Policy Recommendations Delaware

2020-21 Improvements and Recommendations

State legislators failed in their efforts to pass an adult use legalization bill in this year’s legislative session. In September 2021, the Delaware Supreme Court made a decision involving the odor of cannabis as grounds to arrest an individual. The ruling was on a traffic case which began when police pulled over a vehicle because a passenger in the back was not wearing a seatbelt. When the police inspected the vehicle, they claimed to have identified the odor of cannabis and arrested the occupants of the vehicle who they believed were underage. Delaware police are allowed to arrest individuals who they have probable cause to believe have committed a misdemeanor but not for civil violations unless a warrant is issued. Since the officers assumed the occupants of the vehicle were underage, the odor of the cannabis became a probable cause to arrest the occupants for a misdemeanor. While a passenger was found after the arrest to be in possession of cannabis and cocaine, the court ruled that merely the odor of cannabis was not grounds for the officers to arrest the occupants of the vehicle because merely the smell of cannabis was not enough for the officers to determine the age of the passengers meaning the officers had no probable cause to assume there was a misdemeanor committed.

The case offered no definitive protections for patients but highlights the need for ASA’s recommendation that Delaware legislators pass a bill that would stop police officers from unfairly discriminating against patients with roadside sobriety tests. Lawmakers in the state should also consider allowing patients and caregivers to grow cannabis at home which would lighten the financial burden that retail cannabis puts on many patients.