CHAPTER 72

FORMERLY

SENATE BILL NO. 230

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 47, PART IV OF TITLE 16 OF THE DELAWARE CODE PERTAINING TO UNLAWFUL DELIVERY OF A NONCONTROLLED SUBSTANCE.

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

Section 1. Amend §4752A by striking the section as it now appears and substituting the following:

"§4752A. Unlawful delivery of noncontrolled substance

(a) It is unlawful for any person to knowingly deliver or attempt to deliver a noncontrolled substance upon either:

(1) The express or Implied representation that the substance is a narcotic or non-narcotic controlled substance; or

(2) The express or impled 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;

(3) It is prima facie evidence of the implied representation referred to in paragraphs (1) and (2) if any two of the following factors are established:

(a) The noncontrolled substance was packaged in a manner normally used for the illegal delivery of controlled substances;

(a) 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 noncontrolled substance;

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

(b) In any prosecution for unlawful delivery of a noncontrolled substance, it is no defense that the accused believed the noncontrolled substance to actually be a controlled substance.

(c) Unlawful delivery of a noncontrolled 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 noncontrolled substance to be, shall govern the punishment in each case. If no express or implied representation was made as to the Identity of the controlled substance, the punishment shall be the same as for the delivery of a non-narcotic controlled substance. However, the punishment provision of §4751 (b) of this title shall not apply to this section.

Approved June 30,1961.