CHAPTER 250

FORMERLY

HOUSE BILL NO. 673

AN ACT TO AMEND CHATPER 47, PART IV, TITLE 16 OF THE DELAWARE CODE RELATING TO THE UNIFORM CONTROLLED SUBSTANCES ACT; AND PROVIDING FOR PROHIBITIONS AGAINST THE POSSESSION, MANUFACTURE OR DELIVERY OF DRUG PARAPHERNALIA.

BE IT ENACTED BY THE GENERAL ASSEMBLY OP THE STATE OF DELAWARE: Section 1. This Act may be known and cited as the Delaware Drug Paraphernalia Act.

Section 2. Amend §4769, Chapter 47, Part IV, Title 16 of the Delaware Code by adding the following paragraph to subsection (a):

"(5) All drug paraphernalia as defined in S4701 of this chapter."

Section 3. Amend §4701, Chapter 47, Part IV, Title 16 of the Delaware Code by re-designating present subsection (13) as new subsection (14); by re-designating all succeeding subsections accordingly; and by adding to said section a new subsection (13) which shall read as follows:

"(13) 'Drug paraphernalia' shall mean all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, re-packaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body, a controlled substance the manufacture, delivery, possession or use of which is in violation of this chapter. The term 'drug paraphernalia' includes, but is not limited to

(a) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance the use, cultivation, delivery or possession of which is in violation of this Chapter or from which a such controlled substance can he derived;

(b) Kits used intended for use, or designed for use In manufacturing, compounding, converting, producing, processing, or preparing controlled substances the use, manufacture, delivery or possession of which Is in violation of this Chapter;

(c) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substances the use, manufacture, delivery or possession of which is in violation of this Chapter;

(d) Testing equipment used, intended for use, or designed for use M identifying, or in analyzing the strength, effectiveness or purity of controlled substances the use, manufacture, delivery or possession of which M in violation of this Chapter;

(e) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances the use, manufacture, delivery or possession of which is in violation of this Chapter;

(f) Diluents and adulterants, such as quinine, hydrochloride, mannitol, mannite, dextrose, or lactose, which are used, intended for use, or designed for use in cutting controlled substances the use, manufacture, delivery or possession of which is in violation of this Chapter;

(g) Separation gins and sitters used, intended for use, or designed for use in removing twigs and seeds from or otherwise cleaning or refining, marijuana;

(h) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances the use, manufacture, delivery or possession of which is in violation of this Chapter;

(i) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances the use, manufacture, delivery or possession of which is in violation of this Chapter;

(j) Containers or other objects used, intended for use, or designed for use in storing or concealing controlled substances the use, manufacture, delivery or possession of which is In violation of this Chapter;

(k) Hypodermic syringes, needles and other objects used, intended for use, or designed for use In parenterally injecting Controlled substances the use, manufacture, delivery or possession of which is in violation of this Chapter;

(1) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body such as:

(A) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(B) water pipes;

(C) carburetion tubes and devices;

(D) smoking and carburetion masks;

(A) roach clips or objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand;

(B) miniature cocaine spoons, and cocaine vials;

(C) chamber pipes;

(D) carburetor pipes;

(J) electric pipes;

(.7) air-driven pipes;

(K) chilams;

(L) bongs;

(M) ice pipes or chillers;"

Section 4. Amend present Subchapter V by re-designating said Subchapter as new Subchapter VI and by re-designating present §4766 through §4772 as new §4781 through §4787.

Section 5. Amend present Subchapter VI by re-designating said Subchapter as new Subchapter VII, and by re-designating present §4773 through §4778 as new §4791 through §4796.

Section 6. Amend Chapter 47, Part IV, Title 16 of the Delaware Code by adding thereto a new subchapter, designated as Subchapter V, which new subchapter shall read as follows:

"SUBCHAPTER V. DRUG PAPAPHERNALIA

§4771. Possession of Drug Paraphernalia

It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, re-pack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the provisions of this chapter. Any person who violates the provisions of this section is guilty of a crime, and upon conviction shall be fined not more than one hundred dollars ($100), be imprisoned not more than two years, or suffer both fine and imprisonment.

§4772. Manufacture or Delivery of Drug Paraphernalia

It is unlawful for any person to deliver, possess with the intent to deliver, or manufacture with the intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, re-pack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates the provisions of this section is guilty of a crime, and upon conviction shall be fined not less than two hundred dollars ($200) nor more than one thousand dollars ($1000); be imprisoned for not less than one year, nor more than five years; or suffer both fine and imprisonment.

§4773. Delivery of Drug Paraphernalia to a Minor

Any person eighteen years of age or older who violates the provisions of 54772 by delivering drug paraphernalia to a person under eighteen years of age is guilty of a special offense, and upon conviction may be fined not less than one thousand dollars ($1000), nor more than ten thousand dollars ($10,000); be imprisoned not less than one year nor more than ten years; or suffer both fine and imprisonment.

§4774. Advertisement of Drug Paraphernalia

It is unlawful for any person to place in a newspaper, magazine, handbill or other publication any advertisement, knowing or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates the provisions of this section is guilty of a crime, and upon conviction may be fined not more than fifty dollars ($50); be imprisoned not more than one year; or suffer both fine and imprisonment."

§4775. Use of Objects; Logically-Relevant Factors

In determining whether or not an object is drug paraphernalia, a Court or other authority shall consider, in addition to all other logically-relevant factors, the following:

(a) Statements by an owner or by anyone in control of the object, concerning it use;

(b) The proximity of the object, in time and space, to a direct violation of this chapter;

(c) The proximity of the object to controlled substances;

(d) The existence of any residue of a controlled substance on the object;

(e) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter:

(I) the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia;

(g) Instructions (oral or written) provided with the object, concerning its use;

(h) descriptive materials accompanying the object which explain or depict its use;

(i) national and local advertising concerning its use; (J) the manner in which the object is displayed for sale;

(k) whether or not the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(I) direct or circumstancial evidence of the ratio of sales of the suspect object to the total sales of the business enterprise;

(m) the existence and scope of legitimate uses for the object in the community;

(a) expert testimony concerning its use."

Section 7. If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are severable.

Approved June 2, 1980.