Marijuana decriminalized in Delaware

Adults found with up to an ounce face civil fine and no jail time
June 23, 2015

Speaker of the House Rep. Pete Schwartzkopf voted in favor of a bill decriminalizing marijuana in Delaware, but, he said, the passage of House Bill 39 doesn’t mean the drug is now legal in the state.

“We’re still saying it’s wrong,” said Schwartzkopf, D-Rehoboth Beach, adding that getting caught with a small amount of marijuana is now on par with a major traffic offense.

AG Denn addresses police concerns

Throughout the marijuana decriminalization process, police agencies have raised concerns they will lose a tool in helping catch drug dealers. Below is a letter by Attorney General Matt Denn to House Bill 39 sponsor Rep. Helene Keeley, D-Wilmington South, and representatives of the Delaware State Troopers Association when the bill was discussed in the House Public Safety & Homeland Security Committee on May 6:

Representative Keeley, Mr. Brackin, and Mr. Oberle – over the past several weeks, both of you have corresponded with the Department of Justice about the issue of whether passage of House Bill 39 would have an impact on the ability of law enforcement officers to conduct searches of cars when quantities of marijuana, the possession of which is now criminal, characterized as “personal use” under House Bill 39 were found in plain view during a vehicle stop.

Passage of House Bill 39 would likely impact the ability of law enforcement officers to conduct searches of vehicles under the circumstances described above. Law enforcement officers are entitled under the United States and Delaware Constitutions to conduct searches incident to arrest of certain portions of a person’s vehicle when those persons are being arrested in or near that vehicle for a crime. Police officers are also permitted to conduct inventory searches of those vehicles if they have been seized following a person’s arrest. It is unlikely that either of these types of searches would be permissible if the driver has committed an offense classified as a civil violation. We do not know how many vehicle searches are currently conducted by Delaware police pursuant to the ‘incident to arrest’ or ‘inventory search’ doctrines based on seeing what would now be “personal use” quantities of marijuana, but the constitutionality of these legitimate law enforcement tools may be impacted by House Bill 39.

This does not mean that searches could not be done under any circumstances. Law enforcement officers would still be entitled to search vehicles if the totality of the facts known to them during a vehicle stop establishes probable cause to believe that illegal quantities of contraband may be found elsewhere in the vehicle. The presence of a “personal use” quantity of marijuana could form part of the basis for the establishment of such probable cause, though it would have to be combined with other facts. Law enforcement officers are also permitted to ask individuals if they will give consent for their cars to be searched. We have prepared language for Representative Keeley to use in an amendment to House Bill 39 that would make clear that the bill is not intended to erode any of the investigative tools that law enforcement officers presently possess to use the presence of even lesser amounts of marijuana as part of the basis for establishing probable cause for a broader search.

I hope that this information is helpful.

HB39 decriminalizes possession of a small amount of marijuana for Delaware adults. The bill was signed into law June 18 by Gov. Jack Markell after having passed through the Senate down party lines earlier in the day.

Introduced in January by Rep. Helene Keeley, D-Wilmington South, the bill removes criminal penalties and potential jail time and replaces them with a civil fine similar to a traffic ticket.

HB 39 would make possession of up to one ounce of marijuana by an adult a civil violation punishable by a $100 fine with no possibility of jail. Under current Delaware law, possession of up to one ounce of marijuana is a misdemeanor punishable by up to a $575 fine and up to three months in jail.

An amendment introduced to the bill June 2 separates penalties for adults and minors. For people younger than 18, possession would remain a criminal offense. For people between the ages of 18 and 21, the first offense would be a civil violation.

Under the amendment, driving under the influence remains a criminal offense. The bill also clarifies the definition of public places, which includes sidewalks, parking lots, parks, playgrounds, stores, restaurants or other areas the public is allowed. The definition also includes an outdoor location within 10 feet of a public place or a door or window that opens into a public or private building.

Schwartzkopf, a retired Delaware State Trooper, said he voted in favor of the legislation because he didn’t like the idea of saddling kids who get caught with a small amount of marijuana with permanent criminal records.

“We were all kids once,” he said. “I can remember being a kid and the breaks I had along the way, and how they shaped me going forward.”

Schwartzkopf said he knows some of his police brethren aren’t happy with the passage of the bill or his favorable vote. He said he’s not always going to see eye-to-eye on all the issues, but he understands that enforcing laws is their job and they don’t want to give up that ability.

In a statement following the signing, Kelly Bachman, spokeswoman for the governor, said the governor remains committed to reducing the number of people entering the criminal justice system and refocusing resources where they are needed most and, she continued, the bill supports these efforts.

The speed in which the bill was signed into may have surprised some people, but the governor had already made his feelings known about the subject. In a March letter to the editor of The New York Times, he said that he was hopeful Delaware would decriminalize possession of small amounts of marijuana.

Bachman said June 19 the governor signed the bill so quickly at the request of the legislative sponsors. The new law takes effect six months from the day the governor signed the legislation.

Sen. Ernie Lopez, R-Lewes, said he voted against the bill because the arguments made by the people in favor of the measure didn’t come close to swaying his feelings.

“They didn’t change my opinion in any way shape or form,” he said.

Lopez introduced a marijuana-centered bill earlier this session, Senate Bill 90, that allows for Delaware minors to have access to marijuana-based oils under the state’s medical marijuana act. The bill sailed through both the Senate and the House, and is scheduled to be signed into law by Markell on Tuesday, June 23.

Lopez said he wasn’t approached, or got one question, about his opposing views on the two bills. There is no comparison in the differences between recreational and medicinal use of marijuana, said Lopez.

Lopez may have been against the passage of HB39, but, he said, it did pass and he’ll do his best to make sure all service needs for his constituents are answered.

“There’s no bitterness on my end,” he said. “The bill passed, and now it’s time to move forward and get this budget taken care of.”

Carl Kanefsky, spokesman for the Attorney General Matt Denn, said the AG’s Office has been supportive for some time of decriminalizing the possession of small amounts of marijuana for personal use.

Schwartzkopf said he’s heard constituents voice concerns about Delaware making the move forward with trying to legalize marijuana. He said he won’t support that.

“I’m not voting to legalize marijuana, and I don’t think there’s the support to do it,” he said.

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