Transportation of a Controlled Substance in California – How is it defined?

Posted on September 20, 2023

In California, the crime of transporting a controlled substance is defined as knowingly moving a usable amount of a controlled substance for its eventual sale.

You do not have to move the drug a significant distance. However, you do need to know of the drug’s presence and that it is a controlled substance.

Transporting controlled substances is a felony:

Transporting Drugs in California	Jail/prison
Most convictions	3, 4, or 5 years*
You transported the drugs across at least two county lines in California	3, 6, or 9 years*
You transported heroin, cocaine, or cocaine base, and the transportation took you within 1,000 feet of a drug treatment center, “detox” facility, or a homeless shelter	1 year plus the above penalties
You have a prior transportation conviction	3 years plus the above penalties
You transported more than 1 kg of heroin, cocaine, or cocaine base	3 years for > 1 kg 5 years for > 4 kgs 10 years for > 10 kgs 15 years for > 20 kgs 20 years for > 40 kgs 25 years for > 80 kgs
* Felony (formal) probation if unavailable if you were convicted of selling or offering to sell: at least 14.25 of a substance containing heroin, any amount of heroin, if you have a prior conviction of transporting a controlled substance or possessing a controlled substance with intent to sell, or cocaine, cocaine base, or methamphetamine if you have a prior conviction for possessing for sale, selling, or offering to sell any drug.

How does California define transportation of a controlled substance?

Under California law, the crime of transporting a controlled substance is defined by California Health and Safety Code section 11352 HSC. The criminal elements of this offense are:

1. You sold, furnished, administered, or gave away a controlled substance, or transported it for sale or imported it into California,
2. You knew of the presence of the controlled substance,
3. You knew of the substance’s nature or character as a controlled substance,
4. When you transported the controlled substance, you intended to sell it, or that someone else would sell it, and
5. There was a usable amount of the controlled substance.¹

It is up to the prosecutor to prove each of these elements of the offense. They have to prove them beyond a reasonable doubt.

Transporting a controlled substance means moving it from one place to another. It does not matter that the substance was not transported far.² The means of transportation also does not matter.³ You can be convicted of transporting a controlled substance if you travel by:

• plane,
• train,
• car,
• bus,
• taxi,
• bicycle, or
• foot.

You do not need to be in actual possession of the drug to transport it. Constructive possession is enough. You are in constructive possession of a controlled substance if someone else has it, but you have a right to control it.⁴ However, you still have to be aware of the drug’s existence.

For example: Dave is driving a car. Charles, Larry, and Gene are in the back. Dave is unaware that one of them is carrying LSD. They are pulled over by a police officer. During a search, police find marijuana and LSD in the backseat and on the pavement underneath the car. While Dave was in constructive possession of the controlled substances because he was controlling where they were going, his lack of knowledge means he is not liable for transporting the drugs.⁵

However, you must have intended for the controlled substance to be sold, eventually.⁶ The intended sale can be finalized by you or by someone else.⁷

To be convicted, you also must know that the drug is a controlled substance. If you did not know what you had, it can be a strong defense to a charge for transporting drugs. Law enforcement often uses the following types of evidence to prove that you knew that the drug was a controlled substance:

• a prior conviction for a similar drug offense, like drug possession,
• your confession that you knew that the drug was a controlled substance, or
• your prior drug use.⁸

A conviction for transporting a controlled substance also requires evidence that there was a usable amount of the drug. This does not require that there be enough of the substance to affect a user or to get high.⁹ Instead, it means that there is more than a useless amount of the substance.¹⁰ Whether the drug is pure or diluted does not matter,¹¹ so long as it can be used.¹²

Undermining the prosecutor’s evidence on any of these elements is essential for avoiding a conviction. A criminal defense lawyer can help.

Which controlled substances are covered?

The crime of transporting a controlled substance under California Health and Safety Code 11352 HSC does not cover all illegal drugs. Instead, it covers the following controlled substances:

• those listed in Health and Safety Code 11054(b), (c), (e), or (f)(1), which includes:
  • prescription drugs and opiates like Betamethadol,
  • opioid derivatives like heroin,
  • depressants like gamma hydroxybutyric acid (GHB), and
  • stimulants like cocaine;
• mescaline,
• peyote,
• tetrahydrocannabinols,
• drugs listed in Health and Safety Code 11055(b) or (c), including:
  • opium,
  • codeine,
  • hydrocodone (Vicodin),
  • morphine,
  • oxycodone,
  • fentanyl, and
  • methadone;
• dronabinol, and
• any controlled substance classified by the Controlled Substances Act as a Schedule III, IV, or V narcotic.¹³

However, if you have a valid prescription for any of these substances, that can be a strong defense to a charge of transporting them.

Do I have to be involved in a drug sale?

No, you do not have to be involved in a drug sale to be charged with the transportation of a controlled substance. You can be liable for the offense if you merely intended the drugs to be sold, eventually, even if they are to be sold by someone else.

However, if you are arrested for selling drugs in addition to transporting them, you could face additional charges for the sale of a controlled substance.

What are the penalties of a conviction under Health and Safety Code 11352?

In California, the transportation of a controlled substance is a felony offense. This is more severe than a misdemeanor offense.

Most first-time convictions carry the following penalties:

• 3, 4, or 5 years in county jail under California’s realignment program,
• up to $20,000 in fines, and/or
• felony (formal) probation.¹⁴

The jail sentencing range increases to 3, 6, or 9 years if you were found to have transported the drugs across 2 or more county lines within California.¹⁵

There are also numerous aggravating factors that can increase the penalties with sentencing enhancements.

An extra year of jail time will be added if:

• the controlled substance being transported was heroin, cocaine, or cocaine base, and
• the transportation took you within 1,000 feet of a drug treatment center, “detox” facility, or a homeless shelter.¹⁶

Three additional and consecutive years will be added to the sentence for each prior conviction that you have for the transportation of controlled substances.¹⁷

If you were transporting large quantities of heroin, cocaine, or cocaine base, the state prison sentence increases substantially:

• 3 years for transporting more than 1 kilogram,
• 5 years for transporting more than 4 kilograms,
• 10 years for transporting more than 10 kilograms,
• 15 years for transporting more than 20 kilograms,
• 20 years for transporting more than 40 kilograms, and
• 25 years for transporting more than 80 kilograms.¹⁸

The transportation for sale of these large quantities can also increase the potential fine from up to $1,000,000 to up to $8,000,000.¹⁹

You are ineligible for felony probation if you were convicted for selling or offering to sell:

• 14.25 grams or more of a substance containing heroin,
• any amount of heroin, if you have a prior conviction for either transporting a controlled substance or possession of a controlled substance with intent to sell (Health and Safety Code 11351 HSC), or
• cocaine, cocaine base, or methamphetamine, if you have a prior conviction for possessing for sale, selling, or offering to sell any drug.²⁰

Transporting controlled substances is also a deportable crime for non-US-citizens.²¹

Are there any legal defenses?

Here at Shouse Law Group, I have represented literally thousands of people charged with drug crimes such as transporting. In my experience, the most effective defenses are:

• an illegal search or seizure obtained the evidence,
• police misconduct led to fabricated evidence,
• the police committed entrapment by coercing you into committing the offense,
• you did not know of the presence of the drugs,
• you did not know that the substance was a controlled substance,
• you had a valid prescription for the controlled substance, and/or
• you lacked the intent to sell the drugs, or had them for personal use.

Some of these defenses can lead to an acquittal. Others may only reduce the criminal charge down to simple possession.

Additional reading

For more information, refer to our related articles:

• Driving under the influence of drugs – Operating a motor vehicle impaired by drugs is treated like drunk driving.
• Transporting marijuana – Transporting marijuana is illegal without a state permit to transfer marijuana.
• Transporting methamphetamine – This typically carries up to 4 years in prison.
• Concealing drugs in a false compartment – This crime can be a misdemeanor or a felony.

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