CHAPTER 101

AN ACT TO AMEND CHAPTER 47, TITLE 16, DELAWARE CODE, PERTAINING TO CRIMINAL OFFENSES OF SALE, POSSESSION AND USE OF NARCOTIC DRUGS AND DANGEROUS DRUGS AND PRESCRIBING PENALTIES FOR SUCH VIOLATIONS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Section 4701, Title 16, Delaware Code, is hereby amended by striking the definition of the word "Narcotic Drugs" and substituting in lieu thereof the following:

" 'Narcotic Drugs' included any coca leaves and opium and every substance neither chemically nor physically distinguishable from them, morphine, cocaine, alphaeucaine, betaeucaine, heroin, codeine, and all allied drugs of the same botanical family, or any compound, manufacture, sale, derivative, or preparation thereof, or any synthetic substitute therefor."

Section 2. Section 4701, Title 16, Delaware Code, is hereby further amended by adding thereto six new definitions to read as follows:

" 'Dangerous Drugs' include any narcotic drug and any cannabis indica, cannabis americana, cannabis sativa, loco weed, Canadian hemp, marajuana, marihuana, hashish and all allied drugs of the same botanical family, or any combination, mixture or compound thereof or any synthetic substitute therefor, or any hallucinatory drug, including without limitation lysergic acid diethylamide (LSD), mescaline, psilocybin, dimethyltryptamine (DMT) or STP or any natural or synthetic mixture or compound that induces the effect of an hallucinatory drug or which contains any quality or substance which the State Board of Health has found to have, and by regulation designates as having a potential for abuse because of its hallucinatory effect, or any drug which contains any quantity of a substance designated by regulations promulgated under the Federal Act as having a potential for abuse because of its hallucinogenic effect.

"Federal Act" means the Federal Food, Drug and Cosmetic Act, 52 Stat., 1040 (1938), 21 U.S.C. Sections 301-392 as amended or as it may thereafter be amended from time to time.

"Drug" means (a) articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary or any supplement to any of them; and (b) articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; and (c) articles (other than food) intended to affect the structure of any function of the body of man or other animals; and (d) articles intended for use as a component of any article specified in clause (a), (b) or (c); but does not include devices or their components, parts, or accessories.

"Knowingly," a person acts knowingly with respect to any sale, possession, use or consumption within the meaning of this chapter when he knows or is aware of such sale, possession, use or consumption. His knowledge may be inferred by the trier of fact from the surrounding circumstances, considering whether a reasonable man in the defendant's circumstances would have had such knowledge. A prima facie case of knowledge is established upon the introduction of some evidence of the surrounding circumstances from which a reasonable juror might infer the defendant's knowledge.

"Possession," in addition to its ordinary meaning, includes location in or about the defendant's person, premises, belongings, vehicle, or otherwise within his reasonable control.

"Unlawfully," means contrary to a statute or, unless the context otherwise clearly requires, settled principles of the common law of Delaware; the unlawfulness of the defendant's conduct under this chapter is prima facie established when the defendant's conduct is not permissible under the provisions of this chapter.

Section 3. Chapter 47, Title 16, Delaware Code, is hereby amended by inserting the words "narcotic or dangerous drug" for the words "narcotic drug" wherever they appear in the following sections: 4701, except in the definitions of "Narcotic Drugs" and "Dangerous Drugs," 4702, 4703, 4704, 4705, 4706, 4707, 4708, 4709, 4710, 4711, 4712, 4713, 4716, 4717, and 4718.

Section 4. Section 4722, Chapter 47, Title 16, Delaware Code, is hereby amended by striking said section in its entirety and inserting in lieu thereof the following new sections;

§ 4722. Unlawful use, consumption or possession of dangerous drugs; penalty

Whoever knowingly and unlawfully uses, consumes or has a dangerous drug in his possession is guilty of a misdemeanor and shall be fined not more than $500 and imprisoned not more than 2 years.

§ 4723. Unlawful use, consumption or possession of narcotic drugs; penalty

Whoever knowingly and unlawfully uses, consumes or has a narcotic drug in his possession is guilty of a misdemeanor and shall be fined not more than $3,000 and imprisoned not more than 5 years.

§ 4724. Unlawful sale, attempt to sell or possession with intent to sell of a dangerous drug; penalty

Whoever knowingly and unlawfully sells, attempts to sell or has in his possession with intent to sell a dangerous drug is guilty of a felony and shall be fined not less than $1,000 nor more than $10,000 and imprisoned not less than 5 years nor more than 10 years.

§ 4725. Unlawful sale, attempt to sell or possession with intent to sell of a narcotic drug; penalty

Whoever knowingly and unlawfully sells, attempts to sell or has in his possession with intent to sell a narcotic drug is guilty of a felony and shall be fined not less than $5,000 nor more than $50,000 and imprisoned not less than 10 years nor more than 25 years.

§ 4726. Unlawful sale, attempt to sell or possession with intent to sell of dangerous drugs to a person less than 18; penalty

Whoever knowingly and unlawfully sells, attempts to sell or has in his possession with intent to sell a dangerous drug to a person less than 18 years of age is guilty of a felony and shall be imprisoned for a term not less than 7 years nor more than 15 years and fined in such amount as the Court in its discretion may determine.

§ 4727. Unlawful sale, attempt to sell or possession with intent to sell of narcotic drug to a person less than 18; penalty

Whoever knowingly and unlawfully sells, attempts to sell or has in his possession with intent to sell a narcotic drug to a person less than 18 years of age is guilty of a felony and shall be imprisoned not less than 15 years nor more than 30 years and fined in such amount as the Court in its discretion may determine.

§ 4728. Conviction of lesser offense

In any prosecution for any violation of the following sections of this chapter, the defendant may be convicted under any one of the following respective sections of this chapter in accordance with the table set forth below establishing lesser included offenses:

(a) The lesser included offenses under section 4727 are sections 4726, 4725, 4724, 4723, and 4722.

(b) The lesser included offenses under section 4726 are sections 4724 and 4722.

(c) The lesser included offenses under section 4725 are sections 4724, 4723 and 4722.

(d) The lesser included offense under section 4724 is section 4722.

(e) The lesser included offense under section 4723 is section 4722.

§ 4729. Violations and penalties

Whoever violates or fails to comply with any of the provisions of any section of this chapter other than sections 4722 through 4727 and those provisions of sections 4702 through 4705 which are covered by and subject to the provisions of Sections 4722 through 4727, shall be fined not more than $3,000 or imprisoned not more than 10 years, or both.

§ 4730. Additional, minimum and reduced penalties

(a) Previous Convictions. In any case in which a defendant has previously been convicted of any offense under the laws of this State, the District of Columbia or any other state or the United States involving the elements of possession or sale or attempt to sell or possession with intent to sell a dangerous drug as those terms are defined in this Chapter, the penalties set forth in sections 4722 through 4727 shall be increased by adding the following respective additional years to the minimum and maximum terms of imprisonment.

(i) Subject to the provisions of sub-paragraph (iii), the additional minimum and maximum terms applicable to the following respective sections shall be increased in accordance with the following table so that the minimum and maximum terms shall read respectively as follows:

(A) § 4722, not less than 2 nor more than 7 years

(B) § 4723, not less than 3 nor more than 10 years

(C) § 4724, not less than 7 nor more than 15 years

(D) § 4725, not less than 15 nor more than 30 years

(E) § 4726, not less than 15 nor more than 25 years

(F) § 4727, not less than 25 nor more than 50 years

(ii) Subject to the provisions of sub-paragraph (iii) the following portions of the minimum terms set forth in subparagraph (i) above 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) § 4724, three years

(B) § 4725, five years

() § 4726, seven years

(A) § 4727, ten years

(iii) In any prosecution for a violation of section 4725 or section 4727 where the defendant has previously been convicted under the laws of this State, the District of Columbia or any other State or the United States, of an offense involving the elements of sale, attempt to sell or possession with intent to sell a narcotic drug, as those terms are defined in this chapter, the minimum term of imprisonment shall be 30 years and the maximum term for such conviction shall be 99 years, and 15 years of such minimum term shall be a mandatory minimum term 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.

(b) Mitigating circumstances and reduced penalties

(i) In any prosecution for a violation of Section 4724 or Section 4726, 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 and there shall be no minimum sentence, 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 sold a dangerous drug other than 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 selling dangerous drugs; and

(D) that the sale 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 one year before any sale took place.

(ii) In any prosecution for a violation of section 4722 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 his possession a dangerous drug other than a narcotic drug; and

(C) that the defendant is not engaged in the business of selling dangerous drugs; and

(D) that the dangerous drug 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 selling dangerous drugs and had been acquainted with the defendant for a period of at least one year before any sale took place.

(iii) 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): (A) the trier of fact, or (B) the Court at a hearing after conviction and prior to sentencing.

(iv) This subsection (b) of this section 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.

§ 4731. Medical and/or psychiatric examination and/or treatment

After conviction and prior to sentencing for violation of Section 4722 or Section 4723, 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 Mental Health 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 the Court in its discretion shall determine. The Department of Mental Health 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 out-patient care upon such terms and conditions, and for such period of time as the Court shall order.

§ 4732. Jurisdiction

The Superior Court of the State of Delaware shall have exclusive original jurisdiction of any violation of this Chapter any other Delaware law notwithstanding.

Section 5. Severability

If any section, subsection, sentence, phrase, or word of this Act shall be declared unconstitutional under the Constitution of the State of Delaware or of the United States by a state or federal court of competent jurisdiction, the remainder of this Act shall be unimpaired and shall continue in full force and effect and prosecutions thereunder shall not be affected.

Section 6. Savings

This Act shall not apply to offenses committed prior to its effective date. Prosecutions for offenses committed prior to its effective date shall be governed by the prior law contained in Chapter 47, Title 16, Delaware Code, which is continued in effect for that purpose as if this Act were not in force. For purposes of this section, an offense was committed prior to the effective date of this Act if any of the elements of the offense occurred prior thereto.

Approved May 26, 1969.