Submitted: October 25, 2016
Opinion Issued: April 13, 2017
Defendant Imeir Murray's Motion to Dismiss, DENIED.
Cynthia F. Hurlock, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State of
Colleen E. Durkin, Esquire, and Matthew C. Buckworth,
Esquire, Collins & Associates, Wilmington, Delaware,
Attorneys for Defendant Imeir Murray.
R. Wallace, Judge
over a year ago, Delaware decriminalized the act of
possessing a small quantity of marijuana for personal use.
This motion, brought by a criminal defendant arrested shortly
after that enactment, brings to the fore some underexamined
(or, more likely, some wholly unanticipated) consequences of
Fast-Changing Drug Laws
2011, at the urging of the Drug Law Revisions Committee,
Delaware repealed significant portions of its extant criminal
drug code and replaced it with laws creating three main drug
crimes. The least serious drug offenses - those
prohibiting simple possession of controlled substances were:
(1) re-written; (2) enumerated as Sections 4763 and 4764 of
Title 16; (3) placed within the original jurisdiction of the
Court of Common Pleas; and, (4) assigned the lowest criminal
same 2011 Act also introduced a new felony to the Delaware
Criminal Code. That crime defined a brand-new set of persons
prohibited from possessing or controlling certain weapons:
Any person, if the deadly weapon is a semi-automatic or
automatic firearm, or a handgun, who, at the same time,
possesses a controlled substance in violation of § 4763,
or §4764 of Title 16.
rather simple language manifests, this statute created this
new low-grade felony "for a person who possesses a
handgun or semi-automatic or automatic firearm at the same
time as the person possesses a controlled
years later, Delaware reduced the penalties for simple
possession of marijuana even further. The provisions
outlawing the illicit possession of marijuana were: (1) again
re-written; (2) still enumerated as Section 4764 of Title 16;
(3) conferred split original jurisdiction between the Court
of Common Pleas and the Justice of the Peace Court; and, (4)
assigned the lowest criminal misdemeanor and civil violation
status. As applicable to this case, the law now
Any person 18 years of age or older, but under 21 years of
age, who [knowingly or intentionally possesses 1 ounce or
less of marijuana in the form of leaf marijuana] shall be
assessed a civil penalty of $100 for the first offense ...
simple possession of marijuana became a civil offense, no
change was made to the 2011 PFBPP statute prohibiting a
person from possessing a handgun and a controlled substance
at the same time.
against this backdrop that the Court examines the viability
of the two indicted offenses that Defendant Imeir Murray
FACTUAL AND PROCEDURAL BACKGROUND
February 11, 2016, Imeir Murray was asleep in his bedroom of
his family's apartment when law enforcement came to
execute an arrest warrant for his mother. A subsequent search
of Murray's bedroom revealed two caches of marijuana. One
was in his dresser; the other was on a lower shelf of his
closet, mere feet from his head as he slept. On an upper
shelf of that same closet was a loaded semi-automatic
handgun. Police arrested Murray that day.
was indicted by the Grand Jury for one count of possession of
a firearm by a person prohibited and one count of possession
of marijuana as an unclassified misdemeanor offense. At that
time, it was believed that the marijuana weighed more than an
Murray's arrest and indictment, the State's drug lab
report confirmed that the substance seized from Murray's
bedroom was indeed marijuana. That report also showed that
the total drug weight of both caches was 22.63
grams. Under Delaware law, one
ounce of "leaf marijuana" or less is
deemed a "personal use quantity" of marijuana. And
now, under Delaware law, the simple possession of a personal
use quantity of marijuana is a civil, not criminal,
undisputed that the amount of marijuana found in Murray's
room exposes him to, at most, a civil marijuana possession
violation. It is disputed what legal effect that fact has on
the two charges for which Murray was indicted and faces trial
in this Court.
suggests that his two indicted charges should be dismissed as
a matter of law. First, as to the possession of marijuana
count, Murray argues that because the weight of the drug
actually recovered qualifies only as a "personal use
quantity, " he committed only a civil violation and the
indicted drug count should be "dismissed" here.
Second, as to the PFBPP count, Murray argues that the weapons
possession statute wasn't intended to be applied in
connection with a civil violation quantity of marijuana. So,
he contends, his second indicted charge should also be
dismissed. Murray is wrong on both counts.
Murray is Not Due Outright Dismissal on the Possession of
Marijuana count; Rather, He Faces Potential Liability for a
Civil Violation Under Title 16, Section 4764(c).
Count II of his indictment, Murray was charged with marijuana
possession as a criminal misdemeanor under 16 Del.
C. § 4764(b). It turned out, however, that the
later lab report revealed he may only be liable for marijuana
possession as a civil violation under 16 Del. C.
§ 4764(c). When the statutory creature of a
"violation" subject only to a "civil
penalty" was born into Delaware's criminal and drug
codes, it was, unfortunately, not concomitantly framed a
statutory (or other) procedural home in which to
have since been efforts by some Delaware courts to build the
structure needed, but it has become increasingly clear that
there is little solid footing. So how does this Court
accommodate a "civil violation" that arrives
via indictment, information, or, as here, legal happenstance?
With the only blueprint it has: its own Criminal Rule
statutory law and this Court's rules provide for the
consideration of an included offense by a jury or judge when
the State's evidence is insufficient to ...