On December 18, 2015, HB 39 took effect, making Delaware the 19th state to enact legislation removing the threat of arrest and jail time for possessing a small amount of marijuana. Nine states — Colorado, Washington, Alaska, Oregon, Nevada, Maine, Massachusetts, California, and Vermont — and Washington, D.C. have made possession of marijuana by adults 21 and older legal.

Delaware’s more modest reform changed the penalty for simple possession to a $100 fine. Prior to the enactment of HB 39, simple possession of marijuana was a criminal violation for anyone and could have resulted in up to three months in jail, a fine of up to $575, or both.

Penalties for those 21 and older

Under Delaware law, possession or private use of one ounce or less of marijuana is no longer a crime and will not create a criminal record for adults 21 and older. Instead, the penalty is a $100 civil violation, and the marijuana may be confiscated. This fine will double if not paid within 90 days of final adjudication of the fine.

Public use subjects a marijuana consumer to an unclassified misdemeanor, punishable by a $200 criminal fine, imprisonment of up to five days, or both.

Penalties for 18-20 year olds

First offense possession or private use of one ounce or less of marijuana by persons between the ages of 18 and 20 is subject to a civil fine of $100, and the marijuana may be confiscated. A second or subsequent offense will subject the consumer to an unclassified misdemeanor punishable by a $100 criminal fine and confiscation of the marijuana. Individuals convicted of an unclassified misdemeanor for a second or subsequent charge may petition to have that information expunged from their records upon reaching age 21. Public use subjects a marijuana consumer to an unclassified misdemeanor, punishable by a $200 criminal fine, imprisonment of up to five days, or both.

Penalties for those under 18

Possession or consumption of one ounce or less of marijuana by persons under 18 is subject to an unclassified misdemeanor punishable by a $100 criminal fine and confiscation of the marijuana.

Paraphernalia

HB 39 replaced the criminal penalty for possession of marijuana paraphernalia with a civil violation of $100. In addition, individuals charged with an unclassified misdemeanor or assessed a civil violation for marijuana possession or use cannot also be assessed a civil violation for possession of marijuana paraphernalia.