San Diego Defense Lawyer on Shift of  Federal to State  Drug Cases H & S 11351 and 11352

San Diego Defense Lawyer on Shift of  Federal to State  Drug Cases H&S 11351 and 11352

The Trump Administration decision on zero tolerance prosecuting illegal immigrants in U.S. District Court.  That means that we at San Diego Defenders see federal prosecutors are passing more and more drug smuggling cases to State Court which was confirmed this week in an San Diego Union article by Greg Moran “Feds taking more drug cases to state court in wake of zero tolerance mandate.

We have heard through the grapevine that a Supervisor with the United States Attorney’s Office sent out a memo shortly after Attorney General Jeff Sessions came to San Diego to announce the crackdown warning  that because immigration cases “will occupy substantially more of our resources,” more cases would be rejected and left to State Courts according the “The Hill.”

What does this mean for the drug couriers, young and old, mother and fathers recruited by trafficantes, often called mules (or blind mules - mulas ciegas) which are people arrested at the San Ysidro or Otay Mesa Border the importation, transportation of drugs that San Diego Defenders has found were unknown to the person crossing and usually defend in federal court?

It has long been true that people caught smuggling drugs at the Border usually ended up at the MCC or private jails like GEO and CCA before being taken to  Federal Court. Now, we are seeing more and more going to San Diego Superior Court, Southern Division if the bust is at the Southern Border. And, more and more of those cases will be sent to State Court in Central Division downtown San Diego or East County if the couriers are stopped at immigration checkpoints of highway 8 or old highway 80. It is important that you find a local lawyer close to the court house that really knows the prosecutors and the judges that will be involved in the case! San Diego Defenders is right across the street from the Court house that will be handling he majority of these cases that are being shifted away from the federal prosecutors.

The first change will be how a person is charged.  In Federal Court, people accused of smuggling drugs are charged with illegal importation of the drugs 21 USC 841(a) and 846.  State law is slightly different wording than that of a Federal crime such as H&S 11351 and 11352.  But, California State law under Health and Safety does specifically state “importation” of controlled substances.   So, instead of the federal charges, accused smuggling will be charged with violating a variety of Health and Safety Codes like H&S 11352 for cocaine/crack, heroin and LSD, Health and Safety Code 11379 for methamphetamine, Health and Safety Code 11360 for marijuana and Health and Safety Code 11377 for ecstasy that emphasize possession for sale and distribution of drugs. It is different and your criminal defense lawyer should be from San Diego County to understand how these changes are being handled by the local law enforcement. Things are changing!

Punishment will also change.  Baseline penalties for different drugs involved vary.  Health and Safety Code 11352 for cocaine, heroin and LSD is a presumptive 3, 4 or 5 year prison sentence.  Health and Safety Code 11379 for methamphetamine and Health and Safety Code 11360 for marijuana when it is a felony charge both call for a presumptive prison terms of 2, 3 or 4 years.  Health and Safety Code 11377 for ecstasy calls for a 16 month, 2 or 3 year prison term.

Punishment also depends on how much of the drugs are involved.  For cocaine/crack and heroin Health and Safety Code section 11370(a)(1) adds 3 years if it was over a kilo, 11370(a)(2) adds 5 years if it was over 4 kilos, 11370(a)(3) adds 10 years if it was over 10 kilos, 11370(a)(4) adds 15 years if it was over 20 kilos, 11370(a)(5) adds 20 years if it was over 40 kilos and 11370(a)(6) adds 25 years if it was over 80 kilos. H&S 11370.4 explains the “enhancements” clearly.

Similarly, for PCP and methamphetamine cases Health and Safety Code section 11370.4(b)(1) adds 3 years for over a kilo, Health and Safety Code section 11370.4(b)(2) adds 5 years for over 4 kilos, Health and Safety Code section 11370.4(b)(3) adds 10 years if it is over 10 kilos and Health, Safety Code section 11370.4(b)(4) adds 15 years for over 20 kilos, Health and Safety Code section 11370.4(b)(5) adds 20 years for over 40 kilos and Health and Safety Code section 11370.4(b)(6) adds 25 years for over 80 kilos.

The good news for Defendants was that prosecutors often used to drop the weight allegations in exchange for quick pleas.  However, recent reports from the San Diego South County Court that handles most border cases have suggested the prosecutors are declining to do that in the same way as before. Remember a new District Attorney, Summer Stephans was just elected, so things are constantly changing  If you investigating criminal defense lawyers that handle drug cases in San Diego, we encourage that you go to the attorney search page of the CA State Bar Association to see where the lawyers office is located, how many years they have been practicing and if they have had complaints through that office. Check it!

Then look at reviews for the quality of review. If there are specific facts about the case, then the reviews are more likely to be genuine. How do you hire the best criminal defense lawyer for you? Read this and use the helpful tips on hiring an affordable lawyer that knows what they are doing.

Dan Smith and Jon Pettis, the criminal defense lawyers that have been defending San Diego County Drug case in both Federal and State Court are available 24/7 at (619) 258-8888 to speak with attorney Daniel M. Smith directly or he will call you back. Watch our video and learn a little more and there are many on our Youtube channel. Call us directly at the office at (619) 258-8888 during business hours and we will do our best for you and your family!