CHAPTER 252

FORMERLY

HOUSE BILL NO. 909

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND CHAPTER 47, TITLE 16 OF THE DELAWARE CODE RELATING TO FRAUDULENT DELIVERY OF NON-CONTROLLED SUBSTANCES AND TO CREATE A DEFINITION OF FINISHED PRODUCT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 47, Title 16 of the Delaware Code by adding a new Section 4752A to read as follows:

"(1) It is unlawful for any person knowingly to deliver or attempt to deliver a non-controlled substance upon either:

la) The express representation that the substance is a narcotic or non-narcotic controlled substance; or

(b) The express 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; or

(c) Under circumstances which would lead a reasonable person to believe that the substance was a controlled substance. For the purposes of this section, it is prima facie evidence of such circumstances if any two of the following factors are established.

(I) The non-controlled substance was packaged in a manner normally used for the illegal delivery of controlled substances.

(ii) 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 non-controlled substance.

(iii) The physical appearance of the finished product containing the substance is substantially identical to a specific controlled substance.

(2) In any prosecution for Fraudulent Delivery of a controlled substance, it is no defense that the accused believed the non-controlled substance to actually be a controlled substance.

(3) Fraudulent Delivery of a non-controlled substance is a 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 non-controlled substance to be, shall govern the punishment in each case. If no expfess representation was made as to the identity of the controlled substance, the punishment shall be the same as for delivery of a non-narcotic controlled substance. However, the punishment provision of Section 4751(b) shall not apply to this section."'

Section 2. Amend Chapter 47, Title 16 of the Delaware Code by adding a new subsection 12(a) to Section 4701 to read as follows:

"12(a) Finished Product - Any material compound mixture or preparation which contains any quantity of a controlled or non-controlled substance."

Approved June 2, 1980.