Delaware

Is Weed Legal in Delaware?

On July 1, 2011, the Delaware Medical Marijuana Act took effect, making Delaware the 17^th state to legalize the use and distribution of medical cannabis. Individuals with qualifying medical conditions are allowed to use marijuana bought from one of Delaware’s compassion centers – they may also possess up to six ounces of medical cannabis at a time. Since its inception, Delaware’s program has worked to be more inclusive and provide better service to those that would benefit from medical cannabis. 

While Delaware has yet to legalize recreational marijuana use, there has been constant pressure by advocates to get new bills in front of legislation. Covid-19 has currently stopped the legislative session in Delaware for the remainder of 2020, but new a new legalization bill (HB 110) is on the table for the 2021 session.

Buying Marijuana in Delaware

Currently, legal medical marijuana sales are restricted to six compassion centers throughout the state. Only patients that have been approved by the Delaware Office of Medical Marijuana (OMM) and hold a Medical Marijuana ID Card may purchase cannabis from a compassion center. Legal caretakers may also apply to obtain the right to purchase marijuana for a qualified patient.

Buying Marijuana at a Retail Location

There is a compassion center in Lewes, Smyrna, Rehoboth Beach, and Newark, and there are two available in Wilmington. To purchase cannabis from any of these six locations, a Delaware citizen must possess (and have present upon purchase) a state-issued medical marijuana ID card and government-issued identification. Patients must also designate a specific dispensary to go to, and are unable to purchase from others. Additionally, Delaware compassion centers are only able to accept payment via cash or debit card.

Using a Marijuana Delivery Service

As of April 2020, in response to Covid-19 health concerns and logistical considerations, Delaware has allowed medical cannabis to be delivered to qualifying patients and caregivers. While this has been in response to the health crisis, the state is currently looking to finalize regulations that would permanently allow the delivery of medical marijuana. Currently, only Columbia Care has enacted a delivery service (they own and operate three of the six compassion centers), but others may soon follow. To have Columbia Care deliver your medical marijuana purchase, you must first submit a delivery request, have previously registered with their staff, be a medical marijuana cardholder, and live within 30-miles of any of their dispensaries (Wilmington, Smyrna, and Rehoboth Beach).

Store Hours

There are six compassion centers throughout Delaware and only three different distributors. First State Compassion, Columbia Care, and Fresh Cannabis all have differing hours and locations, which you can find below.

First State Compassion
Located: Wilmington & Lewes
Hours: Monday-Friday: 10:00am to 6:30pm; Saturday: 10:00am to 4:00pm

Columbia Care
Located: Smyrna, Wilmington, & Rehoboth Beach
Hours: Monday-Friday: 10:00am to 6:00pm; Saturday: 9:00am to 4:00pm

Fresh Cannabis
Located: Newark
Hours: Monday-Sunday: 10:00am to 6:00pm

Especially during Covid-19 and subsequent lockdowns, these hours are subject to change. We suggest calling ahead and double-checking hours before planning a visit.

Purchasing Restrictions

Registered patients and caregivers can purchase up to three ounces of “usable marijuana” within two weeks. Since this means a patient can purchase up to six ounces per month, the possession limit for registered individuals is set at six ounces. Because there are currently no laws allowing the use of recreational marijuana, anyone without a medical marijuana ID card is not permitted to purchase any amount of marijuana from any of the six compassion centers. Additionally, during Covid-19, certain stores may have specific limits based on supply and demand (First State Compassion currently has a 14-gram flower, 3 cartridges, and 4 pre-roll limits).

Available Products

Each Compassion Center offers something a little different, but First State Compassion and Columbia Care centers (five of the six) have limited THC-heavy products – most of their flower, edibles, and tinctures are CBD-dominant (or simply CBD exclusive). These stores might not have a lot of heavy-hitting products, but they do have a wide variety of consumables, from flower and pre-rolls to salves, edibles, and concentrates. If you’re looking for more flower and higher THC content, Fresh Cannabis in Newark is the place to go. They have a variety of flower strains (ranging from nominal to heavy THC content), pre-rolls, vapes, and accessories; however, they do not offer the same variety of concentrates, edibles, and salves as the other stores. Please note that, during Covid-19, these stores may have a shortage of product.

Taxes on Marijuana in Delaware

Taxes on Recreational Marijuana in Delaware

Because Delaware has yet to legalize the recreational use of cannabis, there are currently no related taxes. There are, however, groups working to get legalization bills in front of the state legislator. Once the legislation has changed, we will update this section to reflect Delaware’s tax codes.

Taxes on Medical Marijuana in Delaware

Delaware may not have passed legalization on recreational marijuana use, but they have some incredible tax laws. The state operates without value-added taxes, meaning that business transactions and inventories are not taxed. There’s no state or city tax, no sales tax, and no additional excise tax. So, for the benefit of any consumer, the total price of any product (including marijuana) is exactly the amount listed.

Possession

Delaware has yet to legalize the recreational use of marijuana, but it has been decriminalized. When HB 39 passed in 2015, Delaware citizens no longer had to worry about jail time for being caught with small amounts of marijuana; additionally, the maximum fine was substantially decreased. However, this does not mean it is legal or that possession and use of non-medical marijuana in Delaware are encouraged. Below are the state’s current penalties and fines for possession and illegal distribution of marijuana:

Possession:

• Up to 1 ounce: charged as a civil penalty with no jail time and a max fine of $100.*
• 1 to 6 ounces: charged as a misdemeanor with up to three months in jail and a max fine of $575.
• More than 6 ounces: charged as a felony with jail time between 3 to 25 years (depending on the amount) and an undisclosed max fine**

Distribution & Sale:

• Less than 6 ounces: charged as a felony with up to eight years in jail and an undisclosed fine.**
• 6 ounces to 9 pounds: changed as a felony with up to 15 years in prison and an undisclosed fine.**
• More than 9 pounds: charged as a felony with up to 25 years in prison and an undisclosed fine.**

Additionally, if you are caught with cannabis paraphernalia (and do not have a medical cannabis ID), you will receive a civil penalty and max fine of $100. If you are caught using paraphernalia in public, it is a misdemeanor with up to six months in jail and a max fine of $1,000. If you are caught selling paraphernalia, it is a felony with up to two years in prison and an undisclosed fine.**

*Even if you possess less than 1 ounce but are caught using marijuana in public, you may be charged with an unclassified misdemeanor, up to five days in jail, and a max fine of $200.
**Fines are decided at the discretion of the presiding court.

Using Marijuana in Delaware

Since only medical cannabis is legal in Delaware, it is illegal to use cannabis for recreational use anywhere in the state – if caught, you will be subjected to the penalties detailed in the previous section. However, even if you possess a medical marijuana ID, that does not permit you to use marijuana everywhere throughout the state. Below are the places you can and cannot legally use medical cannabis in Delaware:

Areas in Delaware that DO NOT allow the use of marijuana:

• Public forms of transportation
• School busses
• School grounds
• Correctional facilities
• Health care facilities funded or operated by the government
• Private land or residences where the owner has not given consent

Areas in Delaware that DO allow the use of marijuana:

• Personal residence (unless renting and the lease states otherwise)
• Grounds of a personal residence (i.e. backyard)

Please note that it is illegal to smoke marijuana within any type of transportation or public place. The use of edibles, salves, and concentrates is permitted, so long as it is not in any of the areas listed above.

Smoking on Federal Lands

Because marijuana (medical and recreational) is federally illegal, its use is not allowed on federal lands. Even in states where it is fully legalized, such as Colorado, it is illegal to use marijuana on federal grounds. This primarily concerns national parks and forests. In Delaware, it is illegal to use any sort of cannabis in places like the First State National Historic Park, Chesapeake Bay, and the Captain John Smith Chesapeake National Historic Trail. If you are caught possessing marijuana on federal land, even if you have a medical marijuana ID card, you will be subject to federal law.

Medical Marijuana in Delaware

With the Medical Marijuana Act in July 2011, Delaware became the 17^th state to legalize the distribution and use of medical marijuana. Compared to other state programs, Delaware’s is fairly limited, but it does allow for a lot of different conditions to meet the program’s requirements.

The conditions that qualify an individual to participate in Delaware’s medical marijuana program are as follows: any terminal illness, cancer, HIV/AIDS, Lou Gehrig’s Disease (ALS), Decompensated Cirrhosis, Alzheimer’s PTSK, Glaucoma, Autism with aggressive behavior, and debilitating migraines. Additionally, individuals may qualify if they suffer from chronic or debilitating conditions that cause Cachexia or Wasting Syndrome, intractable nausea, muscle spasms (including but not limited to MS), seizures, or any sort of debilitating pain that hasn’t been alleviated by other forms of treatment. If none of these conditions describe your situation but you want to apply for a medical cannabis ID card, citizens are provided the means to petition the inclusion of additional medical conditions through the program’s website.

How to Get a Medical Marijuana Card in Delaware

Only Delaware citizens may apply for the Delaware Medical Marijuana program, and you must have one of the qualifying medical conditions or be the caretaker of someone who is already in the program. The steps you must take to apply for a medical marijuana card have been streamlined by the state to provide easy-access and are as follows:

1. Fill out the patient section of the online application, found on the Medical Marijuana Program website
2. Have your physician fill out the Physician Certification section of the application
3. Sign the Release of Medical Information Form (part of the application)
4. Include a photocopy of your Delaware driver’s license or state-issued identification
5. Pay the $50 non-refundable application fee (or include a Low-Income Charge Request form)

You may submit the application and subsequent documents via the website, or you may print out the information and mail the documents to this address:

Delaware Division of Public Health
Medical Marijuana Program
417 Federal St., Suite 140
Dover, DE 19901

Once received, the Office of Medical Marijuana will approve or deny your application within 45 calendar days. Once issued, a Delaware medical marijuana ID card is valid for one year – it must then be renewed (this process is available within 90 days before the card’s expiration date).

Out of State Medical Cards

Unfortunately, if you are visiting and have an out of state medical card, you are unable to purchase new cannabis from any of the Delaware compassion centers. However, Delaware does allow visitors with valid out-of-state marijuana ID cards to legally use medical marijuana, so long as they follow Delaware’s possession limits and use cannabis in sanctioned locations. While it is technically illegal to transport marijuana across state lines, to remain on the safe side, it is still suggested to store your medical cannabis in the trunk or glove compartment while traveling, that way it is likely to remain a non-issue.

How to Transport Marijuana in Delaware

Transporting Marijuana in Delaware

First and foremost, regardless of whether you’re driving or just a passenger, it is illegal to use marijuana while in a moving vehicle. Secondly, transporting marijuana in Delaware is only legal if you are a medical cannabis patient that has a medical ID card issued by the state. If you are transporting medical marijuana, you are allowed to possess up to the legal limit, which is six ounces. While transporting marijuana, it is best to keep it in a sealed container in either the trunk or glove compartment.

Driving While Under the Influence of Marijuana

There are two types of DUIs given in Delaware: driving under the influence of drugs and driving while any amount of illicit or recreational drug is in your system. Driving while under the influence of drugs is directly related to an individual’s mental and physical capacity while driving. Even if someone has a medical marijuana ID card, they can still be convicted of a DUI if they are caught impaired while operating a vehicle.

The second type of DUI is only for those not registered with the Delaware Medical Marijuana Program. Anyone that has used marijuana recently enough to still have cannabis metabolites in their system within four hours of driving can receive a DUI. Since medical marijuana patients are allowed to use cannabis, they are permitted to drive so long as they are not under the influence of the drug.

Driving Across State Lines with Marijuana

Delaware and all three surrounding states – Maryland, Pennsylvania, and New Jersey – have various medical cannabis programs. Regardless, it is technically illegal to travel across state borders with marijuana. Because it is still classified as a federally illegal, Schedule I drug, transporting any type of cannabis across state lines, regardless of state legality, is illegal. Because of this, we can only advise that you do not travel out of state with marijuana you have purchased in Delaware.

Growing Marijuana in Delaware

It is currently illegal to grow your own cannabis in Delaware (this is true of both recreational and medicinal marijuana). However, along with recent activism toward legalizing recreational use, there has been a lot of talk around allowing medical marijuana patients to cultivate their own plants. House Bill 243 was given to the legislature in 2020 and has been widely supported; however, it has currently been tabled due to Covid-19 and the end of the legislative season. If passed in 2021, HB 243 (known as The Delaware Patient Right to Grow Act) will allow patients to grow up to six marijuana plants at a time. We will continue to update this section as Delaware progresses toward more inclusive marijuana regulation.

Resources

• https://www.thirdway.org/infographic/timeline-of-state-marijuana-legalization-laws
• https://col-care.com/
• https://www.firststatecompassion.com/
• https://freshdelaware.com/
• https://norml.org/laws/medical-laws/delaware-medical-marijuana-law
• https://dhss.delaware.gov/dhss/dph/hsp/medmarfaq.html#genq
• https://gordonlawltd.com/cannabis-taxes-by-states/
• https://norml.org/laws/delaware-penalties/
• https://www.mpp.org/states/delaware/
• https://www.investopedia.com/articles/personal-finance/092515/4-reasons-why-delaware-considered-tax-shelter.asp
• https://www.nps.gov/state/de/index.htm
• https://www.delawareonline.com/story/news/local/2020/01/29/delaware-marijuana-legalization-lawmakers-eye-rule-revisions/4615907002/
• https://legis.delaware.gov/BillDetail?legislationId=47792