CHAPTER 102

AN ACT TO AMEND CHAPTER 49, TITLE 16, DELAWARE CODE, RELATING TO THE MANUFACTURE, SALE, USE OF CENTRAL NERVOUS SYSTEM DEPRESSANT OR STIMULANT DRUGS; P_ENALTIES FOR VIOLATION THEREOF.

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

Section 1. Chapter 49, Title 16, Delaware Code, is hereby amended by striking said Chapter in its entirety and substituting in lieu thereof a new Chapter 49 to read as follows:

CHAPTER 49. CENTRAL NERVOUS SYSTEM

DEPRESSANT OR STIMULANT DRUGS

§ 4901. Definitions

As used in this Chapter, unless the context requires a different meaning—

"Counterfeit Drug" means a drug which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, or device, or any likeness thereof, of a drug manufacturer, processor, packer, or distributor other than the person or persons who in fact manufactured, processed, packed, or distributed such drug and which thereby falsely purports, or is represented to be the product of, or to have been packed or distributed by, such other drug manufacturer, processor, packer, or distributor.

"Drug" means "Drug" as defined in 16 Delaware Code, is § 4701.

"Federal Act" means "Federal Act" as defined in 16 Delaware Code, § 4701.

"Knowingly" means "Knowingly" as defined in 16 Delaware Code §4701.

"Manufacture, Compound or Process" shall include repackaging or otherwise changing the container, wrapper, dosage form, or labeling of any drug package in the furtherance of the distribution of the drug from the original place or manufacture to the person who makes final delivery or sale to the ultimate customer, and the term "manufacturers, compounders and processors" shall be deemed to refer to such persons engaged in such defined activities.

"Person" includes any individual, partnership, corporation, or association.

"Possession" means "Possession" as defined in 16 Delaware Code, §4701.

"Practitioner" means a physician, dentist, veterinarian, or other person licensed in this State to prescribe or administer drugs which are subject to this Chapter.

"Sale" means "Sale" as defined in 16 Delaware Code, § 4701. "Central Nervous System Depressant or Stimulate Drug" means:

(1) Any drug which contains any quantity of (A) barbituric acid or any of the salts of barbituric acid; or (B) any derivative of barbituric acid which has been designated under § 502 (d) of the Federal Act as habit-forming;

(2) Any drug which contains any quantity of (A) amphetamine or any of its optical isomers; (B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or (c) any substance designated by regulations promulgated under the Federal Act as habit-forming because of its stimulant effect on the central nervous system; or

(3) Any natural or synthetic mixture or compound that induces the effect of a barbiturate, amphetamine, or hypnotic or somnifacient drug or which contains any quantity of a substance which the State Board of Health has found to have, and by regulation designates as having a potential for abuse because of its depressant or stimulant effect on the central nervous system; or

(4) 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 depressant or stimulant effect on the central nervous system.

§ 4902. Prohibited acts

The following acts and the causing thereof are hereby prohibited:

(a) The manufacture, compounding or processing of a drug in violation of section 4903 (a).

(b) The sale of a drug in violation of section 4903 (b) or section 4905 or section 4906.

(c) The possession of a drug in violation of section 4903 (c) or section 4904.

(d) The use of a drug in violation of section 4903 (d) or section 4904.

(e) Obtaining a drug in violation of section 4903 (e).

(f) The failure to prepare or obtain, or the failure to keep, a complete and accurate record with respect to any drug as required by section 4903 (f).

(g) The refusal to permit access to or copying of any record as required by section 4903 (f).

(h) The refusal to permit entry or inspection as authorized by section 4903 (f).

() The filling or refilling of any prescription in violation of section 4903 (g).

(a) Making, selling, disposing of, or keeping in possession, control, or custody, or concealing 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 such drug a counterfeit drug.

(b) The doing of any act which causes a drug to be a counterfeit drug, or the sale or dispensing, or the holding for sale or dispensing, of a counterfeit drug.

As used in this section, the term "drug" shall mean "central nervous system depressant or stimulant drug."

As used in this Chapter, the terms "depressant or stimulant drug" shall mean "central nervous system depressant or stimulant drug."

§ 4903. Exceptions

(a) No person shall manufacture, compound or process in this State any depressant or stimulant drug, except that this prohibition shall not apply to the following persons whose activities in connection with any drug are as specified in this subsection:

(1) Manufacturers, compounders, and processors, operating in conformance with the laws of this State relating to the manufacture, compounding or processing of drugs, who are regularly engaged in preparing pharmaceutical chemicals or prescription drugs for distribution through branch outlets, through wholesale druggists, or by direct shipment:

(A) to pharmacies or to hospitals, clinics, public health agencies or physicians for dispensing by registered pharmacists upon prescriptions, or for use by or under the supervision of practitioners licensed in this State to administer such drugs in the course of their professional practice; or

(B) to laboratories or research or educational institutions for their use in research, teaching or chemical analysis.

(2) Suppliers (operating in conformance with the laws of this State relating to the manufacture, compounding or processing of drugs) of manufacturers, compounders, and processors referred to in subparagraph (1).

(3) Wholesale druggists who maintain their establishments in conformity with laws of this State and local laws relating to the manufacture, compounding or processing of drugs and are regularly engaged in supplying prescription drugs (a) to pharmacies, or to hospitals, clinics, public health agencies, or physicians for dispensing by registered pharmacists upon prescriptions or for use by or under the supervision of practitioners licensed in this State to administer such drugs in the course of their professional practice, or (b) to laboratories or research or educational institutions for their use in research, teaching or clinical analysis.

(4) Pharmacies, hospitals, clinics and public health agencies which maintain their establishments in conformity with state and local laws regulating the practice of pharmacy and medicine which are regularly engaged in dispensing drugs upon prescriptions of practitioners licensed in this State to administer such drugs for patients under the care of such practitioners in the course of their professional practice.

(5) Practitioners licensed in this State to prescribe or administer depressant or stimulant drugs, while acting in the course of their professional practice.

(6) Persons who use depressant or stimulant drugs in research, teaching or chemical analysis and not for sale.

(7) Officers and employees of this State, or of a political subdivision of this State or of the United States while acting in the course of their official duties.

(8) An employee or agent of any person described in paragraph (1) through paragraph (6) of this subsection, and a nurse or other medical technician under the supervision of a practitioner licensed by law in this State to administer depressant or stimulant drugs, while such employee, nurse, or medical technician is acting in the course of his employment or occupation and not on his own account.

(b) No person other than:

(1) a person described in subsection (a), while such person is acting in the ordinary and authorized course of his business, profession, occupation, or employment, or

(2) a common or contract carrier or warehouseman, or an employee thereof, whose possession of any depressant or stimulant drug or counterfeit drug is the usual course of his business or employment as such, shall sell, deliver or otherwise dispose of any depressant or stimulant drug or counterfeit drug to any other person.

(c) No person, other than a person described in subsection (a) or subsection (b) (2) shall possess any depressant or stimulant drug unless (1) such drug was obtained upon a valid prescription, or (2) such drug was delivered by a practitioner in the course of his professional practice.

(d) No person shall use a depressant or stimulant drug unless (1) such drug was obtained upon a valid prescription, or (2) such drug was obtained from a practitioner in the course of his professional practice.

(e) No person other than a person described in subsection (a) (7) shall obtain or attempt to obtain a depressant or stimulant drug by (1) fraud, deceit, misrepresentation or subterfuge; (2) falsely assuming the title of or representing himself to be a manufacturer, wholesaler, practitioner, pharmacist, owner of a pharmacy, or other persons authorized to possess stimulant or depressant drugs; (3) the use of a forged or altered prescription; or (4) the use of a false name or a false address on a prescription; provided this subsection shall not apply to drug manufacturers, their agents or employees, when such manufacturers, their agents or employees are authorized to engage in and are actually engaged in investigative activities directed toward the safeguarding of said drug manufacturer's trademark and detection of counterfeits.

(f) (1) Every person engaged in manufacturing, compounding, processing, selling, delivering or otherwise disposing of any depressant or stimulant drug shall, upon the effective date of this Act, prepare a complete and accurate record of all stocks of each drug on hand and shall keep such record for three years; except that if this record has already been prepared in accordance with § 511 (d) of the Federal Act, no additional record shall be required provided that all records prepared under § 511 (d) of the Federal Act have been retained and are made available to the State Board of Pharmacy upon request. When additional depressant or stimulant drugs are designated after the effective date of this Act, a similar record must be prepared upon the effective date of their designation. On and after the effective date of this Act, every person manufacturing, compounding, or processing any depressant or stimulant drug shall prepare and keep, for not less than three years, a complete and accurate record of the kind and quantity of each drug manufactured, compounded, or processed and the date of such manufacture, compounding, or processing; and every person selling, delivering, or otherwise disposing of any depressant or stimulant drug shall prepare or obtain, and keep for not less than three years, a complete and accurate record of the kind and quantity of each such drug received, sold, delivered, or otherwise disposed of, the name and address from whom it was received and to whom it was sold, delivered, or otherwise disposed of, and the date of such transaction.

(2) (A) Every person required by paragraph (1) of this subsection to prepare or obtain, and keep, records, and any carrier maintaining records with respect to any shipment containing any depressant or stimulant drug, and every person in charge, or having custody, of such records, upon request of an officer or employee designated by the State Board of Pharmacy permit such officer or employee at reasonable times to have access to and copy such records. For the purposes of verification of such records and of the enforcement of this Act, officers or employees designated by the Board of Pharmacy are authorized to enter, at reasonable times, any factory, warehouse, establishment, or vehicle in which any depressant or stimulant drug is held, manufactured, compounded, processed, sold, delivered, or otherwise disposed of and to inspect, within reasonable limits and in a reasonable manner, such factory, warehouse, establishment, or vehicle, and all pertinent equipment, finished and unfinished material, containers and labeling therein, and all things therein (including records, files, papers, processes, controls, and facilities); and to inventory any stock of any such drug therein and obtain samples of any such drug.

(B) No inspection authorized by subparagraph (A) shall extend to (i) financial date, (ii) sales data other than shipment data, (iii) pricing date, (iv) personnel data, or (v) research data.

(3) The provisions of paragraphs (1) and (2) of this subsection shall not apply to a licensed practitioner described in subsection (a) (5) with respect to any depressant or stimulant drug received, prepared, processed, administered, or dispensed by him in the course of his professional practice, unless such practitioner regularly engages in dispensing any such drug or drugs to his patients for which they are charged, either separately or together with charges for other professional services.

(g) No prescription (issued before or after the effective date of this act) for any depressant or stimulant drug may be filled or refilled more than six months after the date on which such prescription was issued and no such prescription which is authorized to be refilled may be refilled more than five times, except that nothing in this Act shall be construed as preventing a practitioner from issuing a new prescription for the same drug either in writing or orally. Any oral prescription for such drug shall be promptly reduced in writing on a new prescription blank and filed by the pharmacist filling it.

(h) Depressant or stimulant drugs exempted under § 511 (f) of the Federal Act are exempted from the application of this section.

§ 4904. Unlawful use, consumption or possession of a central nervous system depressant or stimulant drug; penalty

Whoever knowingly and unlawfully uses, consumes or has in his possession a central nervous system depressant or stimulant drug is guilty of a misdemeanor and shall be fined not more than $500 and imprisoned for not more than two years.

§ 4905. Unlawful sale, attempt to sell or possession with intent to sell of a central nervous system depressant or stimulant drug; penalty

Whoever knowingly and unlawfully sells, attempts to sell or has in his possession with intent to sell a central nervous system depressant or stimulant 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.

§ 4906. Unlawful sale of a central nervous system stimulant or depressant drug to a person less than 18; penalty

Whoever knowingly and unlawfully sells a central nervous system depressant or stimulant 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 seven years nor more than 15 years and fined in such amount as the Court, in its discretion, may determine.

§ 4907. Conviction of a 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 4906 are Sections 4905 and 4904.

B. The lesser included offense under Section 4905 is Section 4904.

§ 4908. Additional, minimum and reduced penalties

(a) Previous conviction. 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 of a dangerous drug, a narcotic drug, or a depressant or stimulant drug as those terms are defined in this Chapter and in Chapter 47 of this title, the penalties set forth in Section 4904 through 4906 shall be increased by adding the following additional years to the minimum and maximum terms of imprisonment:

(1) 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) § 4904, not less than 2 nor more than 7 years.

() § 4905, not less than 7 nor more than 15 years.

(A) § 4906, not less than 15 nor more than 25 years.

(2) The following portions of the minimum terms set forth in subsection (1) 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) § 4905, 3 years.

() § 4906, 7 years.

(b) Mitigating circumstances and reduced penalties.

(1) In any prosecution for a violation of Section 4905 or Section 4906, 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 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 central nervous system depressant or stimulant drugs; and

(C) that the sale was made by 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.

(2) In any prosecution for a violation of Section 4904 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 central nervous system stimulant or depressant drug; and

(C) that the defendant is not engaged in the business of selling central nervous system depressant or stimulant drugs; and

(D) that the central nervous system depressant or stimulant 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 central nervous system depressant or stimulant drugs and had been acquainted with the defendant for a period of at least one year before any sale 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): (A) the trier of fact, or (B) the Court at a hearing after conviction and prior to sentencing.

(4) 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 in subsection (a) of this section 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.

§ 4909. Medical and/or psychiatric examination and/or treatment

After conviction and prior to sentencing for violation of Section 4904, 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 terms 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.

§ 4910. Violations and penalties

Whoever violates or fails to comply with any of the provisions of any section of this Chapter other than Sections 4904, 4905 and 4906 shall be fined not more than $3,000 or imprisoned not more than 10 years, or both.

§ 4911. Applicability of certain sections in chapter 47

The following sections of Chapter 47, Title 16, Delaware Code, shall apply to this Chapter, and for the purpose of this Chapter only the words "stimulant or depressant drugs" shall be deemed to appear in the same places that the words "narcotic or dangerous drugs" appear: sections 4710, 4711, 4714, 4717, 4718, 4719 and 4720.

§ 4912. Jurisdiction

The Superior Court of the State of Delaware shall have exclusive original jurisdiction of any violence of this Chapter, notwithstanding any other provision of the Delaware Code to the contrary.

Section 2. 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 or 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 3. Savings

This Act shall not apply to prosecutions for offenses committed prior to its effective date. For the purpose 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.