(a) Except as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or
deliver a controlled substance or a counterfeit controlled substance classified in Schedule I or II which is a narcotic drug
is guilty of a class C felony and shall be fined not more than $50,000.
(b) Except as authorized by this chapter, any person who manufactures, delivers or possesses with the intent to manufacture
or deliver a controlled substance or a counterfeit controlled substance classified in Schedule III, IV or V which is a narcotic
drug is guilty of a class E felony and shall be fined not more than $15,000.
(c) Except as authorized by this chapter, in cases where death occurs as a result of the use or consumption of a controlled
substance or counterfeit controlled substance classified in Schedule I, II, III, IV or V which is a narcotic drug, any person
who is convicted of manufacturing or delivering such drug shall be guilty of a class B felony and shall be fined not more
than $100,000.
(d) Where an individual is convicted of a violation of subsection (a), subsection (b) or subsection (c) of this section and
the Attorney General may move to sentence the defendant as a nonaddict, the court shall conduct a hearing at which the Attorney
General shall have the burden of proof by a preponderance of the evidence that the defendant is a nonaddict. If the court,
after hearing, is satisfied that the defendant is, and was at the time of the offense, not addicted to controlled substances,
then the following enhanced penalties shall apply:
(1) For the first violation of this section a mandatory minimum sentence of 6 years to be served at Level V.
(2) For the second or subsequent violation of this section a mandatory minimum sentence of 12 years to be served at Level
V.
These minimum sentences may not be suspended by the court.
67 Del. Laws, c. 130, § 15; 70 Del. Laws, c. 80, §§ 1-3; 76 Del. Laws, c. 108, §§ 1-3.;
§ 4752. Prohibited acts B; penalties.
(a) Except as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or
deliver a controlled substance or a counterfeit controlled substance classified in Schedule I, II, III, IV or V which is not
a narcotic drug is guilty of a class E felony and upon conviction shall be fined not more than $10,000 and imprisoned not
more than 5 years.
(b) Any person who distributes, sells, offers to sell, dispenses, administers, or prescribes any anabolic steroid or any counterfeit
substance purporting to be an anabolic steroid for the purposes of human body building or enhancement of human athletic performance
is guilty of a class E felony. For purposes of this section, it is not a valid medical practice to distribute, sell, offer
to sell, dispense, administer or prescribe any anabolic steroid for purposes of human body building or enhancement of human
athletic performance.
(c) For purposes of this section, the words "body building" shall mean the increasing of muscle weight. For purposes of this
section, the words "athletic enhancement" shall mean the improvement of performance in any form of exercise, sport or game.
16 Del. C. 1953, § 4752; 58 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 14; 70 Del. Laws, c. 81, § 3; 76 Del. Laws, c. 108, § 4.;
§ 4752A. Unlawful delivery of noncontrolled substance.
(a) It is unlawful for any person to knowingly deliver or attempt to deliver a noncontrolled substance upon either:
(1) The express or implied representation that the substance is a narcotic or nonnarcotic controlled substance; or
(2) The express or implied representation that the substance is of such nature or appearance that the recipient of said delivery
will be able to distribute said substance as a controlled substance;
(3) It is prima facie evidence of the implied representation referred to in paragraphs (1) and (2) of this subsection if any
2 of the following factors are established:
a. The noncontrolled substance was packaged in a manner normally used for the illegal delivery of controlled substances;
b. The delivery or attempted delivery included an exchange of or demand for money or other valuable property as consideration
for delivery of the substance, and the amount of such consideration was substantially in excess of the reasonable value of
the noncontrolled substance;
c. The physical appearance of the finished product containing the substance is substantially identical to a specific controlled
substance.
(b) In any prosecution for unlawful delivery of a noncontrolled substance, it is no defense that the accused believed the
noncontrolled substance to actually be a controlled substance.
(c) Unlawful delivery of a noncontrolled substance is a class D felony. The punishment upon conviction under this section
shall be governed by those provisions of this Code dealing with delivery of controlled substances. Specifically, the section
prohibiting delivery of the controlled substance, which the defendant represented the noncontrolled substance to be, shall
govern the punishment in each case. If no express or implied representation was made as to the identity of the controlled
substance, the punishment shall be the same as for the delivery of a nonnarcotic controlled substance. However, the punishment
provision of § 4751(c) of this title shall not apply to this section.
62 Del. Laws, c. 252, § 1; 63 Del. Laws, c. 72, § 1; 67 Del. Laws, c. 130, § 9; 70 Del. Laws, c. 80, § 4.;
§ 4753. Prohibited acts C; penalties.
It is unlawful for any person knowingly or intentionally to possess, use or consume a controlled substance or a counterfeit
substance which is a narcotic drug unless the substance was obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of the practitioner's professional practice or except as otherwise authorized
by this chapter. Any person who violates this section shall be guilty of a class A misdemeanor.
16 Del. C. 1953, § 4753; 58 Del. Laws, c. 424, § 1; 60 Del. Laws, c. 583, § 6; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 15; 70 Del. Laws, c. 186, § 1.;
§ 4753A. Trafficking in marijuana, cocaine, illegal drugs, methamphetamines, Lysergic Acid Diethylamide (L. S. D.), designer
drugs, or 3,4-methylenedioxymethamphetamine (MDMA).
(a) Except as authorized in this chapter:
(1) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, in excess of 5 pounds of marijuana is guilty of a class B felony, which felony shall
be known as "trafficking in marijuana". If the quantity of marijuana involved:
a. Is in excess of 5 pounds, but less than 100 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $25,000.
b. Is 100 pounds or more, but less than 500 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $50,000.
c. Is 500 pounds or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall
be fined up to $100,000.
(2) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, 10 grams or more of cocaine or of any mixture containing cocaine, as described in
§ 4716(b)(4) of this title, is guilty of a class B felony, which felony shall be known as "trafficking in cocaine." If the
quantity involved:
a. Is 10 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(3) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 2.5 grams or more of any morphine, opium or any salt, isomer or salt of an isomer
thereof, including heroin, as described in § 4714 of this title, or 2.5 grams or more of any mixture containing any such substance,
is guilty of a class B felony, which felony shall be known as "trafficking in illegal drugs." If the quantity involved:
a. Is 2.5 grams or more, but less than 10 grams, which person shall be sentenced to a mandatory minimum term of imprisonment
of 3 years and shall be fined up to $75,000.
b. Is 10 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 10 years and shall be fined up to $150,000.
c. Is 50 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall be
fined up to $750,000.
(4) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, 5 grams or more of methamphetamine, including its salt, isomer or salt of an isomer
thereof, or of any mixture containing any such substance, as described in § 4716(d)(3) of this title is guilty of a class
B felony, which felony shall be known as "trafficking in methamphetamine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(5) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 5 grams or more of amphetamine, including its salts, optical isomers and salt of its
optical isomers, or of any mixture containing any such substance, as described in § 4716(d)(1) of this title is guilty of
a class B felony, which felony shall be known as "trafficking in amphetamine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(6) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 5 grams or more of phencyclidine, or of any mixture containing any such substance,
as described in § 4716(e)(5) of this title, is guilty of a class B felony, which felony shall be known as "trafficking in
phencyclidine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(7) Any person, who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is
knowingly in actual or constructive possession of 50 or more doses (each dose constitutes up to 100 micrograms) or in a liquid
form 5 milligrams or more of lysergic acid diethylamide (L.S.D.), or any mixture containing such substance, as described in
§ 4714(d)(9) of this title, is guilty of a class B felony known as "trafficking in L.S.D." If the quantity involved:
a. Is in excess of 50 or more doses, or in liquid form 5 milligrams, but less than 100 doses, or in liquid form less than
10 milligrams, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years and pay a fine of $50,000.
b. Is in excess of 100 doses, or in liquid form 10 milligrams, but less than 500 doses, or in liquid form less than 50 milligrams,
such person shall be sentenced to a mandatory minimum term of imprisonment of 4 years and shall be fined up to $100,000.
c. Is 500 doses or more, or in liquid form 50 milligrams or more, such person shall be sentenced to a mandatory minimum term
of imprisonment of 8 years and shall be fined up to $400,000.
(8)a. Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State or who is
knowingly in actual or constructive possession of 25 or more doses or tablets or 5 or more grams or 5 milliliters or more
of a designer drug or any mixture containing any such substance, as described in § 4701(9) of this title, is guilty of a class
B felony, which felony shall be known as "trafficking in designer drugs." If the quantity involved:
1. Is 25 doses or tablets or more, but less than 250 doses or tablets, or 5 grams or more, but less than 50 grams, or 5 milliliters
or more, but less than 50 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years
and shall be fined up to $50,000.
2. Is two-hundred 250 doses or tablets, or more, but less than 500 doses or tablets, or 50 grams or more, but less than 100
grams, or 50 milliliters or more, but less than 100 milliliters, such person shall be sentenced to a mandatory minimum term
of imprisonment of 4 years and shall be fined up to $100,000.
3. Is of 500 doses or tablets or more, or 100 grams or more, or 100 milliliters or more such person shall be sentenced to
a mandatory minimum term of imprisonment of 8 years and shall be fined up to $400,000.
b. This paragraph does not apply to a person who manufactures or delivers a substance in conformance with an approved new
drug application or an exemption for investigating use within the meaning of § 505 of the Federal Food, Drug and Cosmetic
Act (21 U.S.C. § 355) or to a person who manufactures, distributes or dispenses controlled substances in conformance with
a registration issued by the Attorney General of the United States within the meaning of §§ 301-304 of the Federal Controlled
Substances Act (21 U.S.C. §§ 821-824).
(9) Any person who on any single occasion knowingly sells, manufactures, delivers or brings into this State or who is knowingly
in actual or constructive possession of 25 or more doses or tablets or 5 or more grams or 5 milliliters or more of 3,4-methylenedioxymethamphetamine
(MDMA), its optical, positional and geometric isomers, salts and salts of isomers; or any mixture containing such substance,
as described in § 4714(d)(21) of this title, is guilty of a Class B felony known as "Trafficking in MDMA." If the quantity
involved:
a. Is 25 doses or tablets or more, but less than 250 doses or tablets, or 5 grams or more, but less than 50 grams, or 5 milliliters
or more, but less than 50 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years
and shall be fined up to $50,000.
b. Is 250 doses or tablets, or more, but less than 500 doses or tablets, or 50 grams or more, but less than 100 grams, or
50 milliliters or more, but less than 100 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 500 doses or tablets or more, or 100 grams or more, or 100 milliliters or more such person shall be sentenced to a mandatory
minimum term of imprisonment of 8 years and shall be fined up to $400,000.
(b) Notwithstanding § 4764 of this title, with respect to any person who is found to have violated this section, adjudication
of guilt or imposition of sentence shall not be suspended, deferred or withheld, nor shall such person be eligible for parole
or release upon good time credits or in any other manner, nor shall such individual be eligible for work release, supervised
custody, furlough or any other similar program, prior to serving the mandatory minimum term of imprisonment prescribed by
this section.
(c) The Attorney General may move the sentencing court to reduce or suspend the sentence of any person who is convicted of
a violation of this section and who provides substantial assistance in the identification, arrest or conviction of any of
the person's accomplices, accessories, co-conspirators or principals. Upon good cause shown, the motion may be filed and heard
in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered
such substantial assistance.
(d) For purposes of this section with regard to the sentencing provisions, a year shall mean 365 days without any reductions
for good time.
(e) In any prosecution under this section the State need not prove that the defendant had any knowledge as to the weight of
the substance possessed. The State need only prove that the defendant knew that the substance was possessed; and, that in
fact the substance was that which is alleged and that the substance in fact weighed a certain amount.
63 Del. Laws, c. 134, § 1; 63 Del. Laws, c. 359, § 1; 64 Del. Laws, c. 87, §§ 1, 2; 65 Del. Laws, c. 317, §§ 1-3; 65 Del. Laws, c. 485, § 1; 67 Del. Laws, c. 115, §§ 1-16; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 427, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 235, § 1; 73 Del. Laws, c. 216, § 1; 73 Del. Laws, c. 253, §§ 1, 2, 3; 74 Del. Laws, c. 106, §§ 13-17; 74 Del. Laws, c. 288, §§ 1, 3-5; 76 Del. Laws, c. 108, § 5.;
§ 4754. Prohibited acts D; penalties.
(a) It is unlawful for any person knowingly or intentionally to possess, use or consume any controlled substance or counterfeit
substance classified in Schedule I (except Schedule I controlled substances classified in subsection (d)(19) of § 4714 of
this title), II, III, IV or V not a narcotic drug unless the substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except
as otherwise authorized by this chapter. Any person who violates this subsection shall be guilty of a class B misdemeanor.
(b) It is unlawful for any person knowingly or intentionally to possess, use or consume any Schedule I controlled substance
or counterfeit substance classified in subsection (d)(19) of § 4714 of this title, except as otherwise authorized by this
chapter. Any person who violates this subsection shall be guilty of a class B misdemeanor.
16 Del. C. 1953, § 4754; 58 Del. Laws, c. 424, § 1; 61 Del. Laws, c. 261, § 3; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, §§ 16, 17; 70 Del. Laws, c. 186, § 1.;
§ 4754A. Possession and delivery of non=-con=-trolled prescription drug.
(a) It is unlawful for any person knowingly or intentionally to possess any drug for which a prescription is required, which
is not a controlled substance or counterfeit controlled substance, with the following exceptions:
(1) The possession, and transfer to a licensed health care professional by a manufacturer's representative, of drugs manufactured
by the representative's employer;
(2) The possession, compounding and sale of such drug by a pharmacist in the lawful course of the pharmacist's professional
activities;
(3) The possession and transfer of such drug by a physician or other licensed health care professional in the lawful course
of the physician's or other licensed health care professional's professional activities; and
(4) The possession, use and consumption of such drug by a person who has received the drug from a physician or other licensed
health care professional who is permitted by law to disperse or prescribe such drug.
(b) Possession of a drug which is not a controlled substance, in violation of this section, is a class B misdemeanor.
(c) In any prosecution for "unlawful possession of a noncontrolled prescription drug," it is an affirmative defense that the
drug was possessed or consumed within the residence of the defendant, that a member of the defendant's household possessed
a valid prescription for said drug, that the possession or consumption by the defendant was for the purpose of treating an
illness and that the drug in question was approved for use for the specific illness.
(d) Any person who delivers or possesses with intent to deliver a noncontrolled prescription drug not obtained directly from,
nor pursuant to, a valid prescription or order of a practitioner who is acting in the course of the practitioner's professional
practice, or except as otherwise authorized by the statutes of this State, shall be guilty of a class E felony.
63 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 384, §§ 1, 2; 70 Del. Laws, c. 81, § 4; 70 Del. Laws, c. 186, § 1.;
§ 4755. Prohibited acts E; penalties.
(a) It is unlawful for any person:
(1) Who is subject to subchapter III to distribute or dispense a controlled substance in violation of § 4739;
(2) Who is a registrant, to manufacture a controlled substance not authorized by the person's registration or to distribute
or dispense a controlled substance not authorized by the person's registration to another registrant or other authorized person;
(3) To refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required
under this chapter;
(4) To refuse an entry into any premises for any inspection authorized by this chapter; or
(5) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure
or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using
these substances or which is used for keeping or delivering them in violation of this chapter.
(b) Any person who violates paragraph (a)(1), (a)(2), (a)(4) or (a)(5) of this section shall be guilty of a class F felony.
Any person who violates paragraph (a)(3) of this section shall be guilty of a class A misdemeanor.
16 Del. C. 1953, § 4755; 58 Del. Laws, c. 424, § 1; 65 Del. Laws, c. 500, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 18; 70 Del. Laws, c. 186, § 1.;
§ 4756. Prohibited acts; penalties.
(a) It is unlawful for any person knowingly or intentionally:
(1) To distribute as a registrant a controlled substance classified in Schedule I or II, except pursuant to an order form
as required by § 4738 of this chapter;
(2) To use in the course of the manufacture, distribution, prescribing, dispensing or research of a controlled substance,
or to use for the purpose of acquiring or obtaining a controlled substance, a registration number which is fictitious, revoked,
suspended, expired or issued to another person;
(3) To acquire or obtain or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge;
(4) To furnish false or fraudulent material information in or omit any material information from, any application, report
or other document required to be kept or filed under this chapter, or any record required to be kept by this chapter;
(5) To make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the
trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon
any drug or container or labeling thereof so as to render the drug a counterfeit substance;
(6) To acquire or attempt to or obtain possession of a controlled substance by robbery, burglary or theft; or
(7) To acquire or obtain, or attempt to acquire or obtain, possession of a substance for which a valid prescription or order
of a practitioner is required, by misrepresentation, fraud, forgery, deception or subterfuge.
(b) Any person who violates this section upon conviction shall be guilty of a class F felony.
16 Del. C. 1953, § 4756; 58 Del. Laws, c. 424, § 1; 60 Del. Laws, c. 583, § 7; 65 Del. Laws, c. 504, §§ 1-4; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 19; 71 Del. Laws, c. 288, § 10.;
§ 4757. Hypodermic syringe or needle; delivering or possessing; disposal; exceptions; penalties.
(a) No person shall deliver at retail or furnish to any person other than a practitioner an instrument commonly known as a
hypodermic syringe or an instrument commonly known as a hypodermic needle or any instrument adapted for the use of narcotic
drugs by parenteral injection without a written order of a practitioner or oral order of a practitioner immediately reduced
to writing by such person.
(b) Every person who disposes of or delivers at retail, or gives away to any person the instruments described in subsection
(a) of this section, upon the written order of a practitioner or oral order of a practitioner immediately reduced to writing
by such person, shall, before delivering the same:
(1) Enter into a book kept for that purpose the day of the delivery, the name, age and address of the purchaser and a description
of the instrument sold, disposed of, furnished or given away; or
(2) Retain on file the original written order or oral order reduced to writing, noting on such orders any refills.
(c) No person except a practitioner or regular dealer in medical or surgical supplies or their authorized agents or employees
shall possess an instrument described in subsection (a) of this section, without having in the person's possession a certificate
from a physician certifying that the possession of such instrument is necessary for the treatment of an injury, deformity
or disease then suffered by the person possessing the same. Any person convicted of unlawfully possessing an instrument described
in subsection (a) of this section shall be guilty of an unclassified misdemeanor, and upon conviction shall be fined not more
than $100, be imprisoned not more than 30 days, or both. Every person who lawfully possesses an instrument described in subsection
(a) of this section shall, before disposal, destroy such instrument in such a manner as to render it unfit for reuse in any
manner.
(d) Any person who delivers, disposes of or gives away any instrument commonly known as a hypodermic syringe or an instrument
commonly known as a hypodermic needle or any instrument adapted for the use of narcotic drugs by parenteral injection except
in the manner prescribed in this section, shall be guilty of a class G felony.
(e) Nothing in this section shall prohibit the delivery, furnishing, sale, purchase or possession of an instrument commonly
known as a hypodermic syringe or an instrument commonly known as a hypodermic needle used or to be used solely and exclusively
for treating poultry or livestock and such delivery, furnishing, sale, purchase, possession or use shall be governed by rules
and regulations to be prescribed by the Department of Agriculture.
(f) This section does not apply to:
(1) The sale at wholesale by pharmacies, drug jobbers, drug wholesalers and drug manufacturers or manufacturers and dealers
in surgical instruments to practitioners; and
(2) The furnishing or obtaining of hypodermic syringes or hypodermic needles for uses which the Secretary determines are industrial.
Notwithstanding the other provisions of this section, a person may obtain such instruments, without a written order or oral
order reduced to writing, for such industrial uses.
16 Del. C. 1953, § 4757; 58 Del. Laws, c. 424, § 1; 59 Del. Laws, c. 33, § 1; 59 Del. Laws, c. 291, § 1; 60 Del. Laws, c. 583, §§ 8-12; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, §§ 20, 21; 70 Del. Laws, c. 186, § 1.;
§ 4758. Keeping drugs in original containers.
(a) A person to whom or for whose use a controlled substance has been prescribed, delivered or dispensed by a practitioner
may lawfully possess it only in the original container in which it was delivered to the practitioner by the person delivering
or dispensing the same.
(b) Any person who violates subsection (a) of this section upon conviction shall be guilty of a class A misdemeanor.
(c) It shall be a defense to the prosecution of this charge that the person had a lawful prescription for the controlled substance
found.
(d) Nothing in this section shall criminalize the use of pill boxes or other daily pill containers by a person with a lawful
prescription for the controlled substance contained in said container.
16 Del. C. 1953, § 4758; 58 Del. Laws, c. 424, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 385, § 1.;
§ 4759. Penalties under other laws are additional.
Any penalty imposed for violation of this chapter is in addition to and not in lieu of any civil or administrative penalty
or sanction otherwise authorized by law. Notwithstanding the fact that the crimes of consumption and use of drugs are reenacted
in this chapter under section numbers different from previous statutes, nothing herein shall be deemed to prevent dismissal
of charges of consumption and use of drugs pursuant to § 4213 of Title 11.
16 Del. C. 1953, § 4759; 58 Del. Laws, c. 424, § 1.;
§ 4760. Bar to prosecution.
If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under
federal law or the law of another state for the same act is a bar to the prosecution in this State.
16 Del. C. 1953, § 4760; 58 Del. Laws, c. 424, § 1.;
§ 4761. Distribution to persons under 21 years of age; penalties.
(a) Except as authorized by this chapter:
(1) Whoever knowingly distributes a controlled substance or counterfeit controlled substance listed in Schedule I or II which
is a narcotic drug to a person under 21 years of age is guilty of a class C felony.
(2) Whoever knowingly distributes any other controlled substance or counterfeit controlled substance which is a nonnarcotic
drug classified in Schedule I, II, III, IV or V to a person under 21 years of age is guilty of a class E felony.
(3) In any prosecution for violation of paragraph (1) of this subsection, when the person to whom the narcotic drug has been
distributed is under the age of 16, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory
minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole during said
1 year mandatory minimum term; when the person to whom the narcotic drug has been distributed is under the age of 14, there
shall be a mandatory minimum term of imprisonment of 2 years which 2 year mandatory minimum term shall not be subject to suspension
and no person shall further be eligible for probation or parole during said 2 year mandatory minimum term.
(4) In any prosecution for violation of paragraph (2) of this subsection, when the person to whom the nonnarcotic drug has
been distributed is under the age of 16, there shall be a mandatory minimum term of imprisonment of 6 months, which 6 months
mandatory minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole
during said 6 months mandatory minimum term; when the person to whom the nonnarcotic drug has been distributed is under the
age of 14, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory minimum term shall not
be subject to suspension and no person shall further be eligible for probation or parole during said 1 year mandatory minimum
term.
(b) Whenever in this section the criminality of conduct or particular sentence depends on a person's age, it is no defense
that the actor did not know the person's age, or reasonably believed the person to be older than age 14, 16, 18 or 21, as
the case may be.
(c) Any person 18 years of age or older who uses, solicits, directs, hires or employs a person under 18 years of age to violate
any provision of subchapter IV or subchapter V of this chapter is guilty of a felony; and upon conviction therefor shall be
imprisoned for a term of not more than 10 years, and be fined not more than $250,000. It shall be no defense to a prosecution
under this section that the accused mistakenly believed that the minor that the accused used, solicited, directed, hired or
employed was 18 years of age or older, even if such mistaken belief was reasonable.
(d) Nothing in this section shall be construed to preclude or limit any prosecution or conviction for a violation of this
chapter or any other provision of law; and a conviction under this section shall not merge with a conviction for the violation
of any other provision of this chapter or other provision of law.
16 Del. C. 1953, § 4761; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 324, §§ 1, 2; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 182, § 1; 67 Del. Laws, c. 350, §§ 22, 23; 72 Del. Laws, c. 191, §§ 1-4.;
§ 4761A. Purchase of drugs from minors; penalties.
(a) Except as authorized by this chapter:
(1) Whoever knowingly purchases a controlled substance or counterfeit controlled substance listed in Schedule I or II which
is a narcotic drug from a person under 18 years of age is guilty of a class C felony.
(2) Whoever knowingly purchases any other controlled substance or counterfeit controlled substance which is a nonnarcotic
drug classified in Schedule I, II, III, IV or V from a person under 18 years of age is guilty of a class E felony.
(3) In any prosecution for violation of paragraph (1) of this subsection, when the person from whom the narcotic drug has
been purchased is under the age of 16, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory
minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole during said
1 year mandatory minimum term; when the person from whom the narcotic drug has been purchased is under the age of 14, there
shall be a mandatory minimum term of imprisonment of 2 years which 2 year mandatory minimum term shall not be subject to suspension
and no person shall further be eligible for probation or parole during said 2 year mandatory minimum term.
(4) In any prosecution for violation of paragraph (2) of this subsection, when the person from whom the nonnarcotic drug has
been purchased is under the age of 16, there shall be a mandatory minimum term of imprisonment of 6 months, which 6 months
mandatory minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole
during said 6 months mandatory minimum term; when the person from whom the nonnarcotic drug has been purchased is under the
age of 14, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory minimum term shall not
be subject to suspension and no person shall further be eligible for probation or parole during said 1 year mandatory minimum
term.
(b) Whenever in this section the criminality of conduct or particular sentence depends on a person's age, it is no defense
that the actor did not know the person's age, or reasonably believed the person to be older than age 14, 16 or 18, as the
case may be.
(c) Nothing in this section shall be construed to preclude or limit any prosecution or conviction for a violation of this
chapter or any other provision of law; and a conviction under this section shall not merge with a conviction for the violation
of any other provision of this chapter or other provision of law.
71 Del. Laws, c. 234, § 1.;
§ 4762. Conviction of lesser offense.
In any prosecution for any violation of the following sections of this chapter, the defendant may be convicted under any 1
of the following respective sections of this chapter in accordance with the table set forth below establishing lesser included
offenses:
(1) The lesser included offenses under § 4761(a)(1), are §§ 4751, 4752, 4753, 4754 and 4761(a)(2).
(2) The lesser included offenses under § 4761(a)(2) are §§ 4752 and 4754.
(3) The lesser included offenses under § 4751 are §§ 4752, 4753 and 4754.
(4) The lesser included offense under § 4752 is § 4754.
(5) The lesser included offense under § 4753 is § 4754.
16 Del. C. 1953, § 4762; 58 Del. Laws, c. 424, § 1.;
§ 4763. Additional or reduced penalties.
(a) Previous convictions. -- In any case in which a defendant has previously been convicted of any offense set forth in §§
4751, 4752, 4753A or 4761 of this title, the penalties set forth in §§ 4751-4761 of this title shall be increased as follows:
(1) The additional maximum terms applicable to the following respective sections shall be increased in accordance with the
following table so that the maximum terms shall read respectively as follows:
a. Section 4754 of this title, not more than 2 years.
b. Section 4753 of this title, not more than 3 years.
c. Section 4751 of this title (excepting heroin or any mixture containing heroin) or § 4752 of this title, 5 years.
d. Section 4751 of this title (heroin or any mixture containing heroin), 10 years.
e. Section 4761(a)(2) of this title, not more than 9 years.
f. Section 4761(a)(1) of this title, not more than 17 years.
(2) The following minimum terms with respect to the following respective sections of this chapter are mandatory minimum terms
of imprisonment and shall not be subject to suspension and no person shall be eligible for probation or parole during such
portion of such minimum term:
a. Section 4751 of this title (excepting heroin or any mixture containing heroin) or § 4752 of this title, 3 years.
b. Section 4751 of this title (heroin or any mixture containing heroin), 5 years.
c. Section 4761(a)(2) of this title, 7 years.
d. Section 4761(a)(1) of this title, 10 years.
(b) Mitigating circumstances and reduced penalties. --
(1) In any prosecution for a violation of § 4752 or 4761(a)(2) of this title, such violation shall be deemed to be a misdemeanor
and the maximum penalty shall be a fine of $1,000 or 2 years imprisonment or both if all of the following elements are found
to be present:
a. That the defendant is under the age of 21 years; and
b. That the defendant delivered a controlled substance or counterfeit substance other than a controlled substance or counterfeit
substance classified in Schedule I or II as a narcotic drug; and
c. That the transaction was an isolated incident and the defendant did not make a profit in the transaction or assist another
in making a profit and that the defendant is not engaged in the business of delivering controlled or counterfeit substances;
and
d. That the delivery was made to one who was 15 years of age or older and had been acquainted with the defendant for a period
of at least 1 year before any delivery took place.
(2) In any prosecution for a violation of § 4754 the maximum penalty provided in this chapter shall be a fine of $500 or 90
days imprisonment or both if all of the following elements are found to be present:
a. That the defendant is under the age of 21 years; and
b. That the defendant had used or consumed or had in the defendant's possession a controlled or counterfeit substance other
than a controlled or counterfeit substance classified in Schedule I or II as a narcotic drug; and
c. That the defendant is not engaged in the business of delivering controlled or counterfeit substances; and
d. That the controlled or counterfeit substance was obtained from one whom the defendant reasonably believed was at the time
under the age of 21 and did not make a profit or assist another in making a profit in the transaction and was not engaged
in the business of delivering controlled or counterfeit substances and had been acquainted with the defendant for a period
of at least 1 year before any delivery took place.
(3) The burden shall be on the defendant to establish the foregoing mitigating circumstances by a preponderance of the evidence.
At the option of the defendant the mitigating circumstances may be pleaded and presented to either (but not both): (i) The
trier of fact, or (ii) the court at a hearing after conviction and prior to sentencing.
(4) This subsection shall not be applicable if the defendant has any previous conviction within the meaning of subsection
(a) of this section, and the penalties provided therein shall apply fully. A conviction for which the penalty is mitigated
and reduced as herein provided shall nevertheless be deemed to be a previous conviction for purposes of subsection (a) of
this section.
(c) Additional penalties -- In any case in which a defendant has been found by evidence beyond a reasonable doubt to have
moved to the State to maintain his or her primary residence in this State for the purpose of engaging in activity which is
prohibited by §§ 4751 through 4761 of this title, such defendant, if convicted under any of §§ 4751 through 4761 of this title,
shall be subject to the increased penalty of imprisonment for 1 year, in addition to any other penalties to which the convicted
defendant would otherwise be subject for violation of the foregoing statutes.
(d) Substance abuse treatment -- Notwithstanding any provision of this section, title or Code to the contrary, the Department
of Correction shall have the authority and discretion during the last 180 days of any Level V sentence imposed pursuant to
this chapter to place the defendant at Level IV.
16 Del. C. 1953, § 4763; 58 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 130, § 10; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 244, § 1; 74 Del. Laws, c. 106, §§ 18, 19, 20, 21, 22, 23, 24; 74 Del. Laws, c. 345, § 7.;
§ 4764. First Offenders Controlled Substances Diversion Program.
(a) Any person who:
(1) Has not previously been convicted of any offense under this chapter or under any statute of the United States or of any
state thereof relating to narcotic drugs, marijuana, or stimulant, depressant, hallucinogenic drug or other substance who
is charged through information or indictment with possession or consumption of a controlled substance under § 4753 or § 4754
of this title; and
(2) Has not previously been afforded first offender treatment under this section or its predecessor,
may qualify for the first offense election at the time of the person's arraignment, except that no person shall qualify for
such first offense election where the offense charged under § 4753 or § 4754 of this title arises from the same transaction,
factual setting or circumstances as those contained in any indictment returned against the defendant alleging violation of
any provisions contained within § 4751, § 4752 or § 4753A of this title.
(b) At time of arraignment any person qualifying under subsection (a) of this section as a first offender and who elects treatment
under this section shall admit possession or consumption of a controlled substance by entering a plea of guilty, as a first
offender. The court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings
and place the accused on probation for a period of not less than 11/2 years, the terms and conditions of which shall include
but not be limited to:
(1) Revocation of the person's drivers license and/or privileges within this State for a period of not less than 1 year, restoration
of which shall be contingent upon successful completion of all mandatory terms and conditions required of probation to be
completed during the term of revocation. Upon entry of a plea of guilty, as first offender under this section, the clerk of
the court or other person designated by the court shall forthwith report that fact to the Division of Motor Vehicles for action
consistent with the provisions of this subsection. The Division of Motor Vehicles may issue a conditional license during this
period of revocation upon written certification by the person's probation officer that a narrowly drawn conditional license
is necessary for the limited purpose of performing the terms and conditions of probation.
(2) Performance of a minimum of 20 hours of community service work monitored by the court or probation office, performance
of which shall be accomplished on at least 3 separate days and shall not, in any event consist of segments lasting more than
8 hours in succession. Community service performed pursuant to the terms of this paragraph shall be in addition to all other
community service ordered and no community service ordered or performed pursuant to the terms of this section shall be performed
or served concurrently with any other court ordered or approved community service.
(3) Completion of a 16-hour first offender drug rehabilitation program, licensed by the Secretary of the Department of Health
and Social Services and paid for by the first offender.
(4) Other such terms and conditions as the court may impose.
(c) If a term or condition of probation is violated, or if the defendant is found to have illegally possessed or consumed
any controlled substance listed in Schedules I through V within 11/2 years of the entry of a plea under this section, a written
report of same shall immediately be filed with the court, and the defendant shall be brought before the court and upon determination
by the court that the terms have been violated or that the defendant has possessed or consumed any such controlled substance,
the court shall enter an adjudication of guilt upon the record and proceed as otherwise provided under this title.
(d) Upon fulfillment of the terms and conditions of probation, including, but not limited to, paying of all costs and fees,
and performance of all required community service, the court shall discharge the person and dismiss the proceedings against
the person and shall simultaneously therewith submit to the Attorney General a report thereof which shall be retained by the
Attorney General for use in future proceedings, if required. Discharge and dismissal under this section shall be without
adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime, except the additional penalties imposed for second or subsequent offenses under
§ 4763 of this title. Any person who elects to be treated as a first offender under this section shall, by so doing, agree
to pay the costs of the person's prosecution as a condition. There may be only 1 discharge and dismissal under this section
with respect to any person.
67 Del. Laws, c. 347, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 6; 75 Del. Laws, c. 167, § 2.;
§ 4765. Medical and/or psychiatric examination and/or treatment.
After a conviction and prior to sentencing for violation of § 4753 or 4754, or prior to conviction if the defendant consents,
the court may order the defendant to submit to a medical and/or psychiatric examination and/or treatment. The court may order
such examination by the Department of Health and Social Services or by a private physician, hospital or clinic and the court
may make such order regarding the term and conditions of such examination and/or treatment and the payment therefor by the
defendant as a court in its discretion shall determine. The Department of Health and Social Services or the private physician,
hospital or clinic shall report to the court within such time as the court shall order, not more than 90 days from the date
of such order. After such report and upon conviction of such violation, the court shall impose sentence or suspend sentence
and may impose probation and/or a requirement of future medical and/or psychiatric examination and/or treatment including
hospitalization or outpatient care upon such terms and conditions and for such period of time as the court shall order.
16 Del. C. 1953, § 4765; 58 Del. Laws, c. 424, § 1.;
§ 4767. Distribution, delivery, or possession of controlled substance within 1,000 feet of school property; penalties; defenses.
(a) Except as authorized by this chapter:
(1) Any person eighteen years of age or older who distributes, delivers or possesses a controlled substance or counterfeit
controlled substance listed in § 4714 or § 4716 of this title which is a narcotic drug on the property of any kindergarten,
elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of a felony and upon conviction
shall be imprisoned not more than 30 years and fined not more than $250,000.
(2) Any person 18 years of age or older who distributes, delivers or possesses any other controlled substance or counterfeit
controlled substance which is a nonnarcotic drug classified in § 4714, § 4716, § 4718, § 4720 or § 4722 of this title on the
property of any kindergarten, elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of
a felony and upon conviction shall be imprisoned for a term of not more than 15 years and fined not more than $250,000.
(b) Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of this chapter
or any other provision of law, and a conviction under this section shall not merge with a conviction for violation of any
other provision of this chapter or other provision of law.
(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited
conduct took place on or within 1,000 feet of any school property.
(d) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely
within a private residence, that no person under the age of 18 was present in such private residence at any time during the
commission of the offense and that the prohibited conduct did not involve distribution, delivery or possession of any controlled
substance for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance
of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an
offense defined in any other section of this chapter.
67 Del. Laws, c. 182, § 2.;
§ 4768. Distribution, delivery or possession of controlled substance in or within 300 feet of park, recreation area, church,
synagogue or other place of worship; penalties; defenses.
(a) Except as authorized by this chapter, any person who illegally distributes, delivers or possesses a controlled substance
or counterfeit controlled substance listed in § 4714, § 4716, § 4718, § 4720 or § 4722 of this title while in any park or
recreation area owned, operated or utilized by any county or municipality, or by the State, or by any board, commission, department,
agency, corporation or organization thereof, or in any "parkland" as defined in § 8110(a)(2) of Title 9, or in any church,
synagogue or other place of worship, or within 300 feet of the boundaries of any such parkland, park, or recreation area or
church, synagogue or other place of worship, is guilty of a felony and upon conviction shall be imprisoned for a term of not
more than 15 years and fined not more than $250,000.
(b) Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of this chapter
or any other provision of law, and a conviction under this section shall not merge with a conviction for violation of any
other provision of this chapter or other provision of law.
(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited
conduct took place in or within 300 feet of any parkland, park or recreation area.
(d) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely
within a private residence and that the prohibited conduct did not involve distribution, delivery or possession of any controlled
substance for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance
of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an
offense defined in any other section of this chapter.
69 Del. Laws, c. 457, § 1; 72 Del. Laws, c. 411, §§ 1, 2.;
(a) Except as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or
deliver a controlled substance or a counterfeit controlled substance classified in Schedule I or II which is a narcotic drug
is guilty of a class C felony and shall be fined not more than $50,000.
(b) Except as authorized by this chapter, any person who manufactures, delivers or possesses with the intent to manufacture
or deliver a controlled substance or a counterfeit controlled substance classified in Schedule III, IV or V which is a narcotic
drug is guilty of a class E felony and shall be fined not more than $15,000.
(c) Except as authorized by this chapter, in cases where death occurs as a result of the use or consumption of a controlled
substance or counterfeit controlled substance classified in Schedule I, II, III, IV or V which is a narcotic drug, any person
who is convicted of manufacturing or delivering such drug shall be guilty of a class B felony and shall be fined not more
than $100,000.
(d) Where an individual is convicted of a violation of subsection (a), subsection (b) or subsection (c) of this section and
the Attorney General may move to sentence the defendant as a nonaddict, the court shall conduct a hearing at which the Attorney
General shall have the burden of proof by a preponderance of the evidence that the defendant is a nonaddict. If the court,
after hearing, is satisfied that the defendant is, and was at the time of the offense, not addicted to controlled substances,
then the following enhanced penalties shall apply:
(1) For the first violation of this section a mandatory minimum sentence of 6 years to be served at Level V.
(2) For the second or subsequent violation of this section a mandatory minimum sentence of 12 years to be served at Level
V.
These minimum sentences may not be suspended by the court.
67 Del. Laws, c. 130, § 15; 70 Del. Laws, c. 80, §§ 1-3; 76 Del. Laws, c. 108, §§ 1-3.;
§ 4752. Prohibited acts B; penalties.
(a) Except as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or
deliver a controlled substance or a counterfeit controlled substance classified in Schedule I, II, III, IV or V which is not
a narcotic drug is guilty of a class E felony and upon conviction shall be fined not more than $10,000 and imprisoned not
more than 5 years.
(b) Any person who distributes, sells, offers to sell, dispenses, administers, or prescribes any anabolic steroid or any counterfeit
substance purporting to be an anabolic steroid for the purposes of human body building or enhancement of human athletic performance
is guilty of a class E felony. For purposes of this section, it is not a valid medical practice to distribute, sell, offer
to sell, dispense, administer or prescribe any anabolic steroid for purposes of human body building or enhancement of human
athletic performance.
(c) For purposes of this section, the words "body building" shall mean the increasing of muscle weight. For purposes of this
section, the words "athletic enhancement" shall mean the improvement of performance in any form of exercise, sport or game.
16 Del. C. 1953, § 4752; 58 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 14; 70 Del. Laws, c. 81, § 3; 76 Del. Laws, c. 108, § 4.;
§ 4752A. Unlawful delivery of noncontrolled substance.
(a) It is unlawful for any person to knowingly deliver or attempt to deliver a noncontrolled substance upon either:
(1) The express or implied representation that the substance is a narcotic or nonnarcotic controlled substance; or
(2) The express or implied representation that the substance is of such nature or appearance that the recipient of said delivery
will be able to distribute said substance as a controlled substance;
(3) It is prima facie evidence of the implied representation referred to in paragraphs (1) and (2) of this subsection if any
2 of the following factors are established:
a. The noncontrolled substance was packaged in a manner normally used for the illegal delivery of controlled substances;
b. The delivery or attempted delivery included an exchange of or demand for money or other valuable property as consideration
for delivery of the substance, and the amount of such consideration was substantially in excess of the reasonable value of
the noncontrolled substance;
c. The physical appearance of the finished product containing the substance is substantially identical to a specific controlled
substance.
(b) In any prosecution for unlawful delivery of a noncontrolled substance, it is no defense that the accused believed the
noncontrolled substance to actually be a controlled substance.
(c) Unlawful delivery of a noncontrolled substance is a class D felony. The punishment upon conviction under this section
shall be governed by those provisions of this Code dealing with delivery of controlled substances. Specifically, the section
prohibiting delivery of the controlled substance, which the defendant represented the noncontrolled substance to be, shall
govern the punishment in each case. If no express or implied representation was made as to the identity of the controlled
substance, the punishment shall be the same as for the delivery of a nonnarcotic controlled substance. However, the punishment
provision of § 4751(c) of this title shall not apply to this section.
62 Del. Laws, c. 252, § 1; 63 Del. Laws, c. 72, § 1; 67 Del. Laws, c. 130, § 9; 70 Del. Laws, c. 80, § 4.;
§ 4753. Prohibited acts C; penalties.
It is unlawful for any person knowingly or intentionally to possess, use or consume a controlled substance or a counterfeit
substance which is a narcotic drug unless the substance was obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of the practitioner's professional practice or except as otherwise authorized
by this chapter. Any person who violates this section shall be guilty of a class A misdemeanor.
16 Del. C. 1953, § 4753; 58 Del. Laws, c. 424, § 1; 60 Del. Laws, c. 583, § 6; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 15; 70 Del. Laws, c. 186, § 1.;
§ 4753A. Trafficking in marijuana, cocaine, illegal drugs, methamphetamines, Lysergic Acid Diethylamide (L. S. D.), designer
drugs, or 3,4-methylenedioxymethamphetamine (MDMA).
(a) Except as authorized in this chapter:
(1) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, in excess of 5 pounds of marijuana is guilty of a class B felony, which felony shall
be known as "trafficking in marijuana". If the quantity of marijuana involved:
a. Is in excess of 5 pounds, but less than 100 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $25,000.
b. Is 100 pounds or more, but less than 500 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $50,000.
c. Is 500 pounds or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall
be fined up to $100,000.
(2) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, 10 grams or more of cocaine or of any mixture containing cocaine, as described in
§ 4716(b)(4) of this title, is guilty of a class B felony, which felony shall be known as "trafficking in cocaine." If the
quantity involved:
a. Is 10 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(3) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 2.5 grams or more of any morphine, opium or any salt, isomer or salt of an isomer
thereof, including heroin, as described in § 4714 of this title, or 2.5 grams or more of any mixture containing any such substance,
is guilty of a class B felony, which felony shall be known as "trafficking in illegal drugs." If the quantity involved:
a. Is 2.5 grams or more, but less than 10 grams, which person shall be sentenced to a mandatory minimum term of imprisonment
of 3 years and shall be fined up to $75,000.
b. Is 10 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 10 years and shall be fined up to $150,000.
c. Is 50 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall be
fined up to $750,000.
(4) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, 5 grams or more of methamphetamine, including its salt, isomer or salt of an isomer
thereof, or of any mixture containing any such substance, as described in § 4716(d)(3) of this title is guilty of a class
B felony, which felony shall be known as "trafficking in methamphetamine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(5) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 5 grams or more of amphetamine, including its salts, optical isomers and salt of its
optical isomers, or of any mixture containing any such substance, as described in § 4716(d)(1) of this title is guilty of
a class B felony, which felony shall be known as "trafficking in amphetamine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(6) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 5 grams or more of phencyclidine, or of any mixture containing any such substance,
as described in § 4716(e)(5) of this title, is guilty of a class B felony, which felony shall be known as "trafficking in
phencyclidine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(7) Any person, who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is
knowingly in actual or constructive possession of 50 or more doses (each dose constitutes up to 100 micrograms) or in a liquid
form 5 milligrams or more of lysergic acid diethylamide (L.S.D.), or any mixture containing such substance, as described in
§ 4714(d)(9) of this title, is guilty of a class B felony known as "trafficking in L.S.D." If the quantity involved:
a. Is in excess of 50 or more doses, or in liquid form 5 milligrams, but less than 100 doses, or in liquid form less than
10 milligrams, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years and pay a fine of $50,000.
b. Is in excess of 100 doses, or in liquid form 10 milligrams, but less than 500 doses, or in liquid form less than 50 milligrams,
such person shall be sentenced to a mandatory minimum term of imprisonment of 4 years and shall be fined up to $100,000.
c. Is 500 doses or more, or in liquid form 50 milligrams or more, such person shall be sentenced to a mandatory minimum term
of imprisonment of 8 years and shall be fined up to $400,000.
(8)a. Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State or who is
knowingly in actual or constructive possession of 25 or more doses or tablets or 5 or more grams or 5 milliliters or more
of a designer drug or any mixture containing any such substance, as described in § 4701(9) of this title, is guilty of a class
B felony, which felony shall be known as "trafficking in designer drugs." If the quantity involved:
1. Is 25 doses or tablets or more, but less than 250 doses or tablets, or 5 grams or more, but less than 50 grams, or 5 milliliters
or more, but less than 50 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years
and shall be fined up to $50,000.
2. Is two-hundred 250 doses or tablets, or more, but less than 500 doses or tablets, or 50 grams or more, but less than 100
grams, or 50 milliliters or more, but less than 100 milliliters, such person shall be sentenced to a mandatory minimum term
of imprisonment of 4 years and shall be fined up to $100,000.
3. Is of 500 doses or tablets or more, or 100 grams or more, or 100 milliliters or more such person shall be sentenced to
a mandatory minimum term of imprisonment of 8 years and shall be fined up to $400,000.
b. This paragraph does not apply to a person who manufactures or delivers a substance in conformance with an approved new
drug application or an exemption for investigating use within the meaning of § 505 of the Federal Food, Drug and Cosmetic
Act (21 U.S.C. § 355) or to a person who manufactures, distributes or dispenses controlled substances in conformance with
a registration issued by the Attorney General of the United States within the meaning of §§ 301-304 of the Federal Controlled
Substances Act (21 U.S.C. §§ 821-824).
(9) Any person who on any single occasion knowingly sells, manufactures, delivers or brings into this State or who is knowingly
in actual or constructive possession of 25 or more doses or tablets or 5 or more grams or 5 milliliters or more of 3,4-methylenedioxymethamphetamine
(MDMA), its optical, positional and geometric isomers, salts and salts of isomers; or any mixture containing such substance,
as described in § 4714(d)(21) of this title, is guilty of a Class B felony known as "Trafficking in MDMA." If the quantity
involved:
a. Is 25 doses or tablets or more, but less than 250 doses or tablets, or 5 grams or more, but less than 50 grams, or 5 milliliters
or more, but less than 50 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years
and shall be fined up to $50,000.
b. Is 250 doses or tablets, or more, but less than 500 doses or tablets, or 50 grams or more, but less than 100 grams, or
50 milliliters or more, but less than 100 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 500 doses or tablets or more, or 100 grams or more, or 100 milliliters or more such person shall be sentenced to a mandatory
minimum term of imprisonment of 8 years and shall be fined up to $400,000.
(b) Notwithstanding § 4764 of this title, with respect to any person who is found to have violated this section, adjudication
of guilt or imposition of sentence shall not be suspended, deferred or withheld, nor shall such person be eligible for parole
or release upon good time credits or in any other manner, nor shall such individual be eligible for work release, supervised
custody, furlough or any other similar program, prior to serving the mandatory minimum term of imprisonment prescribed by
this section.
(c) The Attorney General may move the sentencing court to reduce or suspend the sentence of any person who is convicted of
a violation of this section and who provides substantial assistance in the identification, arrest or conviction of any of
the person's accomplices, accessories, co-conspirators or principals. Upon good cause shown, the motion may be filed and heard
in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered
such substantial assistance.
(d) For purposes of this section with regard to the sentencing provisions, a year shall mean 365 days without any reductions
for good time.
(e) In any prosecution under this section the State need not prove that the defendant had any knowledge as to the weight of
the substance possessed. The State need only prove that the defendant knew that the substance was possessed; and, that in
fact the substance was that which is alleged and that the substance in fact weighed a certain amount.
63 Del. Laws, c. 134, § 1; 63 Del. Laws, c. 359, § 1; 64 Del. Laws, c. 87, §§ 1, 2; 65 Del. Laws, c. 317, §§ 1-3; 65 Del. Laws, c. 485, § 1; 67 Del. Laws, c. 115, §§ 1-16; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 427, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 235, § 1; 73 Del. Laws, c. 216, § 1; 73 Del. Laws, c. 253, §§ 1, 2, 3; 74 Del. Laws, c. 106, §§ 13-17; 74 Del. Laws, c. 288, §§ 1, 3-5; 76 Del. Laws, c. 108, § 5.;
§ 4754. Prohibited acts D; penalties.
(a) It is unlawful for any person knowingly or intentionally to possess, use or consume any controlled substance or counterfeit
substance classified in Schedule I (except Schedule I controlled substances classified in subsection (d)(19) of § 4714 of
this title), II, III, IV or V not a narcotic drug unless the substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except
as otherwise authorized by this chapter. Any person who violates this subsection shall be guilty of a class B misdemeanor.
(b) It is unlawful for any person knowingly or intentionally to possess, use or consume any Schedule I controlled substance
or counterfeit substance classified in subsection (d)(19) of § 4714 of this title, except as otherwise authorized by this
chapter. Any person who violates this subsection shall be guilty of a class B misdemeanor.
16 Del. C. 1953, § 4754; 58 Del. Laws, c. 424, § 1; 61 Del. Laws, c. 261, § 3; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, §§ 16, 17; 70 Del. Laws, c. 186, § 1.;
§ 4754A. Possession and delivery of non=-con=-trolled prescription drug.
(a) It is unlawful for any person knowingly or intentionally to possess any drug for which a prescription is required, which
is not a controlled substance or counterfeit controlled substance, with the following exceptions:
(1) The possession, and transfer to a licensed health care professional by a manufacturer's representative, of drugs manufactured
by the representative's employer;
(2) The possession, compounding and sale of such drug by a pharmacist in the lawful course of the pharmacist's professional
activities;
(3) The possession and transfer of such drug by a physician or other licensed health care professional in the lawful course
of the physician's or other licensed health care professional's professional activities; and
(4) The possession, use and consumption of such drug by a person who has received the drug from a physician or other licensed
health care professional who is permitted by law to disperse or prescribe such drug.
(b) Possession of a drug which is not a controlled substance, in violation of this section, is a class B misdemeanor.
(c) In any prosecution for "unlawful possession of a noncontrolled prescription drug," it is an affirmative defense that the
drug was possessed or consumed within the residence of the defendant, that a member of the defendant's household possessed
a valid prescription for said drug, that the possession or consumption by the defendant was for the purpose of treating an
illness and that the drug in question was approved for use for the specific illness.
(d) Any person who delivers or possesses with intent to deliver a noncontrolled prescription drug not obtained directly from,
nor pursuant to, a valid prescription or order of a practitioner who is acting in the course of the practitioner's professional
practice, or except as otherwise authorized by the statutes of this State, shall be guilty of a class E felony.
63 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 384, §§ 1, 2; 70 Del. Laws, c. 81, § 4; 70 Del. Laws, c. 186, § 1.;
§ 4755. Prohibited acts E; penalties.
(a) It is unlawful for any person:
(1) Who is subject to subchapter III to distribute or dispense a controlled substance in violation of § 4739;
(2) Who is a registrant, to manufacture a controlled substance not authorized by the person's registration or to distribute
or dispense a controlled substance not authorized by the person's registration to another registrant or other authorized person;
(3) To refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required
under this chapter;
(4) To refuse an entry into any premises for any inspection authorized by this chapter; or
(5) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure
or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using
these substances or which is used for keeping or delivering them in violation of this chapter.
(b) Any person who violates paragraph (a)(1), (a)(2), (a)(4) or (a)(5) of this section shall be guilty of a class F felony.
Any person who violates paragraph (a)(3) of this section shall be guilty of a class A misdemeanor.
16 Del. C. 1953, § 4755; 58 Del. Laws, c. 424, § 1; 65 Del. Laws, c. 500, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 18; 70 Del. Laws, c. 186, § 1.;
§ 4756. Prohibited acts; penalties.
(a) It is unlawful for any person knowingly or intentionally:
(1) To distribute as a registrant a controlled substance classified in Schedule I or II, except pursuant to an order form
as required by § 4738 of this chapter;
(2) To use in the course of the manufacture, distribution, prescribing, dispensing or research of a controlled substance,
or to use for the purpose of acquiring or obtaining a controlled substance, a registration number which is fictitious, revoked,
suspended, expired or issued to another person;
(3) To acquire or obtain or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge;
(4) To furnish false or fraudulent material information in or omit any material information from, any application, report
or other document required to be kept or filed under this chapter, or any record required to be kept by this chapter;
(5) To make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the
trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon
any drug or container or labeling thereof so as to render the drug a counterfeit substance;
(6) To acquire or attempt to or obtain possession of a controlled substance by robbery, burglary or theft; or
(7) To acquire or obtain, or attempt to acquire or obtain, possession of a substance for which a valid prescription or order
of a practitioner is required, by misrepresentation, fraud, forgery, deception or subterfuge.
(b) Any person who violates this section upon conviction shall be guilty of a class F felony.
16 Del. C. 1953, § 4756; 58 Del. Laws, c. 424, § 1; 60 Del. Laws, c. 583, § 7; 65 Del. Laws, c. 504, §§ 1-4; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 19; 71 Del. Laws, c. 288, § 10.;
§ 4757. Hypodermic syringe or needle; delivering or possessing; disposal; exceptions; penalties.
(a) No person shall deliver at retail or furnish to any person other than a practitioner an instrument commonly known as a
hypodermic syringe or an instrument commonly known as a hypodermic needle or any instrument adapted for the use of narcotic
drugs by parenteral injection without a written order of a practitioner or oral order of a practitioner immediately reduced
to writing by such person.
(b) Every person who disposes of or delivers at retail, or gives away to any person the instruments described in subsection
(a) of this section, upon the written order of a practitioner or oral order of a practitioner immediately reduced to writing
by such person, shall, before delivering the same:
(1) Enter into a book kept for that purpose the day of the delivery, the name, age and address of the purchaser and a description
of the instrument sold, disposed of, furnished or given away; or
(2) Retain on file the original written order or oral order reduced to writing, noting on such orders any refills.
(c) No person except a practitioner or regular dealer in medical or surgical supplies or their authorized agents or employees
shall possess an instrument described in subsection (a) of this section, without having in the person's possession a certificate
from a physician certifying that the possession of such instrument is necessary for the treatment of an injury, deformity
or disease then suffered by the person possessing the same. Any person convicted of unlawfully possessing an instrument described
in subsection (a) of this section shall be guilty of an unclassified misdemeanor, and upon conviction shall be fined not more
than $100, be imprisoned not more than 30 days, or both. Every person who lawfully possesses an instrument described in subsection
(a) of this section shall, before disposal, destroy such instrument in such a manner as to render it unfit for reuse in any
manner.
(d) Any person who delivers, disposes of or gives away any instrument commonly known as a hypodermic syringe or an instrument
commonly known as a hypodermic needle or any instrument adapted for the use of narcotic drugs by parenteral injection except
in the manner prescribed in this section, shall be guilty of a class G felony.
(e) Nothing in this section shall prohibit the delivery, furnishing, sale, purchase or possession of an instrument commonly
known as a hypodermic syringe or an instrument commonly known as a hypodermic needle used or to be used solely and exclusively
for treating poultry or livestock and such delivery, furnishing, sale, purchase, possession or use shall be governed by rules
and regulations to be prescribed by the Department of Agriculture.
(f) This section does not apply to:
(1) The sale at wholesale by pharmacies, drug jobbers, drug wholesalers and drug manufacturers or manufacturers and dealers
in surgical instruments to practitioners; and
(2) The furnishing or obtaining of hypodermic syringes or hypodermic needles for uses which the Secretary determines are industrial.
Notwithstanding the other provisions of this section, a person may obtain such instruments, without a written order or oral
order reduced to writing, for such industrial uses.
16 Del. C. 1953, § 4757; 58 Del. Laws, c. 424, § 1; 59 Del. Laws, c. 33, § 1; 59 Del. Laws, c. 291, § 1; 60 Del. Laws, c. 583, §§ 8-12; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, §§ 20, 21; 70 Del. Laws, c. 186, § 1.;
§ 4758. Keeping drugs in original containers.
(a) A person to whom or for whose use a controlled substance has been prescribed, delivered or dispensed by a practitioner
may lawfully possess it only in the original container in which it was delivered to the practitioner by the person delivering
or dispensing the same.
(b) Any person who violates subsection (a) of this section upon conviction shall be guilty of a class A misdemeanor.
(c) It shall be a defense to the prosecution of this charge that the person had a lawful prescription for the controlled substance
found.
(d) Nothing in this section shall criminalize the use of pill boxes or other daily pill containers by a person with a lawful
prescription for the controlled substance contained in said container.
16 Del. C. 1953, § 4758; 58 Del. Laws, c. 424, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 385, § 1.;
§ 4759. Penalties under other laws are additional.
Any penalty imposed for violation of this chapter is in addition to and not in lieu of any civil or administrative penalty
or sanction otherwise authorized by law. Notwithstanding the fact that the crimes of consumption and use of drugs are reenacted
in this chapter under section numbers different from previous statutes, nothing herein shall be deemed to prevent dismissal
of charges of consumption and use of drugs pursuant to § 4213 of Title 11.
16 Del. C. 1953, § 4759; 58 Del. Laws, c. 424, § 1.;
§ 4760. Bar to prosecution.
If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under
federal law or the law of another state for the same act is a bar to the prosecution in this State.
16 Del. C. 1953, § 4760; 58 Del. Laws, c. 424, § 1.;
§ 4761. Distribution to persons under 21 years of age; penalties.
(a) Except as authorized by this chapter:
(1) Whoever knowingly distributes a controlled substance or counterfeit controlled substance listed in Schedule I or II which
is a narcotic drug to a person under 21 years of age is guilty of a class C felony.
(2) Whoever knowingly distributes any other controlled substance or counterfeit controlled substance which is a nonnarcotic
drug classified in Schedule I, II, III, IV or V to a person under 21 years of age is guilty of a class E felony.
(3) In any prosecution for violation of paragraph (1) of this subsection, when the person to whom the narcotic drug has been
distributed is under the age of 16, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory
minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole during said
1 year mandatory minimum term; when the person to whom the narcotic drug has been distributed is under the age of 14, there
shall be a mandatory minimum term of imprisonment of 2 years which 2 year mandatory minimum term shall not be subject to suspension
and no person shall further be eligible for probation or parole during said 2 year mandatory minimum term.
(4) In any prosecution for violation of paragraph (2) of this subsection, when the person to whom the nonnarcotic drug has
been distributed is under the age of 16, there shall be a mandatory minimum term of imprisonment of 6 months, which 6 months
mandatory minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole
during said 6 months mandatory minimum term; when the person to whom the nonnarcotic drug has been distributed is under the
age of 14, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory minimum term shall not
be subject to suspension and no person shall further be eligible for probation or parole during said 1 year mandatory minimum
term.
(b) Whenever in this section the criminality of conduct or particular sentence depends on a person's age, it is no defense
that the actor did not know the person's age, or reasonably believed the person to be older than age 14, 16, 18 or 21, as
the case may be.
(c) Any person 18 years of age or older who uses, solicits, directs, hires or employs a person under 18 years of age to violate
any provision of subchapter IV or subchapter V of this chapter is guilty of a felony; and upon conviction therefor shall be
imprisoned for a term of not more than 10 years, and be fined not more than $250,000. It shall be no defense to a prosecution
under this section that the accused mistakenly believed that the minor that the accused used, solicited, directed, hired or
employed was 18 years of age or older, even if such mistaken belief was reasonable.
(d) Nothing in this section shall be construed to preclude or limit any prosecution or conviction for a violation of this
chapter or any other provision of law; and a conviction under this section shall not merge with a conviction for the violation
of any other provision of this chapter or other provision of law.
16 Del. C. 1953, § 4761; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 324, §§ 1, 2; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 182, § 1; 67 Del. Laws, c. 350, §§ 22, 23; 72 Del. Laws, c. 191, §§ 1-4.;
§ 4761A. Purchase of drugs from minors; penalties.
(a) Except as authorized by this chapter:
(1) Whoever knowingly purchases a controlled substance or counterfeit controlled substance listed in Schedule I or II which
is a narcotic drug from a person under 18 years of age is guilty of a class C felony.
(2) Whoever knowingly purchases any other controlled substance or counterfeit controlled substance which is a nonnarcotic
drug classified in Schedule I, II, III, IV or V from a person under 18 years of age is guilty of a class E felony.
(3) In any prosecution for violation of paragraph (1) of this subsection, when the person from whom the narcotic drug has
been purchased is under the age of 16, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory
minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole during said
1 year mandatory minimum term; when the person from whom the narcotic drug has been purchased is under the age of 14, there
shall be a mandatory minimum term of imprisonment of 2 years which 2 year mandatory minimum term shall not be subject to suspension
and no person shall further be eligible for probation or parole during said 2 year mandatory minimum term.
(4) In any prosecution for violation of paragraph (2) of this subsection, when the person from whom the nonnarcotic drug has
been purchased is under the age of 16, there shall be a mandatory minimum term of imprisonment of 6 months, which 6 months
mandatory minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole
during said 6 months mandatory minimum term; when the person from whom the nonnarcotic drug has been purchased is under the
age of 14, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory minimum term shall not
be subject to suspension and no person shall further be eligible for probation or parole during said 1 year mandatory minimum
term.
(b) Whenever in this section the criminality of conduct or particular sentence depends on a person's age, it is no defense
that the actor did not know the person's age, or reasonably believed the person to be older than age 14, 16 or 18, as the
case may be.
(c) Nothing in this section shall be construed to preclude or limit any prosecution or conviction for a violation of this
chapter or any other provision of law; and a conviction under this section shall not merge with a conviction for the violation
of any other provision of this chapter or other provision of law.
71 Del. Laws, c. 234, § 1.;
§ 4762. Conviction of lesser offense.
In any prosecution for any violation of the following sections of this chapter, the defendant may be convicted under any 1
of the following respective sections of this chapter in accordance with the table set forth below establishing lesser included
offenses:
(1) The lesser included offenses under § 4761(a)(1), are §§ 4751, 4752, 4753, 4754 and 4761(a)(2).
(2) The lesser included offenses under § 4761(a)(2) are §§ 4752 and 4754.
(3) The lesser included offenses under § 4751 are §§ 4752, 4753 and 4754.
(4) The lesser included offense under § 4752 is § 4754.
(5) The lesser included offense under § 4753 is § 4754.
16 Del. C. 1953, § 4762; 58 Del. Laws, c. 424, § 1.;
§ 4763. Additional or reduced penalties.
(a) Previous convictions. -- In any case in which a defendant has previously been convicted of any offense set forth in §§
4751, 4752, 4753A or 4761 of this title, the penalties set forth in §§ 4751-4761 of this title shall be increased as follows:
(1) The additional maximum terms applicable to the following respective sections shall be increased in accordance with the
following table so that the maximum terms shall read respectively as follows:
a. Section 4754 of this title, not more than 2 years.
b. Section 4753 of this title, not more than 3 years.
c. Section 4751 of this title (excepting heroin or any mixture containing heroin) or § 4752 of this title, 5 years.
d. Section 4751 of this title (heroin or any mixture containing heroin), 10 years.
e. Section 4761(a)(2) of this title, not more than 9 years.
f. Section 4761(a)(1) of this title, not more than 17 years.
(2) The following minimum terms with respect to the following respective sections of this chapter are mandatory minimum terms
of imprisonment and shall not be subject to suspension and no person shall be eligible for probation or parole during such
portion of such minimum term:
a. Section 4751 of this title (excepting heroin or any mixture containing heroin) or § 4752 of this title, 3 years.
b. Section 4751 of this title (heroin or any mixture containing heroin), 5 years.
c. Section 4761(a)(2) of this title, 7 years.
d. Section 4761(a)(1) of this title, 10 years.
(b) Mitigating circumstances and reduced penalties. --
(1) In any prosecution for a violation of § 4752 or 4761(a)(2) of this title, such violation shall be deemed to be a misdemeanor
and the maximum penalty shall be a fine of $1,000 or 2 years imprisonment or both if all of the following elements are found
to be present:
a. That the defendant is under the age of 21 years; and
b. That the defendant delivered a controlled substance or counterfeit substance other than a controlled substance or counterfeit
substance classified in Schedule I or II as a narcotic drug; and
c. That the transaction was an isolated incident and the defendant did not make a profit in the transaction or assist another
in making a profit and that the defendant is not engaged in the business of delivering controlled or counterfeit substances;
and
d. That the delivery was made to one who was 15 years of age or older and had been acquainted with the defendant for a period
of at least 1 year before any delivery took place.
(2) In any prosecution for a violation of § 4754 the maximum penalty provided in this chapter shall be a fine of $500 or 90
days imprisonment or both if all of the following elements are found to be present:
a. That the defendant is under the age of 21 years; and
b. That the defendant had used or consumed or had in the defendant's possession a controlled or counterfeit substance other
than a controlled or counterfeit substance classified in Schedule I or II as a narcotic drug; and
c. That the defendant is not engaged in the business of delivering controlled or counterfeit substances; and
d. That the controlled or counterfeit substance was obtained from one whom the defendant reasonably believed was at the time
under the age of 21 and did not make a profit or assist another in making a profit in the transaction and was not engaged
in the business of delivering controlled or counterfeit substances and had been acquainted with the defendant for a period
of at least 1 year before any delivery took place.
(3) The burden shall be on the defendant to establish the foregoing mitigating circumstances by a preponderance of the evidence.
At the option of the defendant the mitigating circumstances may be pleaded and presented to either (but not both): (i) The
trier of fact, or (ii) the court at a hearing after conviction and prior to sentencing.
(4) This subsection shall not be applicable if the defendant has any previous conviction within the meaning of subsection
(a) of this section, and the penalties provided therein shall apply fully. A conviction for which the penalty is mitigated
and reduced as herein provided shall nevertheless be deemed to be a previous conviction for purposes of subsection (a) of
this section.
(c) Additional penalties -- In any case in which a defendant has been found by evidence beyond a reasonable doubt to have
moved to the State to maintain his or her primary residence in this State for the purpose of engaging in activity which is
prohibited by §§ 4751 through 4761 of this title, such defendant, if convicted under any of §§ 4751 through 4761 of this title,
shall be subject to the increased penalty of imprisonment for 1 year, in addition to any other penalties to which the convicted
defendant would otherwise be subject for violation of the foregoing statutes.
(d) Substance abuse treatment -- Notwithstanding any provision of this section, title or Code to the contrary, the Department
of Correction shall have the authority and discretion during the last 180 days of any Level V sentence imposed pursuant to
this chapter to place the defendant at Level IV.
16 Del. C. 1953, § 4763; 58 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 130, § 10; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 244, § 1; 74 Del. Laws, c. 106, §§ 18, 19, 20, 21, 22, 23, 24; 74 Del. Laws, c. 345, § 7.;
§ 4764. First Offenders Controlled Substances Diversion Program.
(a) Any person who:
(1) Has not previously been convicted of any offense under this chapter or under any statute of the United States or of any
state thereof relating to narcotic drugs, marijuana, or stimulant, depressant, hallucinogenic drug or other substance who
is charged through information or indictment with possession or consumption of a controlled substance under § 4753 or § 4754
of this title; and
(2) Has not previously been afforded first offender treatment under this section or its predecessor,
may qualify for the first offense election at the time of the person's arraignment, except that no person shall qualify for
such first offense election where the offense charged under § 4753 or § 4754 of this title arises from the same transaction,
factual setting or circumstances as those contained in any indictment returned against the defendant alleging violation of
any provisions contained within § 4751, § 4752 or § 4753A of this title.
(b) At time of arraignment any person qualifying under subsection (a) of this section as a first offender and who elects treatment
under this section shall admit possession or consumption of a controlled substance by entering a plea of guilty, as a first
offender. The court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings
and place the accused on probation for a period of not less than 11/2 years, the terms and conditions of which shall include
but not be limited to:
(1) Revocation of the person's drivers license and/or privileges within this State for a period of not less than 1 year, restoration
of which shall be contingent upon successful completion of all mandatory terms and conditions required of probation to be
completed during the term of revocation. Upon entry of a plea of guilty, as first offender under this section, the clerk of
the court or other person designated by the court shall forthwith report that fact to the Division of Motor Vehicles for action
consistent with the provisions of this subsection. The Division of Motor Vehicles may issue a conditional license during this
period of revocation upon written certification by the person's probation officer that a narrowly drawn conditional license
is necessary for the limited purpose of performing the terms and conditions of probation.
(2) Performance of a minimum of 20 hours of community service work monitored by the court or probation office, performance
of which shall be accomplished on at least 3 separate days and shall not, in any event consist of segments lasting more than
8 hours in succession. Community service performed pursuant to the terms of this paragraph shall be in addition to all other
community service ordered and no community service ordered or performed pursuant to the terms of this section shall be performed
or served concurrently with any other court ordered or approved community service.
(3) Completion of a 16-hour first offender drug rehabilitation program, licensed by the Secretary of the Department of Health
and Social Services and paid for by the first offender.
(4) Other such terms and conditions as the court may impose.
(c) If a term or condition of probation is violated, or if the defendant is found to have illegally possessed or consumed
any controlled substance listed in Schedules I through V within 11/2 years of the entry of a plea under this section, a written
report of same shall immediately be filed with the court, and the defendant shall be brought before the court and upon determination
by the court that the terms have been violated or that the defendant has possessed or consumed any such controlled substance,
the court shall enter an adjudication of guilt upon the record and proceed as otherwise provided under this title.
(d) Upon fulfillment of the terms and conditions of probation, including, but not limited to, paying of all costs and fees,
and performance of all required community service, the court shall discharge the person and dismiss the proceedings against
the person and shall simultaneously therewith submit to the Attorney General a report thereof which shall be retained by the
Attorney General for use in future proceedings, if required. Discharge and dismissal under this section shall be without
adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime, except the additional penalties imposed for second or subsequent offenses under
§ 4763 of this title. Any person who elects to be treated as a first offender under this section shall, by so doing, agree
to pay the costs of the person's prosecution as a condition. There may be only 1 discharge and dismissal under this section
with respect to any person.
67 Del. Laws, c. 347, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 6; 75 Del. Laws, c. 167, § 2.;
§ 4765. Medical and/or psychiatric examination and/or treatment.
After a conviction and prior to sentencing for violation of § 4753 or 4754, or prior to conviction if the defendant consents,
the court may order the defendant to submit to a medical and/or psychiatric examination and/or treatment. The court may order
such examination by the Department of Health and Social Services or by a private physician, hospital or clinic and the court
may make such order regarding the term and conditions of such examination and/or treatment and the payment therefor by the
defendant as a court in its discretion shall determine. The Department of Health and Social Services or the private physician,
hospital or clinic shall report to the court within such time as the court shall order, not more than 90 days from the date
of such order. After such report and upon conviction of such violation, the court shall impose sentence or suspend sentence
and may impose probation and/or a requirement of future medical and/or psychiatric examination and/or treatment including
hospitalization or outpatient care upon such terms and conditions and for such period of time as the court shall order.
16 Del. C. 1953, § 4765; 58 Del. Laws, c. 424, § 1.;
§ 4767. Distribution, delivery, or possession of controlled substance within 1,000 feet of school property; penalties; defenses.
(a) Except as authorized by this chapter:
(1) Any person eighteen years of age or older who distributes, delivers or possesses a controlled substance or counterfeit
controlled substance listed in § 4714 or § 4716 of this title which is a narcotic drug on the property of any kindergarten,
elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of a felony and upon conviction
shall be imprisoned not more than 30 years and fined not more than $250,000.
(2) Any person 18 years of age or older who distributes, delivers or possesses any other controlled substance or counterfeit
controlled substance which is a nonnarcotic drug classified in § 4714, § 4716, § 4718, § 4720 or § 4722 of this title on the
property of any kindergarten, elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of
a felony and upon conviction shall be imprisoned for a term of not more than 15 years and fined not more than $250,000.
(b) Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of this chapter
or any other provision of law, and a conviction under this section shall not merge with a conviction for violation of any
other provision of this chapter or other provision of law.
(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited
conduct took place on or within 1,000 feet of any school property.
(d) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely
within a private residence, that no person under the age of 18 was present in such private residence at any time during the
commission of the offense and that the prohibited conduct did not involve distribution, delivery or possession of any controlled
substance for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance
of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an
offense defined in any other section of this chapter.
67 Del. Laws, c. 182, § 2.;
§ 4768. Distribution, delivery or possession of controlled substance in or within 300 feet of park, recreation area, church,
synagogue or other place of worship; penalties; defenses.
(a) Except as authorized by this chapter, any person who illegally distributes, delivers or possesses a controlled substance
or counterfeit controlled substance listed in § 4714, § 4716, § 4718, § 4720 or § 4722 of this title while in any park or
recreation area owned, operated or utilized by any county or municipality, or by the State, or by any board, commission, department,
agency, corporation or organization thereof, or in any "parkland" as defined in § 8110(a)(2) of Title 9, or in any church,
synagogue or other place of worship, or within 300 feet of the boundaries of any such parkland, park, or recreation area or
church, synagogue or other place of worship, is guilty of a felony and upon conviction shall be imprisoned for a term of not
more than 15 years and fined not more than $250,000.
(b) Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of this chapter
or any other provision of law, and a conviction under this section shall not merge with a conviction for violation of any
other provision of this chapter or other provision of law.
(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited
conduct took place in or within 300 feet of any parkland, park or recreation area.
(d) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely
within a private residence and that the prohibited conduct did not involve distribution, delivery or possession of any controlled
substance for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance
of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an
offense defined in any other section of this chapter.
69 Del. Laws, c. 457, § 1; 72 Del. Laws, c. 411, §§ 1, 2.;
(a) Except as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or
deliver a controlled substance or a counterfeit controlled substance classified in Schedule I or II which is a narcotic drug
is guilty of a class C felony and shall be fined not more than $50,000.
(b) Except as authorized by this chapter, any person who manufactures, delivers or possesses with the intent to manufacture
or deliver a controlled substance or a counterfeit controlled substance classified in Schedule III, IV or V which is a narcotic
drug is guilty of a class E felony and shall be fined not more than $15,000.
(c) Except as authorized by this chapter, in cases where death occurs as a result of the use or consumption of a controlled
substance or counterfeit controlled substance classified in Schedule I, II, III, IV or V which is a narcotic drug, any person
who is convicted of manufacturing or delivering such drug shall be guilty of a class B felony and shall be fined not more
than $100,000.
(d) Where an individual is convicted of a violation of subsection (a), subsection (b) or subsection (c) of this section and
the Attorney General may move to sentence the defendant as a nonaddict, the court shall conduct a hearing at which the Attorney
General shall have the burden of proof by a preponderance of the evidence that the defendant is a nonaddict. If the court,
after hearing, is satisfied that the defendant is, and was at the time of the offense, not addicted to controlled substances,
then the following enhanced penalties shall apply:
(1) For the first violation of this section a mandatory minimum sentence of 6 years to be served at Level V.
(2) For the second or subsequent violation of this section a mandatory minimum sentence of 12 years to be served at Level
V.
These minimum sentences may not be suspended by the court.
67 Del. Laws, c. 130, § 15; 70 Del. Laws, c. 80, §§ 1-3; 76 Del. Laws, c. 108, §§ 1-3.;
§ 4752. Prohibited acts B; penalties.
(a) Except as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or
deliver a controlled substance or a counterfeit controlled substance classified in Schedule I, II, III, IV or V which is not
a narcotic drug is guilty of a class E felony and upon conviction shall be fined not more than $10,000 and imprisoned not
more than 5 years.
(b) Any person who distributes, sells, offers to sell, dispenses, administers, or prescribes any anabolic steroid or any counterfeit
substance purporting to be an anabolic steroid for the purposes of human body building or enhancement of human athletic performance
is guilty of a class E felony. For purposes of this section, it is not a valid medical practice to distribute, sell, offer
to sell, dispense, administer or prescribe any anabolic steroid for purposes of human body building or enhancement of human
athletic performance.
(c) For purposes of this section, the words "body building" shall mean the increasing of muscle weight. For purposes of this
section, the words "athletic enhancement" shall mean the improvement of performance in any form of exercise, sport or game.
16 Del. C. 1953, § 4752; 58 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 14; 70 Del. Laws, c. 81, § 3; 76 Del. Laws, c. 108, § 4.;
§ 4752A. Unlawful delivery of noncontrolled substance.
(a) It is unlawful for any person to knowingly deliver or attempt to deliver a noncontrolled substance upon either:
(1) The express or implied representation that the substance is a narcotic or nonnarcotic controlled substance; or
(2) The express or implied representation that the substance is of such nature or appearance that the recipient of said delivery
will be able to distribute said substance as a controlled substance;
(3) It is prima facie evidence of the implied representation referred to in paragraphs (1) and (2) of this subsection if any
2 of the following factors are established:
a. The noncontrolled substance was packaged in a manner normally used for the illegal delivery of controlled substances;
b. The delivery or attempted delivery included an exchange of or demand for money or other valuable property as consideration
for delivery of the substance, and the amount of such consideration was substantially in excess of the reasonable value of
the noncontrolled substance;
c. The physical appearance of the finished product containing the substance is substantially identical to a specific controlled
substance.
(b) In any prosecution for unlawful delivery of a noncontrolled substance, it is no defense that the accused believed the
noncontrolled substance to actually be a controlled substance.
(c) Unlawful delivery of a noncontrolled substance is a class D felony. The punishment upon conviction under this section
shall be governed by those provisions of this Code dealing with delivery of controlled substances. Specifically, the section
prohibiting delivery of the controlled substance, which the defendant represented the noncontrolled substance to be, shall
govern the punishment in each case. If no express or implied representation was made as to the identity of the controlled
substance, the punishment shall be the same as for the delivery of a nonnarcotic controlled substance. However, the punishment
provision of § 4751(c) of this title shall not apply to this section.
62 Del. Laws, c. 252, § 1; 63 Del. Laws, c. 72, § 1; 67 Del. Laws, c. 130, § 9; 70 Del. Laws, c. 80, § 4.;
§ 4753. Prohibited acts C; penalties.
It is unlawful for any person knowingly or intentionally to possess, use or consume a controlled substance or a counterfeit
substance which is a narcotic drug unless the substance was obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of the practitioner's professional practice or except as otherwise authorized
by this chapter. Any person who violates this section shall be guilty of a class A misdemeanor.
16 Del. C. 1953, § 4753; 58 Del. Laws, c. 424, § 1; 60 Del. Laws, c. 583, § 6; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 15; 70 Del. Laws, c. 186, § 1.;
§ 4753A. Trafficking in marijuana, cocaine, illegal drugs, methamphetamines, Lysergic Acid Diethylamide (L. S. D.), designer
drugs, or 3,4-methylenedioxymethamphetamine (MDMA).
(a) Except as authorized in this chapter:
(1) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, in excess of 5 pounds of marijuana is guilty of a class B felony, which felony shall
be known as "trafficking in marijuana". If the quantity of marijuana involved:
a. Is in excess of 5 pounds, but less than 100 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $25,000.
b. Is 100 pounds or more, but less than 500 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $50,000.
c. Is 500 pounds or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall
be fined up to $100,000.
(2) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, 10 grams or more of cocaine or of any mixture containing cocaine, as described in
§ 4716(b)(4) of this title, is guilty of a class B felony, which felony shall be known as "trafficking in cocaine." If the
quantity involved:
a. Is 10 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(3) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 2.5 grams or more of any morphine, opium or any salt, isomer or salt of an isomer
thereof, including heroin, as described in § 4714 of this title, or 2.5 grams or more of any mixture containing any such substance,
is guilty of a class B felony, which felony shall be known as "trafficking in illegal drugs." If the quantity involved:
a. Is 2.5 grams or more, but less than 10 grams, which person shall be sentenced to a mandatory minimum term of imprisonment
of 3 years and shall be fined up to $75,000.
b. Is 10 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 10 years and shall be fined up to $150,000.
c. Is 50 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall be
fined up to $750,000.
(4) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of, 5 grams or more of methamphetamine, including its salt, isomer or salt of an isomer
thereof, or of any mixture containing any such substance, as described in § 4716(d)(3) of this title is guilty of a class
B felony, which felony shall be known as "trafficking in methamphetamine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(5) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 5 grams or more of amphetamine, including its salts, optical isomers and salt of its
optical isomers, or of any mixture containing any such substance, as described in § 4716(d)(1) of this title is guilty of
a class B felony, which felony shall be known as "trafficking in amphetamine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(6) Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly
in actual or constructive possession of 5 grams or more of phencyclidine, or of any mixture containing any such substance,
as described in § 4716(e)(5) of this title, is guilty of a class B felony, which felony shall be known as "trafficking in
phencyclidine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 2 years and shall be fined up to $50,000.
b. Is 50 grams or more, but less than 100 grams, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 100 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 8 years and shall be
fined up to $400,000.
(7) Any person, who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is
knowingly in actual or constructive possession of 50 or more doses (each dose constitutes up to 100 micrograms) or in a liquid
form 5 milligrams or more of lysergic acid diethylamide (L.S.D.), or any mixture containing such substance, as described in
§ 4714(d)(9) of this title, is guilty of a class B felony known as "trafficking in L.S.D." If the quantity involved:
a. Is in excess of 50 or more doses, or in liquid form 5 milligrams, but less than 100 doses, or in liquid form less than
10 milligrams, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years and pay a fine of $50,000.
b. Is in excess of 100 doses, or in liquid form 10 milligrams, but less than 500 doses, or in liquid form less than 50 milligrams,
such person shall be sentenced to a mandatory minimum term of imprisonment of 4 years and shall be fined up to $100,000.
c. Is 500 doses or more, or in liquid form 50 milligrams or more, such person shall be sentenced to a mandatory minimum term
of imprisonment of 8 years and shall be fined up to $400,000.
(8)a. Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State or who is
knowingly in actual or constructive possession of 25 or more doses or tablets or 5 or more grams or 5 milliliters or more
of a designer drug or any mixture containing any such substance, as described in § 4701(9) of this title, is guilty of a class
B felony, which felony shall be known as "trafficking in designer drugs." If the quantity involved:
1. Is 25 doses or tablets or more, but less than 250 doses or tablets, or 5 grams or more, but less than 50 grams, or 5 milliliters
or more, but less than 50 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years
and shall be fined up to $50,000.
2. Is two-hundred 250 doses or tablets, or more, but less than 500 doses or tablets, or 50 grams or more, but less than 100
grams, or 50 milliliters or more, but less than 100 milliliters, such person shall be sentenced to a mandatory minimum term
of imprisonment of 4 years and shall be fined up to $100,000.
3. Is of 500 doses or tablets or more, or 100 grams or more, or 100 milliliters or more such person shall be sentenced to
a mandatory minimum term of imprisonment of 8 years and shall be fined up to $400,000.
b. This paragraph does not apply to a person who manufactures or delivers a substance in conformance with an approved new
drug application or an exemption for investigating use within the meaning of § 505 of the Federal Food, Drug and Cosmetic
Act (21 U.S.C. § 355) or to a person who manufactures, distributes or dispenses controlled substances in conformance with
a registration issued by the Attorney General of the United States within the meaning of §§ 301-304 of the Federal Controlled
Substances Act (21 U.S.C. §§ 821-824).
(9) Any person who on any single occasion knowingly sells, manufactures, delivers or brings into this State or who is knowingly
in actual or constructive possession of 25 or more doses or tablets or 5 or more grams or 5 milliliters or more of 3,4-methylenedioxymethamphetamine
(MDMA), its optical, positional and geometric isomers, salts and salts of isomers; or any mixture containing such substance,
as described in § 4714(d)(21) of this title, is guilty of a Class B felony known as "Trafficking in MDMA." If the quantity
involved:
a. Is 25 doses or tablets or more, but less than 250 doses or tablets, or 5 grams or more, but less than 50 grams, or 5 milliliters
or more, but less than 50 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment of 2 years
and shall be fined up to $50,000.
b. Is 250 doses or tablets, or more, but less than 500 doses or tablets, or 50 grams or more, but less than 100 grams, or
50 milliliters or more, but less than 100 milliliters, such person shall be sentenced to a mandatory minimum term of imprisonment
of 4 years and shall be fined up to $100,000.
c. Is 500 doses or tablets or more, or 100 grams or more, or 100 milliliters or more such person shall be sentenced to a mandatory
minimum term of imprisonment of 8 years and shall be fined up to $400,000.
(b) Notwithstanding § 4764 of this title, with respect to any person who is found to have violated this section, adjudication
of guilt or imposition of sentence shall not be suspended, deferred or withheld, nor shall such person be eligible for parole
or release upon good time credits or in any other manner, nor shall such individual be eligible for work release, supervised
custody, furlough or any other similar program, prior to serving the mandatory minimum term of imprisonment prescribed by
this section.
(c) The Attorney General may move the sentencing court to reduce or suspend the sentence of any person who is convicted of
a violation of this section and who provides substantial assistance in the identification, arrest or conviction of any of
the person's accomplices, accessories, co-conspirators or principals. Upon good cause shown, the motion may be filed and heard
in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered
such substantial assistance.
(d) For purposes of this section with regard to the sentencing provisions, a year shall mean 365 days without any reductions
for good time.
(e) In any prosecution under this section the State need not prove that the defendant had any knowledge as to the weight of
the substance possessed. The State need only prove that the defendant knew that the substance was possessed; and, that in
fact the substance was that which is alleged and that the substance in fact weighed a certain amount.
63 Del. Laws, c. 134, § 1; 63 Del. Laws, c. 359, § 1; 64 Del. Laws, c. 87, §§ 1, 2; 65 Del. Laws, c. 317, §§ 1-3; 65 Del. Laws, c. 485, § 1; 67 Del. Laws, c. 115, §§ 1-16; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 427, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 235, § 1; 73 Del. Laws, c. 216, § 1; 73 Del. Laws, c. 253, §§ 1, 2, 3; 74 Del. Laws, c. 106, §§ 13-17; 74 Del. Laws, c. 288, §§ 1, 3-5; 76 Del. Laws, c. 108, § 5.;
§ 4754. Prohibited acts D; penalties.
(a) It is unlawful for any person knowingly or intentionally to possess, use or consume any controlled substance or counterfeit
substance classified in Schedule I (except Schedule I controlled substances classified in subsection (d)(19) of § 4714 of
this title), II, III, IV or V not a narcotic drug unless the substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except
as otherwise authorized by this chapter. Any person who violates this subsection shall be guilty of a class B misdemeanor.
(b) It is unlawful for any person knowingly or intentionally to possess, use or consume any Schedule I controlled substance
or counterfeit substance classified in subsection (d)(19) of § 4714 of this title, except as otherwise authorized by this
chapter. Any person who violates this subsection shall be guilty of a class B misdemeanor.
16 Del. C. 1953, § 4754; 58 Del. Laws, c. 424, § 1; 61 Del. Laws, c. 261, § 3; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, §§ 16, 17; 70 Del. Laws, c. 186, § 1.;
§ 4754A. Possession and delivery of non=-con=-trolled prescription drug.
(a) It is unlawful for any person knowingly or intentionally to possess any drug for which a prescription is required, which
is not a controlled substance or counterfeit controlled substance, with the following exceptions:
(1) The possession, and transfer to a licensed health care professional by a manufacturer's representative, of drugs manufactured
by the representative's employer;
(2) The possession, compounding and sale of such drug by a pharmacist in the lawful course of the pharmacist's professional
activities;
(3) The possession and transfer of such drug by a physician or other licensed health care professional in the lawful course
of the physician's or other licensed health care professional's professional activities; and
(4) The possession, use and consumption of such drug by a person who has received the drug from a physician or other licensed
health care professional who is permitted by law to disperse or prescribe such drug.
(b) Possession of a drug which is not a controlled substance, in violation of this section, is a class B misdemeanor.
(c) In any prosecution for "unlawful possession of a noncontrolled prescription drug," it is an affirmative defense that the
drug was possessed or consumed within the residence of the defendant, that a member of the defendant's household possessed
a valid prescription for said drug, that the possession or consumption by the defendant was for the purpose of treating an
illness and that the drug in question was approved for use for the specific illness.
(d) Any person who delivers or possesses with intent to deliver a noncontrolled prescription drug not obtained directly from,
nor pursuant to, a valid prescription or order of a practitioner who is acting in the course of the practitioner's professional
practice, or except as otherwise authorized by the statutes of this State, shall be guilty of a class E felony.
63 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 384, §§ 1, 2; 70 Del. Laws, c. 81, § 4; 70 Del. Laws, c. 186, § 1.;
§ 4755. Prohibited acts E; penalties.
(a) It is unlawful for any person:
(1) Who is subject to subchapter III to distribute or dispense a controlled substance in violation of § 4739;
(2) Who is a registrant, to manufacture a controlled substance not authorized by the person's registration or to distribute
or dispense a controlled substance not authorized by the person's registration to another registrant or other authorized person;
(3) To refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required
under this chapter;
(4) To refuse an entry into any premises for any inspection authorized by this chapter; or
(5) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure
or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using
these substances or which is used for keeping or delivering them in violation of this chapter.
(b) Any person who violates paragraph (a)(1), (a)(2), (a)(4) or (a)(5) of this section shall be guilty of a class F felony.
Any person who violates paragraph (a)(3) of this section shall be guilty of a class A misdemeanor.
16 Del. C. 1953, § 4755; 58 Del. Laws, c. 424, § 1; 65 Del. Laws, c. 500, § 1; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 18; 70 Del. Laws, c. 186, § 1.;
§ 4756. Prohibited acts; penalties.
(a) It is unlawful for any person knowingly or intentionally:
(1) To distribute as a registrant a controlled substance classified in Schedule I or II, except pursuant to an order form
as required by § 4738 of this chapter;
(2) To use in the course of the manufacture, distribution, prescribing, dispensing or research of a controlled substance,
or to use for the purpose of acquiring or obtaining a controlled substance, a registration number which is fictitious, revoked,
suspended, expired or issued to another person;
(3) To acquire or obtain or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud,
forgery, deception or subterfuge;
(4) To furnish false or fraudulent material information in or omit any material information from, any application, report
or other document required to be kept or filed under this chapter, or any record required to be kept by this chapter;
(5) To make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the
trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon
any drug or container or labeling thereof so as to render the drug a counterfeit substance;
(6) To acquire or attempt to or obtain possession of a controlled substance by robbery, burglary or theft; or
(7) To acquire or obtain, or attempt to acquire or obtain, possession of a substance for which a valid prescription or order
of a practitioner is required, by misrepresentation, fraud, forgery, deception or subterfuge.
(b) Any person who violates this section upon conviction shall be guilty of a class F felony.
16 Del. C. 1953, § 4756; 58 Del. Laws, c. 424, § 1; 60 Del. Laws, c. 583, § 7; 65 Del. Laws, c. 504, §§ 1-4; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, § 19; 71 Del. Laws, c. 288, § 10.;
§ 4757. Hypodermic syringe or needle; delivering or possessing; disposal; exceptions; penalties.
(a) No person shall deliver at retail or furnish to any person other than a practitioner an instrument commonly known as a
hypodermic syringe or an instrument commonly known as a hypodermic needle or any instrument adapted for the use of narcotic
drugs by parenteral injection without a written order of a practitioner or oral order of a practitioner immediately reduced
to writing by such person.
(b) Every person who disposes of or delivers at retail, or gives away to any person the instruments described in subsection
(a) of this section, upon the written order of a practitioner or oral order of a practitioner immediately reduced to writing
by such person, shall, before delivering the same:
(1) Enter into a book kept for that purpose the day of the delivery, the name, age and address of the purchaser and a description
of the instrument sold, disposed of, furnished or given away; or
(2) Retain on file the original written order or oral order reduced to writing, noting on such orders any refills.
(c) No person except a practitioner or regular dealer in medical or surgical supplies or their authorized agents or employees
shall possess an instrument described in subsection (a) of this section, without having in the person's possession a certificate
from a physician certifying that the possession of such instrument is necessary for the treatment of an injury, deformity
or disease then suffered by the person possessing the same. Any person convicted of unlawfully possessing an instrument described
in subsection (a) of this section shall be guilty of an unclassified misdemeanor, and upon conviction shall be fined not more
than $100, be imprisoned not more than 30 days, or both. Every person who lawfully possesses an instrument described in subsection
(a) of this section shall, before disposal, destroy such instrument in such a manner as to render it unfit for reuse in any
manner.
(d) Any person who delivers, disposes of or gives away any instrument commonly known as a hypodermic syringe or an instrument
commonly known as a hypodermic needle or any instrument adapted for the use of narcotic drugs by parenteral injection except
in the manner prescribed in this section, shall be guilty of a class G felony.
(e) Nothing in this section shall prohibit the delivery, furnishing, sale, purchase or possession of an instrument commonly
known as a hypodermic syringe or an instrument commonly known as a hypodermic needle used or to be used solely and exclusively
for treating poultry or livestock and such delivery, furnishing, sale, purchase, possession or use shall be governed by rules
and regulations to be prescribed by the Department of Agriculture.
(f) This section does not apply to:
(1) The sale at wholesale by pharmacies, drug jobbers, drug wholesalers and drug manufacturers or manufacturers and dealers
in surgical instruments to practitioners; and
(2) The furnishing or obtaining of hypodermic syringes or hypodermic needles for uses which the Secretary determines are industrial.
Notwithstanding the other provisions of this section, a person may obtain such instruments, without a written order or oral
order reduced to writing, for such industrial uses.
16 Del. C. 1953, § 4757; 58 Del. Laws, c. 424, § 1; 59 Del. Laws, c. 33, § 1; 59 Del. Laws, c. 291, § 1; 60 Del. Laws, c. 583, §§ 8-12; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 350, §§ 20, 21; 70 Del. Laws, c. 186, § 1.;
§ 4758. Keeping drugs in original containers.
(a) A person to whom or for whose use a controlled substance has been prescribed, delivered or dispensed by a practitioner
may lawfully possess it only in the original container in which it was delivered to the practitioner by the person delivering
or dispensing the same.
(b) Any person who violates subsection (a) of this section upon conviction shall be guilty of a class A misdemeanor.
(c) It shall be a defense to the prosecution of this charge that the person had a lawful prescription for the controlled substance
found.
(d) Nothing in this section shall criminalize the use of pill boxes or other daily pill containers by a person with a lawful
prescription for the controlled substance contained in said container.
16 Del. C. 1953, § 4758; 58 Del. Laws, c. 424, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 385, § 1.;
§ 4759. Penalties under other laws are additional.
Any penalty imposed for violation of this chapter is in addition to and not in lieu of any civil or administrative penalty
or sanction otherwise authorized by law. Notwithstanding the fact that the crimes of consumption and use of drugs are reenacted
in this chapter under section numbers different from previous statutes, nothing herein shall be deemed to prevent dismissal
of charges of consumption and use of drugs pursuant to § 4213 of Title 11.
16 Del. C. 1953, § 4759; 58 Del. Laws, c. 424, § 1.;
§ 4760. Bar to prosecution.
If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under
federal law or the law of another state for the same act is a bar to the prosecution in this State.
16 Del. C. 1953, § 4760; 58 Del. Laws, c. 424, § 1.;
§ 4761. Distribution to persons under 21 years of age; penalties.
(a) Except as authorized by this chapter:
(1) Whoever knowingly distributes a controlled substance or counterfeit controlled substance listed in Schedule I or II which
is a narcotic drug to a person under 21 years of age is guilty of a class C felony.
(2) Whoever knowingly distributes any other controlled substance or counterfeit controlled substance which is a nonnarcotic
drug classified in Schedule I, II, III, IV or V to a person under 21 years of age is guilty of a class E felony.
(3) In any prosecution for violation of paragraph (1) of this subsection, when the person to whom the narcotic drug has been
distributed is under the age of 16, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory
minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole during said
1 year mandatory minimum term; when the person to whom the narcotic drug has been distributed is under the age of 14, there
shall be a mandatory minimum term of imprisonment of 2 years which 2 year mandatory minimum term shall not be subject to suspension
and no person shall further be eligible for probation or parole during said 2 year mandatory minimum term.
(4) In any prosecution for violation of paragraph (2) of this subsection, when the person to whom the nonnarcotic drug has
been distributed is under the age of 16, there shall be a mandatory minimum term of imprisonment of 6 months, which 6 months
mandatory minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole
during said 6 months mandatory minimum term; when the person to whom the nonnarcotic drug has been distributed is under the
age of 14, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory minimum term shall not
be subject to suspension and no person shall further be eligible for probation or parole during said 1 year mandatory minimum
term.
(b) Whenever in this section the criminality of conduct or particular sentence depends on a person's age, it is no defense
that the actor did not know the person's age, or reasonably believed the person to be older than age 14, 16, 18 or 21, as
the case may be.
(c) Any person 18 years of age or older who uses, solicits, directs, hires or employs a person under 18 years of age to violate
any provision of subchapter IV or subchapter V of this chapter is guilty of a felony; and upon conviction therefor shall be
imprisoned for a term of not more than 10 years, and be fined not more than $250,000. It shall be no defense to a prosecution
under this section that the accused mistakenly believed that the minor that the accused used, solicited, directed, hired or
employed was 18 years of age or older, even if such mistaken belief was reasonable.
(d) Nothing in this section shall be construed to preclude or limit any prosecution or conviction for a violation of this
chapter or any other provision of law; and a conviction under this section shall not merge with a conviction for the violation
of any other provision of this chapter or other provision of law.
16 Del. C. 1953, § 4761; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 324, §§ 1, 2; 67 Del. Laws, c. 130, § 9; 67 Del. Laws, c. 182, § 1; 67 Del. Laws, c. 350, §§ 22, 23; 72 Del. Laws, c. 191, §§ 1-4.;
§ 4761A. Purchase of drugs from minors; penalties.
(a) Except as authorized by this chapter:
(1) Whoever knowingly purchases a controlled substance or counterfeit controlled substance listed in Schedule I or II which
is a narcotic drug from a person under 18 years of age is guilty of a class C felony.
(2) Whoever knowingly purchases any other controlled substance or counterfeit controlled substance which is a nonnarcotic
drug classified in Schedule I, II, III, IV or V from a person under 18 years of age is guilty of a class E felony.
(3) In any prosecution for violation of paragraph (1) of this subsection, when the person from whom the narcotic drug has
been purchased is under the age of 16, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory
minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole during said
1 year mandatory minimum term; when the person from whom the narcotic drug has been purchased is under the age of 14, there
shall be a mandatory minimum term of imprisonment of 2 years which 2 year mandatory minimum term shall not be subject to suspension
and no person shall further be eligible for probation or parole during said 2 year mandatory minimum term.
(4) In any prosecution for violation of paragraph (2) of this subsection, when the person from whom the nonnarcotic drug has
been purchased is under the age of 16, there shall be a mandatory minimum term of imprisonment of 6 months, which 6 months
mandatory minimum term shall not be subject to suspension and no person shall further be eligible for probation or parole
during said 6 months mandatory minimum term; when the person from whom the nonnarcotic drug has been purchased is under the
age of 14, there shall be a mandatory minimum term of imprisonment of 1 year, which 1 year mandatory minimum term shall not
be subject to suspension and no person shall further be eligible for probation or parole during said 1 year mandatory minimum
term.
(b) Whenever in this section the criminality of conduct or particular sentence depends on a person's age, it is no defense
that the actor did not know the person's age, or reasonably believed the person to be older than age 14, 16 or 18, as the
case may be.
(c) Nothing in this section shall be construed to preclude or limit any prosecution or conviction for a violation of this
chapter or any other provision of law; and a conviction under this section shall not merge with a conviction for the violation
of any other provision of this chapter or other provision of law.
71 Del. Laws, c. 234, § 1.;
§ 4762. Conviction of lesser offense.
In any prosecution for any violation of the following sections of this chapter, the defendant may be convicted under any 1
of the following respective sections of this chapter in accordance with the table set forth below establishing lesser included
offenses:
(1) The lesser included offenses under § 4761(a)(1), are §§ 4751, 4752, 4753, 4754 and 4761(a)(2).
(2) The lesser included offenses under § 4761(a)(2) are §§ 4752 and 4754.
(3) The lesser included offenses under § 4751 are §§ 4752, 4753 and 4754.
(4) The lesser included offense under § 4752 is § 4754.
(5) The lesser included offense under § 4753 is § 4754.
16 Del. C. 1953, § 4762; 58 Del. Laws, c. 424, § 1.;
§ 4763. Additional or reduced penalties.
(a) Previous convictions. -- In any case in which a defendant has previously been convicted of any offense set forth in §§
4751, 4752, 4753A or 4761 of this title, the penalties set forth in §§ 4751-4761 of this title shall be increased as follows:
(1) The additional maximum terms applicable to the following respective sections shall be increased in accordance with the
following table so that the maximum terms shall read respectively as follows:
a. Section 4754 of this title, not more than 2 years.
b. Section 4753 of this title, not more than 3 years.
c. Section 4751 of this title (excepting heroin or any mixture containing heroin) or § 4752 of this title, 5 years.
d. Section 4751 of this title (heroin or any mixture containing heroin), 10 years.
e. Section 4761(a)(2) of this title, not more than 9 years.
f. Section 4761(a)(1) of this title, not more than 17 years.
(2) The following minimum terms with respect to the following respective sections of this chapter are mandatory minimum terms
of imprisonment and shall not be subject to suspension and no person shall be eligible for probation or parole during such
portion of such minimum term:
a. Section 4751 of this title (excepting heroin or any mixture containing heroin) or § 4752 of this title, 3 years.
b. Section 4751 of this title (heroin or any mixture containing heroin), 5 years.
c. Section 4761(a)(2) of this title, 7 years.
d. Section 4761(a)(1) of this title, 10 years.
(b) Mitigating circumstances and reduced penalties. --
(1) In any prosecution for a violation of § 4752 or 4761(a)(2) of this title, such violation shall be deemed to be a misdemeanor
and the maximum penalty shall be a fine of $1,000 or 2 years imprisonment or both if all of the following elements are found
to be present:
a. That the defendant is under the age of 21 years; and
b. That the defendant delivered a controlled substance or counterfeit substance other than a controlled substance or counterfeit
substance classified in Schedule I or II as a narcotic drug; and
c. That the transaction was an isolated incident and the defendant did not make a profit in the transaction or assist another
in making a profit and that the defendant is not engaged in the business of delivering controlled or counterfeit substances;
and
d. That the delivery was made to one who was 15 years of age or older and had been acquainted with the defendant for a period
of at least 1 year before any delivery took place.
(2) In any prosecution for a violation of § 4754 the maximum penalty provided in this chapter shall be a fine of $500 or 90
days imprisonment or both if all of the following elements are found to be present:
a. That the defendant is under the age of 21 years; and
b. That the defendant had used or consumed or had in the defendant's possession a controlled or counterfeit substance other
than a controlled or counterfeit substance classified in Schedule I or II as a narcotic drug; and
c. That the defendant is not engaged in the business of delivering controlled or counterfeit substances; and
d. That the controlled or counterfeit substance was obtained from one whom the defendant reasonably believed was at the time
under the age of 21 and did not make a profit or assist another in making a profit in the transaction and was not engaged
in the business of delivering controlled or counterfeit substances and had been acquainted with the defendant for a period
of at least 1 year before any delivery took place.
(3) The burden shall be on the defendant to establish the foregoing mitigating circumstances by a preponderance of the evidence.
At the option of the defendant the mitigating circumstances may be pleaded and presented to either (but not both): (i) The
trier of fact, or (ii) the court at a hearing after conviction and prior to sentencing.
(4) This subsection shall not be applicable if the defendant has any previous conviction within the meaning of subsection
(a) of this section, and the penalties provided therein shall apply fully. A conviction for which the penalty is mitigated
and reduced as herein provided shall nevertheless be deemed to be a previous conviction for purposes of subsection (a) of
this section.
(c) Additional penalties -- In any case in which a defendant has been found by evidence beyond a reasonable doubt to have
moved to the State to maintain his or her primary residence in this State for the purpose of engaging in activity which is
prohibited by §§ 4751 through 4761 of this title, such defendant, if convicted under any of §§ 4751 through 4761 of this title,
shall be subject to the increased penalty of imprisonment for 1 year, in addition to any other penalties to which the convicted
defendant would otherwise be subject for violation of the foregoing statutes.
(d) Substance abuse treatment -- Notwithstanding any provision of this section, title or Code to the contrary, the Department
of Correction shall have the authority and discretion during the last 180 days of any Level V sentence imposed pursuant to
this chapter to place the defendant at Level IV.
16 Del. C. 1953, § 4763; 58 Del. Laws, c. 424, § 1; 67 Del. Laws, c. 130, § 10; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 244, § 1; 74 Del. Laws, c. 106, §§ 18, 19, 20, 21, 22, 23, 24; 74 Del. Laws, c. 345, § 7.;
§ 4764. First Offenders Controlled Substances Diversion Program.
(a) Any person who:
(1) Has not previously been convicted of any offense under this chapter or under any statute of the United States or of any
state thereof relating to narcotic drugs, marijuana, or stimulant, depressant, hallucinogenic drug or other substance who
is charged through information or indictment with possession or consumption of a controlled substance under § 4753 or § 4754
of this title; and
(2) Has not previously been afforded first offender treatment under this section or its predecessor,
may qualify for the first offense election at the time of the person's arraignment, except that no person shall qualify for
such first offense election where the offense charged under § 4753 or § 4754 of this title arises from the same transaction,
factual setting or circumstances as those contained in any indictment returned against the defendant alleging violation of
any provisions contained within § 4751, § 4752 or § 4753A of this title.
(b) At time of arraignment any person qualifying under subsection (a) of this section as a first offender and who elects treatment
under this section shall admit possession or consumption of a controlled substance by entering a plea of guilty, as a first
offender. The court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings
and place the accused on probation for a period of not less than 11/2 years, the terms and conditions of which shall include
but not be limited to:
(1) Revocation of the person's drivers license and/or privileges within this State for a period of not less than 1 year, restoration
of which shall be contingent upon successful completion of all mandatory terms and conditions required of probation to be
completed during the term of revocation. Upon entry of a plea of guilty, as first offender under this section, the clerk of
the court or other person designated by the court shall forthwith report that fact to the Division of Motor Vehicles for action
consistent with the provisions of this subsection. The Division of Motor Vehicles may issue a conditional license during this
period of revocation upon written certification by the person's probation officer that a narrowly drawn conditional license
is necessary for the limited purpose of performing the terms and conditions of probation.
(2) Performance of a minimum of 20 hours of community service work monitored by the court or probation office, performance
of which shall be accomplished on at least 3 separate days and shall not, in any event consist of segments lasting more than
8 hours in succession. Community service performed pursuant to the terms of this paragraph shall be in addition to all other
community service ordered and no community service ordered or performed pursuant to the terms of this section shall be performed
or served concurrently with any other court ordered or approved community service.
(3) Completion of a 16-hour first offender drug rehabilitation program, licensed by the Secretary of the Department of Health
and Social Services and paid for by the first offender.
(4) Other such terms and conditions as the court may impose.
(c) If a term or condition of probation is violated, or if the defendant is found to have illegally possessed or consumed
any controlled substance listed in Schedules I through V within 11/2 years of the entry of a plea under this section, a written
report of same shall immediately be filed with the court, and the defendant shall be brought before the court and upon determination
by the court that the terms have been violated or that the defendant has possessed or consumed any such controlled substance,
the court shall enter an adjudication of guilt upon the record and proceed as otherwise provided under this title.
(d) Upon fulfillment of the terms and conditions of probation, including, but not limited to, paying of all costs and fees,
and performance of all required community service, the court shall discharge the person and dismiss the proceedings against
the person and shall simultaneously therewith submit to the Attorney General a report thereof which shall be retained by the
Attorney General for use in future proceedings, if required. Discharge and dismissal under this section shall be without
adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime, except the additional penalties imposed for second or subsequent offenses under
§ 4763 of this title. Any person who elects to be treated as a first offender under this section shall, by so doing, agree
to pay the costs of the person's prosecution as a condition. There may be only 1 discharge and dismissal under this section
with respect to any person.
67 Del. Laws, c. 347, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 6; 75 Del. Laws, c. 167, § 2.;
§ 4765. Medical and/or psychiatric examination and/or treatment.
After a conviction and prior to sentencing for violation of § 4753 or 4754, or prior to conviction if the defendant consents,
the court may order the defendant to submit to a medical and/or psychiatric examination and/or treatment. The court may order
such examination by the Department of Health and Social Services or by a private physician, hospital or clinic and the court
may make such order regarding the term and conditions of such examination and/or treatment and the payment therefor by the
defendant as a court in its discretion shall determine. The Department of Health and Social Services or the private physician,
hospital or clinic shall report to the court within such time as the court shall order, not more than 90 days from the date
of such order. After such report and upon conviction of such violation, the court shall impose sentence or suspend sentence
and may impose probation and/or a requirement of future medical and/or psychiatric examination and/or treatment including
hospitalization or outpatient care upon such terms and conditions and for such period of time as the court shall order.
16 Del. C. 1953, § 4765; 58 Del. Laws, c. 424, § 1.;
§ 4767. Distribution, delivery, or possession of controlled substance within 1,000 feet of school property; penalties; defenses.
(a) Except as authorized by this chapter:
(1) Any person eighteen years of age or older who distributes, delivers or possesses a controlled substance or counterfeit
controlled substance listed in § 4714 or § 4716 of this title which is a narcotic drug on the property of any kindergarten,
elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of a felony and upon conviction
shall be imprisoned not more than 30 years and fined not more than $250,000.
(2) Any person 18 years of age or older who distributes, delivers or possesses any other controlled substance or counterfeit
controlled substance which is a nonnarcotic drug classified in § 4714, § 4716, § 4718, § 4720 or § 4722 of this title on the
property of any kindergarten, elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of
a felony and upon conviction shall be imprisoned for a term of not more than 15 years and fined not more than $250,000.
(b) Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of this chapter
or any other provision of law, and a conviction under this section shall not merge with a conviction for violation of any
other provision of this chapter or other provision of law.
(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited
conduct took place on or within 1,000 feet of any school property.
(d) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely
within a private residence, that no person under the age of 18 was present in such private residence at any time during the
commission of the offense and that the prohibited conduct did not involve distribution, delivery or possession of any controlled
substance for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance
of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an
offense defined in any other section of this chapter.
67 Del. Laws, c. 182, § 2.;
§ 4768. Distribution, delivery or possession of controlled substance in or within 300 feet of park, recreation area, church,
synagogue or other place of worship; penalties; defenses.
(a) Except as authorized by this chapter, any person who illegally distributes, delivers or possesses a controlled substance
or counterfeit controlled substance listed in § 4714, § 4716, § 4718, § 4720 or § 4722 of this title while in any park or
recreation area owned, operated or utilized by any county or municipality, or by the State, or by any board, commission, department,
agency, corporation or organization thereof, or in any "parkland" as defined in § 8110(a)(2) of Title 9, or in any church,
synagogue or other place of worship, or within 300 feet of the boundaries of any such parkland, park, or recreation area or
church, synagogue or other place of worship, is guilty of a felony and upon conviction shall be imprisoned for a term of not
more than 15 years and fined not more than $250,000.
(b) Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of this chapter
or any other provision of law, and a conviction under this section shall not merge with a conviction for violation of any
other provision of this chapter or other provision of law.
(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited
conduct took place in or within 300 feet of any parkland, park or recreation area.
(d) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely
within a private residence and that the prohibited conduct did not involve distribution, delivery or possession of any controlled
substance for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance
of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an
offense defined in any other section of this chapter.
69 Del. Laws, c. 457, § 1; 72 Del. Laws, c. 411, §§ 1, 2.;
