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Delaware Marijuana Laws

Delaware Marijuana Laws

Penalty Details

Under Delaware law marijuana is a schedule I drug. Legislation was approved in 2015 amending penalties for the possession of up to one ounce (28.35 grams) to a civil penalty, punishable by no more than a $100 fine. The use of marijuana by minors, in public, or in a moving vehicle will remain a criminal offense.

Possession for Personal Use

Sentencing penalties are provided in the chart above or listed under the miscellaneous section below.

Personal use quantity of marijuana is one ounce or less.

Possession of more than one ounce, but less than 175 grams of marijuana is an unclassified misdemeanor. If there are one or more aggravating factors involved, possession is a class B misdemeanor.

Possession of 175 – less than 1,500 grams is a class F felony, with one prior conviction a class D felony, with two or more prior convictions a class C felony. If one aggravating factor is involved possession is a class D felony, with one or more prior convictions a class C felony. If two or more aggravating factors are involved possession is a class C felony.

Possession of 1,500 – less than 3,000 grams is a class E felony, with one prior conviction a class C felony, with two or more prior convictions a class B felony. If one aggravating factor is involved possession is a class C felony, with one or more prior convictions a class B felony. If two or more aggravating factors are involved possession is a class B felony.

Possession of 3,000 – less than 4,000 grams is a class D felony, with one or more prior convictions a class B felony. If at least one aggravating factor is involved possession is a class B felony.

Possession of 4,000 – less than 5,000 grams is a class C felony. If at least one aggravating factor is involved possession is a class B felony.

Possession of 5,000 grams or more, with or without an aggravating factor is a class B felony.

See

  • Delaware CODE ANN. tit. 16, § 4714
  • Delaware CODE ANN. tit. 16, §§ 4755 & 4756
  • Delaware CODE ANN. tit. 16, § 4764
  • Delaware CODE ANN. tit. 16, §§ 4751B – 4752
  • Delaware CODE ANN. tit. 16, § 4753

Distribution, Sale, or Manufacture

Distribution, Sale, or Manufacture of less than 1,500 grams is a class D felony, with one prior conviction a class C felony, with two or more prior convictions a class B felony. If one or more aggravating factors are involved the offense is a class C felony.

Distribution, Sale, or Manufacture of 1,500 – less than 4,000 grams is a class C felony, with one or more prior convictions a class B felony. If one or more aggravating factors are involved the offense is a class B felony.

Distribution, Sale, or Manufacture of more than 4,000 grams is a class B felony.

See

  • Delaware CODE ANN. tit. 16, §§ 4751B – 4752 
  • Delaware CODE ANN. tit. 16, § 4753 
  • Delaware CODE ANN. tit. 16, § 4754 

Hash & Concentrates

The Delaware statute uses the general term “Marijuana” to refer to plant Cannabis and “every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin.” Nowhere does the statute differentiate penalties for Marijuana and Hashish or Concentrates. Both substances are classified under Schedule I of the Delaware Controlled Substances schedule.

See

  • Delaware CODE ANN. tit. 16 § 4701(26) 
  • Delaware CODE ANN. tit. 16 Del.C. § 4714(d)(19)

Paraphernalia

Any person who uses or possesses drug paraphernalia for the use or possession of a personal use quantity of marijuana shall be assessed a civil penalty of not more than $100.00.

Any person who uses or possesses with the intent to use drug paraphernalia is guilty of a class B misdemeanor, punishable with confinement for up to 6 months and a fine of no more than $1,000.

Any person who delivers drug paraphernalia or possesses drug paraphernalia with the intent to deliver, is guilty of a class G felony, punishable by up to 2 years incarceration.

Any person who delivers drug paraphernalia to another person who is under 18 yeas old is guilty of a class E felony, punishable by up to 3 years incarceration.

See

  • Delaware CODE ANN. tit. 16, §§ 4771 through 4774

Forfeitures

All controlled substances, which have been manufactured, distributed, possessed, dispensed or acquired including any property, which is used, or intended for use, as a container for property.

All raw materials, products and equipment of any kind, which are used, or intended for use, in manufacturing, delivering, importing or exporting any controlled substance including any property, which is used, or intended for use, as a container for property.

Any conveyances, including aircraft, vehicles, or vessels which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, trafficking in or possession with intent to deliver marijuana; all books, records, and research products and materials including formulas, microfilm, tapes and data which are used or intended for use in violation of this chapter; all drug paraphernalia; all moneys, negotiable instruments, securities or any other thing of value furnished, or intended to be furnished, in exchange for a controlled substance or drug paraphernalia; all profits or proceeds traceable to securities, assets or interest used, or intended to be used, to facilitate any drug crime.

See

  • Delaware CODE ANN. tit. 16, §4784
  • Miscellaneous
Sentencing
  • An unclassified misdemeanor is punishable by up to 30 days imprisonment and a fine not to exceed $575, unless other wise specified.
  • A class B misdemeanor is punishable by up to 6 months imprisonment and a fine not to exceed $1,000.
  • A class A misdemeanor is punishable by up to 1 year imprisonment and a fine not to exceed $2,300.
  • A class G felony is punishable by up to 2 years imprisonment.
  • A class F felony is punishable by up to 3 years imprisonment.
  • A class E felony is punishable by up to 5 years imprisonment.
  • A class D felony is punishable by up to 8 years imprisonment.
  • A class C felony is punishable by up to 15 years imprisonment.
  • A class B felony is punishable by 2 – 25 years imprisonment.
  • Felony penalty fines do not have a cap. All drug crimes require additional 15% surcharge for the rehabilitation fund.
  • Also a 6 month license suspension may be added in addition to the sentences provided above.
Super Weights

Marijuana weighing 15,000 grams (33 pounds) or less is punishable by 4 – 10 years imprisonment. More than 15,000 – 37,500 grams (83 pounds) is punishable by 6 – 12 years imprisonment. More than 37,500 – 75,000 grams (165 pounds) is punishable by 8 – 15 years imprisonment.

See

  • Delaware CODE ANN. tit.16 § 4701(14)
Aggravating Factors

The offense was committed within a protected school zone or park or place of worship or occurred in a vehicle. If both protected school zone and protected park or place of worship are present, then both may be alleged and proven, but together they count only as one.

The Defendant was an adult and the offense involved a minor (at least 4 years younger than the defendant) as a co-conspirator, accomplice, or the intended/actual recipient.

The Defendant, by use of violence or force, during or immediately following the offense, intentionally prevented or attempted to prevent the officer from making an arrest; or fled from an officer in a vehicle from, thereby creating a substantial risk of physical injury to other persons.

See

  • Delaware CODE ANN. tit. 16 § 4751A

First time offenders may be placed on probation instead of sent to prison or fined. Probation includes state sponsored dug treatment, drug testing, suspension of offender’s driver’s license, and community service. Successful completion of the program results in the charges against the individual being dropped and a conviction not appearing on the offender’s record. If the offender does commit another drug crime, however, this adjudication does count as a conviction.

See

  • Delaware CODE ANN. tit. 16, §4767
CONDITIONAL RELEASE

The state allows conditional release or alternative or diversion sentencing for people facing their first prosecutions. Usually, conditional release lets a person opt for probation rather than trial. After successfully completing probation, the individual’s criminal record does not reflect the charge.

DECRIMINALIZATION

The state has decriminalized marijuana to some degree. Typically, decriminalization means no prison time or criminal record for first-time possession of a small amount for personal consumption. The conduct is treated like a minor traffic violation.

DRUGGED DRIVING

This state has a per se drugged driving law enacted. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold.

This state has an active hemp industry or has authorized research. Hemp is a distinct variety of the plant species cannabis sativa L. that contains minimal (less than 1%) amounts of tetrahydrocannabinol (THC), the primary psychoactive ingredient in marijuana. Various parts of the plant can be utilized in the making of textiles, paper, paints, clothing, plastics, cosmetics, foodstuffs, insulation, animal feed, and other products. 

MANDATORY MINIMUM SENTENCE

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.

MEDICAL MARIJUANA

This state has medical marijuana laws enacted. Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of clinical applications. These include pain relief, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant and emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors, and are neuroprotective. For more information see: Medical Use.

Delaware Drugged Driving

In Delaware, a person is guilty of DUI if he or she: (1) operates a vehicle while under the influence of any drug; or (2) has, within 4 hours of operating a vehicle, any amount of an illicit or recreational drug in his or her blood that is the result of unlawful use prior to or during driving. Del. Code Ann. tit. 21, § 4177(b)(4) (2010).

(1) Driving under the influence of drugs. Id. § 4177(a)(2).

A person can obtain this type of DUI if drugs interfere with person’s mental or physical capacity, ability to exercise clear judgment, or due care in the driving of a vehicle. Id. § 4177(c)(5).

Affirmative Defense

The fact that any person charged with violating this section is, or has been, legally entitled to use a drug shall not constitute a defense. Id. § 4177(b)(1).

(2) Blood contains any amount of an illicit or recreational drug. Id. § 4177(a)(6).

Any cannabis metabolite, within 4 hours of driving, that is the result of the unlawful use or consumption of marijuana prior to or during driving. However, no person shall be guilty when the person has not used a recreational drug prior to or during driving but has only used or consumed such drug after the person has ceased driving and only such use or consumption after driving caused the person’s blood to contain an amount of the drug or an amount of a substance or compound that is the result of the use or consumption of the drug within 4 hours after the time of driving. Id. § 4177(b)(3)(a).

NOTE: Actual impairment is not an element of this offense. Cannabis metabolites can be detected in a person’s body up to one month after use, thus it is possible to be convicted of this type of DUI weeks after a person last ingested cannabis.

Affirmative Defense

No person may be guilty this second type of DUI when the person has used or consumed the drug detected according to the directions and terms of a lawfully obtained prescription for the drug. Id.§4177(B)(3)(b).

NOTE: a physician’s recommendation is not a prescription.

Implied Consent

  • Any person who drives shall be deemed to have given consent to a chemical test or tests of that person’s blood, breath and/or urine for the purpose of determining the presence of alcohol or a drug or drugs. Id. § 2740(a). The testing may be required of a person when an officer has probable cause to believe the person was driving under the influence of alcohol or drugs. Id.
  • At the time a chemical test specimen is required, the person may be informed that if testing is refused, the person’s driver’s license and/or driving privilege shall be (1) revoked for a period of at least 1 year if a DUI is alleged. Id. § 2741(a). The police officer who shall designate which of the tests shall be administered. Id.
  • If a person refuses to permit chemical testing, after being informed of the penalty of revocation for such refusal, the test shall not be given but the police officer may, however, take reasonable steps to conduct such chemical testing even without the consent of the person if the officer seeks to conduct such test or tests without informing the person of the penalty of revocation for such refusal and thereby invoking the implied consent law. Id. § 2742(a)
  • If there are reasonable grounds to believe that there is impairment by a drug or drugs which are not readily subject to detection by a breath test, a blood and/or urine test may be required even after a breath test has been administered. Id. § 2741(b).
  • Evidence as to defendant’s refusal to take sobriety tests is admissible in prosecution for operating motor vehicle DUI. State v. Durrant, 55 Del. 510 (1963); Del. Code Ann. tit. 21, § 2749.

Penalties

  • First offense – prison sentence of between sixty (60) days and three (3) months; fine of between $250 and $1,500 + surcharges; driver’s license revoked for twelve (12) months.Del. Code Ann. tit. 21, § 4177(d)(1);Id. § 4177A(a)(1).
  • Second offense – prison sentence of between sixty (60) days and three (3) months, fine of between $575 and $2,300 + surcharges; driver’s license revoked for twenty-four (24) months. Id. § 4177(d)(2); Id. § 4177A(a)(2).
  • Fourth offense class E felony – fine of not less than $3,000 nor more than $7,000; imprisonment for not less than 2 years nor more than 5 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(4);Id. § 4177A(a)(4).
  • Fifth offense class E felony – fine of not less than $3,500 nor more than $10,000; imprisonment for not less than 3 years nor more than 5 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(5);Id. § 4177A(a)(4).
  • Sixth offense class D felony – fine of not less than $5,000 nor more than $10,000 and imprisoned not less than 5 years nor more than 8 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(6); Id. § 4177A(a)(4).
  • Seventh offense class C felony – fine of not less than $10,000 nor more than $15,000; imprisonment for not less than 10 years nor greater than 15 years; driver’s license revoked for sixty (60) months. Id. § 4177(d)(7); Id. § 4177A(a)(4).

Other Penalties & Penalty Enhancers

  • DUI with a child under 17 in the vehicle: be fined an additional minimum of $500 and not more than an additional $1,500 and sentenced to perform a minimum of 40 hours of community service in a program that benefits children. Id. §4177 (d)(10)(a).
  • DUI before age 17 carries a minimum $500 fine, and 40 hours of community service in addition to normal penalties for DUI. Id. § 4177(d)(10).

Sobriety Checkpoints

Delaware’s interpretation of both federal and state Constitutions allows law enforcement officials to conduct sobriety checkpoints.

  • Howard v. Voshell, 621 A.2d 804 (1992) — Stopping of vehicle at sobriety roadblock is not per se Fourth Amendment violation; Lawful turns in order to avoid a sobriety checkpoint do not give law enforcement officials reasonable suspicion needed to justify stop of vehicle.

Case Law

State v. Hollobaugh, 297 A.2d 395 (1972) — Statute forbidding driving of a vehicle upon highways and elsewhere has been interpreted to mean that a person can be convicted of DUI on private property.

State v. Pritchett, 173 A.2d 886 (1961) – A motorist can be convicted by circumstantial evidence alone.

Per Se Drugged Driving Laws

Delaware has a zero tolerance per se drugged driving law enacted for cannabis, cannabis metabolites, and other controlled substances. (21 Del. C., Section 4177)

Under Delaware law, a person is per se guilty of DUID if their blood, “within four hours of driving, [contains] any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit recreational drug, or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.”

Delaware Hemp Law

Year Passed: 2014
Summary: House Bill 385 permits any higher education institution to “grow or cultivate industrial hemp for the purpose of agricultural or academic research.” Higher education institutions must submit 1) the location where the institution intends to grow or cultivate industrial hemp, 2) a research plan and 3) the names an employee supervising the research to the Department of Agriculture for authorization.
Statute: Del. Code Ann. tit. 3 § 2802 (2014)

Delaware Medical Marijuana Law

Status

 

Operational

Law Signed:

 2011

QUALIFYING CONDITIONS

  • Alzheimer’s disease
  • Amyotrophic Lateral Sclerosis
  • Cachexia
  • Cancer
  • Chronic pain
  • HIV/AIDS
  • Intractable epilepsy*
  • Nausea
  • Post-traumatic Stress Disorder (PTSD)
  • Seizures
  • Severe and persistent muscle spasms* If the qualifying patient is younger than 18 years of age, the recommending physician must be a pediatric neurologist, pediatric gastroenterologist, pediatric oncologist or pediatric palliative care specialist. Adolescent patients are only permitted to possess oils containing at least 15 percent CBD (and no more than 7 percent THC) and/or oils containing 15 percent THC acid (and no more than 7 percent THC). 

PATIENT POSSESSION LIMITS

Six ounces

HOME CULTIVATION

No

STATE-LICENSED DISPENSARIES

Yes

STATE-LICENSED DISPENSARIES OPERATIONAL

Yes

CAREGIVERS

No

ESTIMATED NUMBER OF REGISTERED PATIENTS

RECIPROCITY

No

CONTACT INFORMATION

Delaware Health and Social Services
Division of Public Health
http://dhss.delaware.gov/dph/hsp/medmarhome.html

Delaware Verified Marijuana / Cannabis Attorney / Lawyers

 

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