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Marijuana possession bill passes in Senate, heads to Carney

Charles Megginson Government, Headlines

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The Delaware State Senate on Thursday passed a bill to legalize the possession of up to one ounce of marijuana. 

House Bill 371, sponsored by Rep. Ed Osienski, D-Newark, passed along party lines and now heads to Gov. John Carney.

Under the bill, it would be totally legal to possess one ounce or less of marijuana in Delaware, except for those who are under the age of 21. 

Possession of more than one ounce of marijuana, possession by a person under the age of 21 and public consumption would remain unclassified misdemeanors.

The proposal would also make it legal to gift up to one ounce of weed to another person 21 years of age or older, so long as no money changes hands in return. 

It would not be legal to give away marijuana at the same time as another transaction.

In some jurisdictions, adults have taken advantage of a “gift loophole” wherein they purchase an item, such as a very expensive t-shirt, and receive marijuana as a “gift.” That will not be legal under HB 371.

HB 371 does not create the legal framework for marijuana to be grown or sold in Delaware. 

After the previous attempt at legalization failed in March, Osienski split the bill in half. The first half covers simple possession, and that’s what passed in the Senate Thursday. 

The second half, now known as HB 372, sets up a division to regulate the substance, creates a licensing process for growers and dispensaries, imposes a tax on marijuana sales and directs most of the money to social equity initiatives. 

A failed amendment introduced by Sen. Bryant Richardson, R-Seaford, would have delayed the implementation of the bill until “there is a way for law enforcement to put in place an accurate test to gauge if someone is under the influence of marijuana.”

Richardson said the amendment is necessary to protect drivers. Unlike alcohol, he said, there is currently no mechanism similar to a blood alcohol content breathalyzer to determine a driver’s level of intoxication.

Sen. Trey Paradee, the bill’s Senate sponsor, responded that a process does exist for police officers in Delaware to determine intoxication. That process includes all the same tests employed currently during DUI investigations.

Delawareans have been arrested for driving under the influence of marijuana under existing law, Paradee said.

“There is so much wrong with passing this bill,” Richardson said, before asking how many joints one could roll with an ounce of weed.

“There’s a really great Cheech and Chong joke here,” Paradee said. “I guess it depends on how big you roll your joints.”

Sen. Colin Bonini, R-Dover, said the bill should be renamed the “Encourage Illegal Behavior Act” because, under current law, Delawareans would most likely have to obtain cannabis illegally in order to possess it.

Paradee said he agrees it’s important to pass the taxation and regulation bill, but Bonini said senators shouldn’t be asked to vote on a measure under the assumption that a later bill will tie up loose ends.

“I’m going to go on the record that if we pass this bill today, which I believe is going to happen, and by June 30 we do not pass the regulatory piece, I will personally ask the governor to veto this bill,” Paradee said.

Paradee said any senator who supports their constituents’ right to consume caffeine, fast food, or nicotine, should also support their right to possess or consume marijuana.

“I’m telling you, you know, if you believe in freedom, if you believe in personal rights, you should support this bill,” he said. “And if you think that it’s okay for you to drink a cold beer, or for your constituents to drink a cold beer at the pub on a Saturday afternoon, or drink a margarita poolside on a hot sunny summer afternoon, then you should be supporting this because alcohol, by any measure, is far more dangerous than marijuana, far more addictive, far more destructive.”

Osienski believes if possession of marijuana becomes legal, there will be less incentive for lawmakers to vote against the second bill. 

Carney has refused to say whether he would sign a recreational legalization bill, citing his attempts as lieutenant governor to “get Delawareans to stop smoking.”

If he vetoes the measure, Democrats have the votes to override it in both chambers. In Delaware, a three-fifths majority is required to override a veto.

Osienski has said he thinks Carney will do a pocket-pass of the bills, wherein he neither signs nor vetos them and lets them become law after 10 days of inaction. 

Article III, §18 of the Delaware Constitution provides that legislation that the Governor has not acted upon, by either signing or vetoing, within 10 days of being presented to him or her, excluding Sundays, becomes law.

That would be a win-win for Carney. By not signing it, he’d be absolved of any moral reservations and still be the guy who didn’t get in the way.

If the General Assembly passes the bill within 10 days of adjournment on June 30, excluding Sundays, Carney’s inaction would result in the bill not becoming law. 

“If any bill shall not be returned by the Governor within ten days, Sundays excepted, after it shall have been presented to him or her, the same shall be a law in like manner as if he or she had signed it, unless the General Assembly shall, by final adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor.”

Currently, recreational marijuana use is permitted in 18 states and the District of Columbia. Nearby states New Jersey, Virginia and New York have all legalized adult recreational cannabis.

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