Skip to content

Possession of a Controlled Substance

Every state in the US has their share of drug-related crimes or drug law violations and the state of Delaware is no exception. There are laws at both the federal and state level that strictly prohibit the manufacture, possession, and sale of specific controlled substances or CDS (controlled dangerous substances). However, every state differs in the way they define CDS and the penalties that are imposed for possession charges.

Delaware classifies certain drugs as controlled substances, the more common of which are cocaine and crack cocaine, heroin, marijuana, and methamphetamine. However, the state also classifies certain prescription medications as CDS. For instance, codeine which is commonly found in certain analgesics (painkillers) and cough syrups cannot be possessed or used without a legal prescription.

Illegality vs. Legality

A drug’s legality is determined in the way that it is used and/or what a person is using them for. For instance, under prescribed and supervised conditions, ADD/ADHD is treated with amphetamines. Furthermore, anxiety is treated with barbiturates and cancer-induced nausea is treated with marijuana. However, these substances can be potentially dangerous when they are being used in non-prescribed and unsupervised fashion.

How Delaware Classifies CDS

The state of Delaware classifies controlled substances in different schedules similar to what was defined in the Controlled Substances Act of 1970 which was signed into law by then President Nixon. These schedules are based on the likelihood for abuse in each category with Schedule I having the highest potential and Schedule V having the lowest:

Schedule I includes substances such as GHB, Heroin, Khat, LSD, Marijuana, MDMA (“ecstasy”), Mescaline, Peyote, Psilocybin, and Quaaludes. These drugs and substances are medically approved for treatment purposes and have the highest potential for abuse. Additionally, there are no significant safety standards for these substances, even under medical supervision.

Schedule II includes a lengthy list of drugs, prescription medications, and a variety of other substances including Adderall, amphetamines, cocaine, hydrocodone, methadone, morphine, opium, oxycodone, and PCP (just to name a few). Some of these substances can be used under medical supervision, but many must be used with severe restrictions. These substances have a high potential for abuse and the potential for severe mental and physical dependence.

Schedule III includes medications and substances such as anabolic steroids, codeine or hydrocodone when compounded with ibuprofen, and Ketamine. Although Schedule III substances are approved for medical use, they have the potential for moderate to low physical dependence but a higher potential for psychological dependence.

Schedule IV includes some of the more common benzodiazepines such as Ambien, Klonopin, Librium, Lunesta, Rohypnol, Valium, and Xanax as well as Soma and Tramadol. These have the potential for limited mental and physical dependence that is lower than the Schedule III substances mentioned above. However, they have been approved for medical use.

Schedule V includes a variety of anticonvulsants, centrally-acting anti-diarrheals, and cough suppressants as well as substances that contain small amounts of narcotics. These have been approved for medical use, have the lowest potential for abuse, and lead to a limited risk of mental and physical dependence.

Division of CDS Possession Crimes

Crimes involving the possession of CDS for personal use carry less serious charges than felonies. According to Delaware Classification of Offenses Section 4202, misdemeanors are categorized as follows:

Class A misdemeanors – punishable by fines up to $2,300, incarceration for up to 1 year, and a variety of other penalties that the court deems as appropriate.

Class B misdemeanors – punishable by fines of up to $1,150, incarceration for up to 6 months, and any other penalties that the court deems as appropriate.

Unclassified misdemeanors – these crimes are punishable under the terms of the above law. However, the court can impose fines of up to $575, up to 30 days in jail, restitution, and other penalties that the court deems as appropriate – provided the law does not describe any specific penalties.

Aggravating Factors

If there are certain “aggravating factors” are present in drug-related crimes, harsher penalties will be imposed. Under Delaware Controlled Substance Act Section 4751A aggravating factors are present when:

• the crime involved a minor under 18 years of age (as an accomplice or as the recipient of the drug or substance) while the defendant was more than 4 years older than the accomplice or recipient.
• the crime was committed in a protected park, place of worship, recreation area, or school zone.
• the crime was committed inside a vehicle.

Additionally, aggravating factors are present if:

• during or immediately after the commission of the crime, the defendant used force or violence in an attempt to prevent an arrest or detention from occurring.
• during or immediately after the defendant committed the crime, and while an officer of the law was attempting to make to arrest or detain them, they tried escaping in a vehicle.

Possession of Marijuana, CDS Other Than Marijuana, and Non-CDS Medications

Under Delaware Controlled Substance Act Section 4764, possessing marijuana for personal use is either a Class B misdemeanor (aggravating factors were present) or an Unclassified misdemeanor (aggravating factors were not present).

The consumption, possession, and use of CDS other than marijuana are covered under Delaware Controlled Substance Act Section 4763. It is a Class A misdemeanor when aggravating factors are present and a Class B misdemeanor when they are not.

Finally, the consumption, possession, or use of non-CDS prescription medications is covered under Delaware Controlled Substance Act Section 4761. If a person does not possess a valid prescription for these medications, they will be charged with an unclassified misdemeanor.

First Offenders Controlled Substances Diversion Program

An individual may be eligible for enrollment in the CDS Diversion Program provided they have no prior convictions involving any controlled substance. More information is available under Delaware Controlled Substance Act Section 4767.

Call An Attorney Handling Controlled Substance Cases

You should consult with a defense attorney if you are ever charged with and convicted for the possession of a controlled substance. Otherwise, you could be facing some long-term consequences. It is important that your rights are protected under law, and your attorney will not only assure that this happens, they will ensure that you receive the best possible outcome for your particular circumstances. They can discuss the charges, evaluate your case, and recommend the right options that are available for you.