- Conditional Release
- Drugged Driving
- Legalization
- Expungement
- Mandatory Minimum Sentence
- Medical Marijuana
| Offense | Penalty | Incarceration | Max. Fine |
|---|---|---|---|
Possession |
|||
| Up to 1 oz | No Penalty | None | $0 |
| 1 oz - less than 175 g | Misdemeanor | 3 months | $ 575 |
| 175 – less than 1500 g (Tier 1) | Felony | 2 years | N/A** |
| 1500 – less than 5000 g (Tier 2) | Felony | 5 years | N/A** |
| 5000 g or more (Tier 3) | Felony | 2* - 25 years | N/A** |
| Aggravating factors add increased incarceration | |||
| * Mandatory minimum sentence | |||
| ** Maximum fines are at the discretion of the court for felony charges at sentencing. | |||
Distribution, Sale, or Manufacture |
|||
| Less than 1500 g (Tier 1) | Felony | 8 years | N/A** |
| 1500 – less than 5000 g (Tier 2) | Felony | 15 years | N/A** |
| 5000 g or more (Tier 3) | Felony | 2* - 25 years | N/A** |
| Aggravating factors add increased incarceration | |||
| * Mandatory minimum sentence | |||
| ** Maximum fines are at the discretion of the court for felony charges at sentencing. | |||
Hash & Concentrates |
|||
| Possession of up to 12 g of cannabis concentrates or products containing 750 mg of THC | No Penalty | None | $0 |
| Penalties for hashish are the same as for marijuana. Please see the marijuana penalties section for further details. | |||
Paraphernalia |
|||
| Use or possessesion of paraphernalia for the use or possession of marijuana | No Penalty | None | $0 |
| Deliver or possesses with the intent to deliver for the use of marijuana | No Penalty | None | $0 |
Forfeiture |
|||
| All substances, raw materials, products, equipment, property, vehicles, research products, paraphernalia, money and other assets can be seized. | |||
| Last Updated April 24, 2023 | |||
Penalty Details
Under Delaware law marijuana is a schedule I drug. Legislation was approved in 2015 amending penalties for the possession of up to one ounce (28.35 grams) to a civil penalty, punishable by no more than a $100 fine. In 2019, legislation was approved expanding decriminalization to also include low-level possession offenses by juvenile offenders. In 2023, legislation was enacted to remove the penalty for possession of up to one ounce of marijuana by adults aged 21 and over. The use of marijuana in public, or in a moving vehicle will remain a criminal offense.
Possession for Personal Use
Personal possession by adults aged 21 or older, of up to one ounce of marijuana is allowed by HB 1, passed in April 2023. A person under the age of 21 who “knowingly or intentionally possesses, uses, or consumes a personal use quantity” marijuana must be assessed a $100 civil penalty for a first offense.
Possession of more than one ounce, but less than 175 grams of marijuana is an unclassified misdemeanor carrying a fine of $575. If there are one or more aggravating factors involved, possession is a class B misdemeanor.
Possession of 175 – less than 1,500 grams, Tier 1 Quantity, is a felony punishable by two years incarceration and fine at the discretion of the court.
Possession of 1,500 – less than 5,000 grams, Tier 2 Quantity, is a felony punishable by five years incarceration and fine at the discretion of the court.
Possession of 5,000 grams or more, Tier 3 Quantity, is a felony punishable by a mandatory minimum sentence of two years and up to 25 years incarceration, and fine at the discretion of the court.
Aggravating factors add increased incarceration.
- Delaware Code § 4205(2),(5),(7)
- Delaware Code § 4764(b),(c),(f)
- Delaware Code § 4751C(1),(2),(3)
- Delaware Code § 4756
- Delaware Code § 4753
- Delaware Code § 4752
Distribution, Sale, or Manufacture
Distribution, Sale, or Manufacture of less than 1,500 grams of marijuana, Tier 1 Quantity, is a felony punishable by eight years incarceration and fine at the discretion of the court.
Distribution, Sale, or Manufacture of 1,500 – less than 5,000 grams of marijuana, Tier 2 Quantity, is a felony punishable by 15 years incarceration and fine at the discretion of the court.
Distribution, Sale, or Manufacture of more than 5,000 grams of marijuana, Tier 3 Quantity, is a felony punishable by a mandatory minimum sentence of two years and up to 25 years incarceration, and fine at the discretion of the court.
Aggravating factors add increased incarceration.
- Delaware Code § 4754
- Delaware Code § 4753(a)(b)(1)
- Delaware Code § 4752
Hash & Concentrates
The Delaware statute uses the general term “Marijuana” to refer to plant Cannabis and “every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin.” Nowhere does the statute differentiate penalties for Marijuana and Hashish or Concentrates. Both substances are classified under Schedule I of the Delaware Controlled Substances schedule. April 2023 legislation allowed for the possession of up to 12 grams of cannabis concentrate or cannabis products with up to 750 milligrams by adults aged 21 and over.
- Delaware Code § 4701(28)
- Delaware Code § 4714(d)(19)
Paraphernalia
April 2023 legislation removed penalties for the use and sale/delivery of paraphernalia items that are “used, or intended primarily for use, with marijuana.”
- Delaware Code § 4771(c)
- Delaware Code § 4774(a),(b),(c),(d)
- Delaware Code § 4764
Forfeitures
All substances, raw materials, products, equipment, property, vehicles, research products, paraphernalia, money and other assets can be seized.
- Delaware Code § 4784
Last Updated April 24, 2023
More Information
Conditional Release
The state allows conditional release or alternative or diversion sentencing for people facing their first prosecutions. Usually, conditional release lets a person opt for probation rather than trial. After successfully completing probation, the individual’s criminal record does not reflect the charge.
Drugged Driving
Every state criminalizes driving under the influence of a controlled substance. Some jurisdictions also impose additional per se laws. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. Read further information about cannabinoids and their impact on psychomotor performance. Additional information regarding cannabinoids and proposed per se limits is available online.
EXPUNGEMENT
This state has enacted legislation explicitly providing the opportunity for those with marijuana convictions for activities that have since been decriminalized/legalized to have past marijuana convictions expunged, vacated, otherwise set aside, or sealed from public view.
Legalization
Generally, legalization means a policy that supports a legally controlled market for marijuana, where consumers can buy marijuana for personal use from a safe legal source.
Mandatory Minimum Sentence
When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.
Medical Marijuana
This state has medical marijuana laws enacted. Modern research suggests that cannabis is a valuable aid in the treatment of a wide range of clinical applications. These include pain relief, nausea, spasticity, glaucoma, and movement disorders. Marijuana is also a powerful appetite stimulant and emerging research suggests that marijuana’s medicinal properties may protect the body against some types of malignant tumors, and are neuroprotective.