TITLE 16

Health and Safety

Food and Drugs

CHAPTER 47. Uniform Controlled Substances Act

Subchapter V. Drug Paraphernalia

§ 4771. Drug paraphernalia [For application of this section, see 80 Del. Laws, c. 38, § 6].

(a) It is unlawful for any person to use, or possess with intent to use, drug paraphernalia as defined in § 4701 of this title. Except that any person charged under § 4764(b) or (d) of this title, or assessed a civil penalty under § 4764(c) of this title, shall not also be charged with this offense if in possession of drug paraphernalia pertaining to the use of marijuana.

(b) It is unlawful for any person to deliver, possess with intent to deliver, convert, manufacture, convey, sell or offer for sale drug paraphernalia, as defined in § 4701 of this title, knowing or under circumstances where one should reasonably know that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance.

(c) [Repealed.]

62 Del. Laws, c. 250, §  667 Del. Laws, c. 130, §  967 Del. Laws, c. 350, §  2473 Del. Laws, c. 359, §  178 Del. Laws, c. 13, §§  62, 6380 Del. Laws, c. 38, §  381 Del. Laws, c. 410, § 182 Del. Laws, c. 217, § 17

§ 4772. Consideration of 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:

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

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

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

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

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

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

(7) Descriptive materials accompanying the object which explain or depict its use;

(8) National and local advertising concerning its use;

(9) The manner in which the object is displayed for sale;

(10) 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;

(11) Direct or circumstantial evidence of the ratio of sales of the suspect object to the total sales of the business enterprise;

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

(13) Expert testimony concerning its use.

62 Del. Laws, c. 250, §  670 Del. Laws, c. 186, §  173 Del. Laws, c. 359, §  2

§ 4773. Exemptions.

This subchapter does not apply to any of the following:

(1) Any person authorized by local, state, or federal law to manufacture, possess, or distribute such items.

(2) Any item that in the normal lawful course of business is imported, exported, transported, or sold and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

(3) Testing strips to determine the presence of fentanyl or fentanyl-related substances.

73 Del. Laws, c. 359, §  383 Del. Laws, c. 21, § 2

§ 4774. Penalties [For application of this section, see 80 Del. Laws, c. 38, § 6].

(a) Possession. — Except as described in subsection (b) of this section, any person who uses or possesses with intent to use drug paraphernalia is guilty of a class B misdemeanor.

(b) Possession for personal use of marijuana. — Any person who uses or possesses drug paraphernalia for the use or possession of a personal use quantity of marijuana shall be assessed a civil penalty of not more than $100, in addition to such routine assessments necessary for the administration of civil violations.

(c) Manufacture and sale. — Any person who delivers, possesses with the intent to deliver, conveys, offers for sale, converts, or manufactures with the intent to deliver drug paraphernalia is guilty of a class G felony.

(d) Delivery to a minor. — Any person 18 years of age or older who violates § 4771 of this title by delivering or selling drug paraphernalia to a person under 18 years of age is guilty of a class E felony.

(e) 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 this section is guilty of an unclassified misdemeanor.

62 Del. Laws, c. 250, §  667 Del. Laws, c. 130, §  967 Del. Laws, c. 350, §  2773 Del. Laws, c. 359, §  478 Del. Laws, c. 13, §  6480 Del. Laws, c. 38, §  4

§ 4775. Consideration of factors.

Transferred to § 4772 of this title by 73 Del. Laws, c. 359, § 2, effective July 8, 2002.