Delaware Marijuana Laws

Patience is a virtue, one that Delaware residents who sought legal access to recreational marijuana needed. Their long wait took a big step toward fulfillment with the passing of House Bill 1 (HB 1) and House Bill 2 (HB 2) on Apr. 23, 2023. While Gov. John Carney was not for legalization, he allowed the bills to pass without his signature or a veto. The Delaware Marijuana Control Act made Delaware the 22nd state to legalize cannabis.

What does all that mean? HB 1 allows people over 21 to possess up to 1 ounce of marijuana for personal use. HB 2 will tax and regulate cannabis sales in the new marijuana industry. Minors (under 21) still face the possibility of civil and criminal penalties for marijuana possession.

The state is going through the process of establishing rules of operation and determining THC limits, licensing fees, and requirements for adult-use recreational dispensaries. Medical marijuana patients continue to enjoy access to cannabis.

With applications for new dispensaries pushed back until at least the fall of 2024, legal sales for recreational use won't begin immediately. Those seeking marijuana to address health issues should become aware of how the state medical marijuana program works in Delaware.

This article will cover these new laws and discuss how penalties for Delaware marijuana offenses have changed. Read on to learn more about Delaware cannabis laws.

Understanding Delaware Marijuana Laws

In May 2011, the Delaware Medical Marijuana Act became law, allowing and regulating the use of medical marijuana in the state. The Office of Medical Marijuana (OMM) will operate the program.

Medical marijuana patients must apply via the OMM on the Delaware Health and Social Services site. Successful applicants will get an ID card and be allowed to buy medical cannabis products from Delaware Medical Marijuana Compassion Centers.

To be eligible for medical cannabis use, a patient must have a written certification from their physician stating that marijuana would offer relief from a debilitating medical condition. Some of these conditions include:

  • Multiple sclerosis
  • Amyotrophic lateral sclerosis (ALS)
  • HIV/AIDS
  • PTSD
  • Agitation of Alzheimer's disease
  • Autism with aggressive behavior
  • Glaucoma
  • Cancer
  • Decompensated cirrhosis

This is not an exhaustive list. Doctors can also argue for patients with terminal conditions.

Approved medical cannabis patients can buy up to 3 ounces of marijuana or its equivalent in other forms, such as edibles, every 14 days. They can buy up to 6 ounces per month.

On Mar. 28, 2024, the Delaware General Assembly passed HB 285, a bill to enhance medical marijuana use. Some of the changes HB 285 would make to the existing Delaware Medical Marijuana Act include:

  • Allowing doctors to decide if their patients need medical marijuana instead of having to have a certain condition
  • Allowing those age 65 and older to have access to medical marijuana by choice
  • Increasing the viability of ID cards from one year to two or three years
  • Allowing those with terminal illnesses access to medical cannabis until they die

Carney signed HB 285, which became law in May 2024.

Delaware Marijuana Statutes (Laws)

In January 2015, a Delaware marijuana decriminalization law removed the misdemeanor penalties for adult possession of small quantities of marijuana. Delawareans caught with an ounce or less of marijuana face only civil fines and not a criminal record.

With the passage of HB 1 in 2023, possession of a personal use quantity of up to one ounce no longer results in a fine. Keep in mind that while state laws have loosened a bit, marijuana is still a Schedule I drug at the federal level. This means you risk facing a violation of federal law if you get caught with cannabis on federal property, such as First State National Historical Park.

SB 112, which took effect on Jan. 1, 2022, was the first part of a Clean Slate program that enacted the expungement of — besides certain other charges — convictions for possession of marijuana. After Aug. 1, 2024, every person eligible for mandatory expungement is also eligible for Clean Slate.

While some states allow adult-use recreational marijuana users to grow a small number of cannabis plants for personal use, Delaware is not one of them as of May 2024. This ban applies to medical cannabis patients as well.

Delaware is still working out its state marijuana laws in 2024. Still, some of the penalties you'll face for cannabis-related crimes are in the table below.

Relevant Delaware marijuana laws

Delaware Code
Title 4, Alcoholic Liquors and MarijuanaChapter 13 — The Delaware Marijuana Control Act

Title 16, Health and Safety Chapter 47 — The Uniform Controlled Substances Act

Chapter 49A — The Delaware Medical Marijuana Act

Is marijuana legal in Delaware? Yes, in certain defined circumstances. Delaware has a medical marijuana program and recently legalized possession of one ounce or less (personal use quantity) for those 21 and older.
Illegal marijuana possession penalties
  • One ounce or less for those 21 and older: No penalty
  • One ounce or less for those under 21: 1) First offense: Civil penalty of $100, 2) Second offense: Civil penalty of $200-$500, 3) Third offense: Unclassified misdemeanor and mandatory $100 fine
  • Use or consumption of personal use amount in public or a moving vehicle: Unclassified misdemeanor, fine of up to $200, up to five days in jail, or both
  • Over an ounce (or amount not considered personal use by definition): Unclassified misdemeanor, fine of up to $575, up to three months in jail, or both.
  • One ounce to 175 grams: unclassified misdemeanor with penalties of up to three months in jail and a $575 fine (aggravating factors can elevate it)
  • 175 grams or more: felony punishable by up to two years imprisonment
  • 1,500 grams or more: felony punishable by up to five years imprisonment for simple possession and up to 15 years for possession with intent to distribute
  • 5 kilograms (5,000 grams) or more: felony punishable by at least two years and up to 25 years imprisonment

Fines for felonies are at the discretion of the court.

Is personal cultivation permitted?

No. It's a criminal offense for anyone but those with cultivation licenses to grow cannabis plants in Delaware.

Trafficking penalties
  • Sale or distribution of less than 1,500 grams: felony punishable by up to eight years imprisonment
  • 1,500 grams or more: felony punishable by up to 15 years imprisonment
  • 5 kilograms or more: felony punishable by at least two years and up to 25 years imprisonment.

Fines for felonies are at the discretion of the court.

Note: State laws are in constant flux — contact a Delaware criminal defense attorney or conduct your own legal research to verify the state law(s) you are researching.

Related Resources for Marijuana Laws:

Facing a Marijuana Charge in Delaware? Speak to an Attorney

With the state still determining regulations, there's always the danger of violating a marijuana law and running afoul of law enforcement in Delaware. While it'll be easier to buy marijuana products once retail sales begin, you may still face a situation where you need the legal advice of a Delaware criminal defense attorney.

The new laws establishing marijuana sales might confuse you. Neighboring states like New Jersey or New York may not have the same laws as Delaware. So, having a sharp legal mind on your side can make a big difference, even if it's your first offense for the use of marijuana.

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