Delaware Code Title 16 Sec. 4761 – Illegal possession and delivery of noncontrolled prescription drugs
(a) Any person who knowingly or intentionally possesses, uses or consumes any prescription drug that is not a controlled substance but for which a prescription is required shall be guilty of an unclassified misdemeanor, unless:
(1) The possession, use or consumption of such substance was by a person who obtained the substance directly from, or pursuant to, a valid prescription or order of a licensed practitioner;
(2) The possession or transfer of such substance was for medical or scientific use or purpose by persons included in any of the following classes, or the agents or employees of such persons, for use in the usual course of their business or profession or in the performance of their official duties:
a. Pharmacists.
b. Practitioners.
c. Persons who procure controlled substances in good faith and in the course of professional practice only, by or under the supervision of pharmacists or practitioners employed by them, or for the purpose of lawful research, teaching, or testing, and not for resale.
d. Hospitals that procure controlled substances for lawful administration by practitioners, but only for use by or in the particular hospital.
e. Officers or employees of state, federal, or local governments acting in their official capacity only, or informers acting under their jurisdiction.
f. Common carriers.
g. Manufacturers, wholesalers, and distributors.
h. Law-enforcement officers for bona fide law-enforcement purposes in the course of an active criminal investigation.
(3) The possession or transfer is otherwise authorized by this chapter.
Attorney's Note
Under the Delaware Code, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class F felony | up to 3 years | |
| Class G felony | up to 2 years |
Terms Used In Delaware Code Title 16 Sec. 4761
- Administration: means the Drug Enforcement Administration, United States Department of Justice or its successor agency. See Delaware Code Title 16 Sec. 4701
- controlled substance: includes "designer drug" as defined in paragraph (10) of this section. See Delaware Code Title 16 Sec. 4701
- Drug: means (i) substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or official National Formulary or any supplement to any of them; (ii) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; (iii) substances (other than food) intended to affect the structure or any function of the body of man or animals; and (iv) substances intended for use as a component of any article specified in clause (i), (ii) or (iii) of this paragraph. See Delaware Code Title 16 Sec. 4701
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Knowingly: means a person acts knowingly with respect to any delivery, possession, use or consumption within the meaning of this chapter when the person knows or is aware of such delivery, possession, use or consumption. See Delaware Code Title 16 Sec. 4701
- Licensed practitioner: means any individual who is authorized by law to prescribe drugs in the course of professional practice or research in any state. See Delaware Code Title 16 Sec. 4701
- Person: means individual, corporation, government or governmental subdivision or agency, statutory trust, business trust, estate, trust, partnership or association, or any other legal entity. See Delaware Code Title 16 Sec. 4701
- Prescription drug: means any drug required by federal or state law or regulation to be dispensed only by or on the prescription of a practitioner licensed to prescribe drugs, or which is restricted to use by practitioners only. See Delaware Code Title 16 Sec. 4701
- State: when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof and any area subject to the legal authority of the United States of America. See Delaware Code Title 16 Sec. 4701
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(b) [Repealed.]
(c) A violation of subsection (a) of this section by a person who delivers or intends to deliver the prescription drug to another is a class G felony.
(d) A violation of subsection (a) of this section by a person who delivers or intends to deliver the prescription drug to another and an aggravating factor applies, is a class F felony.
(e) Affirmative defenses. — (1) In any prosecution under this section, it is an affirmative defense that the prescription drug was possessed by the person while transporting the prescription drug to a member of the person’s household who possessed a valid prescription for the drug, and the prescription was in the original container in which it was dispensed or packaged, a pill box, or other daily pill container.
(2) In any prosecution under this section, it is an affirmative defense that the prescription drug was possessed or consumed within the residence of the person, that a member of the person’s household possessed a valid prescription for the drug, that the possession or consumption by the person was for the purpose of treating an illness and that the drug in question was approved for the specific illness.
(f) Proof. — In any prosecution under this section, proof that a substance is a particular prescription drug may be inferred from its labeling and any representations on the substance. Proof by testimony from a scientist is not required.
63 Del. Laws, c. 445, § ?1; 67 Del. Laws, c. 130, § ?9; 67 Del. Laws, c. 384, §§ ?1, 2; 70 Del. Laws, c. 81, § ?4; 70 Del. Laws, c. 186, § ?1; 78 Del. Laws, c. 13, §§ ?41, 57; 82 Del. Laws, c. 217, § 12;