CHAPTER 182

FORMERLY

SENATE BILL NO. 25

AS AMENDED BY SENATE AMENDMENT NOS. 1, 2 AND 3 AND

HOUSE AMENDMENT NO. 1 AND HOUSE AMENDMENT NO. 1

TO HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 47, TITLE 16 OF THE DELAWARE CODE RELATING TO HEALTH AND SAFETY AND THE UNIFORM CONTROLLED SUBSTANCES ACT.

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

Section 1. Amend §4761, Chapter 47, Title 16 of the Delaware Code by re-designating all of said section, through and including paragraph (4), as new subsection (a); by re-designating the last paragraph of said section, beginning with the word "Whenever," as new subsection (b); and by adding thereto the following new subsections:

"(c) Any person eighteen years of age or older who uses, solicits, directs, hires or employs a person under eighteen years of age to violate any provision of Subchapter IV or Subchapter V of this Chapter is guilty of a felony; and upon conviction therefor shall be imprisoned for a term of not more than ten years, and be fined not more than two hundred and fifty thousand dollars (5250,000). It shall be no defense to a prosecution under this section that the accused mistakenly believed that the minor that the accused used, solicited, directed, hired or employed was eighteen years of age or older, even if such mistaken belief was reasonable.

(d) Nothing in this section shall be construed to preclude or limit any prosecution or conviction for a violation of this Chapter or any other provision of law; and a conviction under this section shall not merge with a conviction for the violation of any other provision of this Chapter or other provision of law."

Section 2. Amend Chapter 47, Title 16 of the Delaware Code by adding a new section 4767 as follows:

"§4767. Distribution, delivery, or possession of controlled substance within 1,000 feet of school property; penalties; defenses.

(a) Except as authorized by this Chapter:

(1) Any person eighteen years of age or older who distributes, delivers, or possesses a controlled substance or counterfeit controlled substance listed in §4714 or §4716 which is a narcotic drug on the property of any kindergarten, elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of a felony and upon conviction shall be imprisoned not more than 30 years and fined not more than $250,000.

(2) Any person eighteen years of age or older who distributes, delivers or possesses any other controlled substance or counterfeit controlled substance which Is a nonnarcotic drug classified in §4714, §4716, §4718, §4720 or §4722 on the property of any kindergarten, elementary, secondary, vocational-technical school or within 1,000 feet thereof is guilty of a felony and upon conviction shall be imprisoned for a term of not more than 15 years and fined not more than $250,000.

(b) Nothing in this section shall be construed to preclude or limit a prosecution or conviction for a violation of this chapter or any other provision of law, and a conviction under this section shall not merge with a conviction for violation of any other provision of this Chapter or other provision of law.

(c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place on or within 1,000 feet of any school property.

(d) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person under the age of 18 was present in such private residence at any time during the commission of the offense and that the prohibited conduct did not involve distribution, delivery or possession of any controlled substance for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.

Section 3. The provisions of this Act are severable and any provision held invalid shall not affect or impair any of the remaining provisions of this Act.

Approved March 26, 1990.