Delaware Marijuana Laws

Key Points

• Recreational cannabis has recently been legalized in Delaware. However, legal sales of adult-use cannabis have yet to begin
• Recreational cannabis sales are not expected to begin until 2024 at the earliest. A 15% tax will be levied on recreational cannabis sales
• It is legal to use medical marijuana in the state if you are an authorized medical marijuana patient in the state. Medical cannabis sales are legal in the state for licensed retailers
• It is illegal to grow cannabis at home, whether for medical or recreational purposes
• There remain stringent penalties stipulated under Delaware laws for marijuana offenses such as possession above the permitted personal use quantity and driving under the influence of marijuana.

Is Marijuana Legal in Delaware?

Yes. Governor John Carney announced in April 2023 his decision to allow companion bills, HB 1 and HB 2, to become law in the State of Delaware without his signature. The bills which took effect on April 23 and April 27, 2023, respectively, legalized recreational marijuana in the state.

HB 1 allows adults aged 21 or older in Delaware to possess 1 ounce of dried flower, 12 grams of cannabis concentrates, or cannabis products with up to 750 grams or less of Delta-9 THC. Also, transferring cannabis products between adults aged 21 or older is permitted as long as money, reciprocal transactions, or contingencies are not involved. Also, no more than the permitted possession limits may be transferred between adults. Under HB 1, the home cultivation of cannabis and cannabis consumption in public areas remain prohibited.

HB 2 establishes a 15% excise tax on cannabis sales and allows local municipalities to maintain control over where and when cannabis businesses may operate in their jurisdictions or prohibit commercial cannabis operations altogether via the enactment of local ordinances or ballot measures.

Medicinal marijuana has been legal in the state since 2011 via the Delaware Medical Marijuana Act (DMMA), although sales did not begin until 2015. The DMMA created a medical cannabis program allowing Delawareans with one or more approved conditions to possess 6 ounces of cannabis at a time. Note that the home cultivation of cannabis is not permitted under the Delaware medical marijuana program.

Delaware Marijuana Laws in 2024

While medical marijuana has been legalized in Delaware since 20211, several attempts to legalize adult-use cannabis in recent years have proved abortive until the passage of HB1 and HB2 in 2023. The following are the most recent marijuana laws in Delaware:

• HB 39: HB 39, also known as the Delaware Medical Marijuana Act, legalized medical cannabis for Delawareans of any age with certain debilitating medical conditions. Although such persons are not allowed to grow marijuana at home, they can visit any compassion center or medical marijuana dispensary licensed by the state to purchase up to 3 ounces of processed cannabis every fortnight and possess no more than 6 ounces per time. At the compassion centers, qualifying patients must show valid Delaware medical marijuana cards to purchase medical cannabis. While Delawareans aged 18 or older can visit compassion centers by themselves, qualifying patients under the age of 18 must have their caregivers buy medical cannabis for them
• HB 1: HB 1 removes the sanctions for using or possessing a personal use quantity of marijuana or paraphernalia. HB 1 defines "personal use quantity" to include not only 1 ounce or less of marijuana leaf but also its equivalent amounts in other marijuana product forms. Under HB 1, adults may share personal use quantities or less of marijuana as long as they are of legal age and no form of compensation or remuneration is involved. It is legal to transport cannabis in a vehicle provided it is in a closed container or otherwise not readily available to the driver or passengers inside the vehicle. HB 1 makes it illegal to use cannabis in public places or grow cannabis at home
• HB 2: HB 2 provides a regulatory framework for the recreational use of marijuana, including licensing, taxation, and enforcement measures, in Delaware. It amends state law to clarify that offenses and penalties under the Uniform Controlled Substances Act do not apply to marijuana-related activities allowed under the Delaware Marijuana Control Act or the Delaware Medical Marijuana Act. \ HB 2 allows for the operation of marijuana businesses and prohibits public use of marijuana, consumption in vehicles, and smoking in areas where tobacco or e-cigarettes are not permitted. It also bans the sale of marijuana in establishments licensed to sell alcohol and outlines penalties for underage marijuana use and failure to verify the age of consumers by cannabis businesses. HB 2 establishes the Marijuana Regulation Fund and the Justice Reinvestment Fund, funded through taxes and fees collected under the Act, with a portion allocated to projects benefiting communities impacted by past marijuana prohibition and "war on drugs" policies.

Timeline of Cannabis Law in Delaware

The following are the cannabis legalization timelines in Delaware:

• 2011: The Delaware Medical Marijuana Act is signed into law, allowing qualified patients with debilitating medical conditions to use and possess medical marijuana. The law establishes a patient registry and sets up a system for licensed compassion centers to cultivate and distribute medical cannabis.
• 2015: Governor Jack Markell signs House Bill 39, decriminalizing the possession of small amounts of marijuana. Under this law, possession of up to one ounce of cannabis is treated as a civil offense, punishable by a fine rather than criminal charges. However, smoking marijuana in public remains a criminal offense
• 2017: The state expands its medical marijuana program with the passage of Senate Bill 24. This legislation adds additional qualifying conditions for medical cannabis, such as PTSD and chronic debilitating migraines. It also allows for the use of cannabis oil for pediatric patients
• 2019: Governor John Carney signs SB 37, which expunges certain marijuana-related offenses from individuals' criminal records. This law allows individuals with prior misdemeanor or one felony conviction for certain cannabis offenses to have their records automatically expunged after five or seven years, respectively
• 2023: The Delaware Marijuana Control Act (HB 2) takes effect, creating regulations for the production, sale, and taxation of recreational marijuana. The Act sets requirements for licensing various marijuana establishments, including retail stores, cultivation facilities, and testing facilities. The Act makes recreational cannabis legal for adults in Delaware

Federal Legalization of Weed in 2024

While several states have legalized cannabis, the drug remains classified as a Schedule I illegal substance under the federal Controlled Substances Act, on par with LSD and heroin. Cannabis' illegal status can be traced back to the 1930s when the Marijuana Tax Act prohibited marijuana possession and cultivation federally. The drug's classification as a Schedule I drug came under the 1970 Controlled Substance Act.

Although several initiatives have been undertaken to push for the federal legalization of marijuana, the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act and the Cannabis Administration and Opportunity Act (CAOA) are recent moves with a fair potential to succeed. The MORE Act, introduced by Jerry Nadler in 2019, passed the House in December 2020 but died in the Senate; it was reintroduced on May 28, 2021. The MORE Act would decriminalize marijuana federally, remove it from the Controlled Substances Act (CSA), and promote criminal justice and social and economic reform. The House again voted to approve the MORE Act on April 1, 2022.

Senate Majority Leader Chuck Schumer and Senators Cory Booker and Ron Wyden introduced the Cannabis Administration and Opportunity (CAOA) Act in July 2021, outlining their proposal for comprehensive marijuana legalization and reform. The CAOA proposed, among other things:

• Decriminalizing cannabis at the federal level
• Removing marijuana from the CSA
• Establishing minimum standards for all cannabis products currently sold through state-legal programs
• Amending the Food Drug and Cosmetic Act (FD&CA)
• Expressly assigning oversight of cannabis in food, dietary supplements, drugs, and cosmetics to the United States Food and Drug Administration

Note that both the MORE and CAOA Acts have yet to become law in the United States.

Can I Use Cannabis in Delaware?

Yes, you can use cannabis in Delaware if you are an adult aged 21 or older or an authorized medical marijuana patient. Medical marijuana patients can only possess up to 6 ounces per time but may not purchase more than 3 ounces every 14 days. Recreational marijuana users are allowed to have up to 1 ounce of cannabis leaf, 12 grams or less of concentrated cannabis, or marijuana products containing 750 milligrams or less Delta-9 THC.

While cannabis use is legal, there are restrictions on where you may use the substance. It is illegal to use cannabis in public locations or on federal properties in the state. Delaware employers are also permitted to enforce zero-tolerance cannabis policies. Cannabis use is restricted to private residences. Delawareans living in rented apartments must obtain permission from their property managers or landlords before using cannabis in such dwelling units.

How The Legal Sale Of Cannabis In Delaware Happens

Recreational cannabis sales are yet to begin in Delaware as the state continues to set up regulations and licensing provisions for the adult-use marketplace. Legal sales are not expected to start until at least mid-2024. However, businesses that have obtained Delaware cannabis dispensary licenses may sell medical marijuana products, including oil, tinctures, hash, concentrates, flower, vapes, and paraphernalia.

Licensed medical marijuana dispensaries must check the IDs of visitors before allowing them to buy medical cannabis products. Visitors are required to provide their Delaware medical marijuana cards and government-issued IDs at dispensaries to purchase medical cannabis legally. Also, dispensaries are required to track weed purchases and ensure no buyer can buy more than 3 ounces of medical cannabis every fortnight.

Penalties for Marijuana-related Crimes in Delaware

Delaware laws prescribe varying penalties for offenses related to marijuana depending on the quantity of marijuana involved in the offense and other factors. The following are offenses and the penalties stipulated under state law:

Possession And Cultivation

• Between 1 ounce and 175 grams is a misdemeanor punishable by 3 months in jail and a maximum fine of $575
• Between 175 grams and 1,500 grams is a felony punishable by two years in jail with maximum fines at the discretion of the court
• Between 1500 grams and 5000 grams is a felony punishable by 5 years imprisonment and a maximum fine to be set at the discretion of the court
• 5000 grams or more is a felony punishable by between 2-25 years and a maximum fine to be imposed at the discretion of the court

Possession With Intent To Distribute, Sale, And Manufacture

• Up to 1500 grams is a felony punishable by 8 years in jail and a maximum fine imposed at the discretion of the court
• Between 1500 grams and 5000 grams is a felony punishable by 15 years in jail with maximum fines set at the discretion of the court
• 5000 grams or more is a felony punishable by between 2-25 years and a maximum fine to be imposed at the discretion of the court

Consumption

A person who knowingly or intentionally consumes other than the permitted personal use quantity of cannabis is guilty of a misdemeanor and may be fined no more than $575, imprisoned no more than 3 months, or both. However, a person under 21 who consumes a personal use quantity of marijuana will be charged with a civil violation of $100 for a first violation and no less than $200 or more than $500 for a second violation. A peace officer may issue a civil citation in lieu of a civil penalty.

Any individual who consumes up to a personal use quantity of marijuana in an area accessible to the public or a moving vehicle is guilty of a misdemeanor and may be fined no more than $200, imprisoned not more than 5 days, or both. Delaware defines public as:

• Sidewalks, alleys, streets, parking lots, playgrounds, stores, parks, restaurants, and other areas to which the general public is invited
• Any outdoor location within a 10-feet distance from a sidewalk, street, alley, park, parking lot, restaurant, playground, store, or any other area to which the general public is invited
• Any outdoor location within a 10-feet distance from the entrances, windows that open, exits, or ventilation intakes of any public or private building

Note that a "personal use quantity" of marijuana refers to no more than 1 ounce of marijuana or 12 grams of concentrated cannabis.

Hash And Concentrates

It is legal to possess up to 12 grams of concentrated marijuana or products containing 750 milligrams of Delta-9 THC. The penalties for higher quantities are the same for marijuana possession, as stated above.

Marijuana Paraphernalia

The State of Delaware does not penalize the use or possession of paraphernalia for the use or possession of marijuana. Also, it is legal to deliver or possess paraphernalia with the intent to deliver for the use of marijuana.

Possible Remedies For Violators Of Delaware Marijuana Laws

The following are potential remedies for marijuana law violators in Delaware:

• Diversion programs: It may be possible to enter a diversion program and avoid a criminal conviction if you face criminal charges for a first-time marijuana offense. Submitting to diversion requires a drug test, participation in treatment, community service, and a driver's license suspension. The allegations are dismissed, and there is no conviction or criminal record upon program completion and the required probation period. \ If you fail to comply with the terms of your probation after entering a guilty plea, you will be found guilty and sentenced without a trial. Whether it is preferable to accept diversion or fight the allegations depends on a number of variables, including the strength of the prosecution's case, the strength of your defenses, the potential penalties, and other variables
• Probation: Violators of marijuana laws may be placed on probation, which involves supervision by a probation officer and adherence to specific conditions, such as drug testing, counseling, or attending rehabilitation programs
• Suspended sentence: Instead of serving jail time, a judge may issue a suspended sentence, meaning an offender can avoid going to jail if they meet specific conditions. These conditions typically include not committing any further offenses during a specified probationary period
• Community service: As an alternative to fines or other penalties, a judge may order an individual to perform a specific number of hours of community service

Driving Under The Influence Of Marijuana In Delaware

Delaware prohibits driving while under the influence of drugs (DUID) or recreational substances in the system. A motorist is considered to be under the influence if the individual is unable to exercise clear judgment or reasonable care while operating a motor vehicle. Note that the fact that a driver was legally permitted to use the substance (such as medical marijuana or prescription medications) is not a defense against a charge of driving under the influence.

A first-time offense of impaired driving is punishable by up to one year in prison, a fine between $500 and $1,500, and a one-year license suspension. Some drivers may qualify for a restricted license with an ignition interlock device (IID), which provides limited driving privileges during the suspension period. The court will also require the offender to undergo an evaluation for substance abuse and adhere to all recommended remedies. Typically, a diversion program is available for first-time offenders.

Within ten years of the first conviction, a second drugged driving offense will result in 60 days to 18 months in prison, $750 to $2,500 in fines, and a license suspension of 18 months. The offender may be eligible for a restricted license after 60 days of license revocation. The court may suspend the mandatory imprisonment sentence if the defendant completes 30 days of community service and the state's DUI treatment program.

A third or subsequent conviction for DUID will be a felony, carrying prison time, license suspension, and IID restrictions.

Confiscation Of Assets In Delaware

Individuals found guilty of marijuana offenses face the potential consequence of forfeiting their assets if it is determined that the assets were employed in perpetrating the crimes. Per Section 4784 of the Delaware Code, such assets include property, raw materials, products, vehicles, paraphernalia, and money.

What is Delaware’s Cannabis History?

Marijuana became illegal in Delaware as in other states in the nation under the 1937 marijuana tax act. However, in 2011, the state took a significant stride toward cannabis legalization by passing the Delaware Medical Marijuana Act. The Act provided relief for patients suffering from certain conditions by granting them access to medical marijuana under a regulated system.

The Delaware Medical Marijuana Act experienced delays in its implementation as the state worked to create laws, licensing processes, and the infrastructure necessary to sustain a safe and regulated medicinal cannabis program. In 2015, First State Compassion Center, the state's first medical marijuana retail outlet, commenced operations, allowing patients access to legal, medical cannabis.

In 2015, Governor Markell signed a law decriminalizing marijuana possession. Possessing up to 175 grams of cannabis was considered only a misdemeanor while possessing up to 28 grams of cannabis was a civil infraction. Four years later, Governor John Carney signed legislation amending the state's criminal code, allowing persons with one cannabis misdemeanor or felony to have their criminal records expunged after 5 or 7 years, respectively.

In 2018, legislators in the state introduced HB 110, proposing to legalize recreational cannabis. While the bill failed in the statehouse later in the year, it was reintroduced in 2019 and presented for consideration by the House but failed to progress. A similar push (HB 305) to legalize adult-use cannabis was made by Representative Ed. Osienski in 2020. However, the move failed due to insufficient votes during the COVID-19 pandemic.

Also, the Delaware General Assembly enacted a law in May 2022 making recreational marijuana use legal. However, the measure was vetoed by Delaware Governor John Carney in May 2022.

In January 2023, House Bill 1 and House Bill 2 were introduced in the state House. On March 7 and 9, respectively, the House passed HB1 and HB2. On March 28, the bills were passed by the Senate and presented to the governor for signature. In April, Governor Carney issued a statement saying that both legislations would become law without his signature or veto. On April 23, 2023, recreational marijuana became legal in Delaware.

Under the new law, Delaware adults aged 21 or older can have up to 1 ounce of cannabis, 12 grams of concentrated cannabis products, or products with 750 grams of Delta-9 THC.

What are the Restrictions on Cannabis in Delaware?

The following restrictions exist on cannabis in Delaware:

• The home cultivation of cannabis plants is illegal
• Driving under the influence of cannabis is not allowed
• Consuming cannabis in public or a vehicle is prohibited and carries a penalty fine of up to $200, imprisonment for up to 5 days, or both
• Cannabis transported in a vehicle must be stored in a closed container not readily accessible to the driver or passengers
• The unlicensed sale of cannabis is illegal. Note that while cannabis has been legalized, the licensed sale of adult-use cannabis products is not expected to begin until mid-2024 at least. Therefore, persons caught selling recreational cannabis before then face legal repercussions
• It is illegal to possess more than the permitted cannabis possession limits
• Although adults of legal age (21+) may share up to the possession limit with other adults of legal age, it is illegal to “gift” weed if the “gift” is linked or advertised alongside a purchase