Possession of a Controlled Substance in Delaware

Although every state regulates and controls the possession of controlled dangerous substances (CDS), each differs in its exact definition of CDS and the penalties for possession. Delaware classifies not only well-known drugs like marijuana, heroin and cocaine as controlled substances, but also well-known prescription medication.

Certain drugs, like codeine, may be legally possessed with a valid prescription.

How Delaware Classifies CDS

Delaware divides its CDS into five “schedules,” according to their likelihood for abuse.

• Schedule I drugs (such as heroine) are those that have a high potential for abuse and have no accepted medical use.
• Schedule II drugs (such as opium and methadone) have a high potential for abuse, have an accepted medical use, and have the potential for severe psychic and physical dependence. .
• Schedule III drugs (such as anabolic steroids) have a potential for abuse less than Schedule I or II drugs, have an accepted medical use, and may lead to low or moderate physical dependence and high psychological dependence.
• Schedule IV drugs (such as diazepam and zolpidem) have a lower potential for abuse than Schedule III drugs, have an acceptable medical use, and may lead to limited psychological and physical dependence in relation to Schedule III drugs.
• Schedule V drugs have the lowest potential for abuse relative to Schedule IV CDS, have a currently accepted medical use, and have a limited risk of physical or psychological dependence relative to Schedule IV CDS. Schedule V drugs include medicines that contain very small amounts of specified narcotic drugs. (Delaware Uniformed Controlled Substance Act Sections 4711 to 4722.)

This article concerns possession of CDS for personal use only. Separate punishments apply to the sale of CDS. For information about the sale of CDS, see Sale of a Controlled Substance in Delaware.

Division of CDS Possession Crimes

All CDS possession for personal use crimes are misdemeanors. Misdemeanor crimes are less serious than felonies. Delaware divides possession of CDS misdemeanors into three categories: Class A, Class B, or unclassified, depending on the substance involved, and whether there were any aggravating factors.

Class A misdemeanors. Class A misdemeanors are punishable by up to one year of incarceration, a fine of up to $2,300, restitution, or other penalties deemed appropriate by the court.

Class B misdemeanors. Class B misdemeanors are punishable by up to six months of incarceration, a fine of up to $1,150, restitution, or other penalties deemed appropriate by the court.

Unclassified misdemeanors. Unclassified misdemeanors are punished by the terms described in the underlying law. However, if the law does not describe a penalty, the court may sentence a defendant to up to 30 days of incarceration, a fine of up to $575, restitution, or other penalties deemed appropriate by the court.

(Delaware Classification of Offenses Section 4202.)

Aggravating Factors

Delaware imposes harsher penalties for CDS crimes that include aggravating factors. An aggravating factor exists if:

• The offense was committed within a protected school zone, park or recreation area, or place of worship.
• The offense occurred in a vehicle.
• The crime involved a person under the age of 18, either as an accomplice or the intended recipient of the CDS, and the defendant was an adult more than four years older than the minor.
• The defendant, either during or immediately after the crime, attempted to prevent the arrest or detention with the use of force or violence.
• The defendant, either during or immediately after the crime, tried to flee in a vehicle while the officer attempted to arrest or detain the defendant.

(Delaware Controlled Substance Act Section 4751A.)

Possession of Marijuana

The possession of marijuana for personal use is either a Class B or unclassified misdemeanor, depending on whether an aggravating factor was involved.

• The intentional possession, use, or consumption of marijuana with an aggravating factor is a Class B misdemeanor.
• The intentional possession, use, or consumption of marijuana without an aggravating factor is an unclassified misdemeanor punishable by a period of up to three months of incarceration, and a fine of up to $575.

(Delaware Controlled Substance Act Section 4764.)

For more information on how Delaware regulates marijuana, see Delaware Marijuana Possession Laws, Driving Under the Influence of Marijuana in Delaware, and Delaware Medical Marijuana Laws.

Illegal Possession of Non-CDS Prescription Medication

The intentional possession, use, or consumption of a non-CDS prescription medication without a valid prescription is an unclassified misdemeanor, punishable as explained above.

(Delaware Controlled Substance Act Section 4761.)

Possession of Controlled Substances Other That Marijuana

The possession of a CDS for personal use, other than marijuana, is either a Class A or Class B misdemeanor, depending on whether an aggravating factor was involved.

• The intentional possession, use, or consumption of CDS with an aggravating factor is a Class A misdemeanor, punished as explained above.
• The intentional possession, use, or consumption of CDS without an aggravating factor is a Class B misdemeanor, punished as explained above.

(Delaware Controlled Substance Act Section 4763.)

First Offenders Controlled Substances Diversion Program

Defendants who have no prior CDS convictions may be eligible for enrollment in a drug prevention program, in lieu of a conviction. For more information on whether you qualify for Delaware’s first offender program, you should review Delaware Controlled Substance Act Section 4767.

Talk To An Attorney

A conviction for possession has long-term consequences. You should seek the advise of an attorney who is experienced in CDS defense to review your case, discuss the charges filed against you, and review the options available to you.