CHAPTER 315

FORMERLY

SENATE BILL NO. 270

AS AMENDED BY

SENATE AMENDMENT NOS. 1 & 2

AN ACT TO AMEND TITLES 11 AND 21 OF THE DELAWARE CODE RELATING TO DRIVING UNDER THE INFLUENCE OF DRUGS AND RELATED OFFENSES.

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

Section 1. Amend Section 4177, Title 21 of the Delaware Code by deleting from the catchline the phrase “or with a prohibited alcohol content” and by inserting in lieu thereof the phrase “or with a prohibited alcohol or drug content”.

Section 2. Amend Section 4177(a), Title 21 of the Delaware Code by inserting a new paragraph “(6)” thereto to read as follows:

“(6) When the person’s blood contains, within 4 hours of driving, any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit or recreational drug or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.”

Section 3. Amend Section 4177(b)(1), Title 21 of the Delaware Code by deleting the phrase “The fact that any person charged with violating this section is,” as it appears in that subsection and by substituting in lieu thereof the phrase “Except as provided in subparagraph (3)b. of this subsection, the fact that any person charged with violating this section is,”.

Section 4. Further amend Section 4177(b), Title 21 of the Delaware Code by re-designating current paragraph “(3)” thereto as new paragraph “(4)” of that subsection and by inserting a new paragraph “(3)” thereto to read as follows:

“(3)a. No person shall be guilty under subsection (a)(6) of this section when the person has not used or consumed an illicit or recreational drug prior to or during driving but has only used or consumed such drug after the person has ceased driving and only such use or consumption after driving caused the person’s blood to contain an amount of the drug or an amount of a substance or compound that is the result of the use or consumption of the drug within 4 hours after the time of driving.

b. No person shall be guilty under subsection (a)(6) of this section when the person has used or consumed the drug or drugs detected according to the directions and terms of a lawfully obtained prescription for such drug or drugs.

c. Nothing in this subsection nor any other provision of this chapter shall be deemed to preclude prosecution under subsections (a)(2) or (a)(3) of this section.”

Section 5. Amend Section 4177(c), Title 21 of the Delaware Code by inserting new paragraphs “(8)” and “(9)” thereto to read as follows:

“(8) ‘Illicit or recreational drug’ as that phrase is used in subsection (a)(6) of this section means any substance or preparation that is:

a. Any material, compound, combination, mixture, synthetic substitute or preparation which is enumerated as a Schedule I controlled substance under § 4714 of Title 16 of this Code; or

b. cocaine or of any mixture containing cocaine, as described in § 4716(b)(4) of Title 16 of this Code;or

c. amphetamine, including its salts, optical isomers and salt of its optical isomers, or of any mixture containing any such substance, as described in § 4716(d)(1) of Title 16 of this Code; or

d. methamphetamine, including its salt, isomer or salt of an isomer thereof, or of any mixture containing any such substance, as described in § 4716(d)(3) of Title 16 of this Code; or

e. phencyclidine, or of any mixture containing any such substance, as described in § 4716(e)(5) of Title 16 of this Code; or

f. a designer drug as defined in § 4701 of Title 16 of this Code; or

g. a substance or preparation having the property of releasing vapors or fumes which may be used for the purpose of producing a condition of intoxication, inebriation, stupefaction or lethargy or for the purpose of dulling the brain or nervous system.

(9) ‘Unlawful use or consumption’ as that phrase is used in subsection (a)(6) of this section means that the person used or consumed a drug without legal authority to do so as provided by Delaware law. This Code describes the procedure by which a person may lawfully obtain, use or consume certain drugs. In a prosecution brought under subsection (a)(6) of this section, the State need not present evidence of a lack of such legal authority. In a prosecution brought under subsection (a)(6) of this section, if a person claims that he or she lawfully used or consumed a drug, it is his or her burden to show he or she has complied with and satisfied the provisions of this Code regarding obtaining, using or consumption of the drug detected.”

(10) ‘Substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug’ as that phrase is used in subsection (a)(6) of this section shall not include any substance or compound that is solely an inactive ingredient or inactive metabolite of such drug.”

Section 6. Amend § 4175(b), Title 21 of the Delaware Code by deleting the phrase “alcohol-related” as it appears in the last sentence of that subsection and by inserting in lieu thereof the phrase “alcohol-related or drug-related”.

Section 7. Amend §§ 628(2), 629, 630(a)(2) and § 630A(a), Title 11 of the Delaware Code by deleting the phrase “or with a prohibited alcohol content, as defined by § 4177 of Title 21” as it appears each time in those Sections and by inserting in lieu thereof the phrase “or with a prohibited alcohol or drug content, as defined by § 4177 of Title 21”.

Section 8. This Act shall be known as the Kelly Lynn Clinton Act.

Approved June 28,2006