Many people find themselves facing drug charges accusing them of “transportation,” but they aren’t really sure what this means. They often want to find a good Orange County Criminal Defense Lawyer, but they want to understand what kind of charges they are facing before they talk to one. This article will help shed some light on what being charged with “transportation” is all about and what you can do to avoid jail or prison time and having a serious charge on your criminal record.

California transportation related drug crimes are most commonly charged under Health and Safety Code section 11352 (Selling or Transportation of a Controlled Substance) or Health and Safety Code section 11379 (Selling or Transportation of Methamphetamine). In relevant part, Health and Safety Code section 11352 states that “….every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport…” any one of a number of controlled substances including, but not limited to, Hydrocodone (Vicodin), Codeine, heroin, cocaine, opiates, and certain hallucinogenic substances, is guilty of a felony.  Health and Safety Code section 11379 contains nearly identical language except that it covers methamphetamines and other illegal substances.

What does “transportation” really mean?

Health and Safety Code section 11352 and 11379 cover a broad range of conduct, but what does it mean if you are charged with “transportation?” Simply put, you can be convicted of transportation when you move an illegal drug from one place to another, no matter how short the distance. You can be convicted if the illegal drugs were transported by you or someone else on foot, transported by car, transported by bicycle, or transported in any way and by any means. Convictions for transportation charges have even been upheld where a driver with drugs in the car only drove 20 feet. (See People v. Emmal (1998) 68 Cal. App. 4^th 1313.) The prosecution is not required to prove that you intended to sell the drugs or distribute the drugs. The prosecution only needs to prove you moved the drugs in some way to convict you of transportation charges.

In order to convict you of transportation charges, the prosecution must prove beyond a reasonable doubt 1) that you moved the illegal drugs some distance, 2) you knew of the drug’s presence and nature as a controlled substance, and 3) there was enough of the drug present to be used as a controlled substance. Additionally, a person can potentially be convicted of transportation charges even if they didn’t physically possess the illegal drugs on their own body. For example, if the police pull you over while you are driving your car and one of your passengers has illegal drugs in their pocket, you can be convicted of transportation charges if the prosecution can show that you knew your passenger had illegal drugs on them.

What will my punishment be if I am convicted of transportation charges and what can I do to minimize my punishment?

Transportation charges for violating Health and Safety Code section 11352 (Transportation of a Controlled Substance) is a felony punishable by either probation and up to a year in the county jail or three, four, or five years in California State Prison and up to a $20,000 fine. However, if you are convicted of transportation of a controlled substance for sale and you transported the illegal drugs across more than two county lines, you face a more severe possible punishment of three, six, or nine years in California state prison. Similarly, transportation charges for violating Health and Safety Code section 11379 (Transportation of Methamphetamines) is also a felony that is punishable by two, three, or four years in California state prison and up to a $10,000 fine. However, if you are convicted of transporting methamphetamines across more than two county lines, you are subject to an increased potential sentence of three, six, or nine years in California state prison.

Additionally, if you are convicted of certain aggravating factors, you can be subject to even more severe punishment. For example, if you are convicted of transporting certain illegal drugs in violation of Health and Safety Code section 11380.7, within 1,000 feet of a drug treatment center, detox facility, or homeless shelter, you face an additional one year in state prison. As another example, if you are transporting certain illegal drugs that weigh over 1 kilogram, you face an additional 3 year prison sentence under Health and Safety Code section 11370.4.

Being convicted of transporting illegal drugs can also lead to severe penalties depending on your prior criminal record. If you are convicted of transportation of illegal drugs and you have prior non-possession related drug convictions such as Possession with Intent to Sell or prior Transportation convictions, you are subject to a 3 year prison term for each prior non-possession related drug conviction in addition and consecutive to your new transportation charges. Additionally, recent changes that make California’s Three Strikes Law more forgiving do not apply to transportation of illegal drug charges. Under the old Three Strikes Law, a person could be sentenced to 25 year to life in prison if they had two prior “violent or serious” felonies and they were convicted of any additional felony thereafter. The recent changes have altered the Three Strikes Law so that a person must be convicted of “violent or serious felony” on their third strike in order to be sentenced to 25 years to life in prison. However, there are some unfortunate exceptions. Although transportation of illegal drugs is not a “violent” or “serious” felony under the Three Strikes Law, a person can still be sentenced to 25 years to life in prison if they have two prior strike convictions and they are convicted of transporting illegal drugs at anytime afterwards.

Being convicted of transporting illegal drugs can also make a person ineligible for beneficial drug diversion programs in California. Drug “diversion” allows eligible individuals to participate in programs geared towards rehabilitation while giving participants the opportunity to avoid jail time and even get their conviction dismissed upon successful completion of the diversion program. Such programs include Prop 36, PC 1000, and various county drug courts. Transporting illegal drugs can make a person ineligible for the benefits of diversion programs, but a skilled Orange County Criminal Defense Lawyer can help get around this by convincing the prosecutor and the judge that the transportation was for “personal use.”

It should also importantly be noted that a transportation of illegal drugs conviction can carry devastating immigration consequences if the defendant is not a United States Citizen. For example, if an individual is a “legal permanent resident” or “Green Card” holder and they are convicted of transportation of illegal drugs, they can be sent to prison for the transportation charge and then continue to be incarcerated after their sentence is over while they await deportation from the country.

Luckily, a good Orange County Criminal Defense Lawyer can help reduce, and sometimes even completely eliminate, the harsh penalties from a transportation of illegal drugs conviction. A lawyer can challenge the seizure of the evidence against you as being illegal under the Constitution, sometimes resulting in dismissal of some or all of the charges against you. A lawyer can also help negotiate with the district attorney for reduced charges that minimize jail or prison time, or that allow for beneficial drug diversion programs that don’t require incarceration. Good Orange County Criminal Defense Attorneys can also take your case to trial to prove that you are innocent of the charged crimes. The bottom line is that transportation of illegal drugs is a charge that should be taken seriously and must often be fought hard in order to achieve the best result for you.

If you have any questions about your transportation charges, please feel free to call The Law Offices of Trinh & Bettencourt anytime at (714) 712-7336.

After an individual is actually placed under arrest by law enforcement for suspicion of Driving Under the Influence in California, a DUI suspect is required by law to submit to their choice of a breath or a blood test to assist in determining their Blood Alcohol Content (BAC). Refusal to submit to a breath or blood test after an individual has been arrested can result in a 1-year suspension of an individual’s driver license and a minimum of 48 hours jail time if convicted. When law enforcement officers strongly suspect that a DUI suspect is under the influence, they often try to steer  suspects towards choosing to have their blood drawn for testing because blood tests are a generally more accurate method of measuring BAC than breath tests. In some instances, officers will even go as far as to force a DUI suspect to have their blood drawn for testing against the suspect’s will. The United States Supreme Court has ruled however that a warrant may be required in many cases before an officer can draw blood against a DUI suspect’s will.

In Schmerber v. California (1966) 384 U.S. 757, the U.S. Supreme Court held that a warrantless blood draw after a DUI arrest was allowed in that case. The suspect in Schmerber had gotten into a car accident and police needed to secure the accident scene, investigate the accident, and then take the suspect to the hospital. Once at the hospital being treated for his injuries, the suspect in Schmerber refused to do a blood draw to test his BAC. A major factor in the Court’s Schmerber ruling was the fact that evidence of the suspect’s BAC at the time of driving was vanishing by the minute because alcohol in the blood stream often begins to diminish shortly after drinking stops and the body begins to process it. Thus, the Court found that the officer in Schmerber “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’” because a great amount of time was taken to investigate the scene of the accident and take the suspect to the hospital and there might not have been sufficient time to seek a warrant from a magistrate before the possible alcohol in the suspect’s system diminished to the point of no longer being valuable from an evidentiary standpoint.

In Missouri v. McNeely (2013) S. Ct. ____, the U.S Supreme Court set out to answer the question of whether the mere fact the alcohol in a DUI suspect’s blood is dissipating with each passing minute constitutes an exigent circumstances permitting law enforcement to withdraw blood from the suspect against his or her will without a warrant. The Fourth Amendment to the U.S. Constitution provides that “[t]he right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” A warrantless search by law enforcement is however justified if it meets one of the narrow exceptions to the warrant requirement. One well recognized exception to the warrant requirement “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” In some circumstances, the emergency giving rise to the exception to the warrant requirement can be based on the imminent destruction of evidence. In deciding whether a law enforcement officer faced an emergency that justified acting without a warrant, the courts look to the totality of the circumstances.

In McNeely, the suspect was pulled over for allegedly speeding and crossing the centerline. After being arrested for suspicion of DUI, McNeely refused to take an evidentiary breath test and was taken to a nearby hospital to have his blood drawn. Once he was at the hospital however, McNeely refused to voluntarily give a blood sample. A law enforcement officer ordered a lab technician at the hospital to draw McNeely’s blood against his will.

The McNeely court declined to adopt a rule that the evaporation of alcohol in a DUI suspect’s body as time passes and it becomes metabolized constitutes a per se exigent circumstance justifying a warrantless blood draw against the suspect’s will. The Court held that in those cases where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment demands that they do so.  Exigencies in other destruction of evidence cases may require officers to act much more quickly than in DUI cases because, where for example a suspected drug dealer can access the drugs that are the evidence of his crime to immediately flush them down a toilet or otherwise destroy them, BAC evidence from a DUI suspect in contrast naturally dissipates over time in a gradual and relatively predictable manner. Additionally, because a police officer typically must transport a drunk driving suspect to a medical facility to perform a blood test, some delay between the time of arrest or accident and the time of the blood draw is inevitable regardless of whether the police officers are required to obtain a warrant.  The Court also pointed out that increases in technology since Schmerber was decided in 1966 have made it relatively easy for law enforcements officers to obtain a warrant in a short period of time without much effort. Thus, the McNeely court held that the warrantless blood draw against the suspect’s will violated the Fourth Amendment prohibition against unreasonable searches and seizures because Mcneely’s routine DUI arrest allowed the officers ample time to obtain a warrant from a detached and neutral magistrate before the blood draw took place.

The impact of the Court’s ruling in McNeely is that if police officers have a reasonable amount of time to seek a warrant, they can no longer justify warrantless searches based on the exigency exception in DUI cases where the sole exigency is the fact that the alcohol in the suspects body may be evaporating as time passes. The Court’s ruling in McNeely will have a potent impact on many DUI investigations where blood draws are involved, but it will surely have an impact on a broad range of other searches common in DUI investigations. One such example could be the instance where the DUI suspect has left their vehicle, entered their own home, and law enforcement seeks to enter the home to remove the suspect to question them and make them perform field sobriety tests and chemical tests. In these types of cases, officers often attempt to justify warrantless entry of an individual’s home on exigent circumstance grounds, citing the fact that entry was necessary because evidence was being destroyed due to the fact that the alcohol in the suspect’s body was being diminished as time passed. The ruling in McNeely seems to suggest that if officers have time to seek a warrant, they cannot enter a DUI suspect’s home without a warrant based solely on the fact that alcohol in a DUI suspect’s body is dissipating.

The California Supreme Court addressed the issue of whether local governments could ban stores within their borders where marijuana was being legally sold to qualified patients under the State’s Compassionate Use Act (CUA) of 1993 or the State’s more recent Medical Marijuana Program (MMP) adopted in 2003. In the case before the Court, the City of Riverside sought to close down a marijuana dispensary being operated within the city’s borders on the grounds that the dispensary constituted a public nuisance. The owner of the marijuana dispensary argued that the city of Riverside was preempted from banning his shop under state law pursuant to the CUA and MMP.

The California Supreme Court first noted that the “California Constitution recognizes the authority of cities and counties to make and enforce, within their borders, ―all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Cal. Const., art. XI, § 7.) This inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction‘s borders, and preemption by state law is not lightly presumed.”  The Court then went on to state that when a local government seeks to regulate something over which it traditionally has control, such as the location of certain land use, California courts will presume, absent a clear intent from the legislature, that such a regulation is not preempted by state statute. Local laws can however be prohibited under principles of state preemption if the local laws come into conflict with a state statute already in place. A conflict triggering state preemption of local laws exists where “local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. “ The California Supreme Court deduced that the common thread running through most cases concerning state preemption is that if there is a significant local interest to be served which may differ from one locality to another, then the presumption favors the validity of the local ordinance against an attack of state preemption.

The California Supreme Court looked back at the history of California’s medical marijuana laws codified in the CUA and MMP and determined that the laws were careful, narrowly drawn, and relatively limited in scope.  The Court felt that California’s medical marijuana laws were modest approaches attempting to strike a delicate balance in an area that remains controversial and involves tension between state and federal law. The Court further noted that the CUA and MMP merely grant protection to qualified patients against certain civil penalties and criminal prosecution for charges such as Possession of Marijuana under California Health & Safety Code section 11357 or Cultivation of Marijuana under California Health & Safety Code section 11358, but the CUA and MMP do not create a comprehensive state system of legalized marijuana. The Court also pointed out that the CUA and MMP do not grant qualified patients a right to easy access to medical marijuana and the state statutes do not override the zoning, licensing, and police powers of local city and county governments, nor does the CUA or MMP mandate local accommodation of medical marijuana cooperatives, dispensaries, or collectives. Thus, the California Supreme Court concluded that the CUA and the MMP do not either expressly or impliedly preempt city and county governments from using their police powers to ban medical marijuana dispensaries within their borders and to enforce such policies through nuisance actions. The Court therefore determined that the City of Riverside was allowed to shut down medical marijuana dispensaries.

The likely impact of the California Supreme Court’s ruling will be that many other local jurisdictions will choose to exercise their newly granted power to ban medical marijuana dispensaries and collectives within their borders. As a consequence, a great number of the seriously ill Californians for which the law was created will have to gain legal access to medical marijuana for its therapeutic and pain relieving attributes outsides the boundaries of their local government. Many of these seriously ill Californians are bedridden and already have great difficultly gaining access to the medical marijuana even within their own city or county. The California Supreme Court’s ruling and the increase in medical marijuana dispensary bans by local governments that will surely follow will only serve to increase the already heavy burden and expense many seriously ill Californians face in obtaining legal access to medical marijuana because many patients may have to pay other licensed individuals to travel great distances to gain legal access to medical marijuana because they are not physically able leave their homes. 

The United States Supreme Court Declares Their Landmark Decision In Padilla v. Kentucky Is Not Retroactive, But Non-Citizens Seeking To Overturn Their Convictions Due To Ineffective Advice From Counsel Still Have Avenues For Relief Under California Law

In the United States Supreme Court landmark decision of Padilla v. Kentucky (2010) 130 S. Ct. 1473, the Court held that non-citizen criminal defendants are owned a constitutional duty from their trial counsel to be properly and thoroughly advised concerning the immigration consequences of pleading guilty. Many seemingly minor criminal convictions can result is severe and devastating immigration consequences for non-citizen criminal defendants. The U.S. Supreme Court in Padilla held that criminal trial counsel have a duty to research and properly advise a non-citizen defendant of the immigration consequences of pleading guilty. Failure to adequately and properly advise a non-citizen defendant of the immigration consequences of their guilty plea can constitute ineffective assistance of counsel and be grounds for later vacating or reversing the defendant’s plea. However, in the years after the Court’s decision in Padilla, an important question was left open concerning whether the doctrine set forth in Padilla would apply to individuals whose convictions became final before the date of the Court’s decision. Continue reading →

More and more non-citizens legally living in the United States are finding themselves facing deportation from the country for committing seemingly minor crimes with no avenue for relief in immigration court.  The reason more non-citizens are being threatened with deportation without any recourse in immigration court is because over the years waivers and relief from deportation have been greatly reduced, while the scope of crimes constituting deportable offenses has been greatly increased. Perhaps most damaging is the significant increase in the number of crimes that now constitute “aggravated felonies” under federal immigration law and which require virtually mandatory deportation.  However, there is hope for non-citizens who seemingly have no defenses to deportation in immigration court and that hope lies in going back to the beginning and attacking the underlying criminal conviction that triggered deportation in the first place. Continue reading →