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Delaware State Police outline approach to marijuana and DUIs following legalization

Delaware Public Media

Recreational marijuana use is now legal in Delaware, and State Police are handling DUI investigations involving cannabis on a case-by-case basis.

The mere smell of marijuana can no longer justify a search on the road. House Bill 1 went into effect on April 23, legalizing personal possession of up to one ounce of marijuana. But Delaware State Police can conduct an investigation if the odor is paired with signs of impairment in the driver.

DSP Senior Corporal Leonard DeMalto says every case is different.

“Possessing marijuana in a personal use quantity is legal, but let's be safe about it. Let's not put others in jeopardy, let's not drive around under the influence of anything, and not only putting yourself at risk, but putting others on the road at risk too. And we’re still trying to figure things out as we go along.”

DeMalto says officers and troopers will conduct roadside sobriety tests, similar to those with alcohol. And while there is no breathalyzer for marijuana, there are other methods.

“When it comes to seeing what is in your system, an officer or trooper can petition to get a blood search warrant if you are taken into custody if you are taken in for a DUI and get a sample of your blood,” DeMalto says.

DeMalto says drivers transporting marijuana in their vehicles should keep it in secure packaging and out of reach.

“Even if it’s in the car and it’s visible, I mean, it’s not illegal now, but it's just like alcohol. It might be your best bet to just keep it in the trunk, keep it contained, wrapped up, however you want to keep it, as long as it is under an ounce you should be fine.”

House Bill 2 also legalized the possession and sale of paraphernalia, but DeMalto says it is safest to keep those items contained and out of reach as well.

The Department of Justice is still evaluating how the new law is impacting technical aspects of DUI law, and for now is encouraging officers to rely on impairment based evidence. They are also urging the legislature to amend the DUI law in the wake of the new legislation.

Rachel Sawicki was born and raised in Camden, Delaware and attended the Caesar Rodney School District. They graduated from the University of Delaware in 2021 with a double degree in Communications and English and as a leader in the Student Television Network, WVUD and The Review.