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State v. Murray

Superior Court of Delaware

April 27, 2017

IMEIR MURRAY, Defendant.

          Submitted: October 25, 2016

          Decided: January 11, 2017

          Opinion Issued: April 13, 2017

         Upon Defendant Imeir Murray's Motion to Dismiss, DENIED.

          Cynthia F. Hurlock, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Colleen E. Durkin, Esquire, and Matthew C. Buckworth, Esquire, Collins & Associates, Wilmington, Delaware, Attorneys for Defendant Imeir Murray.


          Paul R. Wallace, Judge


         Just 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 that change.


         Delaware's Fast-Changing Drug Laws[1]

         In 2011, at the urging of the Drug Law Revisions Committee, Delaware repealed significant portions of its extant criminal drug code and replaced it with laws creating three main drug crimes.[2] The least serious drug offenses - those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 penalties.[3]

         That 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.[4]

         As the 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 substance."[5]

         Four 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.[6] As applicable to this case, the law now provides:

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 ....[7]

         When 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.

         It is against this backdrop that the Court examines the viability of the two indicted offenses that Defendant Imeir Murray faces.


         On 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.

         Murray 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 ounce.[8]

         After 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.[9] Under Delaware law, one ounce of "leaf marijuana" or less is deemed a "personal use quantity" of marijuana.[10] And now, under Delaware law, the simple possession of a personal use quantity of marijuana is a civil, not criminal, offense.[11]

         It is 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.[12]


         Murray 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.

         A. 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).

         In 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 dwell.[13]

         There 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.[14] So how does this Court accommodate a "civil violation"[15] that arrives via indictment, information, or, as here, legal ...

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