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

Posted on March 11, 2022

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. The defendant does not have to move the drug a significant distance. However, he or she does need to know of the drug’s presence and that it is a controlled substance. This drug crime is a felony.

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. the defendant sold, furnished, administered, or gave away a controlled substance, or transported it for sale or imported it into California,
2. the defendant knew of the presence of the controlled substance,
3. the defendant knew of the substance’s nature or character as a controlled substance,
4. when the defendant transported the controlled substance, he or she 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. He or she has to prove them beyond a reasonable doubt.

Transporting a controlled substance means moving them 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 Defendants can be convicted for transporting a controlled substance if they travel by:

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

The defendant does not need to be in actual possession of the drug to transport it. Constructive possession is enough. A defendant is in constructive possession of a controlled substance if someone else has it, but the defendant has a right to control it.⁴ However, the defendant still has 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, the defendant must have intended for the controlled substance to be sold, eventually.⁶ The intended sale can be finalized by the defendant or by someone else.⁷

To be convicted, defendants also must know that the drug is a controlled substance. If the defendant did not know what he or she 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 the defendant knew that the drug was a controlled substance:

• a prior conviction for a similar drug offense, like drug possession,
• the defendant’s confession that he or she knew that the drug was a controlled substance, or
• the defendant’s 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 the defendant has 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, defendants do not have to be involved in a drug sale to be charged with the transportation of a controlled substance. Defendants can be liable for the offense if they merely intended the drugs to be sold, eventually, even if they are to be sold by someone else.

However, if the defendant is arrested selling drugs in addition to transporting them, he or she 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 the defendant was 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 the defendant within 1,000 feet of a drug treatment center, “detox” facility, or a homeless shelter.¹⁶

3 additional and consecutive years will be added to the sentence for each prior conviction that the defendant has for the transportation of controlled substances.¹⁷

If the defendant was 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

Defendants are ineligible for felony probation if the defendant was convicted for selling or offering to sell:

• 14.25 grams or more of a substance containing heroin,
• any amount of heroin, if the defendant has 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 the defendant has 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?

There are numerous legal defenses that can be raised to combat a charge of transporting a controlled substance in California. Some of the most common are:

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

A criminal defense attorney from a reputable law firm will know which defense strategy is best for your particular case. Establishing an attorney-client relationship with one is essential to beat a drug transportation charge.

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