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:

• three (3) to nine (9) years in jail, and/or
• a fine of up to twenty thousand dollars ($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.

Defenses

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

As with other California drug crimes, these defenses may include:

• 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. What is California law on the sale of a controlled substance?
• 2. What are the penalties for HS 11352?
  • 2.1. Aggravating factors/enhanced sentences
  • 2.2. Immigration consequences
  • 2.3. Sale or transport of drugs involving minors
• 3. What are the best defenses to assert in court?
• 4. Are there related crimes?
  • 4.1. HS 11351 possession for sale
  • 4.2. HS 11379 sale or transportation of methamphetamines
  • 4.3. HS 11360 sale or transportation of marijuana
  • 4.4. HS 11357.5 and 11375.5 sale of synthetic (designer) drugs
  • 4.5. HS 10975 and 11355 sale of imitation drugs
  • 4.6. HS 11370.9 money laundering the proceeds of drug sales
  • 4.7. HS 11366 opening or maintaining a drug house

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is California law on the sale of a controlled substance?

The legal definition of selling or transporting controlled substances, under California Health & Safety Code 11352 HS, is as follows:

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;
2. You knew of the drug’s presence;
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 it is a crime to sell or transport under Health & Safety Code 11352 include (but are not limited to) the following common controlled substances:

• 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

Example: Jeremy is a small-time drug dealer. He has in the past sold both marijuana and “Ecstasy.” Recently he has begun selling expired Vicodin that he collects from senior citizens.

Jeremy can be prosecuted under several different drug laws, including HS 11379 (for selling Ecstasy) and HS 11360 (for selling marijuana). He will face charges under HS 11352 only for his sales of Vicodin.

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

Example: Michael is participating in a drug transaction that will take place inside a motel. He meets a driver in the motel’s parking lot, and the driver hands him some heroin from the car window.

Michael then walks across the parking lot to the motel itself, where he intends to sell the heroin to someone staying in one of the rooms. But Michael is apprehended by a police officer participating in a sting operation before he can complete the sale.

Michael is guilty of transporting controlled substances for walking across the parking lot with the heroin that was intended for sale.¹⁰

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

But the “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 or furnish/administer/give away controlled substances. However, you are only guilty of offering to sell or transport drugs if, when you made the offer, you actually intended to follow through on it.¹³

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

In reality, Denise has no idea how to get cocaine and would never dream of bringing it to the party. If she is invited, her plan is to make up a story about her source for the cocaine not coming through.

Denise has offered to furnish controlled substances. But because she did not intend to actually do so, 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 runs a multistate drug trafficking operation out of her home in Oregon.

Laura pays Alex several hundred dollars 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 shipment of dried peyote buttons into California for her. Jad is curious and looks inside the suitcase in the trunk. But he has no idea what peyote looks like. Laura tells them that the buttons are an exotic vegetable that is popular in California restaurants.

Neither Alex nor Jad is guilty of importing controlled substances into California under Health & Safety Code 11352. This is 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, either:

• personally or
• through another person.¹⁵

This is what is known as “constructive”—as opposed to actual—possession.

Example: Let’s return to Laura from our example above.

Let’s say Laura pays people to obtain the cocaine and peyote described above, to pack them in suitcases and to put the suitcases in cars for her. She gets paid when they get delivered—by someone else, like Alex or Jad—to a contact in California.

Laura is still guilty of transporting, importing and selling controlled substances under HS 11352 because she controlled the drugs.

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.

As criminal defense attorney Michael Scafiddi explains:

“Many times informants—who may be working for money or in exchange for leniency in their own drug case—give the police false or misleading information. So if an informant played a role in your case, you and your California drug crimes defense lawyer may want to make a motion in court to reveal the identity of the informant. You can then challenge the prosecutor’s assertion that their source is reliable.”

Another common way of gathering evidence for a sale or transportation of controlled substances case 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 both:

• the old-fashioned way (in person) AND
• 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 for the sale or transportation of a controlled substance.

2. What are the penalties for HS 11352?

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;
• Three (3), four (4) or five (5) years served in county jail under California’s realignment program—or three (3), six (6) or nine (9) years in jail if you are found to have transported controlled substances for sale across two (2) or more county lines within California; and/or
• A fine of up to twenty thousand dollars ($20,000).¹⁷

And you will NOT be eligible for a sentence to 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

2.1. Aggravating factors/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 described above.

These include:

Drug trafficking near drug treatment facilities or homeless shelters

You may face an additional one (1) year in jail for a Health & Safety Code 11352 HS conviction if both of the following are true:

1. The controlled substance involved was heroin, cocaine or cocaine base; and
2. The trafficking took place upon the grounds of or within one thousand (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:

• Three (3) years if the substance weighs more than one (1) kilogram;
• Five (5) years if it weighs more than four (4) kilograms;
• Ten (1) years if it weighs more than ten (10) kilograms;
• Fifteen (15) years if the drug weighs more than twenty (20) kilograms;
• Twenty (20) years if it weighs more than forty (40) kilograms; and
• Twenty-five (25) years if the substance exceeds eighty (80) 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 one million ($1,000,000) to up to eight million ($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 (3) 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

2.2. 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, like many drug crimes, 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.

2.3. 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.

You are guilty of this crime if you are an adult (that is, a person 18 or older), and you either:

1. Hire, employ or use a minor (that is, a person under 18) to sell, transport, give away, prepare for sale or peddle the controlled substance; or
2. Sell, furnish, administer or give away, or offer to sell, furnish, administer or give away, any controlled substance to a minor.²⁵

This behavior will lead to a state prison sentence of:

• three (3) years,
• six (6) years, or
• nine (9) years.²⁶

In addition, you face an additional one (1) or two (2) years in prison if:

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

And if you are at least four (4) years older than the minor involved, you face a separate and additional prison sentence of:

• one (1) year,
• two (2) years, or
• three (3) years.²⁷

3. What are the best defenses to assert in court?

Fortunately, there are many legal defenses to a charge under Health and Safety Code 11352 HS that a skilled California criminal defense attorney could present on your behalf.

These include:

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 a person, or in his/her 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.

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

If you are accused of offering to sell, transport, furnish, etc., a controlled substance, then your lack of intent could serve as a defense to Health and Safety Code 11352 HS.

This is because you are not guilty of this offense without the specific intent to execute your offer.³¹

4. Are there related crimes?

4.1. HS 11351 possession for sale

Health & Safety Code 11351, California’s “possession of a controlled substance with intent to sell” law, involves the same illegal drugs as HS 11352 sale or transportation.

But this is a slightly less serious offense because it doesn’t involve the actual sale or transport—just possession of the drugs with intent to sell them.

Possession for sale under HS 11351 is a felony with a potential jail sentence of:

• two (2) years,
• three (3) years, or
• four (4) years.³²

4.2. HS 11379 sale or transportation of methamphetamines

Health & Safety Code 11379 HS is California’s law against the sale and transportation of methamphetamines.

This law is very similar to HS 11352 but it covers different drugs, including “PCP,” MDMA (known as ecstasy), and ketamine (“special K”).

The penalties for the sale and transport of methamphetamines, a felony, are slightly less severe than those for the drugs covered by Health & Safety Code 11352. The basic jail sentence for violating this law is:

• two (2) years,
• three (3) years, or
• four (4) years.³³

4.3. HS 11360 sale or transportation of marijuana

Health & Safety Code 11360 HS prohibits the sale, transportation for sale, furnishing or giving away of marijuana.

Like HS 11352 sale or transport of controlled substances, the sale or transportation of marijuana is a felony. The potential jail sentence is:

• two (2) years,
• three (3) years, or
• four (4) years.

However, if you transport for sale or give away 28.5 grams or less of marijuana (other than concentrated cannabis), the offense is only a California misdemeanor and carries only a fine of one hundred dollars ($100).³⁴

4.4. HS 11357.5 and 11375.5 sale of synthetic (designer) drugs

In California, the sale of synthetic (“designer”) drugs is a crime.

Included in the definition of synthetic drugs are:

• Synthetic marijuana (sometimes marketed as “potpourri,” “herbal incense” or “Spice”);³⁵ and
• Synthetic stimulants (including “bath salts”).³⁶

Under California law, the sale of synthetic cannabis or stimulants is a misdemeanor—and so a less severe crime than HS 11352 drug trafficking. It can subject you to:

• Up to six (6) months in county jail; and/or
• A fine of up to $1,000.³⁷

4.5. HS 10975 and 11355 sale of imitation drugs

California Health and Safety Code 109575 and 11355, sale of an imitation controlled substance, cover the sale of “bunk” drugs. A “bunk” drug is one that is made intentionally to resemble a genuine controlled substance.

The sale of an imitation controlled substance is a misdemeanor under Health and Safety Code 109575 HS. The penalty is:

• Up to six months in county jail; and/or
• A fine of up to $1,000.³⁸

A more serious crime involving the sale of an imitation controlled substance is set forth in California Health and Safety Code 11355 HS. Under that section, it is a “wobbler” offense to: ·

• Offer to sell, give away or transport a controlled substance; but then
• Deliver, or arrange to deliver, a bunk drug instead.³⁹

If charged as a misdemeanor, a violation of Health and Safety Code 11355 HS can subject you to one (1) year in county jail. If it is charged as a felony, you face sixteen (16) months or two (2) or three (3) years in county jail.⁴⁰

4.6. HS 11370.9 money laundering the proceeds of drug sales

Health & Safety Code 11370.9 money laundering involving drug proceeds is a special form of the California crime of money laundering.

HS 11370.9 makes it a crime to engage in a financial transaction involving money that you know was derived from a drug crime like the sale or transportation of a controlled substance, with the goal of hiding the source of those funds. This law only covers transactions totaling more than twenty-five thousand dollars ($25,000) in a 30-day period.⁴¹

The laundering of drug proceeds is a wobbler. The felony penalties include:

• two (2) to four (4) years in state prison and/or
• a fine of up to two hundred fifty thousand dollars ($250,000) or twice the amount laundered (whichever is greater).⁴²

4.7. HS 11366 opening or maintaining a drug house

If you sell or give away drugs at a house, apartment or another particular place, and you do so repeatedly or continuously, you may be charged with operating a drug house under Health & Safety Code 11366.⁴³

This offense is frequently charged along with HS 11352 sale or transportation of drugs.

Operating a drug house is a California wobbler, with a potential felony state prison sentence of up to three (3) years.⁴⁴

For additional help…

For questions about the crime of sale or transportation of controlled substances under Health & Safety Code 11352 HS, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

In Nevada? Please see our page on Nevada “drug sale” laws.

¿Habla español? Visite nuestro sitio Web en español sobre la venta o transporte de una sustancia controlada en California.

Additional Resources:

California Attorney General Report: Drug Arrests in California, 1990-99

Substance Abuse National Hotline

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Legal References: