Subchapter VI. Enforcement and Administrative Provisions
TITLE 16
Health and Safety
Food and Drugs
CHAPTER 47. UNIFORM CONTROLLED SUBSTANCES ACT
Subchapter VI. Enforcement and Administrative Provisions
§ 4781. Powers of enforcement personnel.
Any officer or employee of the Secretary designated by the Secretary shall:
(1) Execute and serve administrative inspection warrants, subpoenas and summonses issued under the authority of this State;
(2) Make seizures of property pursuant to this chapter;
(3) Have all powers of constables and other police officers of the State, counties and other subdivisions of the State; and
(4) Suppress all acts of violence and enforce this chapter.
16 Del. C. 1953, § 4766; 58 Del. Laws, c. 424, § 1; 60 Del. Laws, c. 583, §§ 14, 15; 62 Del. Laws, c. 250, § 4.;
§ 4782. Administrative inspections and warrants.
(a) Issuance and execution of administrative inspection warrants shall be as follows:
(1) Any person authorized to issue search warrants in this State may, within the person's jurisdiction and upon proper oath or affirmation showing probable cause, issue warrants for the purpose of conducting administrative inspections authorized by this chapter or rules hereunder and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this chapter or rules hereunder, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant.
(2) A warrant shall issue only upon an affidavit of a designated officer or employee having knowledge of the facts alleged, sworn to before the judge or justice of the peace and establishing the grounds for issuing the warrant. If the judge or justice of the peace is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the judge shall issue a warrant identifying the area, premises, building or conveyance to be inspected, the purpose of the inspection and, if appropriate, the type of property to be inspected, if any. The warrant shall:
a. State the grounds for its issuance, and the name of each person whose affidavit has been taken in support thereof;
b. Be directed to a person authorized by § 4781 to execute it;
c. Command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;
d. Identify the item or types of property to be seized, if any; and
e. Direct that it be served during normal business hours and designate the judge or justice of the peace to whom it shall be returned.
(3) A warrant issued pursuant to this section must be executed and returned within 10 days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least 1 credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
(4) The judge or justice of the peace who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the Prothonotary in the county in which the inspection was made.
(b) The Secretary may make administrative inspections of controlled premises in accordance with the following provisions:
(1) For purposes of this section only, "controlled premises" means:
a. Places where persons registered or exempted from registration requirements under this chapter are required to keep records; and
b. Places including factories, warehouses, establishments and conveyances in which persons registered or exempted from registration requirements under this chapter are permitted to hold, manufacture, compound, process, sell, deliver or otherwise dispose of any controlled substance.
(2) When authorized by an administrative inspection warrant issued pursuant to subsection (a), an officer or employee designated by the Secretary, upon presenting the warrant and appropriate credentials to the owner, operator or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection.
(3) When authorized by an administrative inspection warrant, an officer or employee designated by the Secretary may:
a. Inspect and copy records required by this chapter to be kept;
b. Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in subsection (b)(5), all other things therein, including records, files, papers, processes, controls and facilities bearing on violation of this chapter; and
c. Inventory any stock of any controlled substance therein and obtain samples thereof.
(4) This section does not prevent the inspection without a warrant of books and records pursuant to an administrative subpoena, nor does it prevent entries and administrative inspections, including seizures of property, without a warrant:
a. If the owner, operator or agent in charge of the controlled premises consents;
b. In situations presenting imminent danger to health or safety;
c. In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;
d. In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or,
e. In all other situations in which a warrant is not constitutionally required.
(5) An inspection authorized by this section shall not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator or agent in charge of the controlled premises consents in writing.
16 Del. C. 1953, § 4767; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 250, § 4; 70 Del. Laws, c. 186, § 1.;
§ 4783. Cooperative arrangements and confidentiality.
(a) The Secretary shall cooperate with federal and other state agencies in discharging the Secretary's responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, the Secretary may:
(1) Arrange for the exchange of information among governmental officials concerning the use and abuse of controlled substances;
(2) Coordinate and cooperate in training programs concerning controlled substance law enforcement at local and state levels;
(3) Cooperate with the bureau by establishing a centralized unit to accept, catalogue, file and collect statistics, including records of drug dependent persons and other controlled substance law offenders within the State, and make the information available for federal, state and local law-enforcement purposes. The Secretary, in cooperation with the bureau, shall not furnish the name or identity of a patient or research subject whose identity could not be obtained under subsection (c); and
(4) Conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substances may be extracted.
(b) Results, information and evidence received from the Bureau relating to the regulatory functions of this chapter, including results of inspections conducted by it, may be relied and acted upon by the Secretary in the exercise of the Secretary's regulatory functions under this chapter.
(c) A practitioner engaged in medical practice or research is not required or compelled to furnish the name or identity of a patient or research subject to the Secretary nor may the practitioner be compelled in any state or local civil, criminal, administrative, legislative or other proceedings to furnish the name or identity of an individual that the practitioner is obligated to keep confidential.
16 Del. C. 1953, § 4768; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 250, § 4; 70 Del. Laws, c. 186, § 1.;
§ 4784. Forfeitures.
(a) The following shall be subject to forfeiture to the State and no property rights shall exist in them:
(1) All controlled substances which have been manufactured, distributed, possessed, dispensed or acquired in violation of this chapter;
(2) All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of this chapter;
(3) Any property which is used, or intended for use, as a container for property described in paragraph (1), (2) or (6) of this subsection;
(4) Any conveyances, including aircraft, vehicles, or vessels which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, trafficking in or possession with intent to deliver property described in paragraph (1) or (2) of this subsection except that:
a. No vehicle used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless the owner or other person in charge of the vehicle is a consenting party or privy to a violation of the Uniform Controlled Substances Act;
b. No vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent;
c. A vehicle is not subject to forfeiture for a violation of §§ 4753, 4754, 4757 and 4758 of this title; and
d. A forfeiture of a vehicle encumbered by a bona fide security interest is subject to the interest of the secured party if the party neither had knowledge of nor consented to the act or omission;
(5) All books, records, and research products and materials including formulas, microfilm, tapes and data which are used or intended for use in violation of this chapter;
(6) All drug paraphernalia as defined in § 4701 of this title;
(7) All moneys, negotiable instruments, securities or any other thing of value furnished, or intended to be furnished, in exchange for a controlled substance or drug paraphernalia in violation of this chapter; all profits or proceeds traceable to securities, assets or interest used, or intended to be used, to facilitate any violation of this chapter. However, no property interest or an owner, by reason of any act or omission established by the owner to be committed or omitted without the owner's knowledge or consent shall be forfeited in the items listed in this paragraph:
a. All moneys, negotiable instruments or securities found in close proximity to forfeitable controlled substances, or to forfeitable records of the importation, manufacture or distribution of controlled substances are presumed to be forfeitable under this paragraph. The burden of proof is upon claimant of the property to rebut this presumption.
b. All moneys, negotiable instruments or securities found to have trace amounts of controlled substances on them are presumed to be forfeitable under this paragraph. The burden of proof is upon the claimant of the property to rebut this presumption.
c. To the extent that assets, interests, profits and proceeds forfeitable under this paragraph (i) cannot be located, (ii) have been transferred, sold to or deposited with third parties, or (iii) have been placed beyond the jurisdiction of the State, the court, following conviction of the individual charged, may direct forfeiture of such other assets of the defendant as may be available, limited in value to those assets that would otherwise be forfeited under this paragraph. Upon petition of the defendant, the court may authorize redemption of assets forfeited under this paragraph, provided the assets described in this paragraph are surrendered or otherwise remitted by such defendant to the jurisdiction of the court; and
(8) Any real property which is used, or is intended for use, to store, grow, manufacture, compound, process, deliver, import or export any controlled substance in violation of this chapter except that:
a. No real property is subject to forfeiture under this section by reason of any act or omission established by any owner thereof to have been committed or omitted without the owner's knowledge or consent;
b. No real property being leased out by its owner shall be subject to forfeiture under this section unless the owner of the real property is a consenting party or privy to the violation of the Controlled Substances Act;
c. No real property shall be subject to forfeiture for a violation of § 4753, § 4754, § 4754A, § 4755, § 4757 or § 4758 of this title; and
d. A forfeiture of real property encumbered by a bona fide security interest of the secured party if the party neither had knowledge of nor consented to the act or omission.
(b) Notwithstanding any other provisions of the laws of this State or rules of court, the procedures listed in subsections (c)-(j) of this section are applicable to the administrative forfeiture of property subject to forfeiture under this section.
(c) Property subject to forfeiture under this chapter may be seized by the Secretary upon process issued by any Superior Court having jurisdiction over the property. Seizure without process may be made if:
(1) The seizure made is pursuant to subchapter I of Chapter 23 of Title 11 or an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal, injunction or forfeiture proceeding based upon this chapter;
(3) The Secretary has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) The Secretary has probable cause to believe that the property was used or intended to be used in violation of this chapter.
(d) In the event of seizure pursuant to subsection (c) of this section, proceedings under subsections (e) and (j) of this section shall be instituted promptly.
(e) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the Secretary subject only to the orders and decrees of the Superior Court. When property is seized under this chapter, the Secretary may:
(1) Place the property under seal;
(2) Remove the property to a place designated by the Secretary; or
(3) Require the Department of Safety and Homeland Security to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
(f) When property is forfeited under this chapter, the Secretary may:
(1) Retain it for official use;
(2) Sell that which is not required to be destroyed by law and which is not harmful to the public. The proceeds shall be used for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs;
(3) Allow the arresting agency or any other law enforcement division to use the property for the purpose of law enforcement provided that any proceeds remaining after the payment of expenses and any other money forfeited or realized from forfeited property shall be deposited to the Special Law Enforcement Assistance Fund for the use of the State for the purposes as established by the Attorney General with the concurrence of the Director of the Office of Management and Budget and the Controller General;
(4) Require the Department of Safety and Homeland Security to take custody of the property and remove it for disposition in accordance with law; or
(5) Forward it to the Administration for disposition.
(g) Controlled substances listed in Schedule I that are possessed, transferred, sold or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the State. Controlled substances listed in Schedule I, the owners of which are unknown, which are seized or come into the possession of the State are contraband and shall be summarily forfeited to the State.
(h) Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this chapter or of which the owners or cultivators are unknown or which are wild growths may be seized and summarily forfeited to the State.
(i) The failure, upon demand by the Secretary or the Secretary's authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored to produce an appropriate registration or proof that the person is the holder thereof constitutes authority for the seizure and forfeiture of the plants.
(j) Property seized pursuant to this section that is not summarily forfeited pursuant to subsection (f) of this section shall be automatically forfeited to the State upon application to the Superior Court if, within 45 days of notification of seizure to all known parties having possessory interest in the seized property by registered or certified mail to the last known post-office address of the parties in interest and by publication in a newspaper of general circulation in this State, the person or persons claiming title to the seized property do not institute proceedings in the Superior Court to establish:
(1) That they have the lawful possessory interest in the seized property; and
(2) The property was unlawfully seized or not subject to forfeiture pursuant to this section.
16 Del. C. 1953, § 4769; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 250, §§ 2, 4; 64 Del. Laws, c. 246, §§ 2, 3; 67 Del. Laws, c. 260, § 1; 67 Del. Laws, c. 450, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 288, § 11; 73 Del. Laws, c. 349, § 20; 75 Del. Laws, c. 88, § 21(8); 75 Del. Laws, c. 350, § 193(c).;
§ 4785. Burden of proof; liabilities.
(a) It is not necessary for the State to negate any exemption or exception in this chapter in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this chapter. The burden of going forward with the evidence to establish any exemption or exception is upon the person claiming it.
(b) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this chapter, such person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
(c) No liability is imposed by this chapter upon any authorized state, county or municipal officer engaged in the lawful performance of the officer's duties.
16 Del. C. 1953, § 4770; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 250, § 4; 70 Del. Laws, c. 186, § 1.;
§ 4786. Judicial review.
All final determinations, findings and conclusions of the Secretary under this chapter are final and conclusive decisions of the matters involved. Any person aggrieved by the decision may obtain review of the decision in the Superior Court. Findings of fact by the Secretary, if supported by substantial evidence, are conclusive.
16 Del. C. 1953, § 4771; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 250, § 4.;
§ 4787. Education and research.
(a) The Secretary shall carry out educational programs designed to prevent and deter misuse and abuse of controlled substances. In connection with these programs the Secretary may:
(1) Promote better recognition of the problems of misuse and abuse of controlled substances within the regulated industry and among interested groups and organizations;
(2) Assist the regulated industry and interested groups and organizations in contributing to the reduction of misuse and abuse of controlled substances;
(3) Consult with interested groups and organizations to aid them in solving administrative and organizational problems;
(4) Evaluate procedures, projects, techniques and controls conducted or proposed as part of educational programs on misuse and abuse of controlled substances;
(5) Disseminate the results of research on misuse and abuse of controlled substances to promote a better public understanding of what problems exist and what can be done to combat them; and
(6) Assist in the education and training of state and local law-enforcement officials in their efforts to control misuse and abuse of controlled substances.
(b) The Secretary shall encourage research on misuse and abuse of controlled substances. In connection with the research and in furtherance of the enforcement of this chapter the Secretary may:
(1) Establish methods to assess accurately the effects of controlled substances and identify and characterize those with potential for abuse;
(2) Make studies and undertake programs of research to:
a. Develop new or improved approaches, techniques, systems, equipment and devices to strengthen the enforcement of this chapter;
b. Determine patterns of misuse and abuse of controlled substances and the social effects thereof; and
c. Improve methods for preventing, predicting, understanding and dealing with the misuse and abuse of controlled substances; and
(3) Enter into contracts with public agencies, institutions of higher education and private organizations or individuals for the purpose of conducting research, demonstrations or special projects which bear directly on misuse and abuse of controlled substances.
(c) The Secretary may enter into contracts for educational and research activities without performance bonds.
(d) The Secretary may authorize persons engaged in research on the use and effects of controlled substances to withhold the names and other identifying characteristics of individuals who are the subjects of the research. Persons who obtain this authorization are not compelled in any civil, criminal, administrative, legislative or other proceeding to identify the individuals who are the subjects of research for which the authorization was obtained.
(e) The Secretary may authorize the possession and distribution of controlled substances by persons engaged in research. Persons who obtain this authorization are exempt from state prosecution for possession and distribution of controlled substances to the extent of the authorization.
16 Del. C. 1953, § 4772; 58 Del. Laws, c. 424, § 1; 62 Del. Laws, c. 250, § 4; 70 Del. Laws, c. 186, § 1.;