In order to sentence a person under this statute, the prosecution will need to prove that the suspect:
1. unlawfully transport/import/sell/offer to sell controlled substance,
2. knowledge of its presence,
3. knowledge of the substance’s nature or character as a controlled substance, and
4. the controlled substance was in a usable amount.
The statute mentions the controlled substances by referring to other sections of the Health and Safety code. Essentially any drug regulated under United States Controlled Substance Act falls within the statute. Some of the more common controlled substances include Heroin, Cocaine, Ecstasy, LSD, Opium, Marijuana, and others.
Transportation is any act of moving the substance from one place to another. The suspect does not need to utilize any particular form of transportation.
The quantity of the drugs must be sufficient for individual use. This means that mere traces of drugs (on tin foil or baggies) are not sufficient amounts of drugs. The usable amount will be determined by the fact finder because even small amounts can be used by a person.
Can you be charged with H&S 11352 if you did not know of the drugs presence? No, the second element (see above) requires you to have knowledge of the drugs presence. For example, you borrow your friend’s car to drive to work. You are stopped for a simple traffic violation. While being cited, the police officer asks you for a permission to search the car’s trunk. You consent to the search because you believe the trunk is empty. You did not put anything in the trunk and never even opened it. The police finds marijuana stashed in the trunk. You will not be convicted of this crime because the prosecution will be unable to prove the knowledge element.
Can I be convicted of HS 11352 for prescription medication? Yes. The statute encompasses both legal and illegal drugs. You can be convicted, if you are transporting a legal prescription drug without a valid prescription from a licensed doctor.
An experienced attorney may raise numerous defenses on your behalf. There could have been a lack of control or possession, momentary possession, lack of knowledge, valid prescription, or failure to follow police procedures. Every case has unique facts and should be treated accordingly. Attorneys at Delicino and Vialtsin, LLP focus on drug cases. Please call 619-357-6677 to discuss you case.
- Possession of a Controlled Substance in California | HS 11350 (a)
- Possession of a Controlled Substance with Intent to Sell | HS 11351
- Transportation for Sale of a Controlled Substance| HS 11352
- Possession of Marijuana | Health and Safety Code Section 11357 | HS 11357
- Marijuana Cultivation, Harvest, Plant | HS 11358
- Possession of Marijuana for Sale | Health and Safety Code 11359 | HS 11359
- Marijuana Sale, Giving Away, Transportation | California Health and Safety Code Section 11360 | HS 11360
- Possession of Drug Paraphernalia | California Health and Safety Code 11364 | HS 11364
- Manufacturing a Controlled Substance (Marijuana, Hash Oil, etc.) | HS 11379.6(a)
- Driving Under Influence of Marijuana (Marijuana DUI) | California Vehicle Code Section 23152 | VC 23152
- Can a vehicle be searched by police officers if they smell marijuana outside of the vehicle?
- When can police stop and search my vehicle?
Delicino & Vialtsin, LLP answer general legal questions emailed to us on this blog. Feel free to send us YOUR question by email. Please do not email us confidential or time sensitive information, but call 619-357-6677 The answer suggested here is for general information ONLY and not to be construed as a legal advice. Further, the Q & A does not establish an attorney-client relationship with Delicino & Vialtsin, LLP. Anton Vialtsin Google+