Delaware Cannabis Law

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A Guide to Delaware Cannabis Laws

States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. Therefore, compliance with this chapter does not put the State of Delaware in violation of federal law.

State law should make a distinction between the medical and nonmedical uses of marijuana. Hence, the purpose of this chapter is to protect patients with debilitating medical conditions, as well as their health-care practitioners and providers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of marijuana.

Cardholder

  • A qualifying patient or a designated caregiver who has been issued and possesses a valid registry identification card.
  • Any cardholder who sells marijuana to a person who is not allowed to possess marijuana for medical purposes under this chapter shall have his or her registry identification card revoked and shall be subject to other penalties for the unauthorized sale of marijuana.

Compassion center agent

  • A principal officer, board member, employee, or agent of a registered compassion center who is 21 years of age or older and has not been convicted of an excluded felony offense or drug misdemeanor within 5 years.

Debilitating medical condition

  • Terminal illness, cancer, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, decompensated cirrhosis, amyotrophic lateral sclerosis, agitation of Alzheimer’s disease, post-traumatic stress disorder, intractable epilepsy, seizure disorder, glaucoma, chronic debilitating migraines, new daily persistent headache, or the treatment of these conditions.
  • A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe, debilitating pain that has not responded to previously prescribed medication or surgical measures for more than 3 months or for which other treatment options produced serious side effects; intractable nausea; seizures; severe and persistent muscle spasms, including those characteristic of multiple sclerosis.
  • Any other medical condition or its treatment added by the Department, as provided for in § 4906A of this title.

Designated caregiver

  • At least 21 years of age unless the person is the parent or legal guardian of a minor who is a qualifying patient;
    • Has agreed to assist with a patient’s medical use of marijuana;
    • Has not been convicted of an excluded felony offense; and
    • Assists no more than 5 qualifying patients with their medical use of marijuana.

Health-care Practitioner

  • An individual who is licensed and authorized to write medical orders under Title 24 as a physician, advanced practice registered nurse, or physician assistant, except as otherwise provided in this paragraph.
  • If the qualifying patient is younger than 18 years of age, the health-care practitioner must be a physician who is a pediatric neurologist, pediatric gastroenterologist, pediatric oncologist, pediatric psychiatrist, developmental pediatrician, or pediatric palliative care specialist.
  • A health-care practitioner may not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including a civil penalty or disciplinary action by the Delaware Medical Board or by any other occupational or professional licensing board or bureau, solely for providing written certifications or for otherwise stating that, in the health-care practitioner’s professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition or for refusing to provide such written certifications or statements, provided that nothing in this chapter is deemed to release a health-care practitioner from the duty to exercise a professional standard of care for evaluating or treating a patient’s medical condition.
  • A health-care practitioner may not refer patients to a registered compassion center or registered designated caregiver, advertise in a registered compassion center, or, if the health-care practitioner issues written certifications, hold any financial interest in a registered compassion center.

Registered compassion center

  • A not-for-profit entity registered pursuant to § 4914A of this title that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, sells, supplies, or dispenses marijuana, paraphernalia, or related supplies and educational materials to registered qualifying patients who have designated the dispenser to cultivate marijuana for their medical use and the registered designated caregivers of these patients.
  • A registered compassion center shall not be subject to prosecution; search or inspection, except by the Department pursuant to § 4919A(u) of this title; seizure; or penalty in any manner, or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by a court or business licensing board or entity, for:
    • Acting pursuant to this chapter and Department regulations to acquire, possess, cultivate, manufacture, deliver, transfer, transport, supply, sell, or dispense marijuana or related supplies and educational materials to registered qualifying patients who have designated the compassion center to provide for them, to registered designated caregivers on behalf of the registered qualifying patients who have designated the registered compassion center, or to other registered compassion centers;
    • Selling or transferring marijuana seeds to entities that are licensed or registered in another jurisdiction to dispense marijuana for medical purposes; or
    • Transferring marijuana to and from a registered safety compliance facility for the purposes of analytical testing.

Registered safety compliance facility

  • A nonprofit entity registered under § 4915A of this title by the Department to provide 1 or more of the following services: testing marijuana produced for medical use for potency and contaminants; and training cardholders and prospective compassion center agents. The training may include, but need not be limited to, information related to 1 or more of the following:
    • The safe and efficient cultivation, harvesting, packaging, labeling, and distribution of marijuana;
    • Security and inventory accountability procedures; and
    • Up-to-date scientific and medical research findings related to medical marijuana.

Registry identification card

  • Registration cards issued pursuant to § 4909A of this title shall be in the possession of the registrant while in possession of medical marijuana outside the registrant’s residence and may be subject to prosecution for failure to do so. If the registrant is unable to produce a valid § 4909A of this title registration card within 2 weeks of the summons, the penalty for a violation of this section shall be an unclassified misdemeanor and jurisdiction shall be exclusively in Superior Court.

A document issued by the Department that identifies a person as 1 of the following:

  1. A registered qualifying adult patient.
  2. A registered designated caregiver for a qualifying adult patient.
  3. A registered designated caregiver for a pediatric patient.
  4. A registered compassionate use adult patient.
  5. A registered designated caregiver for an adult compassionate use patient.
  6. A registered designated caregiver for a pediatric compassionate use patient.
  7. A registered CBD-rich patient.
  8. A registered designated caregiver for a CBD-rich patient.

Written certification

  • A document dated and signed by a health-care practitioner, stating that in the health-care practitioner’s professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient’s debilitating medical condition or symptoms associated with the debilitating medical condition. A written certification shall be made only in the course of a bona fide health-care practitioner-patient relationship where the qualifying patient is under the health-care practitioner’s care for the patient’s primary care or for the patient’s debilitating medical condition after the health-care practitioner has completed an assessment of the qualifying patient’s medical history and current medical condition. The bona fide health-care practitioner-patient relationship may not be limited to authorization for the patient to use medical marijuana or consultation for that purpose. The written certification must specify the qualifying patient’s debilitating medical condition.

Qualifying patient

  • An individual who meets the qualifications to receive a registry identification card under this chapter.
  • A registered qualifying patient shall not be subject to arrest, prosecution, or denial of any right or privilege, including but not limited to civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau, for the medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than 6 ounces of usable marijuana.
  • A registered designated caregiver shall not be subject to arrest, prosecution, or denial of any right or privilege, including but not limited to civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau:
    • For assisting a registered qualifying patient to whom he or she is connected through the Department’s registration process with the medical use of marijuana if the designated caregiver does not possess more than 6 ounces of usable marijuana for each qualifying patient to whom he or she is connected through the Department’s registration process; and
    • For receiving compensation for costs associated with assisting a registered qualifying patient’s medical use of marijuana if the registered designated caregiver is connected to the registered qualifying patient through the Department’s registration process.
    • Any registered qualifying patient, registered designated caregiver, compassion center agent, or safety compliance facility agent, including a principal owner, board member, employee or volunteer who has access to compassion center or safety compliance facility records, who sells marijuana to someone who is not allowed to use marijuana for medical purposes or who fails to maintain, fraudulently maintains, or fraudulently represents to the Department records required by this chapter or rules promulgated pursuant to this chapter, for the purposes of selling marijuana to someone who is not allowed to use marijuana for medical purposes under this chapter is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000, or both, in addition to any other penalties for the distribution of marijuana.
  • For registered qualifying patients and designated caregivers, medical marijuana shall be contained, when not being prepared for ingestion or ingested and outside the registrant’s residence, within, sealed, tamper proof containers issued by compassion centers pursuant to Department regulations and may be subject to prosecution for failure to do so. If the registrant is unable to produce a sealed, tamper proof container within 2 weeks of the summons, the penalty for a violation of this section shall be an unclassified misdemeanor.

Limitations

  • This chapter does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, the following conduct:
    • Undertaking any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice;
  • Except as provided in subsection (b) of this section, possessing marijuana, or otherwise engaging in the medical use of marijuana:
    • In a school bus;
    • On the grounds of any preschool or primary or secondary school; or
    • In any correctional facility.
    • In any health care or treatment facility operated by the Department or funded contractually through the Department.
  • Smoking marijuana:
    • In any form of transportation; or
    • In any public place.
  • Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana.
  • Using marijuana if that person does not have a serious or debilitating medical condition.
  • Transferring marijuana to any person who is not allowed to possess marijuana under this chapter.
  • School exceptions. — Notwithstanding subsection (a) of this section, a designated caregiver registered pursuant to § 4908A of this title may possess for the purpose of administering, and may administer to a minor qualifying patient medical marijuana oil in a school bus and on the grounds or property of the preschool, or primary or secondary school in which a minor qualifying patient is enrolled. The designated caregiver shall not be a school nurse or other school employee hired or contracted by a school unless he or she is a parent or legal guardian of the minor qualifying patient, and said parent or legal guardian possesses no more than the number of doses prescribed per day of medical marijuana oil which is kept at all times on their person. Provided further, this exception shall only apply within the physical boundaries of the State of Delaware.

Discrimination prohibited

  • No school or landlord may refuse to enroll or lease to, or otherwise penalize, a person solely for his or her status as a registered qualifying patient or a registered designated caregiver, unless failing to do so would cause the school or landlord to lose a monetary or licensing-related benefit under federal law or regulations.
  • (2) For the purposes of medical care, including organ transplants, a registered qualifying patient’s authorized use of marijuana under this chapter is considered the equivalent of the authorized use of any other medication used at the direction of a health-care practitioner and does not constitute the use of an illicit substance or otherwise disqualify a qualifying patient from needed medical care.
  • (3) Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:
  • The person’s status as a cardholder; or
  • A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.
  • A person otherwise entitled to custody of or visitation or parenting time with a minor shall not be denied such a right, and there shall be no presumption of neglect or child endangerment, for conduct allowed under this chapter, unless the person’s actions in relation to marijuana were such that they created an unreasonable danger to the safety of the minor as established by clear and convincing evidence.
  • No school, landlord, or employer may be penalized or denied any benefit under state law for enrolling, leasing to, or employing a cardholder.

Requirements, prohibitions, penalties.

  • A registered compassion center shall be operated on a not-for-profit basis. The bylaws of a registered compassion center shall contain such provisions relative to the disposition of revenues to establish and maintain its not-for-profit character. A registered compassion center need not be recognized as tax-exempt by the Internal Revenue Service and is not required to incorporate pursuant to Title 8.
  • The operating documents of a registered compassion center shall include procedures for the oversight of the registered compassion center and procedures to ensure accurate recordkeeping.
  • A registered compassion center and a registered safety compliance facility shall implement appropriate security measures to deter and prevent the theft of marijuana and unauthorized entrance into areas containing marijuana.
  • A registered compassion center and a registered safety compliance facility may not be located within 500 feet of the property line of a preexisting public or private school.
  • A registered compassion center is prohibited from acquiring, possessing, cultivating, manufacturing, delivering, transferring, transporting, supplying, or dispensing marijuana for any purpose except to assist registered qualifying patients with the medical use of marijuana directly or through the qualifying patients’ designated caregivers.
  • All cultivation of marijuana for registered compassion centers must take place in an enclosed, locked location at the physical address or addresses provided to the Department during the registration process, which can only be accessed by compassion center agents working or volunteering for the registered compassion center.
  • A registered compassion center may not purchase usable marijuana or mature marijuana plants from any person other than another registered compassion center.
  • Before marijuana may be dispensed to a designated caregiver or a registered qualifying patient, a compassion center agent must determine that the individual is a current cardholder in the verification system and must verify each of the following:
    • That the registry identification card presented to the registered compassion center is valid;
    • That the person presenting the card is the person identified on the registry identification card presented to the compassion center agent; and
  • That the registered compassion center is the designated compassion center for the registered qualifying patient who is obtaining the marijuana directly or via his or her designated caregiver.
  • A registered compassion center shall not dispense more than 3 ounces of marijuana to a registered qualifying patient, directly or via a designated caregiver, in any 14-day period. Registered compassion centers shall ensure compliance with this limitation by maintaining internal, confidential records that include records specifying how much marijuana is being dispensed to the registered qualifying patient and whether it was dispensed directly to the registered qualifying patient or to the designated caregiver. Each entry must include the date and time the marijuana was dispensed. These records must be maintained by the compassion centers for a minimum of 3 years.
  • A registered compassion center may not share office space with nor refer patients to a health-care practitioner.
  • No person who has been convicted of an excluded felony offense or has been convicted of a misdemeanor drug offense, as provided in this title or an equivalent offense from another jurisdiction, within 5 years from the date of application that is not excluded by § 4902A(8)b.2. of this title may be a compassion center agent.
  • The Department shall issue a civil fine of up to $3,000 for violations of this section.
  • The Department shall revoke the registry identification card of any cardholder who knowingly commits multiple or serious violations of this chapter.
  • Registered compassion centers are subject to random and reasonable inspection by the Department. The Department shall give reasonable notice of an inspection under this paragraph.
  • Fraudulent representation to a law-enforcement official of any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution shall be a class B misdemeanor which may be punishable by up to 6 months incarceration at Level V under § 4204 of Title 11 and a fine of up to $1,150, as the Court deems appropriate which shall be in addition to any other penalties that may apply for making a false statement or for the use of marijuana other than use undertaken pursuant to this chapter and jurisdiction for prosecution shall be exclusively in Superior Court.

Advertising

  • No person may advertise medical marijuana sales in print, broadcast, or by paid in- person solicitation of customers. This shall not prevent appropriate signs on the property of the registered compassion center, listings in business directories including phone books, listings in trade or medical publications, or the sponsorship of health or not-for-profit charity or advocacy events.
  • A registered compassion center shall not share office space with nor refer patients to a physician.
  • A physician shall not refer patients to a registered compassion center or registered designated caregiver, advertise in a registered compassion center, or, if the physician issues written certifications, hold any financial interest in a registered compassion center.

Taxes

  • Medical marijuana: There is no tax on medical marijuana. Delaware does not have a statewide retail sales tax.

Possession

Up to 1 oz

  • Penalty: Civil Penalty
    • Incarceration: None
    • o   Max. Fine: $0

1 oz less than 175 grams

  • Penalty: Misdemeanor
    • Incarceration: 3 months
    • o   Max. Fine: $575

175 grams less than 1500 grams

  • Penalty: Felony
    • Incarceration: 3 years
    • o   Max. Fine: $N/A**

1500 less than 3000 grams

  • Penalty: Felony
    • Incarceration: 5 years
    • o   Max. Fine: $N/A**

3000 less than 4000

  • Penalty: Felony
    • Incarceration: 8 years
    • o   Max. Fine: $N/A**

4000 less than 50000

  • Penalty: Felony
    • Incarceration: 15 years
    • o   Max. Fine: $N/A**

5000 grams or more

  • Penalty: Felony
    • Incarceration: 2-25 years
    • Max. Fine: $N/A**
  • Aggravating factors and increased incarceration.
  • *Mandatory minimum sentence.
  • **Maximum fines are at the discretion of the court for felony charges at sentencing.

Distribution, Sale, or Manufacture

Less than 1500 grams

  • Penalty: Felony
    • Incarceration: 8 years
    • o   Max. Fine: $N/A**

1500 less than 4000 grams

  • Penalty: Felony
    • Incarceration: 15 years
    • o   Max. Fine: $N/A**

4000 grams or more

  • Penalty: Felony
    • Incarceration: 2-25 years
    • Max. Fine: $N/A**
  • Aggravating factors and increased incarceration.
  • *Mandatory minimum sentence.
  • **Maximum fines are at the discretion of the court for felony charges at sentencing.

Hash and Concentrates

  • Penalties for hashish are the same as for marijuana.

Paraphernalia

Use or possession of paraphernalia for the use or possession of less than 1 oz of marijuana

  • Penalty: Civil Infraction
    • Incarceration: N/A
    • o   Max. Fine: $100

Use or possession with the intent to use paraphernalia for the use of 1 oz o rmore marijuana

  • Penalty: Misdemeanor
    • Incarceration: 6 months
    • o   Max. Fine: $1,000

Deliver or possesses with he intent to deliver

  • Penalty: Felony
    • Incarceration: 2 years
    • o   Max. Fine: $N/A**

Deliver to a minor who is under 18 years

  • Penalty: Felony
    • Incarceration: 3 years
    • Max. Fine: $N/A**
  • **Maximum fines are at the discretion of the court for felony charges at sentencing.

Forfeiture

  • All substance, raw materials, products, equipment, property, vehicles, research products, paraphernalia, money and other assets can be seized.

Forfeiture

  • First time offenders may be placed on probation instead of sent to prison or fined.

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