Is Marijuana Legal in Delaware? Laws and Penalties Explained

Key Takeaways

Possession of up to 1 ounce (28.35 g) of cannabis is legal for adults in Delaware.
Higher amounts are crimes, with any amount over 1 ounce punishable by up to $575 in fines and three months in jail, with harsher penalties the bigger the amounts get.
Medical marijuana is legal in Delaware, and qualifying patients can possess up to 6 ounces of weed legally, buying up to 3 ounces every two weeks.

Weed is legal for both medical and recreational purposes in Delaware.

Medical cannabis patients and their caregivers can possess up to 6 ounces of marijuana, which must be purchased from a dispensary in the state.

After a pair of bills passed into law in 2023 without the signature of Delaware’s governor, adults in the state are now allowed to possess up to one ounce for recreational use.

Learning more about the laws helps you avoid problems with weed in Delaware.

Is Weed Legal in Delaware?

Both medical and recreational marijuana are legal in Delaware.

Approved medical patients can possess up to 6 ounces of marijuana, and any adult aged 21 or over can possess one ounce of marijuana, 12 grams of concentrate, or products with up to 750 mg of delta-9 THC.

Is Recreational Weed Legal in Delaware?

Weed is legal for recreational use in Delaware after the passage of HB1 and HB2 in April 2023.

The law states that adults aged 21 or over may possess one ounce (28.35 g) of cannabis, 12 grams of concentrate, or 750 mg of delta-9 THC in the form of cannabis products.

It’s important to note that recreational dispensaries have not yet opened, and until this happens, there is no legal way to acquire marijuana despite it being legal once you get it.

Additionally, while “adult sharing” of cannabis is legal (i.e. you can give cannabis to another adult legally), the law is worded in a way (§ 4764A(a)/page 2) that prevents people from using this provision to create “gifting” systems where weed is given “for free” alongside a “purchase” of some other item or suggested donation.

This means that until dispensaries open, the only way to obtain marijuana is doing it illegally.

Penalties for Possession

The penalties for possession of marijuana in Delaware depend mainly on the amount you have, with lower amounts having relatively lenient punishments and then getting more serious for bigger amounts.

Here is the breakdown:

For amounts over 1 oz and up to 175 g (6.17 oz – from this point onwards, the law has the quantities in metric), you’ll receive a fine of up to $575, could be put in jail for up to three months, or both.
For between 175 and 1,500 g/1.5 kg (3.3 pounds), it becomes a felony charge and the punishment is up to 3 years in jail and a fine at the discretion of the judge. Fines are solely at the discretion of the judge from this point onwards.
For between 1.5 kg and 5 kg (11 pounds), the sentence increases to a maximum of 5 years.
For over 5 kg, there is a mandatory minimum of 2 years, with a maximum of 25 years.

Is Medical Marijuana Legal in Delaware?

Delaware medical marijuana laws come from SB 17, which passed back in 2011, and have been substantially relaxed with HB 285, signed in late May 2024.

This makes it legal for people in the state to be prescribed marijuana by their physician if he or she feels they would benefit from it, and when registered, can buy it from “compassion centers” (medical dispensaries) in the state.

SB 17 also established many of the key rules, for example, the possession limits and rules about not using marijuana in public.

Patient Possession Limits

Delaware medical marijuana patients can possess up to 6 ounces of usable marijuana.

This can only be purchased from registered compassion centers in the state, with a purchase limit of 3 ounces per 14 days.

This means that it’s possible to “stock up” for the future, or if it will be difficult to get access to a dispensary for some time, but with this limitation you’d need at least 2 trips to reach your limit.

How to Get a Medical Marijuana Card in Delaware?

The process for getting a medical marijuana card in Delaware is pretty similar to that in other states.

However, there is no need to have a specific qualifying condition following the passage of HB 285. You should simply visit your doctor and see if they will certify you for your condition.

If your physician agrees that cannabis could help your condition, he or she will give you a healthcare practitioner certification. You can then register with the program and complete the application, paying the $50 non-refundable fee and proof of age and residency (e.g. a photocopied driver’s license).

If you are 65 or older, you can now self-certify for medical marijuana.

Can You Consume in Public in Delaware?

Although you may be legally allowed to possess marijuana as a result of the Delaware medical marijuana laws, you can’t consume it in public.

In fact, there is a set penalty for public consumption: provided you don’t have more than a personal use amount (1 ounce or less), you can receive a maximum $200 fine and up to 5 days in jail.

Can You Drive Under the Influence of Marijuana in Delaware?

Regardless of the state you live in, it’s illegal to drive under the influence of marijuana, and Delaware is no different.

However, the picture is a little more complicated than it might appear at first because medical marijuana could provide an “affirmative defense,” that is: yes, I have marijuana in my system, but I’m legally allowed to use it.

There are actually two parts to the Delaware drug driving law and this defense works in one case, but not in the other.

The first definition was cited a moment ago, that you can’t drive while you’re “under the influence” of any drug. This part is basically unassailable: if you are unable to exercise due care while driving as a result of using marijuana, you are breaking the law and no medical allowance will help you get out of it.

However, it’s also illegal for your blood to contain any amount of an illicit or recreational drug within four hours of driving. This part is excusable for medical users, but only if they aren’t impaired. And if you’re not a medical user, it’s all the law needs.

So if you do get caught driving under the influence of marijuana in Delaware, what are the punishments? They depend on the number of previous offenses, but the punishments are:

For a first offense, you’ll be fined between $500 and $1,500, or be put in jail for up to 12 months, or both. Your license will also be suspended for 12 months, with longer times if your blood alcohol is above 0.15 (although there’s no similar cut-off for weed).
For a second offense, meaning one within 10 years of a first offense, you’ll be fined between $750 and $2,500, and be put in prison for between 60 days and 18 months, with the only way to suspend the minimum sentence being to instead complete the Court of Common Pleas Driving Under the Influence Treatment Program, which includes at least 30 days’ community service. Your license will be suspended for 18 months unless your blood alcohol level is high.
For a third offense, regardless of when it occurs, it’s considered a class G felony, and you’ll receive a fine of up to $5,000, and be put in prison for between 1 and 2 years. The first three months of this is completely mandatory, and while the next nine months can be suspended, you’ll have to attend a drug and alcohol abstinence program and a treatment program if it is suspended. You’ll lose your license for 24 months, minimum.
For a fourth offense, it’s a class E felony, carrying a maximum fine of $7,000, with imprisonment for between 2 and 5 years. While the first 6 months are totally mandatory, the following 18 months can be suspended under the same requirements as for a third offense. Your license will be suspended for 60 months for this and any subsequent violations, regardless of your blood alcohol level.
For a fifth offense, it’s a class E felony, with a maximum fine of $10,000, and imprisonment for between 3 and 5 years. From this point onwards, only half of the sentence (1.5 years minimum in this case) can be suspended, with the same requirements as above.
For a sixth offense, it’s a class D felony, with the same $10,000 maximum fine and a prison sentence of between 4 and 8 years.
For a seventh or subsequent offense, it’s a class C felony, with a fine of up to $15,000 and a prison sentence of between 5 and 15 years.

Is Delta-8 THC Legal in Delaware?

Delta-8 THC is not legal in Delaware.

This is because, despite legalizing hemp in 2018, in line with the limits imposed by the federal-level 2018 Farm Bill, the uniform controlled substances act for the state lists “any tetrahydrocannabinols” without making an exception for those contained within hemp produced according to federal law.

This basically means that delta-8, delta-10 and any other alternative cannabinoids are de facto illegal in Delaware.

However, it’s possible that it would be permitted to be sold as part of the state-regulated marijuana industry in the future. This has not been addressed yet, though.

Is Weed Decriminalized in Delaware?

Weed was decriminalized in Delaware up to an ounce, most recently through SB 45.

The law decriminalized possession of up to 1 ounce of cannabis, which is considered a “personal use amount” under the law.

However, now weed is legal up to this personal use amount, so the law is obsolete.

Is Growing Weed Legal in Delaware?

Growing weed is not legal in Delaware.

Medical marijuana patients are not permitted to cultivate under the current law, and the recreational use law doesn’t allow cultivation either.

Growing is considered manufacture, so if you’re caught you will face felony charges.

When Will Dispensaries Open in Delaware?

Although recreational dispensaries were supposed to open in late 2024, recent news suggests that this will likely be delayed until March 2025.

There is a possibility that lawmakers will allow existing medical cannabis dispensaries to serve adult-use customers sooner than this, but this is currently the best estimate for adult-use dispensaries.

License applications should start being accepted in September, with cultivation, manufacturing, testing, and retail licenses set to be approved on a staggered schedule.

Based on this schedule, retail licenses should be approved from March 2025.

Conclusion

Delaware has taken the plunge into the world of legal recreational marijuana and has also recently drastically improved their medical marijuana system.

Although state residents have a slightly uncomfortable wait until they can legally purchase recreational marijuana, as things stand, you are at least legally able to possess and use marijuana within reasonable limitations.

Whether their careful wording will prevent the establishment of a New York-like gray market remains to be seen.

Is Cannabis Legal in Delaware?

Lee Johnson