What Does the Delaware Medical Marijuana Act Do?
SB 17, the Delaware Medical Marijuana Act, which is largely based on the Marijuana Policy Project’s model bill, removes criminal sanctions and provides protection from arrest for the compassionate, doctor-recommended use of medical marijuana by Delaware patients with serious medical conditions. The law took effect on July 1, 2011. It initially included an affirmative defense for patients until ID cards were available. Now that ID card applications are available upon request, only those patients who have filed their applications for IDs but have yet to receive the IDs may assert the affirmative defense. Patients are not allowed to grow their own medicine, but they may possess up to six ounces of marijuana. The program will include tightly regulated, limited distribution of medical marijuana by not-for-profit compassion centers. However, this portion of the law has yet to be implemented, and advocates are working hard to see that it is.
Decriminalizing Patient Use: A patient will be granted protection from arrest only if his or her physician has certified, in writing, that the patient has a specified debilitating medical condition and that the patient would receive therapeutic benefit from medical marijuana. Patients then must send the Delaware Department of Health and Social Services (DHSS) a completed application (obtained from DHSS), including a copy of the written certification, and DHSS will issue an ID card after verifying the information. As long as the patient is in compliance with the law and in possession of an ID card, there will be no arrest.
Qualifying Medical Conditions: The qualifying conditions are: cancer; HIV/AIDS; decompensated cirrhosis; multiple sclerosis; amyotrophic lateral sclerosis (ALS); agitation of Alzheimer's disease; PTSD; or a medical condition that produces wasting syndrome, intractable nausea, seizures, severe and persistent muscle spasms, or severe debilitating pain that has not responded to other treatments for more than three months or for which other treatments produced serious side effects.
Compassion Centers (Dispensaries): Delaware’s law does not allow patients or caregivers to grow marijuana at home. Instead, it provides patients with access to their medicine at state-regulated, not-for-profit compassion centers, which will also cultivate the medical marijuana. On directive from Gov. Markell, DHSS has yet to develop regulations governing the compassion centers. When they are complete, DHSS will issue a call for compassion center applications and use a competitive process that scores the applicants’ plans for location, safety, security, and recordkeeping. DHSS should issue registration certificates to the highest scoring applicants. All compassion centers will be subject to inspection and all of their staff will have to undergo background checks. Compassion centers may not advertise medical marijuana sales in print or broadcast and may not share office space with physicians. The law also creates an additional felony with a possible two-year prison term and $2,000 fine to punish anyone who sells medical marijuana to someone unauthorized to possess it.
Patient Age and Possession Limits: Registered patients, who must be at least 18 years of age, are allowed to possess up to six ounces for their medical use. Caregivers, who may serve up to five patients, can pick up medicine for very ill, homebound patients and possess it on their behalf. Compassion centers may only dispense three ounces to a patient every 14 days, and a patient may only register with one compassion center.
Patient Medical Necessity Affirmative Defense: Delaware’s bill provides a medical necessity affirmative defense that can be raised in limited circumstances by patients who have submitted valid applications for medical marijuana IDs but have yet to receive them.