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San Diego Criminal Lawyer

San Diego Drug Transportation Defense Lawyer

Transportation of a Controlled Substance

Explained by a San Diego Criminal Lawyer

Health & Safety Code 11352 HS

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Defintion

Elements of the Crime

Defenses 

Penalties & Punishment

 

Introduction

Transportation and possession with the intent to distribute are essentially the same crime. You may be charged with both, but if convicted of both, you will only be sentenced under one or the other statute. Jail and prison consequences vary tremendously based on the specific facts of each situation, including: the quantity of the substances involved, and presence of cash, scales, packaging, and weapons. However, the sentencing for Transportation of a Controlled Substance is the same as Possession with Intent to Distribute. 

 

For specific legal advice on your case you need to contact an experienced San Diego criminal lawyer to represent you in the legal process. Each criminal transportation of narcotics case involves a search and seizure, that if ruled illegal, can result in the suppression of evidence and dismissal of your entire case. It is also substantially likely that a transportation charge will deal with an automobile, the premise of the stop and the search of the automobile. 

 

All drug possession, sales and transportation cases are based either on the California Health & Safety Code (state level case) or the Controlled Substances Act (federal level case). Exampes of common controlled substances regulated by these laws include: 

  • Marijuana

  • Cocaine

  • Heroin

  • Crystal Meth (Methamphetamine)

  • LSD and other hallucinogenics

  • Prescribed drugs such as Codine, Adderall, and Oxy-Contin

 

Definition of Transportation of Narcotics

There are three different ways in which you can legally be said to be in possession with the intent to distribute narcotics. 

Actions prohibited by HS 11352

  • Transportation defined as: moving the controlled substance(s) from one place to another. 

  • Importation of a controlled substance into California (i.e. buying prescription drugs from China),

  • Selling defined as: an exchange for money, goods & services, favors, or any other non-monetary benefits. (i.e. trading sexual favors for drugs)

  • Furnishing defined as making available for sale by any means (i.e. Advertising on Silk Road)

  • Dosing or Administration defined as giving drugs directly to another person by injection or any other means that results in a person ingesting, inhaling, or otherwise consuming the drug.

  • Giving away defined as: voluntarily giving drugs to another person for no exchange. (i.e. gifting somebody marijuana for their birthday). 

Practice Areas

 

Penalties and Punishment

A conviction for possession with intent to distribute a controlled substance is a felony and punishable by: 

  • 2, 3, or 4 years

  • Up to $20,000 fine

 

Probation is possible in the case of a first time offender without any aggravating circumstances. 

 

Aggravating Factors

The presence of "aggravating factors" can drastically increase the prision sentence for a conviction of possession with intent to sell or distribute. If the substance is cocaine, cocaine base, or heroin the ADDITIONAL penalties increase as follows:

  • 3 years if quantity exceeds 1 kilgoram

  • 5 years if quantity exceeds 4 kilograms

  • 10 years if the quantity exceeds 10 kilograms

  • 15 years if the quantity exceeds 20 kilograms

  • 20 years if the quantity exceeds 40 kilograms

  • 25 years if the quantity exceeds 80 kilograms

 

The fine for the presence of the aggravating weight factor can increaes up to $8 Million.  

 

PC 1000 Drug Diversion

Drug diversion is not applicable to "drug sales," however an experienced San Diego drug defense lawyer can negotiate your charge down from possession with intent to distribute to possession for personal use, thus making you eligible for drug diversion programs.  

 
 
 

Elements of Proof of Transportation

There are three elements that the Government must prove in order to convict you of transportation of a controlled substance. These elements do not change between State and Federal level cases. The elements of transportation of a controlled substance are:

 

  • You performed (or offered to perform) at least one of the acts specified above,

  • You knew the drug was present and a controlled substance

  • The quantity of the drug was great enough for use

 

More Serious Than Simple Possession

The California Court of Appeals held in People v. Emmal (1998) 68 Cal.App.4th 1313, 1316-11317

 

"The Legislature has determined transportation of controlled substances...should be prohibited because it poses greater risks to the public than simple possession does. As our Supreme Court has observed, the increased penalty provided for transportation is intended to discourage sales and purchases; to reduce the incidents of traffic accidents caused by those who might use and be impaired by a controlled substance during its transportation; and to inhibit the use of controlled substances in general by making it difficult to distribute and obtain them...The proscription and the penalty that goes with it do not require an actual sale, an impaired driver, or even use of the drug before they come into play. It is enough that those evils, along with their attendant risks, have been reasonably associated with the prohibited deed."

 

 

The Prosecution's Case

The prosecutions case may be built on a number of factors that can be challenged, and if successful, result in your case being dismissed. 

 

Speaking to a Police Officer

The first thing the DA looks for in a file are whether or not you made any incriminating statements, and what were those statements. Which is why it's important to remember to NEVER SPEAK TO THE POLICE WITHOUT A LAWYER. The risk is simply too high that you may incriminate yourself. Police are trained at deception, and you will not talk them out of charging you with a crime - especially if you start trying to explain away evidence that they already have.  

 

Informant or Wire Tap

Many transportation charges arise from the use of an informat or a wire-tap. Police often act on tips from "narcs," informants who provide the police with information in exchange for money. Sometimes the police will try and flip a person to be an informant to "work off their charge." For example, a person facing a third sales conviction - and serious prison time, may get an offer from the police "flip on two dealers, and we won't take this to the DA." - This may result in bogus, self-serving information which leads to bad search warrants and the lives of innocent people turned upside down. For example, a student at a unviersity, caught with loose adderall pills, gives police the name of the only two students he knows who have adderall prescriptions, even though he knows they would never sell their prescriptions or give them away. 

 

Undercover Tactics

Police often perform "Controlled buys," that is they arrange for an undercover officer to purchase drugs from a dealer - which then results in the dealer's arrest. You may be arrested for simply being in the wrong place at the wrong time. An undercover officer may have been working in a high-traffic drug area posing as a user trying to "score", and you happened to be the one who they approached. An experienced San Diego drug defense lawyer will be able to explore the entrapment defense in connection with almost any undercover drug operation.

 

Factors Distinguishing Personal Use and Intent to Distribute

No Paraphanelia

Nearly every drug requires paraphanelia to properly use the drug. Whether the paraphenlia is a pipe or a rolled up bill, the absence of paraphanelia can be used to impute an intent to distribute the illegal narcotics instead of an intent to use them personally. Possession of drug paraphanelia is a crime that can be charged in addition to possession of a controlled substance for personal use, however both of these crimes are misdemeanors, while Possession with intent to distribute is a felony. While as a general proposition, evidence of another crime usually hurts your case, in this case it would be a factor that may help your case. 

 

Drug Packaging Materials

The presence of plastic baggies, vials, balloons, bindles, or some other packaging to hold a controlled substance can be used to demonstrate an intent to distribute a controlled substance. Simply the presence of more packaging materials than necessary for personal use can be used to charge you with the intent to distribute. 

 

Distribution Tools

The presence of distribution tools will greatly increase the odds of a successful prosecution - unless those tools are dismissed by evidentiary motion. Tools such as:

  • Scales

  • Diluting Materials

  • Measuring instruments

  • Precursors

 

These tools can all be used to show that you intended to distribute the controlled substance rather than an intent to consume for personal use. 

 

 

Legal Defenses to Possession with Intent to Distribute or Sell

Illegal Search

Police do not just discover drugs by happenstance - drugs are discovered by a search of a person's property, effects, or themselves. The police must search, and many times they do not search correctly or with a warrant. Even if police have a warrant to search you, the warrant could be defective and not support the search. An experienced San Diego drug defense lawyer knows how to file motions to suppress any evidence or statements seized as a result of illegal search and seizure or illegal interrogation. 

 

If the search is warrantless the probability of a motion to suppress the evidence being successful increases. Illegal searches are routinely coupled with an illegal detention and an illegal detention is another reason that evidence may be suppressed in your case. If you have been searched and drugs were seized as a result, it is important to call a San Diego criminal defense attorney immediately. 

 

Police Misconduct

People around America seem to finally be waking up to the systemic issue of police misconduct. From planting evidence, to falsifying reports, Police misconduct is responsible for the significant boom in our prison population. An experienced criminal lawyer will know to file a "Pitchess Motion," - a special motion that reveals relevant police misconduct. Depending on the circumstances of your arrest, for example - if police brutality is an issue - you may be able to file a Section 1983 Civil Rights Lawsuit. 

 

Lack of Possession

Challenging possession is the first line of defense in a charge of possession with intent to distribute. First, actual possession may be challenged by evidentiary motion, and if the search of your person or effects was illegal, then the drugs are excluded from evidence and you can challenge the element of possession. Successfully suppressing evidence of an illegal search can result in your case being dismissed. Second, constructive possession may be successfully challenged. It can be difficult for the prosecutor to prove you had knowledge or control over the actual location where the drug were discovered. 

 

Lack of Knowledge

A belief that cocaine was actually PCP is not a lack of knowledge defense. However a belief that cocaine was sugar is a knowledge based defense to the crime of possession with intent to distribute. The defense is only likely to be successful when a defendant has absolutely no record of drug possession. Only the type of defendant without a criminal record can credibly tell a judge and jury that they did not have any knowledge that they were in possession of a controlled substance.