs just so they could make such an arrest.
Quite often, a courier may claim a duress or necessity defense that they were only transporting the crime because they were threatened into doing so by someone else.
In rare circumstances, the “momentary possession” defense can apply, which means that you were just moving the drugs a very short distance, i.e. across a parking lot, but were caught during this brief time. As mentioned above, there is also a defense that you were taking the drugs to a police station to turn them in, but this is often a desperate ‘Hail Mary” type of defense that is scoffed at by prosecutors.
For more information about common issues in drug cases, please click on the following articles:
- Drug Evidence Suppressed When Police Improperly Stop Vehicle
- Good Faith Exception to Officer’s Execution of an Improper Search Warrant Does Not Have Similar Application to an Improper Traffic Stop
- Traffic Stop Ruled Improper and Evidence Seized by Police Suppressed When Officer Lacked Reasonable Suspicion to Stop Driver