Delaware

Delaware’s medical marijuana law, Senate Bill 17, passed in 2011. Patients are permitted to possess up to 6 ounces of usable marijuana.

The law protects a citizen from arrest if the patient possesses written physician certification of a debilitating medical condition that benefits from the therapeutic effects of marijuana. A copy of the certification must be sent to the Delaware Department of Health and Social Services, which issues the patient an ID card.

Patients must be 18 or older and must suffer from a debilitating condition, defined as cancer, HIV/AIDS, Alzheimer’s posttraumatic stress disorder, Amyotrophic lateral sclerosis, or severe debilitating pain with serious side effects, which hasn’t responded to other treatments for more than three months.

The law does not permit caregivers or patients to grow marijuana. However, distribution by non-profit compassion centers is permitted.

At the start of 2013, the Delaware Department of Health and Social Services had finalized regulations for the medical marijuana program and had begun taking applications for medical marijuana identification cards. However, the draft regulations did not contain rules for dispensaries.

Gov. Jack Markell suspended implementation of the state’s dispensary program after receiving a letter from Charles M. Oberly III, U.S. Attorney for Delaware. The letter detailed possible federal enforcement action and indicated state workers could face prosecution under federal law.

Thus Delaware is among a growing number of states where such legal limbo provides a means for patients to legally possess medical marijuana but no means for legal purchase, sale or cultivation. Qualifying patients should enjoy affirmative defense if accused of illegal possession but could be forced to prove it in court and thus are not protected from arrest or prosecution. Likewise, there is no protection for cultivation.

Our Los Angeles medical marijuana lawyers continue to see the impact of federal enforcement action throughout Southern California. Since 2009, the Justice Department has raided more than 170 medical marijuana operations – many of those in the Los Angeles area.

The Obama Administration took office with a directive not to make medical marijuana prosecution a priority in states where it had been legalized. However, federal authorities have increasingly targeted growers and distributors, often without regard to whether they are operating legally under state law. Additionally, the federal government has used the Internal Revenue Service to pressure medical marijuana operators and has applied pressure to banks and landlords, making it harder to establish a legitimate marijuana enterprise.

Marijuana is classified as a Schedule I narcotic under the Controlled Substances Act of 1970, which makes it a dangerous, addictive drug with no medical value as far as the federal government is concerned. Yet federal enforcement action is uneven and unpredictable. Perhaps the U.S. Attorney in Delaware is thwarting the will of the people of the state simply because he has the power and the will to do so. While in other states, the U.S. Attorney’s Office has taken a more passive approach or brought different tactics to enforcement efforts.

Medical marijuana efforts still stalled, Delaware Online, March 8, 2013.