Delaware General Assembly

Signed 4/20/11

The General Assembly has ended, the current status is the final status.

1/20/11

Sen. Blevins, McDowell, Sorenson

Sen. DeLuca, Hall-Long, Peterson, Venables
Reps. Blakey, Bolden, Hudson, Jaques, J. Johnson, Q. Johnson, Keeley, Kowalko, Lavelle, Manolakos, Miro, Mitchell, Mulrooney, Ramone, Schooley, Scott, B. Short, Walker

AN ACT TO AMEND TITLES 10, 11, 16 AND 21 OF THE DELAWARE CODE RELATING TO DRUG-INVOLVED OFFENSES

This Act is the product of the ‘Drug Law Revisions Committee.’ This Act repeals a significant portion of the existing criminal drug laws. In their place, this Act creates three main drug crimes – Drug Dealing (that is, delivery or manufacture, or possession with intent to deliver or manufacture); Aggravated Possession (that is, possession of amounts generally indicative of drug dealing but where drug dealing need not be proved); and Possession. Each of the crimes would have multiple levels of seriousness depending upon a number of aggravating factors, which would include proximity to a school or a park, presence in a vehicle, prior record, reaching a threshold weight of drugs, involvement of children in the offense, or resisting arrest with force or violence. None of the crimes would equate ‘possession’ and ‘possession with intent to deliver’ as do the present Possession within 1000 Feet of a School, Possession within 300 Feet of a Park, and Maintaining a Dwelling or Vehicle. Section-by-Section Analysis of Substantive Revisions: Sections 1, 2, 3, 4, 7, 13, 14, 23, 26, 28, 29, 30, 31, 44, 45, 65, 67, 68, and 69, of the Act make technical and conforming changes to the law. Sections 5 and 6. These sections create a new subsection (a)(9) to § 1448 of Title 11, which would create a class F felony for a person who possesses a handgun or semi-automatic or automatic firearm at the same time as the person possesses a controlled substance. Sections 8, 9 and 10. Certain felonies are defined in the Criminal Code as ‘violent felonies.’ The new drug dealing and aggravated possession statutes are included as ‘violent felonies.’ Convictions under the former statutes that counted as ‘violent felonies’ will continue to count as ‘violent felonies,’ except that statutes in which ‘simple possession’ of a controlled substance could count as a ‘violent felony’– present §§ 4754A (possession and delivery of a non-controlled prescription drug), 4767 (possession within 1000 feet of a school), and 4768 (possession within 300 feet of a park) -- would be repealed. Sections 11 and 12. The drug crimes that would make for subsection (b) ‘habitual criminal’ eligibility pursuant to § 4214(b) of Title 11 would include §§ 4752, 4753, 4754, and 4755, and would roughly correspond to the statutes that establish eligibility under the present law. Sections 15 to 19. The boot camp provisions are modified so that a drug conviction (§ 6703) will not be an absolute prohibition against DOC placing a convicted inmate in a boot camp program. They are also modified so that First Offender boot camp diversion (§ 6712) is available to charged defendants on roughly the same basis as at present. Section 20. This section directs the Delaware Sentencing Accountability Commission to develop sentencing guidelines for cases involving controlled substances significantly exceeding the minimums required for new § 4752 of Title 16. It is anticipated that this could be completed by the effective date of this Act. Section 21. The definition of anabolic steroids in § 4701(5) is changed to be consistent with the definition set forth in § 4718(f) of Title 16. Section 22. The definition of ‘controlled substance’ is expanded to include ‘designer drugs.’ Under present law, because “designer drugs” were not included in the definition of ‘controlled substance,’ Trafficking in designer drugs was prohibited, but Delivery, Manufacture, and Possession were not. Section 24. The provision (16 Del. C. § 4753A(a)(8)b) that excepted certain designer drugs from being prohibited is moved to the definitional section. Section 25. This section defines ‘dose,’ which is currently undefined. Section 27. The definition of ‘Lawful Prescription or Order’ is added at the request of the Board of Pharmacy. The definitions of ‘licensed practitioner,’ ‘patient-practitioner relationship,’ ‘prescription drug,’ and ‘prescription drug order,’ in the Safe Internet Pharmacy Act subchapter, at § 4743, are moved to the definitional section (§§ 4701(24), (31), (37), and (38)) so that the terms could be used not only in the Internet Pharmacy Act but throughout chapter 47. Section 27. The aggravating factor ‘Protected Park or Recreation Area’ is modified from the present Possession within 300 Feet of a Park or a Place of Worship. This section continues to provide for a protective zone around parks and recreation areas, designed to protect children. It becomes an aggravating factor. The protective zone around places of worship, as it is less focused on the protection of children, is eliminated if the place of worship does not have a school or recreation area. Section 27. The aggravating factor ‘Protected School Zone’ is modified from the present Possession within 1000 Feet of a School to be limited to within 300 feet. This is the distance used in the Possession within 300 Feet of a Park statute. The reason the size of the protective zone is reduced is that “1000 Feet” creates too large of a protected zone for the zone to act as a deterrent to drug dealing near schools. Section 27. The definition of ‘Purported Controlled Substance’ is derived from existing § 4752A’s prohibition against ‘unlawful delivery of a noncontrolled substance’ upon the representation that the substance being delivered is a controlled substance. Section 32. This section repeals 16 Del. C. § 4751. Under §§ 4751(a) & (b), Delivery of a Narcotic Drug is currently a class C felony if the narcotic drug is Schedule I or II (as are cocaine, heroin, and oxycodone), and a class E felony if the narcotic drug is Schedule III, IV, or V. This Act would make Delivery illegal under §§ 4752, 4753, and 4754, where it would be a class B, C, or D felony, depending upon the weight of the drugs, and the presence or absence of aggravating factors. Section 4751(c) – Delivery Causing Death -- which has been charged once in the last four years, would be repealed. When facts giving rise to such a charge occur in the future, the case could be charged as Delivery and, if appropriate, Criminally Negligent Homicide. Even if there were no homicide charge available, the Court could take the death into account in sentencing on the Delivery. Section 4751(d), which provides for mandatory minimum sentences of 6 and 12 years for “nonaddicts” convicted of § 4751, and which is not used, would be repealed. Section 33. The section sets forth five aggravating factors – (1) Protected School Zone; (2) Protected Park Zone; (3) Vehicle; (4) Juvenile Co-conspirator; and (5) Resisting Arrest Force or Violence. The first four are modified from present drug law. The fifth is new. It is based on the idea that a drug defendant who resists arrest with force or violence represents a more serious societal problem than one who does not. While resisting arrest with force or violence is already a crime (11 Del. C. § 1257(a)), it is a class G felony, which will generally have no sentencing consequences when paired with a drug felony. The aggravating factor is designed to address the drug defendant who fights the law enforcement officer making an arrest, and the drug defendant who flees in a vehicle at high speeds. A person could be convicted of both a drug offense with this aggravating factor and a separate charge of § 1257. The State will need to charge any aggravating factor, and will need to prove the aggravating factor as an element of the offense. Since the aggravating factors for a protected school zone and for a protected park or recreation area are similar in intent, if they are both present in the same case, they would be counted as one aggravating factor rather than two. Section 34. This section addresses prior qualifying drug convictions, which would be used to enhance sentences. The definition of a prior qualifying Title 16 conviction includes the main Delaware felony drug offenses, and equivalent offenses from other jurisdictions. For the offense to count as an enhancement, there is a ‘recency’ requirement of five years, which is measured in the same way as in other Delaware statutes, such as robbery 1st or possession of a firearm by a prohibited person. For misdemeanor charges, a prior qualifying drug conviction includes prior drug misdemeanors, again with the ‘recency’ requirement. When the defendant has a prior qualifying drug conviction, the new drug crime’s seriousness will be raised in a manner similar to the effect of an ‘Aggravating Factor.’ A prior qualifying drug conviction will not need to be charged. Instead, it will, if contested, need to be proved at sentencing. This section also defines ‘two prior qualifying Title 16 convictions’ so that the first conviction would have to occur and be sentenced before the offense that generates the second conviction occurs. Drug sales often involve teenage defendants, and it is not unusual for a drug dealer to have a juvenile adjudication. If a defendant has a juvenile adjudication for drug conduct occurring after he or she turned 16, the adjudication was within ten years of the present offense, and it would count as a ‘qualifying conviction’ if committed by an adult, then it would count as the first of the two ‘convictions’ that would give a person ‘two prior qualifying Title 16 convictions.’ Section 35. This section creates Tier Weights for various drugs. Most of the drugs have five tier weights. As the tier weights increase, the potential penalties increase. The ‘Tier 2’ weights are generally consistent with the minimum trafficking weights of current law. The tier weights for “narcotic Schedule II or III controlled substances that are a prescription drug” is new. Prescription drugs are dangerous. The Medical Examiner’s Office reports that in 2008, there were 125 overdose deaths from prescription drugs, more than half the total of all drug overdose deaths in the State. This Act identifies a substantial prescription drug dealer primarily by the number of pills in the dealer’s possession. Section 36. In part, this section continues present law, that is, when the weight of the drugs is an element of the offense, the State does not have to prove the defendant had any knowledge of the weight. In part, this provision creates new law, that is, when a ‘Tier weight’ is being established by the number of substantially identical pills present, the State makes out a prima facie case upon proof that one such substantially identical pill contained the alleged controlled substance. The defendant would be free to seek an order to have additional pills tested at the defendant’s expense. Section 37. This section repeals 16 Del. C. § 4752. Under § 4752, Delivery of a non-narcotic drug is a Class E felony. Under the proposal, Delivery would be prohibited under §§ 4752, 4753, and 4754, and would be a class B, C, or D felony, depending upon the weight of the drugs, and the presence or absence of aggravating factors. Existing § 4752(b) & (c) makes prescription or delivery or administration of anabolic steroids for enhancing human athletic performance a class E felony. It appears to target medical professionals, athletic trainers, and dealers. This Act treats dealers in anabolic steroids the same as dealers in other drugs. For the medical professionals and trainers, the prohibition against prescription or administration of anabolic steroids for the purpose of enhancing human athletic performance would be moved (by Section 51) to § 4756(a)(7), where it would be a class F felony. Section 37. This section also repeals 16 Del. C. § 4752A, Unlawful Delivery of noncontrolled substance. By Section 55, this Act enacts a new 16 Del. C. § 4758, which would take the place of § 4752A. Individuals illegally sell both street and prescription drugs. Other individuals sell counterfeit drugs (fake drugs [that may or may not contain a controlled substance] that look like prescription drugs) or ‘beat’ drugs (fake drugs that may pass for street drugs). Under present law, delivery of counterfeit drugs is included within §§ 4751 & 4752 and carries the same penalties as the sale of the actual drugs, but delivery of “beat” drugs is prohibited by § 4752A, and while carrying the same penalties as the sale of the actual drugs, is a class D felony, notwithstanding that the sale of the real drug could be a class C or E felony. The new § 4758 combines the prohibition against the delivery of counterfeit and ‘beat’ drugs in one statute, and makes the penalty the same for each, that is, a class E felony, one grade less than delivery of the real drug. Sections 38, 40, 42, 47 and 54. These sections enact the new laws against Drug Dealing and Aggravated Possession -- 16 Del. C. §§ 4752, 4753, 4754, 4755 & 4756. The structure of these new laws would be pyramidal, where each lower grade of the offense would be a ‘lesser-included offense’ of one or more of the higher grades of the offense. Section 4752 defines the offenses that are class B felonies, for which the sentence would be ‘not less than 2 years up to 25 years to be served at Level V.’ 11 Del. C. § 4205(a)(2). The first-time offender who has what would be the minimum amount of drugs required for a trafficking conviction under today’s laws, with no other aggravating factors, would not face a minimum-mandatory sentence, as he or she would under the trafficking law. Such an offender, however, is relatively rare among trafficking defendants. The Aggravated Possession offenses only apply to street drugs. This Act recognizes that people addicted to prescription drugs may obtain prescription drugs (legally or illegally) and hoard them in significant quantities, which is not a common practice for users of street drugs. Thus, the Aggravated Possession felonies only apply to street drugs, since, if applied to prescription drugs, they might well result in an unacceptably large percentage of the cases being charged against addicts who are going to use the prescription drugs themselves. Sections 39 and 41. These sections repeal 16 Del. C. §§ 4753 & 4754. Sections 58 and 61 enact 16 Del. C. §§ 4763 & 4764. Present law makes unlawful possession of a narcotic controlled substance a class A misdemeanor, and unlawful possession of a non-narcotic controlled substance a class B misdemeanor. The new § 4763 combines both laws, and makes the simplest form of unlawful possession a class B misdemeanor. Where there is an aggravating factor, including a prior possession of drugs conviction within five years of the offense, the unlawful possession offense would become a class A misdemeanor. The only controlled substance not covered by § 4763 would be marijuana, the possession of which is prohibited by the new § 4764. It would have a lesser penalty structure than § 4763, but with adult jurisdiction for the offenses in the Court of Common Pleas, as is the case under present law. Section 39. This section also repeals 16 Del. C. § 4753A -- the trafficking laws, which date from thirty years ago. The trafficking laws are the most serious drug offenses under Delaware law, but there is no requirement that the State prove that the defendant has the intent to deliver, and thus some portion of the public and the federal government regard these statutes as ‘possession’ laws that unfairly target drug users. For example, under the federal Sentencing Guidelines, a Delaware Delivery, or Possession with Intent to Deliver, conviction is considered to be ‘a controlled substances offense’ that results in a significantly higher sentencing guideline for a repeat drug offender or a gun offender, but Trafficking is not so considered. Thus, in many cases, a federal defendant who has been convicted of Trafficking is going to get a significantly shorter sentence than an otherwise similar defendant who has been convicted under Delaware law of Delivery or Possession with Intent to Deliver. This Act would, in effect, replace Trafficking with Aggravated Possession (as set forth in §§ 4752(c), (d) & (e), 4753(c), (d) & (e), 4754(b) & (c), 4755, and 4756), which would be lesser offenses than Drug Dealing offenses with the same weight of drugs. Section 41. This section repeals 16 Del. C. § 4754A, Illegal Possession and Delivery of Non-Controlled Prescription Drugs. Section 57 enacts 16 Del. C. § 4761, which would address the same conduct. There are presently some prescription drugs that are not controlled substances, but which are abused, e.g., ‘soma’ and ‘tramadol.’ These drugs may in due course become controlled substances, but other drugs will likely be developed, not be controlled substances, and will also be abused. Thus, the new statute replaces a presently-existing one, and both are designed to prohibit the illegal possession or delivery of non-controlled prescription drugs. The proposed statute adjusts the penalties downward, recognizing that the statute is addressing prescription drugs that by definition have not been classified as controlled substances. Section 43. This section repeals Possession of Controlled Substance within 300 feet of a Park. The present statute is a class G felony, is frequently charged, and there are frequent convictions under it. In 2008, it was charged in 583 cases, and was the most serious charge in 82 of them. It is, however, poorly constructed to enhance the protection of children. If a drug dealer is not deterred by the more serious laws he or she is violating, the dealer also is not going to be deterred by this less serious law. Making ‘a protected park or recreation area’ an aggravating factor for drug offenses should be a more effective method of encouraging drug dealers and drug users to avoid parks or recreation areas than having a separate statute. Section 46. This section repeals Maintaining a Dwelling or Vehicle. Section 56 enacts a new statute for people with control of a dwelling or business who permit others to use it for drug dealing. Maintaining a Dwelling or Vehicle is a frequently charged statute. In 2008, it was charged in 2046 cases, and was the most serious charge in 416 of them. The present law is broad enough to make the possession of a marijuana joint or a single bag of heroin in a home or a car a class F felony. If the defendant has a shotgun or a hunting rifle near the joint or the bag, the defendant can also be charged with the three year minimum-mandatory Possession of a Firearm During the Commission of a Felony. Repeal of Maintaining a Dwelling or Vehicle would make ‘simple possession’ amounts of drugs in a home or a car a misdemeanor rather than a felony. The present law traces back to a misdemeanor enacted in 1935. It appears that the original impetus for the law was to make it a crime to operate an ‘opium den’ or the equivalent. In the modern day, this would be equivalent of criminalizing the operation of a ‘crack house’ or a ‘stash house.’ This Act maintains that distinction. The person who operated the drug house should be able to be prosecuted for Drug Dealing under §§ 4752 through 4756. If there were a person who controlled the property and was knowingly complicit in another’s drug business, the property controller would be liable under the statute enacted by section 56 -- § 4760 – Maintaining a Drug Property. Sections 48 and 49. Sections 48 and 49 allow, for most drug crimes, a single defendant to be charged with the highest grade of offense applicable to the defendant’s crime. No other drug dealing, aggravated possession, or simple possession crimes would be charged. The intent is to give the Court the ability to charge the jury (or to consider, if the Court is the fact-finder), within constitutional limits, any lesser grade offense supported by evidence introduced at trial. If there were a conspiracy or a weapon or a drug paraphernalia charge, those charges would be additional. Section 50. This provides for the repeal of the unclassified misdemeanor in 16 Del. C. § 4757(c) of Possession of a Hypodermic Syringe without Having a Doctor’s Certificate in Possession. A hypodermic syringe can be drug paraphernalia, depending upon the circumstances. When a hypodermic needle is drug paraphernalia, it will remain prohibited by virtue of 16 Del. C. §§ 4771 & 4774. Sections 51, 52, and 53. Section 51 amends ‘Miscellaneous Drug Crimes’ to combine subsections (a)(3) & (a)(7) of § 4756, which had substantial overlap, into new subsection (a)(3). No substantive change is intended. New subsection (a)(7) was added, and is derived from the anabolic steroids provisions of existing § 4752. [See Synopsis to section 37.]. The section deletes robbery and burglary from § (a)(6), on the theory that robbery and burglary already have their own crimes, which would apply perfectly well to robbery or burglary of drugs. On the other hand, theft depends upon the dollar value of the items stolen, and thus keeping a separate theft of a controlled substance as a felony offense is appropriate. Section 53 adds new subsection (c), which would make it a crime to solicit, direct, hire, employ, or otherwise use one or more other persons three or more times within a 30 day period to obtain prescription drugs by fraudulent means or theft. This crime would cover one person used three times; one person used two times and a second person used once; or three persons each used once. This crime would essentially target the prescription drug kingpin, who stays behind the scenes while sending an associate or associates to try to fill fraudulent prescriptions. Section 55. This section repeals Keeping Drugs in Original Container. The Department of Justice decided in 2008 that the law as written was un-prosecutable. The law states that if a person has been prescribed a prescription drug, the person must keep it in its original container. If the person does not, it is a class A misdemeanor. However, if the person has a prescription, that is a defense to the charge. Section 55 also enacts a new § 4758, which is discussed in the Synopsis to section 37. Section 56. This section repeals 16 Del. C. § 4760, which is unnecessary, since 11 Del. C. § 209 places the same limitations on the State’s ability to prosecute a drug crime already prosecuted by another state or the United States. Section 56 also enacts a new § 4760, which is discussed in the Synopsis to section 46. Section 57. This section repeals Distribution to persons under 21 years of age and Purchase of Drugs from Minors. The statutes were charged five times during the last three years, and none of the cases involved the minimum-mandatory provisions of the statutes. The likely reason that they are not charged is that they substantially overlap with the Delivery statutes, and, in the one regard that they do not overlap, conviction is nearly impossible without having a 15 year-old or younger drug user or drug dealer testifying as a State’s witness. For the rare cases where proof of the involvement of a juvenile is feasible, that would now be covered as an ‘aggravating factor.’ Section 57 also enacts new § 4761, which is discussed in the Synopsis to section 41. Section 58. This section repeals 16 Del. C. § 4763. Subsections (a)(1), (b), and (d) of § 4763 are either unnecessary, or superfluous in light of other provisions of this Act. Subsection (a)(2) provides for mandatory minimum terms for defendants convicted of Delivery who have a prior Delivery or Trafficking conviction. Repeat drug dealers are good candidates for incarceration, and repeal of this statute gives the judiciary greater discretion to identify which defendants should be incarcerated and for how long. Thus, (1) one recent prior drug felony conviction will be the equivalent of an aggravating factor, subjecting a repeat offender to a higher grade of offense; and (2) two recent prior drug felony convictions will be the basis for a new Drug Dealing charge being a class B felony in all circumstances. Subsection (c) of § 4763 is never charged. The new law enacted by section 58 is discussed in the Synopsis to sections 39 and 41. Section 59. This section repeals Possession of Controlled Substance within 1,000 feet of a School. The present law is a class G felony, is frequently charged, and there are frequent convictions under it. In 2008, it was charged in 458 cases, and was the lead charge in 68 of them. It is, however, poorly constructed to enhance the protection of children. It is not a deterrent to a drug dealer, who, if he or she is not deterred by the more serious laws he or she is violating, is not going to be deterred by this less serious law. In addition, the signs stating ‘drug free school zone’ are usually posted on school property and not around the border of the ‘bubble.’ There is no actual notice being given to drug dealers that might cause them to be less likely to deal near a school. Section 60. There is no substantive change to the First Offenders Controlled Substances Diversion Program. Section 61. This section enacts § 4764, which is discussed in the Synopsis to sections 39 and 41. Sections 62 and 63. These sections delete the lengthy recitation about what constitutes drug paraphernalia, which is also set forth in § 4701(17). There is no substantive change. Section 64. In keeping with the penalties for possession of a controlled substance, possession of drug paraphernalia is re-graded from a class A misdemeanor to a class B misdemeanor. Section 70. This section changes the current system for revocation of driver’s licenses for convicted drug defendants. The current system is that a misdemeanor conviction results in a 2 year suspension, and a felony conviction results in a 3 year suspension. There was no evidence that a potential drug offender is deterred by the threat of having a driver’s license suspended. On the other hand, the lengthy suspensions, which could easily exceed the amount of time the defendant is under criminal justice supervision, are counterproductive to the defendants’ attempts to become productive citizens, as it is hard to look for, or get, a job without a driver’s license. Delaware has the harshest laws in the country in regard to the length of suspension. Federal law requires a minimum of a six months suspension unless the Governor submits to the Secretary of Transportation a written certification that the Governor is opposed to such a law and the Governor certifies that the Legislature has adopted a resolution expressing its opposition to such a law. Twenty-three states, not including Delaware, have done this. Thus, the section provides for the federally-required minimum of a 6 months suspension. Section 72. This Act shall take effect at 12:01 a.m. on the first day of the fifth full month after the Act is enacted into law. If, for example, this Act was enacted on January 15, 2011, it would take effect at 12:01 a.m. on June 1, 2011. It will take a minimum of three months to make all the necessary adjustments that would be required to implement the changes made by these revisions to the drug laws.

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Takes effect upon being signed into law

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