Delaware Public Media

Lawmakers to consider legislation fixing marijuana decriminalization loophole

Jan 7, 2018

State Rep. Stephen Smyk is sponsoring legislation to fix a loophole created when lawmakers decriminalized marijuana in 2015. His measure would stop felony prosecutions of someone caught with a gun and a small amount of cannabis.


Smyk’s legislation stems from the 2016 arrest of a Wilmington man who was found in his home with less than a ounce of marijuana and a gun. Despite that amount of marijuana being decriminalized to a 100 dollar civil fine, he was charged with a felony since gun was involved.

“Right now, you are being arrested for having a firearm with the marijuana, but the marijuana is actually, the amount that you have is legal," Smyk said. "Well, that just reeks of bad government, so I have a bill to change that.”

Under Smyk’s proposal, people who have less than an ounce of marijuana and are legal gun owners would not face charges.

“It will erode that state law," he said. "It already has conflict in the court systems and it’s been suggested in a court hearing that this law should come about. And that’s why it’s going on.”

Smyk’s legislation only addresses pot - and doesn’t apply if someone has less than an ounce of marijuana in a public place or in a vehicle.

Delaware is considering legalizing recreational cannabis for adults. A task force studying the issue plans to release a report by the end of February.

Federal law also prohibits gun owners from using federally-banned substances. While the Obama administration deprioritized prosecution of low level marijuana users, the Trump administration rescinded that policy last week.