 |
The Proposal |
|
|
The Proposal |
Recommended Changes to Delaware’s Law
on Drug Paraphernalia
1. Make the Title of Section “Drug Paraphernalia”.
2. From the U.S. Code, Section 863, include the following wording:
“In general, it is unlawful for any person to sell or offer for sale drug
paraphernalia.”
3. Use the Definitions Section from the Model Drug Paraphernalia Act
“The term ‘Drug Paraphernalia’ means all equipment, products and
materials of any kind which are used, intended for use, or designed for use, in planting,
propagating, cultivating, growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging, repackaging, storing,
containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the
human body a controlled substance in violation of the Uniform Controlled Substances Act of
Delaware. It includes, but is not limited to:
(1) Kits used, intended for use, or designed for use in planting,
propagating, cultivating, growing or harvesting of any species of plant which is a
controlled substance or from which a controlled substance can be derived;
(2) Kits used, intended for use, or designed for use in manufacturing,
compounding, converting, producing, processing, or preparing controlled substances;
(3) Isomerization devices used, intended for use, or designed for use in
increasing the potency of any species of plant which is a controlled substance;
(4) Testing equipment used, intended for use, or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of controlled
substances;
(5) Scales and balances used, intended for use, or designed for use in
weighing or measuring controlled substances;
(6) Diluents and adulterants, such as quinine hydrochloride, mannitol,
mannite, dextrose and lactose, used, intended for use, or designed for use in cutting
controlled substances;
(7) Separation gins and sifters used, intended for use, or designed for
use in removing twigs and seeds from, or otherwise cleaning or
refining marihuana;
(8) Blenders, bowls, containers, spoons and mixing devices used,
intended for use, for designed for use in compounding controlled substances;
(9) Capsules, balloons, envelopes and other containers used, intended
for use, or designed for use in packaging small quantities of controlled substances;
(10) Containers and other objects used, intended for use, or designed for use
in storing or concealing controlled substances;
(11) Hypodermic syringes, needles and other objects used, intended for use, or
designed for use in parenterally injecting controlled substances into the human body;
(12) Objects used, intended for use, or designed for use in ingesting,
inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the
human body, such as:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with
or without screens, permanent screens, hashish
heads, or punctured metal bowls;
(b) Water pipes;
(c) Carburetion tubes and devices;
(d) Smoking and carburetion masks;
(e) Roach clips: meaning objects used to hold burning material, such as a
marihuana cigarette, that has become too small or
too short to be held in the hand;
(f) Miniature cocaine spoons, and cocaine vials;
(g) Chamber pipes;
(h) Carburetor pipes;
(i) Electric pipes;
(j) Air-driven pipes;
(k) Chillums;
(l) Bongs;
(m) Ice pipes or chillers”
5. Keep existing section 4775 from Delaware’s existing law, “Consideration of
Factors” which states:
“ In determining whether or not an object is drug paraphernalia, a court or other
authority shall consider, in addition to all other logically-relevant factors, the
following:
(1) Statements by the owner or by anyone in control of the object, concerning its use;
(2) The proximity of the object, in time and space, to a direct violation of this chapter;
(3) The proximity of the object to controlled substance;
(4) The existence of any residue of a controlled substance on the object;
(5) Direct or circumstantial evidence of the intent of an owner, or of anyone in
control of the object, to deliver it to persons whom the owner knows, or should reasonably
know, intended to use the object to facilitate a violation of this chapter. The innocence
of an owner, or of anyone in control of the object, as to a direct violation of this
chapter shall not prevent a finding that the object is intended for use, or designed for
use, as drug paraphernalia;
NOTE: the words “ sell, offer for sale or” should be placed before the word deliver in the second line of clause 5 above.
(6) Instructions (oral or written) provided with the object;
(7) Descriptive materials accompanying the object which explain or depict its use;
(8) National and local advertising concerning its use;
(9) The manner in which the object is displayed for sale;
(10) Whether or not the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor of tobacco products;
(11) Direct or circumstantial evidence of the ratio of sales of the suspect object to the total sales of the business enterprise;
(12) The existence and scope of legitimate uses for the object in the community; and
(13) Expert testimony concerning its use.
6. Add an Exemptions Section based on The U.S. Code as follows:
“Exemptions.
This section shall not apply to :
(1) any person authorized by local, State, or Federal law to manufacture, possess,
or distribute such items; or
(2) any item that, in the normal lawful course of business, is imported, exported,
transported, or sold through the mail or by any other means, and traditionally intended
for use with tobacco produces, including any pipe, paper, or accessory.”
7. Put all the penalties from the existing code in to a separate section. It would
read:
“Penalties.
(1) Possession.
Any person who uses or possesses with intent to use drug paraphernalia is guilty of a
class A misdemeanor.
(2) Manufacture and sale
Any person who delivers, possesses with the intent to deliver, conveys, offers for sale,
or manufactures with the intent to deliver drug paraphernalia, knowing, or under the
circumstances where one reasonably should know that it is drug paraphernalia is guilty of
a class G felony.
(3) Delivery to a minor
Any person 18 years of age or older who violates (section symbol) 4771 of this title by
delivering or selling drug paraphernalia to a person under 18 years of age is guilty of a
class E felony.
(4) Advertisement
It is unlawful for any person to place in a newspaper, magazine, handbill or other
publication any advertisement, knowing or under circumstances where one reasonably should
know, that the purpose of the advertisement, in whole or in part, is to promote the sale
of objects designed or intended for use as drug paraphernalia. Any person who violates
this clause is guilty of an unclassified misdemeanor.
Project Citizen requires us to consider whether our proposed law would violate the Constitution. These are our answers to the check list questions:
1. Government is not allowed to interfere with a person’s freedom of belief. Our proposed policy does not violate this limit on the power of the government.
Present law says that you can’t use drugs. It’s life threatening. We don’t think a belief should support drug use.
2. Government is not allowed to place unreasonable and unfair limits on a person’s right to express him or herself in speech, writing, or by other means. Our proposed policy does not violate this limit on the power of government.
Our proposed law says that it is unlawful to
advertise drug paraphernalia. These items are dangerous and we believe
government can limit speech in this case.
3. Government is not allowed to take a person’s life, liberty, or
property without giving that person a fair hearing in a court of law or before another
authorized agency of government. Our proposed policy does not violate this limit on the
power of government.
The property (drug paraphernalia) is illegal, but
they have to prove you sold it. You would have a fair hearing in court.
4. Government is not allowed to invade the privacy of a person’s home without a very good reason for doing so. Our proposed policy does not violate this limit on the power of government.
Police would still have to follow limits. For example, they would need a warrant to search the store.
5. Government is not allowed to make laws that unreasonably or unfairly discriminate against people on the basis of race, religion, age, ethnic group (national origin) or gender. Our proposed policy may violate age discrimination.
Present law and our law allow greater
penalties if you sell or give drug paraphernalia to a minor. We think this is good
because it protects young people.
Summary Statement
We don’t believe anyone has a right to sell drugs or drug paraphernalia.
Back to the home page