2023 Delaware Code
Title 11 - Crimes and Criminal Procedure

Part I

Delaware Criminal Code

Part II

Criminal Procedure Generally

Part III

Procedure in Particular Courts

Part IV

Prisons and Prisoners

Part V

Law-Enforcement Administration

Part VI

Victims of Crimes

Part VII

Special Programs


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Legislative Council, General Assembly State of Delaware Title 11 Crimes and Criminal Procedure NOTICE: The Delaware Code appearing on this site is prepared by the Delaware Code Revisors and the editorial staff of LexisNexis in cooperation with the Division of Research of Legislative Council of the General Assembly, and is considered an official version of the State of Delaware statutory code. This version includes all acts enacted as of October 18, 2023, up to and including 84 Del. Laws, c. 240. DISCLAIMER: With respect to the Delaware Code documents available from this site or server, neither the State of Delaware nor any of its employees, makes any warranty, express or implied, including the warranties of merchantability and fitness for a particular purpose, or assumes any legal liability or responsibility for the usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately-owned rights. Please seek legal counsel for help on interpretation of individual statutes. Title 11 - Crimes and Criminal Procedure Part I Delaware Criminal Code Chapter 1 Introductory Provisions § 101. Short title. Part I of this title shall be known as the “Delaware Criminal Code.” (11 Del. C. 1953, § 101; 58 Del. Laws, c. 497, § 1.) § 102. Applicability to offenses committed prior to July 1, 1973. (a) Except as provided in subsections (b) and (c) of this section, this Criminal Code does not apply to offenses committed prior to July 1, 1973. Prosecutions for offenses committed prior to July 1, 1973, shall be governed by the prior law, which is continued in effect for that purpose, as if this Criminal Code were not in force. For the purpose of this section, an offense was committed prior to July 1, 1973, if any of the elements of the offense occurred prior thereto. (b) In any case pending on or commenced after July 1, 1973, involving an offense committed prior to that date: (1) Procedural provisions of this Criminal Code shall govern, insofar as they are justly applicable and their applicability does not introduce confusion, delay or manifest injustice; (2) Provisions of this Criminal Code according a defense or mitigations shall apply, with the consent of the defendant. (c) Provisions of this Criminal Code governing the treatment and the release or discharge of prisoners, probationers and parolees shall apply to persons under sentence for offenses committed prior to July 1, 1973, except that the minimum or maximum period of their detention or supervision shall in no case be increased, nor shall this Criminal Code affect the substantive or procedural validity of any judgment of conviction entered prior to July 1, 1973, regardless of the fact that appeal time has not run or that an appeal is pending. (11 Del. C. 1953, § 102; 58 Del. Laws, c. 497, § 1.) § 103. Applicability to offenses committed after July 1, 1973. (a) This Criminal Code establishes the criminal law of this State and governs the construction of and punishment for any offense set forth herein committed after July 1, 1973, as well as the construction and application of any defense to a prosecution for such an offense. (b) Unless otherwise expressly provided, or unless the context otherwise requires, this Criminal Code governs the construction of any offense defined in a statute other than this Criminal Code and committed after July 1, 1973, as well as the construction and application of any defense to a prosecution for such an offense. (11 Del. C. 1953, § 103; 58 Del. Laws, c. 497, § 1.) Page 1 Title 11 - Crimes and Criminal Procedure Part I Delaware Criminal Code Chapter 2 General Provisions Concerning Offenses § 201. General purposes. The general purposes of this Criminal Code are: (1) To proscribe conduct which unjustifiably and inexcusably causes or threatens harm to individual or public interests; (2) To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction; (3) To define the act or omission and the accompanying mental state which constitute each offense; (4) To differentiate upon reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefor; and (5) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted and their confinement when required in the interests of public protection. (11 Del. C. 1953, § 201; 58 Del. Laws, c. 497, § 1.) § 202. All offenses defined by statute. (a) No conduct constitutes a criminal offense unless it is made a criminal offense by this Criminal Code or by another law. (b) This section does not affect the power of a court to punish for civil contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree. (11 Del. C. 1953, § 202; 58 Del. Laws, c. 497, § 1.) § 203. Principles of construction. The general rule that a penal statute is to be strictly construed does not apply to this Criminal Code, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the purposes of the law, as stated in § 201 of this title. (11 Del. C. 1953, § 203; 58 Del. Laws, c. 497, § 1.) § 204. Territorial applicability. (a) Except as otherwise provided in this section a person may be convicted under the law of this State of an offense committed by the person’s own conduct or by the conduct of another for which the person is legally accountable if: (1) Either the conduct or the result which is an element of the offense occurs within Delaware; or (2) Conduct occurring outside the State is sufficient under Delaware law to constitute a conspiracy to commit an offense within the State and an overt act in furtherance of the conspiracy occurs within the State; or (3) Conduct occurring within the State establishes complicity in the commission of, or an attempt, solicitation or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of Delaware; or (4) The offense consists of the omission to perform a legal duty imposed by Delaware law with respect to domicile, residence or a relationship to a person, thing or transaction in the State; or (5) The offense is based on a statute of Delaware which expressly prohibits conduct outside the State, when the conduct bears a reasonable relation to a legitimate interest of this State and the defendant knows or should know that the defendant’s conduct is likely to affect that interest. (b) Paragraph (a)(1) of this section does not apply when causing a particular result is an element of an offense and the result is caused by conduct occurring outside Delaware which would not constitute an offense if the result had occurred in the same place, unless the defendant intentionally, knowingly or recklessly caused the result within Delaware. (c) When the offense is homicide, either the death of the victim or the bodily impact causing death constitutes a “result” within the meaning of paragraph (a)(1) of this section and if the body of a homicide victim is found within this State it is presumed that the result occurred within the State. (11 Del. C. 1953, § 204; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 205. Time limitations. (a) A prosecution for murder or any class A felony, or any attempt to commit said crimes, may be commenced at any time. (b) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation: (1) A prosecution for any felony except murder or any class A felony, or any attempt to commit said crimes, must be commenced within 5 years after it is committed; (2) A prosecution for a class A misdemeanor must be commenced within 3 years after it is committed; Page 2 Title 11 - Crimes and Criminal Procedure (3) A prosecution for a class B misdemeanor, a class C misdemeanor, an unclassified misdemeanor or a violation must be commenced within 2 years after it is committed. (c) If the period prescribed by subsection (b) of this section has expired, a prosecution for any offense in which the accused’s acts include or constitute forgery, fraud, breach of fiduciary duty or actively concealed theft or misapplication of property by an employee, pledgee, bailee or fiduciary may be commenced within 2 years after discovery of the offense has been made or should have been made in the exercise of ordinary diligence by an aggrieved party or by an authorized agent, fiduciary, guardian, personal representative or parent (in the case of an infant) of an aggrieved party who is not a party to the offense. In no case shall this provision extend the period of limitation otherwise applicable by more than an additional 3 years beyond the period specified in subsection (b) of this section. (d) If the period prescribed by subsection (b) of this section has expired, a prosecution for any offense based upon misconduct in office by a public officer or employee may be commenced at any time when the defendant is in public office or employment or within 2 years thereafter. In no case shall this provision extend the period of limitation otherwise applicable by more than an additional 3 years beyond the period specified in subsection (b) of this section. (e) Notwithstanding the period prescribed by subsection (b) of this section, a prosecution for any crime that is delineated in § 787 of this title and in which the victim is a minor, subpart D of subchapter II of Chapter 5 of this title, or is otherwise defined as a “sexual offense” by § 761 of this title except § 763, § 764 or § 765 of this title, or any attempt to commit said crimes, may be commenced at any time. No prosecution under this subsection shall be based upon the memory of the victim that has been recovered through psychotherapy unless there is some evidence of the corpus delicti independent of such repressed memory. This subsection applies to all causes of action arising before, on or after July 15, 1992, and to the extent consistent with this subsection, it shall revive causes of action that would otherwise be barred by this section. (f) An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed. (g) For purposes of this section, a prosecution is commenced when either an indictment is found or an information is filed. (h) The period of limitation does not run: (1) During any time when the accused is fleeing or hiding from justice so that the accused’s identity or whereabouts within or outside the State cannot be ascertained, despite a diligent search for the accused; or (2) During any time when the accused in a prosecution has become a fugitive from justice by failing to appear for any scheduled court proceeding related to such prosecution for which proper notice under the law was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding. (3) During any time when a prosecution, including a prosecution under a defective indictment or information, against the accused for the same conduct has been commenced and is pending in this State. (i) If the period prescribed by subsection (b) of this section has expired, a prosecution for any offense in this title may be commenced within 10 years after it is committed if based upon forensic DNA testing. (j) In any prosecution in which subsection (c), (d), (e), (h) or (i) of this section is sought to be invoked to avoid the limitation period of subsection (b) of this section, the State must allege and prove the applicability of subsection (c), (d), (e), (h) or (i) as an element of the offense. (11 Del. C. 1953, § 205; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 401, § 1; 68 Del. Laws, c. 397, §§ 1, 2; 70 Del. Laws, c. 92, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 264, §§ 1, 2; 72 Del. Laws, c. 320, §§ 1, 2; 74 Del. Laws, c. 56, § 1; 75 Del. Laws, c. 367, § 1; 79 Del. Laws, c. 276, § 4.) § 206. Method of prosecution when conduct constitutes more than 1 offense. (a) When the same conduct of a defendant may establish the commission of more than 1 offense, the defendant may be prosecuted for each offense. The defendant’s liability for more than 1 offense may be considered by the jury whenever the State’s case against the defendant for each offense is established in accordance with § 301 of this title. The defendant may not, however, be convicted of more than 1 offense if: (1) One offense is included in the other, as defined in subsection (b) of this section; or (2) One offense consists only of an attempt to commit the other; or (3) Inconsistent findings of fact are required to establish the commission of the offenses. (b) A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when: (1) It is established by the proof of the same or less than all the facts required to establish the commission of the offense charged; or (2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or (3) It involves the same result but differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. Page 3 Title 11 - Crimes and Criminal Procedure (c) The court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense. (11 Del. C. 1953, § 206; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 207. When prosecution is barred by former prosecution for the same offense. When a prosecution is for a violation of the same statutory provisions and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside. (2) The former prosecution was terminated, after the information had been filed or the indictment found, by a final order or judgment for the defendant, which has not been set aside, reversed or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense. (3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment or a plea of guilty or nolo contendere accepted by the court. (4) The former prosecution was improperly terminated. Except as provided in this subdivision there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict. Termination under any of the following circumstances is not improper: a. The defendant consents to the termination or waives, by motion to dismiss or otherwise, the right to object to the termination. b. The trial court declares a mistrial in accordance with law. (11 Del. C. 1953, § 207; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 208. When prosecution is barred by former prosecution for different offense. Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a court having jurisdiction over the subject matter of the second prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in § 207 of this title and the subsequent prosecution is for: a. Any offense of which the defendant could have been convicted on the first prosecution; or b. The same conduct, unless: 1. The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or 2. The second offense was not consummated when the former trial began. (2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense. (3) The former prosecution was improperly terminated as improper termination is defined in § 207(4) of this title and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated. (11 Del. C. 1953, § 208; 58 Del. Laws, c. 497, § 1.) § 209. Former prosecution in another jurisdiction; when a bar. When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this State under the following circumstances: (1) The first prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in § 207 of this title and the subsequent prosecution is based on the same conduct, unless: a. The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or b. The second offense was not consummated when the former trial began; or (2) The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense for which the defendant is subsequently prosecuted; or Page 4 Title 11 - Crimes and Criminal Procedure (3) The former prosecution was improperly terminated as improper termination is defined in § 207(4) of this title and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated. (11 Del. C. 1953, § 209; 58 Del. Laws, c. 497, § 1.) § 210. Former prosecution before court lacking jurisdiction or when fraudulently procured by defendant. A prosecution is not a bar within the meaning of §§ 207, 208 and 209 of this title under any of the following circumstances: (1) The former prosecution was before a court which lacked jurisdiction over the defendant or the offense; or (2) The former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting officer and with the purpose of avoiding the sentence which might otherwise be imposed; or (3) The former prosecution resulted in a judgment of conviction which was held invalid on appeal or in a subsequent proceeding on a writ of habeas corpus, coram nobis or similar process. (11 Del. C. 1953, § 210; 58 Del. Laws, c. 497, § 1.) § 211. Repeal of statutes as affecting existing liabilities. (a) The repeal of any statute creating, defining or relating to any criminal offense set forth under the laws of this State, shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as remaining in full force and effect for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. (b) Any action, case, prosecution, trial or other legal proceeding in progress under or pursuant to any statute relating to any criminal offense set forth under the laws of this State shall be preserved and shall not become illegal or terminated in the event that such statute is later amended by the General Assembly, irrespective of the stage of such proceeding, unless the amending act expressly provides to the contrary. For the purposes of such proceedings, the prior law shall remain in full force and effect. (71 Del. Laws, c. 263, § 1.) §§ 212-220. [Reserved.] § 221. Principles of definitions. (a) In this Criminal Code when the word “means” is employed in defining a word or term, the definition is limited to the meaning given. (b) In this Criminal Code, when the word “includes” is employed in defining a word or term, the definition is not limited to the meaning given, but in appropriate cases the word or term may be defined in any way not inconsistent with the definition given. (c) If a word used in this Criminal Code is not defined herein, it has its commonly accepted meaning, and may be defined as appropriate to fulfill the purposes of the provision as declared in § 201 of this title. (11 Del. C. 1953, § 221; 58 Del. Laws, c. 497, § 1.) § 222. General definitions. When used in this Criminal Code: (1) “Building,” in addition to its ordinary meaning, includes any structure, vehicle or watercraft. Where a building consists of 2 or more units separately secured or occupied, each unit shall be deemed a separate building. (2) “Controlled substance” or “counterfeit substance” shall have the same meaning as used in Chapter 47 of Title 16. (3) “Conviction” means a verdict of guilty by the trier of fact, whether judge or jury, or a plea of guilty or a plea of nolo contendere accepted by the court. (4) “Covert firearm” means any firearm that is constructed in a shape or configuration such that it does not resemble a firearm. (5) “Dangerous instrument” means any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury, or any disabling chemical spray, as defined in paragraph (8) of this section or any electronic control devices including but not limited to a neuromuscular incapacitation device designed to incapacitate a person. (6) “Deadly weapon” includes a “firearm”, as defined in paragraph (13) of this section, a bomb, a knife of any sort (other than an ordinary pocketknife carried in a closed position), switchblade knife, billy, blackjack, bludgeon, metal knuckles, slingshot, razor, bicycle chain or ice pick or any “dangerous instrument”, as defined in paragraph (5) of this section, which is used, or attempted to be used, to cause death or serious physical injury. For the purpose of this definition, an ordinary pocketknife shall be a folding knife having a blade not more than 3 inches in length. (7) “Defraud” means to acquire a gain or advantage by fraud. (8) “Disabling chemical spray” includes mace, tear gas, pepper spray or any other mixture containing quantities thereof, or any other aerosol spray or any liquid, gaseous or solid substance capable of producing temporary physical discomfort, disability or injury through Page 5 Title 11 - Crimes and Criminal Procedure being vaporized or otherwise dispersed in the air, or any canister, container or device designed or intended to carry, store or disperse such aerosol spray or such gas or solid. (9) “Drug” means any substance or preparation capable of producing any alteration of the physical, mental or emotional condition of a person. (10) “Elderly person” means any person who is 62 years of age or older. Thus, the terms “elderly person” and “person who is 62 years of age or older” shall have the same meaning as used in this Code or in any action brought pursuant to this Code. (11) “Electronic control device” is a device designed to incapacitate a person, including but not limited to a neuromuscular incapacitation device. (12) “Female” means a person of the female sex. (13) “Firearm” includes any weapon from which a shot, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, whether operable or inoperable, loaded or unloaded. It does not include a BB gun. (14) “Firearm frame or receiver” means the part of the firearm that provides housing for the firearm’s internal components, and includes the hammer, bolt or breechblock, action, and firing mechanism. (15) “Fraud” means an intentional perversion, misrepresentation or concealment of truth. (16) “Gender identity” means a gender-related identity, appearance, expression, or behavior of a person, regardless of the person’s assigned sex at birth. (17) “Law” includes statutes and ordinances. Unless the context otherwise clearly requires, “law” also includes settled principles of the common law of Delaware governing areas other than substantive criminal law. (18) “Law-enforcement officer” includes police officers, the Attorney General and the Attorney General’s deputies, agents of the State Division of Alcohol and Tobacco Enforcement, agents employed by a state, county or municipal law-enforcement agency engaged in monitoring sex offenders, correctional officers, probation and parole officers, state fire marshals, municipal fire marshals that are graduates of a Delaware Police Academy which is accredited/authorized by the Police Officer Standards and Training Commission, sworn members of the City of Wilmington Fire Department who have graduated from a Delaware Police Academy which is authorized/ accredited by the Police Officer Standards and Training Commission, environmental protection officers, enforcement agents of the Department of Natural Resources and Environmental Control, and constables. A sheriff or deputy sheriff shall be considered a “lawenforcement officer” when acting upon a specific order of a judge or commissioner of Superior Court. Sheriffs and deputy sheriffs shall not have any arrest authority. However, sheriffs and deputy sheriffs may take into custody and transport a person when specifically so ordered by a judge or commissioner of Superior Court. (19) “Lawful” means in accordance with law or, where the context so requires, not prohibited by law. (20) “Major component of a firearm” means the slide, barrel, cylinder, trigger group, or receiver of a firearm. (21) “Male” means a person of the male sex. (22) “Mental illness” means any condition of the brain or nervous system recognized as a mental disease by a substantial part of the medical profession. (23) “Narcotic drug” shall have the same definition as contained in § 4701 of Title 16. (24) “Oath or affirmation,” for the purpose of warrants, can be made via videophone, telephone, secure electronic means or in person. (25) “Person” means a human being who has been born and is alive, and, where appropriate, a public or private corporation, a trust, a firm, a joint stock company, a union, an unincorporated association, a partnership, a government or a governmental instrumentality. (26) “Physical force” means any application of force upon or toward the body of another person. (27) “Physical injury” means impairment of physical condition or substantial pain. (28) “Public transit operator” means a person in control or in charge of a transportation vehicle for public use, in exchange for a fee or charge, offered by any railroad, street railway, traction railway, motor bus, or trolley coach. Specifically excluded are: a. Transportation to and from any school or school-sponsored event when such transportation is under the regulation of the Department of Education; and b. Transportation to and from a church, synagogue or other place of worship; c. Shuttle-type transportation provided by business establishments without charge to customers of the businesses offering such shuttle transportation between fixed termini; and d. Limousine services. (29) “Security exemplar” means an object, to be fabricated at the direction of the United States Attorney General, that is all of the following: a. Constructed of 3.7 ounces of material type 17-4 PH stainless steel in a shape resembling a handgun. b. Suitable for testing and calibrating metal detectors. (30) “Serious mental disorder” means any condition of the brain or nervous system recognized as defective, as compared with an average or normal condition, by a substantial part of the medical profession. Page 6 Title 11 - Crimes and Criminal Procedure (31) “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ, or which causes the unlawful termination of a pregnancy without the consent of the pregnant female. (32) “Sexual orientation” includes heterosexuality, bisexuality, or homosexuality. (33) “Telephone,” in addition to its ordinary meaning, includes any computer (as defined in § 931 of this title) or any other electronic device which is actually used to engage in a wire communication (as defined in § 2401(20) of this title) with any other telephone, computer or electronic device. (34) “Therapeutic abortion” means an abortion performed pursuant to subchapter IX of Chapter 17 of Title 24. (35) “Three-dimensional printer” means a computer or computer-driven machine of device capable of producing a 3-dimensional object from a digital model. (36) “Undetectable firearm” means a firearm constructed entirely of nonmetal substances, or a firearm that after removal of all of the major components of a firearm, is not detectable by walk-through metal detectors calibrated and operated to detect the security exemplar, or firearm which includes a major component of a firearm, which, if subject to the types of detection devices commonly used at airports for security screening, would not generate an image that accurately depicts the shape of the component. It does not include a firearm subject to the provisions of 18 U.S.C. § 922(p)(3) through (6). (37) “Unfinished firearm frame or receiver” means a firearm frame or receiver that requires further machining or molding in order to be used as part of a functional firearm, and which is designed and intended to be used in the assembly of a functional firearm. (38) “Unlawful” means contrary to law or, where the context so requires, not permitted by law. It does not mean wrongful or immoral. (39) “Untraceable firearm” means a firearm for which the sale or distribution chain from a licensed retailer to the point of its first retail sale cannot be traced by law-enforcement officials. “Untraceable firearm” does not include any of the following: a. Firearms manufactured prior to 1968. b. Muzzle-loading firearms designed to use black powder or its equivalent. c. Firearms which are designed as replicas of antique firearms originally manufactured prior to 1898. (40) “Vehicle” includes any means in or by which someone travels or something is carried or conveyed or a means of conveyance or transport, whether or not propelled by its own power. (11 Del. C. 1953, § 222; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 1; 63 Del. Laws, c. 92, § 1; 64 Del. Laws, c. 17, § 1; 68 Del. Laws, c. 378, §§ 1-3; 69 Del. Laws, c. 24, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 383, § 1; 71 Del. Laws, c. 374, §§ 1-3; 72 Del. Laws, c. 34, § 8; 72 Del. Laws, c. 43, § 2; 72 Del. Laws, c. 50, § 1; 72 Del. Laws, c. 371, § 1; 72 Del. Laws, c. 379, § 1; 73 Del. Laws, c. 126, § 1; 73 Del. Laws, c. 249, § 1; 73 Del. Laws, c. 413, § 1; 74 Del. Laws, c. 71, § 4; 74 Del. Laws, c. 250, § 2; 76 Del. Laws, c. 270, §§ 1, 2; 77 Del. Laws, c. 64, § 3; 78 Del. Laws, c. 13, § 3; 78 Del. Laws, c. 224, § 1; 78 Del. Laws, c. 266, § 1; 78 Del. Laws, c. 325, § 3; 79 Del. Laws, c. 200, § 1; 79 Del. Laws, c. 341, § 1; 80 Del. Laws, c. 264, § 1; 83 Del. Laws, c. 246, § 1; 84 Del. Laws, c. 149, § 2; 84 Del. Laws, c. 215, § 1.) § 223. Words of gender or number. Unless the context otherwise requires, words denoting the singular number may, and where necessary shall, be construed as denoting the plural number, and words denoting the plural number may, and where necessary shall, be construed as denoting the singular number, and words denoting the masculine gender may, and where necessary shall, be construed as denoting the feminine gender or the neuter gender. (11 Del. C. 1953, § 223; 58 Del. Laws, c. 497, § 1.) § 224. Valuation of property. Whenever the value of property is determinative of the degree of an accused’s criminal guilt or otherwise relevant in a criminal prosecution, it shall be ascertained as follows: (1) Except as otherwise specified in this section, “value” means the market value of the property at the time and place of the crime, or if that cannot be satisfactorily ascertained, the cost of replacing the property within a reasonable time after the crime. (2) Whether or not they have been issued or delivered, the value of certain written instruments, not including those having a readily ascertainable market value, shall be ascertained as follows: a. The value of an instrument constituting an evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon or thereby, that figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied. b. The value of any other instrument which creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. (3) When the value of property cannot satisfactorily be ascertained pursuant to the standards set forth in paragraphs (1) and (2) of this section, its value shall be deemed to be an amount less than $100. (11 Del. C. 1953, § 224; 58 Del. Laws, c. 497, § 1.) Page 7 Title 11 - Crimes and Criminal Procedure §§ 225-230. [Reserved.] § 231. Definitions relating to state of mind. (a) “Criminal negligence”. — A person acts with criminal negligence with respect to an element of an offense when the person fails to perceive a risk that the element exists or will result from the conduct. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. (b) “Intentionally”. — A person acts intentionally with respect to an element of an offense when: (1) If the element involves the nature of the person’s conduct or a result thereof, it is the person’s conscious object to engage in conduct of that nature or to cause that result; and (2) If the element involves the attendant circumstances, the person is aware of the existence of such circumstances or believes or hopes that they exist. (c) “Knowingly”. — A person acts knowingly with respect to an element of an offense when: (1) If the element involves the nature of the person’s conduct or the attendant circumstances, the person is aware that the conduct is of that nature or that such circumstances exist; and (2) If the element involves a result of the person’s conduct, the person is aware that it is practically certain that the conduct will cause that result. (d) “Negligence”. — A person acts with negligence with respect to an element of an offense when the person fails to exercise the standard of care which a reasonable person would observe in the situation. (e) “Recklessly”. — A person acts recklessly with respect to an element of an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the element exists or will result from the conduct. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. (11 Del. C. 1953, § 231; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 88, § 6; 70 Del. Laws, c. 186, § 1.) § 232. Definition relating to elements of offense. “Elements of an offense” are those physical acts, attendant circumstances, results and states of mind which are specifically included within the definition of the offense or, if the definition is incomplete, those states of mind which are supplied by the general provisions of this Criminal Code. Facts establishing jurisdiction and venue and establishing that the offense was committed within the time period prescribed in § 205 of this title must also be proved as elements of the offense. (11 Del. C. 1953, § 232; 58 Del. Laws, c. 497, § 1.) § 233. Definition and classification of offenses. (a) “Crime” or “offense” means an act or omission forbidden by a statute of this State and punishable upon conviction by: (1) Imprisonment; or (2) Fine; or (3) Removal from office; or (4) Disqualification to hold any office of trust, honor or profit under the State; or (5) Other penal discipline. (b) An act or omission is forbidden by a statute of this State if a statute makes the act or omission punishable by any form of punishment mentioned in subsection (a) of this section. (c) An offense is either a felony, a misdemeanor or a violation. Any offense not specifically designated by law to be a felony or a violation is a misdemeanor. (11 Del. C. 1953, § 233; 58 Del. Laws, c. 497, § 1.) § 234. Definition of terms requiring certain sentences. When used for the purpose of describing or requiring a sentence of incarceration imposed pursuant to this title, the terms “minimum,” “mandatory,” “minimum mandatory” and “mandatory minimum” shall be construed as being synonymous. (71 Del. Laws, c. 98, § 1.) §§ 235-240. [Reserved.] § 241. Conviction to precede punishment. The punishments prescribed by this Criminal Code or by any other statute of a criminal nature may be inflicted only after a judgment of conviction by a court having jurisdiction over the person of the defendant and over the subject matter. (11 Del. C. 1953, § 241; 58 Del. Laws, c. 497, § 1.) Page 8 Title 11 - Crimes and Criminal Procedure § 242. Requirements for criminal liability in general. A person is not guilty of an offense unless liability is based on conduct which includes a voluntary act or the omission to perform an act which the person is physically capable of performing. (11 Del. C. 1953, § 242; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 243. Definition of “voluntary act.” “Voluntary act” means a bodily movement performed consciously or habitually as a result of effort or determination, and includes possession if the defendant knowingly procured or received the thing possessed or was aware of the defendant’s control thereof for a sufficient period to have been able to terminate possession. (11 Del. C. 1953, § 243; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) §§ 244-250. [Reserved.] § 251. Proof of state of mind required unless otherwise provided; strict liability. (a) No person may be found guilty of a criminal offense without proof that the person had the state of mind required by the law defining the offense or by subsection (b) of this section. (b) When the state of mind sufficient to establish an element of an offense is not prescribed by law, that element is established if a person acts intentionally, knowingly or recklessly. (c) It is unnecessary to prove the defendant’s state of mind with regard to: (1) Offenses which constitute violations, unless a particular state of mind is included within the definition of the offenses; or (2) Offenses defined by statutes other than this Criminal Code, insofar as a legislative purpose to impose strict liability for such offenses or with respect to any material element thereof plainly appears. In all cases covered by this subsection, it is nevertheless necessary to prove that the act or omission on which liability is based was voluntary as provided in §§ 242 and 243 of this title. (11 Del. C. 1953, § 251; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 252. Prescribed state-of-mind requirement applies to all material elements. When a statute defining an offense prescribes the state of mind that is sufficient for the commission of the offense, without distinguishing among the elements thereof, the provision shall apply to all the elements of the offense, unless a contrary legislative purpose plainly appears. (11 Del. C. 1953, § 252; 58 Del. Laws, c. 497, § 1.) § 253. Substitutes for criminal negligence, recklessness and knowledge. Whenever a statute provides that negligence suffices to establish an element of an offense, the element is also established if a person acts intentionally, knowingly, recklessly or with criminal negligence. When a statute provides that criminal negligence suffices to establish an element of an offense, the element also is established if a person acts intentionally, knowingly or recklessly. When recklessness suffices to establish an element of an offense, the element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element of an offense, the element also is established if a person acts intentionally. (11 Del. C. 1953, § 253; 58 Del. Laws, c. 497, § 1; 76 Del. Laws, c. 101, § 7.) § 254. Conditional intention. The fact that a defendant’s intention was conditional is immaterial unless the condition negatives the harm or evil sought to be prevented by the statute defining the offense. (11 Del. C. 1953, § 254; 58 Del. Laws, c. 497, § 1.) § 255. Knowledge of high probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless the person actually believes that it does not exist. (11 Del. C. 1953, § 255; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) §§ 256-260. [Reserved.] § 261. Causation. Conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred. (11 Del. C. 1953, § 261; 58 Del. Laws, c. 497, § 1.) § 262. Intentional or knowing causation; different result from that expected. The element of intentional or knowing causation is not established if the actual result is outside the intention or the contemplation of the defendant unless: Page 9 Title 11 - Crimes and Criminal Procedure (1) The actual result differs from that intended or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm intended or contemplated would have been more serious or more extensive than that caused; or (2) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a bearing on the actor’s liability or on the gravity of the offense. (11 Del. C. 1953, § 262; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 263. Reckless or negligent causation; different result from that expected or overlooked. The element of reckless or negligent causation is not established if the actual result is outside the risk of which the defendant is aware or, in the case of negligence, of which the defendant should be aware unless: (1) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (2) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a bearing on the actor’s liability or on the gravity of the offense. (11 Del. C. 1953, § 263; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 264. Causation in offenses of strict liability. When causing a particular result is an element of an offense for which strict liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor’s conduct. (11 Del. C. 1953, § 264; 58 Del. Laws, c. 497, § 1.) §§ 265-270. [Reserved.] § 271. Liability for the conduct of another — Generally. A person is guilty of an offense committed by another person when: (1) Acting with the state of mind that is sufficient for commission of the offense, the person causes an innocent or irresponsible person to engage in conduct constituting the offense; or (2) Intending to promote or facilitate the commission of the offense the person: a. Solicits, requests, commands, importunes or otherwise attempts to cause the other person to commit it; or b. Aids, counsels or agrees or attempts to aid the other person in planning or committing it; or c. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so; or (3) The person’s conduct is expressly declared by this Criminal Code or another statute to establish the person’s complicity. Nothing in this section shall apply to any law-enforcement officer or the officer’s agent while acting in the lawful performance of duty. (11 Del. C. 1953, § 271; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 272. Liability for the conduct of another — No defense. In any prosecution for an offense in which the criminal liability of the accused is based upon the conduct of another person pursuant to § 271 of this title, it is no defense that: (1) The other person is not guilty of the offense in question because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the conduct in question or of the accused’s criminal purpose, or because of other factors precluding the mental state required for the commission of the offense; or (2) The other person has not been prosecuted for or convicted of any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense or in a different degree, or has legal immunity from prosecution for the conduct in question; or (3) The offense in question, as defined, can be committed only by a particular class of persons, and the defendant, not belonging to that class, is for that reason legally incapable of committing the offense in an individual capacity, unless imposing liability on the defendant is inconsistent with the purpose of the provision establishing the defendant’s incapacity. (11 Del. C. 1953, § 272; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 273. Liability for the conduct of another — Exemption. Unless otherwise provided by this Criminal Code or by the statute defining the offense, a person is not liable for an offense committed by another person if: (1) The person is a victim of that offense; or (2) The offense is so defined that the person’s conduct is inevitably incident to its commission; or Page 10 Title 11 - Crimes and Criminal Procedure (3) The person terminates complicity prior to commission of the offense and: a. Wholly deprives it of effectiveness in the commission of the offense; or b. Gives timely warning to the Attorney General or the police or otherwise makes a proper effort to prevent the commission of the offense. If the actor’s conduct constitutes a separate offense, the actor is liable for that offense only and not for the conduct or offense committed by the other person. (11 Del. C. 1953, § 273; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 274. Offenses involving 2 or more persons; convictions for different degrees of offense. When, pursuant to § 271 of this title, 2 or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with that person’s own culpable mental state and with that person’s own accountability for an aggravating fact or circumstance. (11 Del. C. 1953, § 274; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 275. Indictment as principal and conviction as accomplice; indictment as accomplice and conviction as principal. (a) A person indicted for committing an offense may be convicted as an accomplice to another person guilty of committing the offense. (b) A person indicted as an accomplice to an offense committed by another person may be convicted as a principal. (11 Del. C. 1953, § 275; 58 Del. Laws, c. 497, § 1.) §§ 276-280. [Reserved.] § 281. Criminal liability of organizations. An organization is guilty of an offense when: (1) The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on organizations by law; or (2) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of employment and in behalf of the organization; or (3) The conduct constituting the offense is engaged in by an agent of the organization while acting within the scope of employment and in behalf of the organization and: a. The offense is a misdemeanor or a violation; or b. The offense is one defined by a statute which clearly indicates a legislative intent to impose such criminal liability on an organization. (11 Del. C. 1953, § 281; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 71, §§ 1, 2.) § 282. Criminal liability of an individual for organizational conduct. A person is criminally liable for conduct constituting an offense which the person performs or causes to be performed in the name of or in behalf of an organization to the same extent as if the conduct were performed in the person’s own name or behalf. (11 Del. C. 1953, § 282; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 71, §§ 2, 3.) § 283. Impermissible organizational activity no defense. In any prosecution for an offense alleged to have been committed by an organization, it is no defense that the act charged to constitute the offense was an impermissible organizational activity. (11 Del. C. 1953, § 283; 58 Del. Laws, c. 497, § 1; 74 Del. Laws, c. 71, §§ 2, 3.) § 284. Definitions relating to organizational liability. (a) “Agent” means any director, officer or employee of an organization, or any other person who is authorized to act in behalf of the organization. (b) “High managerial agent” means an officer of an organization or any other agent in a position of comparable authority with respect to the formulation of organizational policy or the supervision in a managerial capacity of subordinate employees. (c) “Organization” means any entity listed in the definition of “person” contained in § 222 of this title, other than an individual human being. (11 Del. C. 1953, § 284; 58 Del. Laws, c. 497, § 1; 74 Del. Laws, c. 71, §§ 2, 3, 5.) Page 11 Title 11 - Crimes and Criminal Procedure Part I Delaware Criminal Code Chapter 3 Proving and Disproving Criminal Guilt § 301. State’s prima facie case; proof beyond reasonable doubt. (a) In any prosecution for an offense, a prima facie case for the State consists of some credible evidence tending to prove the existence of each element of the offense. (b) No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. (c) In any prosecution for any compound crime, including but not limited to first degree murder under § 636(a)(2) or (a)(6) of this title or for second degree murder under § 635(2) of this title, the corpus delicti of the underlying felony need not be proved independently of a defendant’s extrajudicial statement. (11 Del. C. 1953, § 301; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 463, § 1.) § 302. Jury instruction for defendant on reasonable doubt. (a) Pursuant to § 301(b) of this title, the defendant is entitled to a jury instruction that the jury must acquit if they fail to find each element of the offense proved beyond a reasonable doubt. (b) The defendant may produce whatever evidence the defendant has tending to negate the existence of any element of the offense, and, if the court finds that a reasonable juror might believe that evidence, the defendant is entitled to a jury instruction that the jury must consider whether the evidence raises a reasonable doubt as to the defendant’s guilt. (11 Del. C. 1953, § 302; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 303. Credible evidence to support defenses. (a) No defense defined by this Criminal Code or by another statute may be considered by the jury unless the court is satisfied that some credible evidence supporting the defense has been presented. (b) Evidence supports a defense when it tends to establish the existence of each element of the defense. (c) If some credible evidence supporting a defense is presented, the defendant is entitled to a jury instruction that the jury must acquit the defendant if they find that the evidence raises a reasonable doubt as to the defendant’s guilt. (11 Del. C. 1953, § 303; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 1; 70 Del. Laws, c. 186, § 1.) § 304. Defendant’s affirmative defenses; prove by preponderance of evidence. (a) When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a preponderance of the evidence. (b) Unless the court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the defendant, the defendant is entitled to a jury instruction that the jury must acquit the defendant if they find the affirmative defense established by a preponderance of the evidence. (c) An affirmative defense is established by a preponderance of the evidence when the jury is persuaded that the evidence makes it more likely than not that each element of the affirmative defense existed at the required time. (11 Del. C. 1953, § 304; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 305. Exemption from criminal liability; affirmative defense to be proved by defendant. When this Criminal Code or another statute specifically exempts a person or activity from the scope of its application and the defendant contends that the defendant is legally entitled to be exempted thereby, the burden is on the defendant to prove, as an affirmative defense, facts necessary to bring the defendant within the exemption. (11 Del. C. 1953, § 305; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 306. No conclusive presumptions; rebuttable presumptions and proof thereof. (a) There are no conclusive presumptions in this Criminal Code, and all conclusive presumptions formerly existing in the criminal law of this State are hereby abolished. (b) Rebuttable presumptions formerly existing in the criminal law of this State are preserved except to the extent that they are inconsistent with this Criminal Code. (c) Notwithstanding any other provision of this Criminal Code, the following rebuttable presumptions are expressly preserved: (1) A person is presumed to intend the natural and probable consequences of the person’s act. Page 12 Title 11 - Crimes and Criminal Procedure (2) A person found in possession of goods acquired as a result of the commission of a recent crime is presumed to have committed the crime. (d) Proof of a fact tending to create a rebuttable presumption not inconsistent with this Criminal Code or a presumption created by this Criminal Code constitutes prima facie evidence of the presumed conclusion. (e) The court may tell the jury of the existence of the presumption, and if it does so the defendant is entitled to a jury instruction that the presumption does not relieve the State of its burden of proving guilt beyond a reasonable doubt. Nevertheless, the jury may convict the defendant, despite the existence of evidence tending to rebut the presumption, if they find no reasonable doubt about the defendant’s guilt. (11 Del. C. 1953, § 306; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 2; 70 Del. Laws, c. 186, § 1.) § 307. Jury inference of defendant’s intention, recklessness, knowledge or belief. (a) The defendant’s intention, recklessness, knowledge or belief at the time of the offense for which the defendant is charged may be inferred by the jury from the circumstances surrounding the act the defendant is alleged to have done. In making the inference permitted by this section, the jury may consider whether a reasonable person in the defendant’s circumstances at the time of the offense would have had or lacked the requisite intention, recklessness, knowledge or belief. (b) When the defendant’s intention, recklessness, knowledge or belief is an element of an offense, it is sufficient to establish a prima facie case for the State to prove circumstances surrounding the act which the defendant is alleged to have done from which a reasonable juror might infer that the defendant’s intention, recklessness, knowledge or belief was of the sort required for commission of the offense. (11 Del. C. 1953, § 307; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 308. Construction of provisions allowing no defense. When a provision of this Criminal Code expressly denies the applications of a specific defense, no inference is thereby created that any other defense is valid. (11 Del. C. 1953, § 308; 58 Del. Laws, c. 497, § 1.) Page 13 Title 11 - Crimes and Criminal Procedure Part I Delaware Criminal Code Chapter 4 Defenses to Criminal Liability § 401. Mental illness or psychiatric disorder. (a) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused’s conduct. If the defendant prevails in establishing the affirmative defense provided in this subsection, the trier of fact shall return a verdict of “not guilty by reason of insanity.” (b) Where the trier of fact determines that, at the time of the conduct charged, a defendant suffered from a mental illness or serious mental disorder which substantially disturbed such person’s thinking, feeling or behavior and/or that such mental illness or serious mental disorder left such person with insufficient willpower to choose whether the person would do the act or refrain from doing it, although physically capable, the trier of fact shall return a verdict of “guilty, but mentally ill.” (c) It shall not be a defense under this section if the alleged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor, any drug or other mentally debilitating substance, or any combination thereof, unless such substance was prescribed for the defendant by a licensed health-care practitioner and was used in accordance with the directions of such prescription. As used in this chapter, the terms “insanity” or “mental illness” do not include an abnormality manifested only by repeated criminal or other antisocial conduct. (11 Del. C. 1953, § 401; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 328, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 141, §§ 1, 2; 78 Del. Laws, c. 224, §§ 2, 3.) § 402. Rules to prescribe procedures for psychiatric examination; testimony of psychiatrist or other expert. (a) The procedures for examination of the accused by the accused’s own psychiatrist or by a psychiatrist employed by the State and the circumstances under which such an examination will be permitted may be prescribed by rules of the court having jurisdiction over the offense. (b) A psychiatrist or other expert testifying at trial concerning the mental condition of the accused shall be permitted to make a statement as to the nature of the examination, the psychiatrist’s or expert’s diagnosis of the mental condition of the accused at the time of the commission of the offense charged and the psychiatrist’s or expert’s opinion as to the extent, if any, to which the capacity of the accused to appreciate the wrongfulness of the accused’s conduct or to choose whether the accused would do the act or refrain from doing it or to have a particular state of mind which is an element of the offense charged was impaired as a result of mental illness or serious mental disorder at that time. The psychiatrist or expert shall be permitted to make any explanation reasonably serving to clarify the diagnosis and opinion and may be cross-examined as to any matter bearing on the psychiatrist’s or expert’s competence or credibility or the validity of the diagnosis or opinion. (11 Del. C. 1953, § 402; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 224, § 4.) § 403. Verdict of “not guilty by reason of insanity;” commitment to Delaware Psychiatric Center of persons no longer endangering the public safety; periodic review of commitments to Delaware Psychiatric Center; participation of patient in treatment program. (a) Upon the rendition of a verdict of “not guilty by reason of insanity,” the court shall, upon motion of the Attorney General, order that the person so acquitted shall forthwith be committed to the Delaware Psychiatric Center. (b) Except as provided in subsection (c) of this section below, a person committed, confined or transferred to the Delaware Psychiatric Center in accordance with subsection (a) of this section, § 404, § 405, § 406 or § 408 of this title (referred to herein as “the patient”) shall be kept there at all times in a secured building until the Superior Court of the county wherein the case would be tried or was tried is satisfied that the public safety will not be endangered by the patient’s release. The Superior Court shall without special motion reconsider the necessity of continued detention of a patient thus committed after the patient has been detained for 1 year. The Court shall thereafter reconsider the patient’s detention upon petition on the patient’s behalf or whenever advised by the Psychiatric Center that the public safety will not be endangered by the patient’s release. (c) (1) Upon petition by a patient confined pursuant to this section, § 404, § 405, § 406 or § 408 of this title, or upon petition by the Center Director of the Delaware Psychiatric Center, the Court may permit housing in an unsecured building or participation by the patient in any treatment program that is offered by the Center, which requires or provides that the patient be placed outside a secured building. Such participation shall include, but not be limited to, employment off hospital grounds, job interviews, family visits and other activities inside and outside the Center, as may be prescribed by the Medical Director in the interest of rehabilitation. (2) The petition shall include an affidavit from the Medical Director which states that the patient has not exhibited dangerous behavior during the last year of confinement and that in the opinion of the Medical Director, the patient will benefit from such participation. Page 14 Title 11 - Crimes and Criminal Procedure (3) The petition shall set forth any specific treatment program being sought; the specific goals and course of treatment involved; and a schedule for periodic judicial reevaluation of the patient’s treatment status, all of which shall be subject to the Court’s approval and modification. (4) Copies of the petition shall be served on the Attorney General, the Medical Director and the patient or the patient’s counsel or guardian. (5) There shall be a judicial hearing on the petition, and any person or agency served with a copy of the petition, or a representative of such person or agency, shall have the right to testify, present evidence and/or cross-examine witnesses. The patient shall have the right to be represented by counsel at any proceeding held in accordance with this section. The Court shall appoint counsel for the patient if the patient cannot afford to retain counsel. (6) Upon conclusion of a hearing on a petition pursuant to this section, the Court may approve, modify or disapprove any request or matter within the petition. If the patient’s participation in any treatment program is approved, such approval or participation shall be effective for not longer than 6 months from the date of the judge’s signature on the petition or order permitting such participation. Immediately prior to the conclusion of the 6-month period, the Center Director shall report to the Court on the patient’s status, and make recommendations. Any authorization by the Court for continued participation by the patient in any authorized treatment programs may be extended, modified or discontinued at the end of the effective period with or without further hearings, as the Court may determine. (d) Any treatment program approved by the Court under this section may be terminated by the Medical Director of the Delaware Psychiatric Center. When a treatment program is terminated earlier than its court-approved expiration date, the Medical Director shall immediately notify the Superior Court. The Superior Court shall, after giving appropriate notice, hear the matter and review the decision of the Medical Director. At such termination hearing, the patient shall have such rights as are provided for other hearings under this section, including the right to counsel, the right to present evidence and the right to cross-examine witnesses. Where the Medical Director’s decision to terminate is based upon the patient’s mental or psychological condition, the patient may be examined by an independent psychiatrist or other qualified expert; provided, however, that the termination hearing shall not be held until such examination has been finally concluded. (11 Del. C. 1953, § 403; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 428, §§ 1-3; 65 Del. Laws, c. 90, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1.) § 404. Confinement in Delaware Psychiatric Center of persons too mentally ill to stand trial; requiring State to prove prima facie case in such circumstances; adjustment of sentences. (a) Whenever the court is satisfied, after hearing, that an accused person, because of mental illness or serious mental disorder, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused’s own defense or to instruct counsel on the accused’s own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial. However, upon motion of the defendant, the court may conduct a hearing to determine whether the State can make out a prima facie case against the defendant, and if the State fails to present sufficient evidence to constitute a prima facie case, the court shall dismiss the charge. This dismissal shall have the same effect as a judgment of acquittal. (b) When the court finds that the defendant is capable of standing trial, the defendant may be tried in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center. (11 Del. C. 1953, § 404; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 3; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1; 78 Del. Laws, c. 224, § 5.) § 405. Confinement in Delaware Psychiatric Center of persons developing mental illness after conviction but before sentencing; adjustment of sentences. (a) Whenever the court is satisfied that a prisoner has developed a mental illness after conviction but before sentencing so that the prisoner is unable understandingly to participate in the sentencing proceedings, and if the court is satisfied that a sentence of imprisonment may be appropriate, the court may order the prisoner to be confined and treated in the Delaware Psychiatric Center until the prisoner is capable of participating in the sentencing proceedings. (b) When the court finds that the prisoner is capable of participating in the sentencing proceedings, the prisoner may be sentenced in the ordinary way, but the court may make any adjustment in the sentence which is required in the interest of justice, including a remission of all or any part of the time spent in the Psychiatric Center. (11 Del. C. 1953, § 405; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1; 78 Del. Laws, c. 224, §§ 6, 7.) § 406. Transfer of convicted persons becoming mentally disabled from prison to Delaware Psychiatric Center; appointment of physicians to conduct inquiry; expenses of transfer. (a) Whenever in any case it appears to the Superior Court, upon information received from the Department of Health and Social Services, that a prisoner confined with the Department has developed a mental illness after conviction and sentence, the Court may appoint Page 15 Title 11 - Crimes and Criminal Procedure 2 reputable practicing physicians to inquire of the mental condition of the prisoner and make report of their finding to the Court within 2 days from the date of their appointment, by writing under their hands and seals. Should the report of the physicians be that the prisoner has a mental illness, the prisoner shall at once be ordered by the Court transferred from the prison facility where the prisoner is confined to the Delaware Psychiatric Center. (b) The expenses of the removal of such a person with a mental illness and of admission into such Psychiatric Center and maintenance therein up and until the time the person is discharged by the Court shall be borne by the State. If any such person with a mental illness has any real or personal estate, the Department of Health and Social Services shall have for the expenses and charges so incurred the same remedy as is provided in § 5019 of Title 16. (11 Del. C. 1953, § 406; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1; 78 Del. Laws, c. 224, § 8; 79 Del. Laws, c. 442, § 2; 81 Del. Laws, c. 79, § 8.) § 407. [Reserved.] § 408. Verdict of “guilty, but mentally ill” — Sentence; confinement; discharge from treating facility. (a) Where a defendant’s defense is based upon allegations which, if true, would be grounds for a verdict of “guilty, but mentally ill” or the defendant desires to enter a plea to that effect, no finding of “guilty, but mentally ill” shall be rendered until the trier of fact has examined all appropriate reports (including the presentence investigation); has held a hearing on the sole issue of the defendant’s mental illness, at which either party may present evidence; and is satisfied that the defendant did in fact have a mental illness at the time of the offense to which the plea is entered. Where the trier of fact, after such hearing, is not satisfied that the defendant had a mental illness at the time of the offense, or determines that the facts do not support a “guilty, but mentally ill” plea, the trier of fact shall strike such plea, or permit such plea to be withdrawn by the defendant. A defendant whose plea is not accepted by the trier of fact shall be entitled to a jury trial, except that if a defendant subsequently waives the right to a jury trial, the judge who presided at the hearing on mental illness shall not preside at the trial. (b) In a trial under this section a defendant found guilty but mentally ill, or whose plea to that effect is accepted, may have any sentence imposed which may lawfully be imposed upon any defendant for the same offense. Such defendant shall be committed into the custody of the Department of Correction, and shall undergo such further evaluation and be given such immediate and temporary treatment as is psychiatrically indicated. The Commissioner shall retain exclusive jurisdiction over such person in all matters relating to security. The Commissioner shall thereupon confine such person in the Delaware Psychiatric Center, or other suitable place for the residential treatment of criminally culpable persons with a mental illness under the age of 18 who have been found nonamenable to the processes of Family Court. Although such person shall remain under the jurisdiction of the Department of Correction, decisions directly related to treatment for the mental illness for individuals placed at the Delaware Psychiatric Center, shall be the joint responsibility of the Director of the Division of Substance Abuse and Mental Health and those persons at the Delaware Psychiatric Center who are directly responsible for such treatment. The Delaware Psychiatric Center, or any other residential treatment facility to which the defendant is committed by the Commissioner, shall have the authority to discharge the defendant from the facility and return the defendant to the physical custody of the Commissioner whenever the facility believes that such a discharge is in the best interests of the defendant. The offender may, by written statement, refuse to take any drugs which are prescribed for treatment of the offender’s mental illness; except when such a refusal will endanger the life of the offender, or the lives or property of other persons with whom the offender has contact. (c) When the Psychiatric Center or other treating facility designated by the Commissioner discharges an offender prior to the expiration of such person’s sentence, the treating facility shall transmit to the Commissioner and to the Parole Board a report on the condition of the offender which contains the clinical facts; the diagnosis; the course of treatment, and prognosis for the remission of symptoms; the potential for the recidivism, and for danger to the offender’s own person or the public; and recommendations for future treatment. Where an offender under this section is sentenced to the Psychiatric Center or other facility, the offender shall not be eligible for any privileges not permitted in writing by the Commissioner (including escorted or unescorted on-grounds or off-grounds privileges) until the offender has become eligible for parole. Where the court finds that the offender, before completing the sentence, no longer needs nor could benefit from treatment for the offender’s mental illness, the offender shall be remanded to the Department of Correction. The offender shall have credited toward the sentence the time served at the Psychiatric Center or other facility. (d) No individual under the age of 18 shall be placed at the Delaware Psychiatric Center. Nothing herein shall prevent either the transfer to or placement at the Delaware Psychiatric Center any person who has reached the age of 18 following any finding of guilty, but mentally ill. (63 Del. Laws, c. 328, § 2; 64 Del. Laws, c. 467, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1; 73 Del. Laws, c. 41, § 1; 76 Del. Laws, c. 322, §§ 1-3; 78 Del. Laws, c. 224, § 9; 79 Del. Laws, c. 371, § 9.) § 409. Verdict of “guilty, but mentally ill” — Parole; probation. (a) A person who has been adjudged “guilty, but mentally ill” and who during incarceration is discharged from treatment may be placed on prerelease or parole status under the same terms and laws applicable to any other offender. Psychological or psychiatric counseling and treatment may be required as a condition for such status. Failure to continue treatment, except by agreement of the Department of Correction, shall be a basis for terminating prerelease status or instituting parole violation hearings. Page 16 Title 11 - Crimes and Criminal Procedure (b) If the report of the Delaware Psychiatric Center or other facility recommends parole, the paroling authority shall within 45 days or at the expiration of the offender’s minimum sentence, whichever is later, meet to consider the offender’s request for parole. If the report does not recommend parole, but other laws or administrative rules of the Department permit parole, the paroling authority may meet to consider a parole request. When the paroling authority considers the offender for parole, it shall consult with the State Hospital or other facility at which the offender had been treated, or from which the offender has been discharged. (c) If an offender who has been found “guilty, but mentally ill” is placed on probation, the court, upon recommendation by the Attorney General, shall make treatment a condition of probation. Reports as specified by the trial judge shall be filed with the probation officer, and the sentencing court. Treatment shall be provided by an agency of the State or, with the approval of the sentencing court and at individual expense, private agencies, private physicians or other mental health personnel. (63 Del. Laws, c. 328, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1.) §§ 410-420. [Reserved.] § 421. Voluntary intoxication. The fact that a criminal act was committed while the person committing such act was in a state of intoxication, or was committed because of such intoxication, is no defense to any criminal charge if the intoxication was voluntary. (11 Del. C. 1953, § 421; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 103, § 1; 59 Del. Laws, c. 203, § 37; 60 Del. Laws, c. 680, § 1.) § 422. Intoxication not mental illness. Evidence of voluntary intoxication shall not be admissible for the purpose of proving the existence of mental illness, mental defect, serious mental disorder or psychiatric disorder within the meaning of § 401 of this title. (11 Del. C. 1953, § 422; 58 Del. Laws, c. 497, § 1; 71 Del. Laws, c. 153, § 1; 78 Del. Laws, c. 224, § 10.) § 423. Involuntary intoxication as a defense. In any prosecution for an offense it is a defense that, as a result of intoxication which is not voluntary, the actor at the time of the conduct lacked substantial capacity to appreciate the wrongfulness of the conduct or to perform a material element of the offense, or lacked sufficient willpower to choose whether the person would do the act or refrain from doing it. (11 Del. C. 1953, § 423; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 424. Definitions relating to intoxication. As used in §§ 421-423 of this title: (1) “Intoxication” means the inability, resulting from the introduction of substances into the body, to exercise control over one’s mental faculties. (2) “Voluntary intoxication” means intoxication caused by substances which the actor knowingly introduces into the actor’s body, the tendency of which to cause intoxication the actor knows or should know, unless the actor introduces them pursuant to medical advice or under such duress as would afford a defense to a prosecution for a criminal offense. (11 Del. C. 1953, § 424; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) §§ 425-430. [Reserved.] § 431. Duress as affirmative defense; defense unavailable in certain situations. (a) In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the conduct charged to constitute the offense because the defendant was coerced to do so by the use of, or a threat to use, force against the defendant’s person or the person of another, which a reasonable person in the defendant’s situation would have been unable to resist. (b) The defense provided by subsection (a) of this section is unavailable if the defendant intentionally or recklessly placed himself or herself in a situation in which it was probable that the defendant would be subjected to duress. (c) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. The presumption that a woman acting in the presence of her husband is coerced is abolished. (11 Del. C. 1953, § 431; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 432. Entrapment as affirmative defense; defense unavailable in certain situations. (a) In any prosecution for an offense, it is an affirmative defense that the accused engaged in the proscribed conduct because the accused was induced by a law-enforcement official or the law-enforcement official’s agent who is acting in the knowing cooperation with such an official to engage in the proscribed conduct constituting such conduct which is a crime when such person is not otherwise disposed to do so. The defense of entrapment as defined by this Criminal Code concedes the commission of the act charged but claims that it should not be punished because of the wrongdoing of the officer originates the idea of the crime and then induces the other person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so. Page 17 Title 11 - Crimes and Criminal Procedure (b) The defense afforded by subsection (a) of this section is unavailable when causing or threatening physical injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment. (11 Del. C. 1953, § 432; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 38; 70 Del. Laws, c. 186, § 1.) §§ 433-440. [Reserved.] § 441. Ignorance or mistake of fact as defense. In any prosecution for an offense, it is a defense that the accused engaged in the conduct charged to constitute the offense under ignorance or mistake of fact if: (1) The ignorance or mistake negatives the state of mind for the commission of the offense; or (2) The statute defining the offense or a statute related thereto expressly provides that the ignorance or mistake constitutes a defense or exemption; or (3) The ignorance or mistake is of a kind that supports a defense of justification as defined in this Criminal Code. (11 Del. C. 1953, § 441; 58 Del. Laws, c. 497, § 1.) §§ 442-450. [Reserved.] § 451. Consent of victim to acts not involving physical injury as defense. In any prosecution for an offense, it is a defense that the victim consented to the act done, provided that: (1) The act did not involve or threaten physical injury; and (2) Such consent negatives an element of the offense. Any person who enters the presence of other people consents to the normal physical contacts incident to such presence. (11 Del. C. 1953, § 451; 58 Del. Laws, c. 497, § 1.) § 452. Consent of victim to inflictions of physical injury as defense. In any prosecution for an offense involving or threatening physical injury, it is a defense that the victim consented to the infliction of physical injury of the kind done or threatened, provided that: (1) The physical injury done or threatened by the conduct consented to is not serious physical injury; or (2) The physical injury done or threatened is a reasonably foreseeable hazard of joint participation in any concerted activity, athletic contest or sport not prohibited by law. (11 Del. C. 1953, § 452; 58 Del. Laws, c. 497, § 1.) § 453. Circumstances negativing consent as defense. Unless otherwise provided by this Criminal Code or by the law defining the offense, consent of the victim does not constitute a defense if: (1) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense unless the defendant believes the victim is legally competent; or (2) It is given by a person who, because of youth, mental illness, mental condition, mental defect, serious mental disorder, psychiatric disorder or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or (3) It is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or (4) It is induced by force, duress or deception. (11 Del. C. 1953, § 453; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 224, § 11.) § 454. Knowledge of victim’s age. Notwithstanding any provision of law to the contrary, it is no defense for an offense or sentencing provision defined in this title or in Title 16 or 31 which has as an element of such offense or sentencing provision the age of the victim that the accused did not know the age of the victim or reasonably believed the person to be of an age which would not meet the element of such offense or sentencing provision unless the statute defining such offense or sentencing provision or a statute directly related thereto expressly provides that knowledge of the victim’s age is an element of the offense or that lack of such knowledge is a defense. (73 Del. Laws, c. 126, § 2.) §§ 455-460. [Reserved.] § 461. Justification — A defense. In any prosecution for an offense, justification, as defined in §§ 462-471 of this title, is a defense. (11 Del. C. 1953, § 461; 58 Del. Laws, c. 497, § 1.) Page 18 Title 11 - Crimes and Criminal Procedure § 462. Justification — Execution of public duty. (a) Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law or by a judicial decree, including: (1) Laws defining duties and functions of public officers; (2) Laws defining duties of private citizens to assist public servants in the performance of certain of their functions; (3) Laws governing the execution of legal process; (4) Laws governing the military services and the conduct of war; and (5) Judgments or orders of competent courts or tribunals. (b) The justification afforded by subsection (a) of this section applies when: (1) The defendant’s conduct is required or authorized by the judgment or order of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or (2) The defendant believes the conduct to be required or authorized to assist a public officer in the performance of the officer’s duties, notwithstanding that the officer exceeded the officer’s legal authority. (11 Del. C. 1953, § 462; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 4; 70 Del. Laws, c. 186, § 1.) § 463. Justification — Choice of evils. Unless inconsistent with the ensuing sections of this Criminal Code defining justifiable use of physical force, or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the defendant, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. (11 Del. C. 1953, § 463; 58 Del. Laws, c. 497, § 1.) § 464. Justification — Use of force in self-protection. (a) The use of force upon or toward another person is justifiable when the defendant reasonably believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion. (b) Except as otherwise provided in subsections (d) and (e) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as the person reasonably believes them to be when the force is used, without retreating, surrendering possession, doing any other act which the person has no legal duty to do or abstaining from any lawful action. (c) The use of deadly force is justifiable under this section if the defendant reasonably believes that such force is necessary to protect the defendant against death, serious physical injury, kidnapping or sexual intercourse compelled by force or threat. (d) The use of force is not justifiable under this section to resist an arrest which the defendant knows or should know is being made by a peace officer, whether or not the arrest is lawful. (e) The use of deadly force is not justifiable under this section if: (1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or (2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that: a. The defendant is not obliged to retreat in or from the defendant’s dwelling; and b. The defendant is not obliged to retreat in or from the defendant’s place of work, unless the defendant was the initial aggressor; and c. A public officer justified in using force in the performance of the officer’s duties, or a person justified in using force in assisting an officer or a person justified in using force in making an arrest or preventing an escape, need not desist from efforts to perform the duty or make the arrest or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed. (11 Del. C. 1953, § 464; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 5; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 73, § 1.) § 465. Justification — Use of force for the protection of other persons. (a) The use of force upon or toward the person of another is justifiable to protect a third person when: (1) The defendant would have been justified under § 464 of this title in using such force to protect the defendant against the injury the defendant reasonably believes to be threatened to the person whom the defendant seeks to protect; and Page 19 Title 11 - Crimes and Criminal Procedure (2) Under the circumstances as the defendant reasonably believes them to be, the person whom the defendant seeks to protect would have been justified in using such protective force; and (3) The defendant reasonably believes that intervention is necessary for the protection of the other person. (b) Although the defendant would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, there is no obligation to do so before using force for the protection of another person, unless the defendant knows that the defendant can thereby secure the complete safety of the other person. (c) When the person whom the defendant seeks to protect would have been obliged under § 464 of this title to retreat, to surrender the possession of a thing or to comply with a demand if the person knew that the person could obtain complete safety by so doing, the defendant is obliged to try to cause the person to do so before using force in the person’s protection if the actor knows that complete safety can be secured in that way. (d) Neither the defendant nor the person whom the defendant seeks to protect is obliged to retreat when in the other’s dwelling or place of work to any greater extent than in their own. (11 Del. C. 1953, § 465; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 73, § 2.) § 466. Justification — Use of force for the protection of property. (a) The use of force upon or toward the person of another is justifiable when the defendant reasonably believes that such force is immediately necessary: (1) To prevent the commission of criminal trespass or burglary in a building or upon real property in the defendant’s possession or in the possession of another person for whose protection the defendant acts; or (2) To prevent entry upon real property in the defendant’s possession or in the possession of another person for whose protection the defendant acts; or (3) To prevent theft, criminal mischief or any trespassory taking of tangible, movable property in the defendant’s possession or in the possession of another person for whose protection the defendant acts. (b) The defendant may in the circumstances named in subsection (a) of this section use such force as the defendant reasonably believes is necessary to protect the threatened property, provided that the defendant first requests the person against whom force is used to desist from interference with the property, unless the defendant reasonably believes that: (1) Such a request would be useless; or (2) It would be dangerous to the defendant or another person to make the request; or (3) Substantial harm would be done to the physical condition of the property which is sought to be protected before the request could effectively be made. (c) The use of deadly force for the protection of property is justifiable only if the defendant reasonably believes that: (1) The person against whom the force is used is attempting to dispossess the defendant of the defendant’s dwelling otherwise than under a claim of right to its possession; or (2) The person against whom the deadly force is used is attempting to commit arson, burglary, robbery or felonious theft or property destruction and either: a. Had employed or threatened deadly force against or in the presence of the defendant; or b. Under the circumstances existing at the time, the defendant reasonably believed the use of force other than deadly force would expose the defendant, or another person in the defendant’s presence, to the reasonable likelihood of serious physical injury. (d) Where a person has used force for the protection of property and has not been convicted for any crime or offense connected with that use of force, such person shall not be liable for damages or be otherwise civilly liable to the one against whom such force was used. (11 Del. C. 1953, § 466; 58 Del. Laws, c. 497, § 1; 62 Del. Laws, c. 266, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 73, § 3.) § 467. Justification — Use of force in law enforcement. (a) The use of force upon or toward the person of another is justifiable when: (1) The defendant is making an arrest or assisting in making an arrest and reasonably believes that such force is immediately necessary to effect the arrest; or (2) The defendant is attempting to arrest an individual that has taken a hostage, and refused to comply with an order to release the hostage; and a. The defendant reasonably believes that the use of force is necessary to prevent physical harm to any person taken hostage; or b. The defendant has been ordered by an individual the defendant reasonably believes possesses superior authority or knowledge to apply the use of force. (b) The use of force is not justifiable under this section unless: (1) The defendant makes known the purpose of the arrest or reasonably believes that it is otherwise known or cannot reasonably be made known to the person to be arrested; and Page 20 Title 11 - Crimes and Criminal Procedure (2) When the arrest is made under a warrant, the warrant is valid or reasonably believed by the defendant to be valid; or (3) When the arrest is made without a warrant, the defendant reasonably believes the arrest to be lawful. (c) The use of deadly force is justifiable under this section if all other reasonable means of apprehension have been exhausted, and: (1) The defendant reasonably believes the arrest is for any crime involving physical injury or threat thereof, and the deadly force is directed at a vehicle to disable it for the purpose of effecting the arrest, or the defendant reasonably believes the arrest is for a felony involving physical injury or threat thereof; (2) The defendant reasonably believes that the force employed creates no substantial risk of injury to innocent persons; and (3) The defendant reasonably believes that there is a substantial risk that the person to be arrested will cause death or serious physical injury, or will never be captured if apprehension is delayed. (d) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which the person reasonably believes to be immediately necessary to prevent the escape of a person from a jail, prison or other institution for the detention of persons charged with or convicted of a crime. (e) The use of force upon or toward the person of another is justifiable when the defendant reasonably believes that such force is immediately necessary to prevent such other person from committing suicide, inflicting serious physical injury upon the person’s self or committing a crime involving or threatening physical injury, damage to or loss of property or a breach of the peace, except that the use of deadly force is not justifiable under this subsection unless: (1) The defendant reasonably believes that there is a substantial risk that the person whom the defendant seeks to prevent from committing a crime will cause death or serious physical injury to another unless the commission of the crime is prevented and that the use of deadly force presents no substantial risk of injury to innocent persons; or (2) The defendant reasonably believes that the use of deadly force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any manner that the law may require, that such force will be used if they do not obey. (f) The use of deadly force is justifiable under this section if the defendant is attempting to arrest an individual that has taken a hostage, and has refused to comply with an order to release the hostage; and (1) The defendant reasonably believes that the use of force is necessary to prevent physical harm to any person taken hostage, or the defendant has been ordered by an individual the defendant reasonably believes possesses superior authority or knowledge to apply the use of force; and (2) The defendant reasonably believes that the force employed creates no substantial risk of injury to innocent persons; and (3) The defendant or a person of superior authority or knowledge who order the use of deadly force reasonably believes that there is a substantial risk that the person to be arrested will cause death or serious physical injury. (11 Del. C. 1953, § 467; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 6; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 180, §§ 1, 2; 83 Del. Laws, c. 73, § 4.) § 468. Justification — Use of force by persons with special responsibility for care, discipline or safety of others. The use of force upon or toward the person of another is justifiable if it is reasonable and moderate and: (1) The defendant is the parent, guardian, foster parent, legal custodian or other person similarly responsible for the general care and supervision of a child, or a person acting at the request of a parent, guardian, foster parent, legal custodian or other responsible person, and: a. The force is used for the purpose of safeguarding or promoting the welfare of the child, including the prevention or punishment of misconduct; and b. The force used is intended to benefit the child, or for the special purposes listed in paragraphs (2)a., (3)a., (4)a., (5), (6) and (7) of this section. The size, age, condition of the child, location of the force and the strength and duration of the force shall be factors considered in determining whether the force used is reasonable and moderate; but c. The force shall not be justified if it includes, but is not limited to, any of the following: Throwing the child, kicking, burning, cutting, striking with a closed fist, interfering with breathing, use of or threatened use of a deadly weapon, prolonged deprivation of sustenance or medication, or doing any other act that is likely to cause or does cause physical injury, disfigurement, mental distress, unnecessary degradation or substantial risk of serious physical injury or death; or (2) The defendant is a teacher or a person otherwise entrusted with the care or supervision of a child for a special purpose, and: a. The defendant reasonably believes the force used is necessary to further the special purpose, including the maintenance of reasonable discipline in a school, class or other group, and that the use of force is consistent with the welfare of the child; and b. The degree of force, if it had been used by the parent, guardian, foster parent or legal custodian of the child, would be justifiable under paragraph (1)a. and b. of this section and not enumerated under paragraph (1)c. of this section; or (3) The defendant is the guardian or other person similarly responsible for the general care and supervision of a person who is incompetent, and: Page 21 Title 11 - Crimes and Criminal Procedure a. The force is used for the purpose of safeguarding or promoting the welfare of the person who is incompetent, including the prevention of misconduct, or, when such person who is incompetent is in a hospital or other institution for care and custody, for the maintenance of reasonable discipline in such institution; and b. The force used is reasonable and moderate; the size, age, condition of the person who is incompetent, location of the force and the strength and duration of the force shall be factors considered in determining whether the force used is reasonable and moderate; and c. The force is not enumerated under paragraph (1)c. of this section; and d. The force is not proscribed as abuse or mistreatment under Chapter 11 of Title 16; or (4) The defendant is a doctor or other therapist or a person assisting at the doctor’s or other therapist’s direction, and: a. The force is used for the purpose of administering a recognized form of treatment which the defendant reasonably believes to be adapted to promoting the physical or mental health of the patient; and b. The treatment is administered with the consent of the patient or, if the patient is a minor or a person who is incompetent, with the consent of a parent, guardian or other person legally competent to consent in the patient’s behalf, or the treatment is administered in an emergency when the defendant reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent; or (5) The defendant is a warden or other authorized official of a correctional institution, or a superintendent, administrator or other authorized official of the Division of Youth Rehabilitative Service, and: a. The defendant reasonably believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution; and b. The nature or degree of force used is not forbidden by any statute governing the administration of the institution; and c. If deadly force is used, its use is otherwise justifiable under this Criminal Code; or (6) The defendant is a person responsible for the safety of a vessel or an aircraft or a person acting at the responsible person’s direction, and: a. The defendant reasonably believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order; and b. If deadly force is used, its use is otherwise justifiable under this Criminal Code; or (7) The defendant is a person who is authorized or required by law to maintain order or decorum in a vehicle, train or other carrier or in a place where others are assembled, and: a. The defendant reasonably believes that the force used is necessary for such purpose; and b. The force used is not designed to cause or known to create a substantial risk of causing death, physical injury or extreme mental distress. (11 Del. C. 1953, § 468; 58 Del. Laws, c. 497, § 1; 68 Del. Laws, c. 442, §§ 1, 2, 4; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 224, §§ 12, 13; 83 Del. Laws, c. 73, § 5.) § 469. Justification — Person unlawfully in dwelling. In the prosecution of an occupant of a dwelling charged with killing or injuring an intruder who was unlawfully in said dwelling, it shall be a defense that the occupant was in the occupant’s own dwelling at the time of the offense, and: (1) The encounter between the occupant and intruder was sudden and unexpected, compelling the occupant to act instantly; or (2) The occupant reasonably believed that the intruder would inflict personal injury upon the occupant or others in the dwelling; or (3) The occupant demanded that the intruder disarm or surrender, and the intruder refused to do so. (63 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 186, § 1.) § 470. Provisions generally applicable to justification. (a) When the defendant reasonably believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such relief would establish a justification under § § 462-468 of this title but the defendant is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of the use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability. (b) When the defendant is justified under §§ 462-468 of this title in using force upon or toward the person of another but the defendant recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving recklessness or negligence towards innocent persons. (11 Del. C. 1953, § 469; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 73, § 6.) § 471. Definitions relating to justification. (a) “Deadly force” means force which the defendant uses with the purpose of causing or which the defendant knows creates a substantial risk of causing death or serious physical injury, including the use of a chokehold as “chokehold” is defined under § 607A of this title. Page 22 Title 11 - Crimes and Criminal Procedure Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the defendant’s purpose is limited to creating an apprehension that deadly force will be used if necessary, does not constitute deadly force. (b) “Dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is for the time being the defendant’s home or place of lodging. (c) “Force,” in addition to its ordinary meaning, includes confinement. (d) “Physical force” means force used upon or directed toward the body of another person. (e) (1) “Reasonably believes,” when applied to a defendant who is not a law-enforcement officer acting in the officer’s official capacity, means holds a belief that is reasonable from the viewpoint of a reasonable person in the defendant’s situation under the circumstances. (2) “Reasonably believes,” when applied to a defendant who is a law-enforcement officer acting in the officer’s official capacity, means holds a belief that is reasonable from the viewpoint of a reasonable law-enforcement officer in the defendant’s situation under the circumstances. (f) “Unlawful force” means force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious bodily harm. (11 Del. C. 1953, § 470; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 276, § 1; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 73, § 7.) § 472. Mitigating factors and defenses based on a victim’s sexual orientation, sex, gender, gender identity, or sex assigned at birth. (a) Notwithstanding any other provision of this Criminal Code, in any prosecution or sentencing for an offense, a defendant is not justified in using force against another based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth. (b) Notwithstanding any other provision of this Criminal Code, in any prosecution or sentencing for an offense, for the purposes of determining whether there is a reasonable explanation or excuse for the existence of extreme emotional disturbance or other asserted mitigating factor or circumstance, such explanation or excuse is not reasonable if it is based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth. (c) Notwithstanding any other provision of this Criminal Code, in any prosecution or sentencing for an offense, a defendant does not suffer from a mental illness, mental defect, mental disorder, serious mental disorder, psychiatric disorder, or other impairment affecting or impacting the defendant’s mental state relating to any questions of intent; knowledge; capacity to appreciate the wrongfulness of the defendant’s conduct; disturbance of the defendant’s thinking, feeling, or behavior; culpability; willpower to choose whether to do or refrain from doing an act; or ability to distinguish right from wrong, based on the discovery of, knowledge or belief about, or the potential or actual disclosure of the victim’s actual or perceived sexual orientation, sex, gender, gender identity, or sex assigned at birth. (84 Del. Laws, c. 215, § 2.) § 475. Immunity as an affirmative defense. In any prosecution for an offense, it is an affirmative defense that the accused was granted immunity from prosecution for that offense by the Attorney General or a Deputy Attorney General or by court order pursuant to § 3506 of this title. It is also an affirmative defense that the accused was granted immunity from prosecution for a different offense when prosecution for the offense now charged would have been barred by prosecution for the offense as to which immunity was granted under § 208 of this title; provided, that the Attorney General or a Deputy Attorney General may, in granting immunity, stipulate that the immunity applies only to a specific offense, in which case effect shall be given to the stipulation. (11 Del. C. 1953, § 475; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 271, § 1; 70 Del. Laws, c. 186, § 1.) § 476. Racketeering activities; excluded defenses. (a) In any prosecution under Chapter 15 of this title where it is alleged that the offender or offenders were acting as members of a group or informal organization it shall be no defense to such prosecution or were engaged in any form of racketeering or racketeering activity, that: (1) One or more members of the group or organization are not criminally responsible for the offense for which the prosecution is brought; (2) One or more members of the group or organization have been acquitted, have not been prosecuted or convicted, have been convicted of a different offense or are immune from prosecution; (3) A different person has been charged with, acquitted or convicted of any offense set forth in Chapter 15 of this title. Page 23 Title 11 - Crimes and Criminal Procedure (b) Once an act of racketeering has been initiated by a group and there is a subsequent change in the number or identity of persons in such group or organization, as long as 2 or more of the original members remain in such group or are involved in a continuing course of conduct constituting an offense under Chapter 15 of this title, it shall be no defense to claim that the defendant was not part of the group or organization. (65 Del. Laws, c. 493, § 2; 70 Del. Laws, c. 186, § 1.) § 477. Organized crime; renunciation. (a) It is an affirmative defense to a prosecution under § 1503 of this title, that under circumstances manifesting a voluntary and complete renunciation of the criminal objective, the defendant withdrew from the proposed or intended unlawful activity before the commission of an offense set forth in Chapter 15 of this title; and that such person took further affirmative action that, in whole or in part, prevented the commission of the offense. (b) Renunciation is not “voluntary,” if it is motivated in whole or in part: (1) By circumstances not present or apparent at the inception of the defendant’s course of conduct that increased the probability of detection or apprehension, or that made more difficult the accomplishment of the objective; or (2) By a decision to postpone the criminal conduct until another time, or to transfer the criminal act to another (but similar) objective or victim. (c) Evidence that the defendant withdrew from the unlawful activity before commission of an offense set forth in Chapter 15 of this title, and made substantial effort to prevent the commission of an offense under that chapter, shall be admissible as mitigation at the hearing on punishment if such person has been found guilty; and in the event of a finding of renunciation under this section, the punishment of such person shall be less than that which would otherwise be imposed. The Court shall determine the extent and genuineness of the renunciation, and determine the reduction. (65 Del. Laws, c. 493, § 2; 70 Del. Laws, c. 186, § 1.) Page 24 Title 11 - Crimes and Criminal Procedure Part I Delaware Criminal Code Chapter 5 Specific Offenses Subchapter I Inchoate Crimes § 501. Criminal solicitation in the third degree; class A misdemeanor. A person is guilty of criminal solicitation in the third degree when, intending that another person engage in conduct constituting a misdemeanor, the person solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage in conduct that would constitute the misdemeanor or an attempt to commit the misdemeanor or which would establish the other’s complicity in its commission or attempted commission. Criminal solicitation in the third degree is a class A misdemeanor. (11 Del. C. 1953, § 501; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 502. Criminal solicitation in the second degree; class F felony. A person is guilty of criminal solicitation in the second degree when, intending that another person engage in conduct constituting a felony, the person solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage in conduct which would constitute the felony or an attempt to commit the felony, or which would establish the other’s complicity in its commission or attempted commission. Criminal solicitation in the second degree is a class F felony, unless the person is 18 years of age or older, and the other person had not yet reached his or her eighteenth birthday at the time of the crime, in which case it is a class D felony, or unless the person is more than 3 years older than the other person, and the other person had not yet reached his or her fifteenth birthday at the time of the crime, in which case it is a class D felony. (11 Del. C. 1953, § 502; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 424, § 1.) § 503. Criminal solicitation in the first degree; class E felony. A person is guilty of criminal solicitation in the first degree when, intending that another person engage in conduct constituting a class A felony, the person solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage in conduct which would constitute the felony or an attempt to commit the felony, or which would establish the other’s complicity in its commission or attempted commission. Criminal solicitation in the first degree is a class E felony, unless the person is 18 years of age or older, and the other person had not yet reached his or her eighteenth birthday at the time of the crime, in which case it is a class C felony, or unless the person is more than 3 years older than the other person, and the other person had not yet reached his or her fifteenth birthday at the time of the crime, in which case it is a class C felony. (11 Del. C. 1953, § 503; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 424, § 2.) §§ 504-510. [Reserved.] § 511. Conspiracy in the third degree; class A misdemeanor. A person is guilty of conspiracy in the third degree when, intending to promote or facilitate commission of a misdemeanor, the person: (1) Agrees with another person or persons that they or 1 or more of them will engage in conduct constituting the misdemeanor or an attempt or solicitation to commit the misdemeanor; or (2) Agrees to aid another person or persons in the planning or commission of the misdemeanor or an attempt or solicitation to commit the misdemeanor, and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy. Conspiracy in the third degree is a class A misdemeanor. (11 Del. C. 1953, § 511; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 7; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 512. Conspiracy in the second degree; class G felony. A person is guilty of conspiracy in the second degree when, intending to promote or facilitate the commission of a felony, the person: (1) Agrees with another person or persons that they or 1 or more of them will engage in conduct constituting the felony or an attempt or solicitation to commit the felony; or Page 25 Title 11 - Crimes and Criminal Procedure (2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the felony; and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy. Conspiracy in the second degree is a class G felony. (11 Del. C. 1953, § 512; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 7; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 513. Conspiracy in the first degree; class E felony. A person is guilty of conspiracy in the first degree when, intending to promote or facilitate the commission of a class A felony, the person: (1) Agrees with another person or persons that they or 1 or more of them will engage in conduct constituting the felony or an attempt or solicitation to commit the felony; or (2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or solicitation to commit the felony, and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy. Conspiracy in the first degree is a class E felony. (11 Del. C. 1953, § 513; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 7; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) §§ 514-520. [Reserved.] § 521. Conspiracy. (a) If a person conspires to commit a number of crimes, the person is guilty of only 1 conspiracy, so long as the multiple crimes are the object of the same agreement of continuous conspiratorial relationship. The person may be convicted of the degree of conspiracy which includes the most serious offense which the person is found guilty of conspiring to commit. (b) If a person guilty of conspiracy, as defined by §§ 511-513 of this title, knows that a person with whom the person conspires to commit a crime has conspired with another person or persons to commit the same crime, the first person is guilty of conspiring to commit the crime with the other person or persons, whether or not the first person knows their identity. (c) No person may be convicted of conspiracy to commit an offense when an element of the offense is agreement with the person with whom the person is alleged to have conspired, or when the person with whom the person is alleged to have conspired is necessarily involved with the person in the commission of the offense. (11 Del. C. 1953, § 521; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 522. Joinder and venue in conspiracy prosecutions. (a) Subject to subsection (b) of this section, 2 or more persons charged with conspiracy to commit a crime may be prosecuted jointly if: (1) They are charged with conspiring with one another; or (2) The conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct. (b) In any joint prosecution under subsection (a) of this section: (1) No defendant shall be charged with a conspiracy in any county other than one in which the defendant entered into the conspiracy or one in which an overt act pursuant to the conspiracy was done by the defendant or by a person with whom the defendant conspired; and (2) Neither the criminal liability of any defendant nor the admissibility against a defendant of evidence of acts or declarations of another shall be enlarged by the joinder; and (3) The court may order a severance or take a special verdict as to any defendant who so requests, if it deems such action necessary or appropriate to promote the fair determination of guilt or innocence, and the court may take any other proper measures to protect the fairness of the trial. (11 Del. C. 1953, § 522; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 523. Criminal solicitation and conspiracy unaffected by matters relating to the complicity of other persons. (a) It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the conduct solicited or of the defendant’s criminal purpose or because of other factors precluding the mental state required for the commission of the crime in question. (b) It is no defense to a prosecution for criminal conspiracy that, because of irresponsibility or other legal incapacity or exemption, or because of unawareness of the criminal nature of the agreement or the conduct contemplated or of the defendant’s criminal purpose or because of other factors precluding the mental state required for commission of the conspiracy or the crime contemplated, 1 or more of the defendant’s coconspirators could not be guilty of the conspiracy or the crime contemplated. (11 Del. C. 1953, § 523; 58 Del. Laws, c. 497, § 1.) Page 26 Title 11 - Crimes and Criminal Procedure §§ 524-530. [Reserved.] § 531. Attempt to commit a crime. A person is guilty of an attempt to commit a crime if the person: (1) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or (2) Intentionally does or omits to do anything which, under the circumstances as the person believes them to be, is a substantial step in a course of conduct planned to culminate in the commission of the crime by the person. Attempt to commit a crime is an offense of the same grade and degree as the most serious offense which the accused is found guilty of attempting. (11 Del. C. 1953, § 531; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 532. “Substantial step” defined. A “substantial step” under § 531 of this title is an act or omission which leaves no reasonable doubt as to the defendant’s intention to commit the crime which the defendant is charged with attempting. (11 Del. C. 1953, § 532; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 533. Conduct intended to aid another to commit a crime. A person who engages in conduct intended to aid another person to commit a crime is guilty of an attempt to commit the crime, although the crime is not committed or attempted by the other person, provided that the conduct would establish the person’s complicity under § 271 of this title if the crime were committed by the other person. (11 Del. C. 1953, § 533; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) §§ 534-540. [Reserved.] § 541. Criminal solicitation, conspiracy, attempt to commit a crime; defense of renunciation. (a) In any prosecution for criminal solicitation or conspiracy in which the crime solicited or the crime contemplated by the conspiracy was not in fact committed, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of the criminal purpose, the accused prevented the commission of the crime. (b) In any prosecution for an attempt to commit a crime it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of the criminal purpose, the accused avoided the commission of the crime attempted by abandoning the criminal effort and, if mere abandonment was insufficient to accomplish avoidance, by taking further and affirmative steps which prevented the commission of the crime attempted. (c) A renunciation is not “voluntary and complete” within the meaning of this section if it is motivated in whole or in part by: (1) A belief that circumstances exist which increase the probability of detection or apprehension of the accused or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or (2) A decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective. (1 Del. C. 1953, § 541; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 542. Exemption of law-enforcement officers. Nothing in this subchapter shall apply to any law-enforcement officer or the officer’s agent while acting in the lawful performance of duty. (11 Del. C. 1953, § 542; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) Subchapter II Offenses Against the Person A Assaults and Related Offenses § 601. Offensive touching; unclassified misdemeanor; class A misdemeanor. (a) A person is guilty of offensive touching when the person: (1) Intentionally touches another person either with a member of his or her body or with any instrument, knowing that the person is thereby likely to cause offense or alarm to such other person; or (2) Intentionally strikes another person with saliva, urine, feces or any other bodily fluid, knowing that the person is thereby likely to cause offense or alarm to such other person. (b) When charged with a violation of paragraph (a)(2) of this section, the defendant shall be tested for diseases transmittable through bodily fluids, the cost of such tests to be assessed as costs upon conviction. The results of such tests shall be provided only to the Attorney General, the victim of the offense, the defendant and the Department of Correction’s medical care provider. Page 27 Title 11 - Crimes and Criminal Procedure (c) Any violation of paragraph (a)(1) of this section shall be an unclassified misdemeanor. Notwithstanding the above, any violation of paragraph (a)(1) of this section shall be a class A misdemeanor when the victim is acting in the lawful performance of the victim’s duty as 1 of the following: law-enforcement officer, hospital or nursing home employee, physician, medical professional, ambulance attendant, emergency medical technician, advanced emergency medical technician, paramedic, Delaware State Fire Police Officer, correctional officer, volunteer firefighter or full-time firefighter. Any violation of paragraph (a)(2) of this section shall be a class A misdemeanor. (11 Del. C. 1953, § 601; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 382, § 1; 73 Del. Laws, c. 108, §§ 1, 2; 79 Del. Laws, c. 64, § 1.) § 602. Menacing; unclassified misdemeanor. (a) A person is guilty of menacing when by some movement of body or any instrument the person intentionally places another person in fear of imminent physical injury. Menacing is an unclassified misdemeanor. (b) A person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury. Aggravated menacing is a class E felony. (11 Del. C. 1953, § 602; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 159, §§ 1, 2; 70 Del. Laws, c. 186, § 1.) § 603. Reckless endangering in the second degree; class A misdemeanor. (a) A person is guilty of reckless endangering in the second degree when: (1) The person recklessly engages in conduct which creates a substantial risk of physical injury to another person; or (2) Being a parent, guardian or other person legally charged with the care or custody of a child less than 18 years old, the person knowingly, intentionally or with criminal negligence acts in a manner which contributes to or fails to act to prevent the unlawful possession and/or purchase of a firearm by a juvenile. It shall be an absolute defense to this paragraph if the person charged had a lock on the trigger and did not tell or show the juvenile where the key to the trigger lock was kept. It shall also be an absolute defense to this paragraph if the person had locked the firearm in a key or combination locked container and did not tell or show the juvenile where the key was kept or what the combination was. (b) Reckless endangering in the second degree is a class A misdemeanor. (11 Del. C. 1953, § 603; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 359, § 1.) § 604. Reckless endangering in the first degree; class E felony. A person is guilty of reckless endangering in the first degree when the person recklessly engages in conduct which creates a substantial risk of death to another person. Reckless endangering in the first degree is a class E felony. (11 Del. C. 1953, § 604; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 69 Del. Laws, c. 24, § 2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 34, § 9.) § 605. Abuse of a pregnant female in the second degree; class C felony. (a) A person is guilty of abuse of a pregnant female in the second degree when in the course of or in furtherance of the commission or attempted commission of assault third degree or any violent felony against or upon a pregnant female, or while in immediate flight therefrom, the person recklessly and without her consent causes the unlawful termination of her pregnancy. (b) It is no defense to a prosecution under this section that the person was unaware that the victim was pregnant. (c) Prosecution under this section does not preclude prosecution under any other section of the Delaware Code. Abuse of a pregnant female in the second degree is a class C felony. (72 Del. Laws, c. 43, § 3; 70 Del. Laws, c. 186, § 1.) § 606. Abuse of a pregnant female in the first degree; class B felony. (a) A person is guilty of abuse of a pregnant female in the first degree when in the course of or in furtherance of the commission or attempted commission of assault third degree any violent felony against or upon a pregnant female, or while in immediate flight therefrom, the person intentionally and without her consent causes the unlawful termination of her pregnancy. (b) It is no defense to a prosecution under this section that the person was unaware that the victim was pregnant. (c) Prosecution under this section does not preclude prosecution under any other section of the Delaware Code. Abuse of a pregnant female in the first degree is a class B felony. (72 Del. Laws, c. 43, § 4; 70 Del. Laws, c. 186, § 1.) § 607. Strangulation or suffocation; class B or D felony; penalty; affirmative defense. (a) (1) A person commits the offense of strangulation if the person knowingly or intentionally impedes the normal breathing or circulation of the blood of another person by applying pressure on the throat or neck of the other person. Page 28 Title 11 - Crimes and Criminal Procedure (2) A person commits the offense of suffocation if the person knowingly or intentionally prevents another person from breathing by blocking or obstructing the nose or mouth of the other person. (b) (1) Except as provided in paragraph (b)(2) of this section, strangulation or suffocation is a class D felony. (2) Strangulation or suffocation is a class B felony if: a. The person used or attempted to use a dangerous instrument or a deadly weapon while committing the offense; or b. The person caused serious physical injury to the other person while committing the offense; or c. [Repealed] d. The person was subject to an existing court order prohibiting contact with the victim at the time of the offense; or e. The person committed the offense against a pregnant female; or f. The person committed the offense against a child. (c) Notwithstanding any provisions of this Code to the contrary, any person who commits an offense under subsection (a) of this section within 5 years of a prior conviction under either subsection (a) or (b) of this section or a substantially similar section of another state, shall receive a minimum sentence of 1 year at Level 5. (d) The absence of visible bodily injury shall not preclude a conviction under this section. (e) It is an affirmative defense that an act constituting strangulation was the result of a legitimate medical procedure. (77 Del. Laws, c. 256, § 1; 83 Del. Laws, c. 392, § 1.) § 607A. Aggravated strangulation; penalty; defenses. (a) As used in this section: (1) “Chokehold” means of any of the following: a. A technique intended to restrict another person’s airway, or prevent or restrict the breathing of another person. b. A technique intended to constrict the flow of blood by applying pressure or force to the carotid artery, the jugular vein, or the side of the neck of another person. (2) “Law-enforcement officer” means as defined in § 222 of this title. (b) A person commits the offense of aggravated strangulation if all of the following conditions are satisfied: (1) The person is a law-enforcement officer. (2) The person knowingly or intentionally uses a chokehold on another person. (3) The person is acting within the person’s official capacity as a law-enforcement officer. (c) Notwithstanding §§ 462-468 of this title to the contrary, the use of a chokehold is only justifiable when the person reasonably believes that the use of deadly force is necessary to protect the life of a civilian or a law-enforcement officer. (d) Except as provided in paragraph (e) of this section, aggravated strangulation is a class D felony. (e) Aggravated strangulation is a class C felony if the person caused serious physical injury or death to the other person while committing the offense. (f) A charge under this section does not limit or preclude any other charge being brought against the person. (82 Del. Laws, c. 281, § 1; 83 Del. Laws, c. 37, § 4.) §§ 608-610. [Reserved.] § 611. Assault in the third degree; class A misdemeanor. A person is guilty of assault in the third degree when: (1) The person intentionally or recklessly causes physical injury to another person; or (2) With criminal negligence the person causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor. (11 Del. C. 1953, § 611; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 612. Assault in the second degree; class D felony. (a) A person is guilty of assault in the second degree when: (1) The person recklessly or intentionally causes serious physical injury to another person; or (2) The person recklessly or intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or (3) The person intentionally causes physical injury to a law-enforcement officer, a volunteer firefighter, a full-time firefighter, emergency medical technician, paramedic, fire police officer, fire marshal, correctional officer, a sheriff, a deputy sheriff, public transit operator, hospital security officer or constable, code enforcement constable, or a code enforcement officer who is acting in the lawful performance of duty. For purposes of this subsection, if a law-enforcement officer is off duty and the nature of the assault is related to that law-enforcement officer’s official position, then it shall fall within the meaning of “official duties” of a law-enforcement officer; or Page 29 Title 11 - Crimes and Criminal Procedure (4) The person intentionally causes physical injury to the operator of an ambulance, a rescue squad member, licensed practical nurse, registered nurse, paramedic, licensed medical doctor, or any person providing health-care treatment or employed by a healthcare provider while such person is performing a work-related duty; or (5) The person intentionally causes physical injury to any other person while such person is rendering emergency care; or (6) The person recklessly or intentionally causes physical injury to another person who is 62 years of age or older; or (7) The person intentionally assaults a law-enforcement officer while in the performance of the officer’s duties, with any disabling chemical spray, or with any aerosol or hand sprayed liquid or gas with the intent to incapacitate such officer and prevent the officer from performing such duties; or (8) The person intentionally, while engaged in commission of any crime enumerated in this chapter, assaults any other person with any disabling chemical spray, or with any aerosol or hand sprayed liquid or gas with the intent to incapacitate the victim; or (9) The person intentionally causes physical injury to any state employee or officer when that employee or officer is discharging or attempting to discharge a duty of employment or office; or (10) The person recklessly or intentionally causes physical injury to a pregnant female. It is no defense to a prosecution under this subsection that the person was unaware that the victim was pregnant; or (11) A person who is 18 years of age or older and who recklessly or intentionally causes physical injury to another person who has not yet reached the age of 6 years. In any prosecution of a parent, guardian, foster parent, legal custodian or other person similarly responsible for the general care and supervision of a child victim pursuant to this paragraph, the State shall be required to prove beyond a reasonable doubt the absence of any justification offered by § 468(1) of this title. In any prosecution of a teacher or school administrator pursuant to this paragraph, the State shall be required to prove beyond a reasonable doubt the absence of any justification offered by § 468(2) of this title; or (12) The person recklessly or intentionally causes physical injury to a law-enforcement officer, security officer, fire police officer, fire fighter, paramedic, or emergency medical technician in the lawful performance of their duties by means of an electronic control device shall be a class C felony. (b) It is no defense, for an offense under paragraph (a)(6) of this section, that the accused did not know the person’s age or that the accused reasonably believed the person to be under the age of 62. (c) It is no defense, for an offense under paragraph (a)(11) of this section, that the accused did not know the person’s age or that the accused reasonably believed the person to be 6 years of age or older. (d) Assault in the second degree is a class D felony. (11 Del. C. 1953, § 612; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 50, § 1; 63 Del. Laws, c. 237, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 129, §§ 1, 3; 69 Del. Laws, c. 24, §§ 3, 4; 69 Del. Laws, c. 189, § 1; 69 Del. Laws, c. 367, § 1; 70 Del. Laws, c. 128, §§ 1-5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 307, § 1; 71 Del. Laws, c. 374, §§ 4, 5; 72 Del. Laws, c. 34, § 10; 72 Del. Laws, c. 43, § 5; 72 Del. Laws, c. 173, §§ 1, 2; 73 Del. Laws, c. 126, §§ 3, 16; 74 Del. Laws, c. 199; 76 Del. Laws, c. 270, § 3; 77 Del. Laws, c. 119, § 1; 77 Del. Laws, c. 265, § 1; 78 Del. Laws, c. 325, § 1; 80 Del. Laws, c. 287, § 1; 83 Del. Laws, c. 334, § 1.) § 613. Assault in the first degree; class B felony. (a) A person is guilty of assault in the first degree when: (1) The person intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or (2) The person intentionally disfigures another person seriously and permanently, or intentionally destroys, amputates or disables permanently a member or organ of another person’s body; or (3) The person recklessly engages in conduct which creates a substantial risk of death to another person, and thereby causes serious physical injury to another person; or (4) While engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any felony, the person intentionally or recklessly causes serious physical injury to another person; or (5) The person intentionally causes serious physical injury to a law-enforcement officer, a volunteer firefighter, a full-time firefighter, emergency medical technician, paramedic, fire police officer, fire marshal, public transit operator, a code enforcement constable or a code enforcement officer who is acting in the lawful performance of duty; or (6) The person intentionally causes serious physical injury to the operator of an ambulance, a rescue squad member, licensed practical nurse, registered nurse, paramedic, licensed medical doctor or any other person while such person is rendering emergency care; or (7) The person intentionally causes serious physical injury to another person who is 62 years of age or older. (b) It is no defense, for an offense under paragraph (a)(7) of this section, that the accused did not know the person’s age or that the accused reasonably believed the person to be under the age of 62. (c) Assault in the first degree is a class B felony. (11 Del. C. 1953, § 613; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 50, § 2; 63 Del. Laws, c. 237, § 2; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 129, §§ 2, 3; 69 Del. Laws, c. 24, §§ 5, 6; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 34, § 11; 73 Del. Laws, c. Page 30 Title 11 - Crimes and Criminal Procedure 126, §§ 4, 16; 74 Del. Laws, c. 106, § 1; 75 Del. Laws, c. 168, § 1; 77 Del. Laws, c. 119, § 2; 77 Del. Laws, c. 265, § 2; 78 Del. Laws, c. 325, § 2.) § 614. Abuse of a sports official; class G felony; class A misdemeanor. (a) A person is guilty of abuse of a sports official whenever the person intentionally or recklessly commits the following acts against a sports official who is acting in the lawful performance of duty: (1) Reckless endangering in the second degree, as set forth in § 603 of this title; or (2) Assault in the third degree, as set forth in § 611 of this title; or (3) Terroristic threatening, as set forth in § 621 of this title; or (4) Criminal mischief, as set forth in § 811 of this title. (b) For purposes of this section, the words “sports official” shall mean any person who serves as a registered, paid or volunteer referee, umpire, line judge or acts in any similar capacity during a sporting event. For purposes of this section, the words, “lawful performance of duty” means the time immediately prior to, during and/or immediately after the sporting event. (c) Whoever violates subsection (a) of this section shall be guilty of a class A misdemeanor. Upon conviction for a second or subsequent offense under this section, such person shall be guilty of a class G felony. Notwithstanding Chapter 42 of this title, such person shall be fined not less than $1,000 nor more than $2,350. In addition to the fines imposed by this subsection, any person who is guilty of abuse of a sports official shall be prohibited from participating in and/or attending any organized sporting event for a period of not less than 3 months nor more than 12 months. (d) Except as provided in § 922 of Title 10, and notwithstanding any other provision of law to the contrary, the Court of Common Pleas shall have original jurisdiction to hear, try and finally determine any violation of this section, and any other misdemeanor violation of any offense set forth in this title which was allegedly committed during the same incident. Prosecution under this section shall not preclude a separate charge, conviction and sentence for any other crime set forth in the Code. (67 Del. Laws, c. 247, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 342, § 1.) § 615. Assault by abuse or neglect; class B felony [Transferred]. Transferred to § 1103B of this title by 78 Del. Laws, c. 406, § 3, effective Sept. 12, 2012. § 616. Gang participation. (a) Definitions. — The following terms shall have the following meaning as used in this section. (1) “Criminal street gang” means any ongoing organization, association, or group of 3 or more persons, whether formal or informal, having as 1 of its primary activities the commission of 1 or more of the criminal acts enumerated in paragraph (a)(2) of this section, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. (2) “Pattern of criminal gang activity” means the commission of attempted commission of, conspiracy to commit, solicitation of, or conviction of 2 or more of the following criminal offenses, provided that at least 1 of these offenses occurred after July 1, 2003, and that the last of those offenses occurred within 3 years after a prior offense, and provided that the offenses were committed on separate occasions, or by 2 or more persons: a. Assault, as defined in § 612 or § 613 of this title. b. Any criminal acts causing death as defined in §§ 632 - 636 of this title. c. Any criminal acts relating to sexual offenses defined in §§ 768 - 780 of this title. d. Any criminal offenses relating to unlawful imprisonment or kidnapping which are defined in §§ 782 - 783A of this title. e. Any criminal acts of arson as defined in §§ 801 - 803 of this title. f. Any criminal acts relating to burglary which are defined in §§ 824 - 826 of this title and [former] § 826A of this title [repealed]. g. Any criminal acts relating to robbery which are defined in §§ 831 and 832 of this title. h. Any criminal acts relating to theft or extortion which are defined in § 841, § 849 or § 851 of this title, provided that such acts meet the requirements of felony offenses under said sections. i. Any criminal acts relating to riot, unlawful disruption, hate crimes, stalking or bombs which are defined in § 1302, former § 1303 [repealed], § 1304, § 1312A or § 1338 of this title, provided that such acts meet the requirements of felony offenses under said sections. j. Any criminal acts involving deadly weapons or dangerous instruments which are defined in § 1442, § 1444, §§ 1447 - 1448, § 1449, § 1450, § 1451, § 1454 or § 1455 of this title. k. Any criminal acts involving controlled substances which are defined by §§ 4752, 4753, 4756, or 4757(c) of Title 16. (b) Forbidden conduct. — A person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who knowingly promotes, furthers or assists in any criminal conduct by members of that gang which would constitute a felony under Delaware law, shall be guilty of illegal gang participation. Illegal gang participation is a class F felony. Page 31 Title 11 - Crimes and Criminal Procedure (c) Sentencing enhancements. — (1) Any person who is convicted of a class E felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced consistent with the sentence dictated by Delaware law for a class D felony under § 4205(b)(4) of this title. (2) Any person who is convicted of a class D felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced consistent with the sentence dictated by Delaware law for a class C felony under § 4205(b)(3) of this title. (3) Any person who is convicted of a class C felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced consistent with the sentence dictated by Delaware law for a class B felony under § 4205(b)(2) of this title. (74 Del. Laws, c. 115, § 1; 78 Del. Laws, c. 13, § 4; 78 Del. Laws, c. 252, § 5; 82 Del. Laws, c. 215, § 1; 82 Del. Laws, c. 217, § 19.) § 617. Criminal youth gangs. (a) Definitions. — The following words, terms and phrases, when used in this chapter, shall have their meaning ascribed to them except where the context clearly indicates a different meaning. (1) “Criminal youth gang” shall mean a group of 3 or more persons with a gang name or other identifier which either promotes, sponsors, assists in, participates in or requires as a condition of membership submission to group initiation that results in any felony or any class A misdemeanor set forth in this title or Title 16. (2) “Identifier” shall mean common identifying signs, symbols, tattoos, markings, graffiti, or attire or other distinguishing characteristics or indicia of gang membership. (3) “Student” shall mean any person enrolled in a school grades preschool through 12. (b) Recruitment or retention of juveniles or students for a criminal street gang or criminal youth gang; penalties. — (1) Any person who solicits, invites, recruits, encourages or otherwise causes or attempts to cause a juvenile or student to participate in or become a member of a criminal street gang as defined in § 616(a) of this title or criminal youth gang is guilty of a class G felony. (2) Any person who, a. In order to encourage a juvenile or student to: 1. Join a criminal youth gang or criminal street gang, 2. Remain as a participant in or a member of a criminal youth gang or criminal street gang, or 3. Submit to a demand by a criminal youth gang or criminal street gang to commit a crime; or b. In order to prevent a juvenile or student from withdrawing or attempting to withdraw from a criminal youth gang or criminal street gang threatens to commit any crime likely to result in death or in physical injury to the juvenile, the juvenile’s property, a member of that juvenile’s family or household, or their property; or commits a crime which results in physical injury or death to the juvenile, the juvenile’s property, a member of that juvenile’s family or household, or their property shall be guilty of a class F felony and shall constitute a separate and distinct offense. If the acts or activities violating this section also violate another provision of law, a prosecution under this section shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition of any penalties provided for thereby. (75 Del. Laws, c. 421, § 1; 70 Del. Laws, c. 186, § 1.) §§ 618-620. [Reserved.] § 621. Terroristic threatening. (a) A person is guilty of terroristic threatening when that person commits any of the following: (1) The person threatens to commit any crime likely to result in death or in serious injury to person or property; (2) The person makes a false statement or statements: a. Knowing that the statement or statements are likely to cause evacuation of a building, place of assembly, or facility of public transportation; b. Knowing that the statement or statements are likely to cause serious inconvenience; or c. In reckless disregard of the risk of causing terror or serious inconvenience; or (3) The person commits an act with intent of causing an individual to believe that the individual has been exposed to a substance that will cause the individual death or serious injury. (b) Any violation of paragraph (a)(1) of this section shall be a class A misdemeanor except where the victim is a person 62 years of age or older, in which case any violation of paragraph (a)(1) of this section shall be a class G felony. Any violation of paragraph (a)(2)a. of this section shall be a class E felony. Any violation of paragraph (a)(2)b. or c. of this section shall be a class G felony unless the place at which the risk of serious inconvenience or terror is created is a place that has the purpose, in whole or in part, of acting as a daycare facility, nursery or preschool, kindergarten, elementary, secondary or vocational-technical school, or any long-term care facility in which Page 32 Title 11 - Crimes and Criminal Procedure elderly persons are housed, in which case it shall be a class F felony. Any violation of paragraph (a)(3) of this section shall be a class F felony. Notwithstanding any provision of this subsection to the contrary, a first offense of paragraph (a)(2) of this section by a person 17 years old or younger shall be a class A misdemeanor. (c) In addition to the penalties otherwise authorized by law, any person convicted of an offense in violation of paragraph (a)(2) of this section shall: (1) Pay a fine of not less than $1,000 nor more than $2,500, which fine cannot be suspended; and (2) Be sentenced to perform a minimum of 100 hours of community service. (d) In addition to the penalties otherwise authorized by law, any person convicted of an offense in violation of paragraph (a)(3) of this section shall pay a fine of not less than $2,000, which fine cannot be suspended. (11 Del. C. 1953, § 621; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 330, § 1; 73 Del. Laws, c. 126, §§ 5, 6; 73 Del. Laws, c. 255, § 1; 80 Del. Laws, c. 14, § 1.) § 622. Hoax device; class F felony. (a) Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be guilty of a class F felony. (b) For the purposes of this section the following definitions shall apply: (1) “Destructive device” means any explosive, incendiary, or chemical material or over-pressure device which will rapidly expand in a manner to project material outward at such a rate to cause injury to persons or damage to property. (2) “Explosive” means any chemical compound, or other substance or containing oxidizing and combustible units or other ingredients in such proportions or quantities that ignition, fire, friction, concussion, percussion, or detonator may produce an explosion capable of causing injury to persons or damage to property. (3) “Hoax device” shall mean any object or item that would cause a person to reasonably believe that such object or item is or contains a destructive device, Molotov cocktail, incendiary device, or over-pressure device which could cause injury or death. (4) “Incendiary device” means any item designed to ignite by hand, chemical reaction, timer or by spontaneous combustion and is not designed for lawful purposes or use whatsoever, or any lawful use or purpose has been terminated. (5) “Molotov cocktail” means a makeshift incendiary bomb made of a breakable container filled with flammable liquid and provided with a wick composed of any substance capable of bringing flame into contact with a wick composed of any substance capable of bringing flame into contact with a liquid. (6) “Over-pressure device” means a frangible container filled with an explosive gas, chemical or combination of materials, which is designed or constructed so as to cause the container to break or fracture in a manner which is capable of causing death, bodily harm, or property damage. (74 Del. Laws, c. 420, § 1.) §§ 623, 624. [Reserved.] § 625. Unlawfully administering drugs; class A misdemeanor. A person is guilty of unlawfully administering drugs when, for a purpose other than lawful medical or therapeutic treatment, the person intentionally causes stupor, unconsciousness or other alteration of the physical or mental condition of another person by administering to the other person, without consent, a drug. Unlawfully administering drugs is a class A misdemeanor. (11 Del. C. 1953, § 625; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 626. Unlawfully administering controlled substance or counterfeit substance or narcotic drugs; class G felony. A person is guilty of unlawfully administering a controlled substance or counterfeit substance or narcotic drugs when, for a purpose other than lawful medical or therapeutic treatment, the person intentionally introduces or causes introduction into the body of another person, without consent, a controlled substance or counterfeit substance or narcotic drug. Unlawfully administering controlled substance or counterfeit substance or narcotic drugs is a class G felony. (11 Del. C. 1953, § 626; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 627. Prohibited acts as to substances releasing vapors or fumes; unclassified misdemeanor. No person shall: (1) Intentionally smell or inhale the vapors or fumes from any substance having the property of releasing vapors or fumes for the purpose of producing a condition of intoxication, inebriation, exhilaration, stupefaction or lethargy or for the purpose of dulling the brain or nervous system; provided, that nothing in this section shall prohibit the inhalation of the vapors or fumes of any anesthesia for medical or dental purposes; Page 33 Title 11 - Crimes and Criminal Procedure (2) Sell or offer to sell to any person any material, product or article of commerce containing any substance having a property of releasing vapors or fumes, if the person has knowledge or is in the possession of such facts that the person should have knowledge that the material, product or article of commerce sold or offered will be used for the purpose of committing any of the acts proscribed in paragraph (1) of this section; (3) Purchase or offer to purchase for the person or any other person any material, product or article of commerce containing any substance having the property of releasing vapors and fumes if such purchase or offer to purchase is made for the purpose of committing any of the acts proscribed in paragraph (1) of this section. Any violation of this section shall be an unclassified misdemeanor. (11 Del. C. 1953, § 627; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 286, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 628. Vehicular assault in the third degree; class B misdemeanor [Transferred]. A person is guilty of vehicular assault in the third degree when, while in the course of driving or operating a motor vehicle, the person’s criminally negligent driving or operation of said vehicle causes physical injury to another person. Vehicular assault in the third degree is a class B misdemeanor. (78 Del. Laws, c. 168, § 2.) § 628A. Vehicular assault in the second degree; class A misdemeanor. A person is guilty of vehicular assault in the second degree when: (1) While in the course of driving or operating a motor vehicle, the person’s criminally negligent driving or operation of said vehicle causes serious physical injury to another person; or (2) While in the course of driving or operating a motor vehicle and under the influence of alcohol or drugs or with a prohibited alcohol or drug content, as defined by § 4177 of Title 21, the person’s negligent driving or operation of said vehicle causes physical injury to another person. Vehicular assault in the second degree is a class A misdemeanor. (63 Del. Laws, c. 88, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 333, § 5; 75 Del. Laws, c. 315, § 7; 78 Del. Laws, c. 168, §§ 1, 2.) § 629. Vehicular assault in the first degree; class F felony. A person is guilty of vehicular assault in the first degree when while in the course of driving or operating a motor vehicle and under the influence of alcohol or drugs or with a prohibited alcohol or drug content, as defined by § 4177 of Title 21, the person’s negligent driving or operation of said vehicle causes serious physical injury to another person. Vehicular assault in the first degree is a class F felony. (63 Del. Laws, c. 88, § 2; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 361, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 333, § 5; 75 Del. Laws, c. 315, § 7.) § 630. Vehicular homicide in the second degree; class D felony; minimum sentence; juvenile offenders. (a) A person is guilty of vehicular homicide in the second degree when: (1) While in the course of driving or operating a motor vehicle, the person’s criminally negligent driving or operation of said vehicle causes the death of another person; or (2) While in the course of driving or operating a motor vehicle, under the influence of alcohol or drugs or with a prohibited alcohol or drug content, as defined by § 4177 of Title 21, the person’s negligent driving or operation of said vehicle causes the death of another person. Vehicular homicide in the second degree is a class D felony. (b) The minimum sentence required by paragraph (a)(2) of this section shall be 1 year, notwithstanding § 4205(b)(6) of this title. The minimum sentence shall not be subject to suspension, and no person convicted under this section shall be eligible for probation, parole, furlough, work release or supervised custody during the first year of such sentence. (c) Every person charged under this section after having reached his or her sixteenth birthday, shall be treated for purposes of trial or other disposition of the charge, including but not limited to sentencing, as an adult, notwithstanding any contrary provisions of statutes governing the Family Court, or any other state law, except that the mandatory minimum sentencing provisions of subsection (b) of this section and § 630A(b) of this title shall not apply to juveniles. Any such case involving a juvenile shall be subject to the transfer provisions of § 1011 of Title 10. Any period of incarceration imposed upon a juvenile by operation of this section shall be served in a juvenile correctional facility until the person attains their 18th birthday, at which time the person shall be transferred to the appropriate adult correctional institution or jail to serve any remaining portion of the sentence. (63 Del. Laws, c. 88, § 3; 65 Del. Laws, c. 357, § 1; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 246, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 333, § 5; 75 Del. Laws, c. 315, § 7; 78 Del. Laws, c. 168, § 3.) Page 34 Title 11 - Crimes and Criminal Procedure § 630A. Vehicular homicide in the first degree; class C felony; minimum sentence; juvenile offenders. (a) A person is guilty of vehicular homicide in the first degree when while in the course of driving or operating a motor vehicle under the influence of alcohol or drugs or with a prohibited alcohol or drug content, as defined by § 4177 of Title 21, the person’s criminally negligent driving or operation of said vehicle causes the death of another person. Vehicular homicide in the first degree is a class C felony. (b) The minimum sentence required by this section shall be 2 years, notwithstanding § 4205(b)(5) of this title. The minimum sentence shall not be subject to suspension, and no person convicted under this section shall be eligible for probation, parole, furlough, work release or supervised custody during the first 18 months of such sentence. (c) Every person charged under this section after having reached his or her sixteenth birthday, shall be treated for purposes of trial or other disposition of the charge, including but not limited to sentencing, as an adult, notwithstanding any contrary provisions of statutes governing the Family Court, or any other state law, except that the mandatory minimum sentencing provisions of subsection (b) of this section and § 630(b) of this title shall not apply to juveniles. Any such case involving a juvenile shall be subject to the transfer provisions of § 1011 of Title 10. Any period of incarceration imposed upon a juvenile by operation of this section shall be served in a juvenile correctional facility until the person attains his or her eighteenth birthday, at which time the person shall be transferred to the appropriate adult correctional institution or jail to serve any remaining portion of the sentence. (63 Del. Laws, c. 88, § 4; 65 Del. Laws, c. 357, § 2; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 246, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 333, § 5; 75 Del. Laws, c. 315, § 7; 78 Del. Laws, c. 168, § 4.) B Acts Causing Death § 631. Criminally negligent homicide; class D felony. A person is guilty of criminally negligent homicide when, with criminal negligence, the person causes the death of another person. Criminally negligent homicide is a class D felony. (11 Del. C. 1953, § 631; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 168, § 5.) § 632. Manslaughter; class B felony. A person is guilty of manslaughter when: (1) The person recklessly causes the death of another person; or (2) With intent to cause serious physical injury to another person the person causes the death of such person, employing means which would to a reasonable person in the defendant’s situation, knowing the facts known to the defendant, seem likely to cause death; or (3) The person intentionally causes the death of another person under circumstances which do not constitute murder because the person acts under the influence of extreme emotional disturbance; or (4) [Repealed.] (5) The person intentionally causes another person to commit suicide. Manslaughter is a class B felony. (11 Del. C. 1953, § 632; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 106, § 2; 83 Del. Laws, c. 200, § 1.) § 633. Murder by abuse or neglect in the second degree; class B felony. (a) A person is guilty of murder by abuse or neglect in the second degree when, with criminal negligence, the person causes the death of a child: (1) Through an act of abuse and/or neglect of such child; or (2) When the person has engaged in a previous pattern of abuse and/or neglect of such child. (b) For the purpose of this section: (1) “Abuse” and “neglect” shall have the same meaning as set forth in § 1100 of this title. (2) “Child” shall refer to any person who has not yet reached that person’s fourteenth birthday. (3) “Previous pattern” of abuse and/or neglect shall mean 2 or more incidents of conduct: a. That constitute an act of abuse and/or neglect; and b. Are not so closely related to each other or connected in point of time and place that they constitute a single event. (c) A conviction is not required for an act of abuse or neglect to be used in prosecution of a matter under this section, including an act used as proof of a previous pattern as defined in paragraph (b)(3) of this section. A conviction for any act of abuse or neglect, including one which may be relied upon to establish a previous pattern of abuse and/or neglect does not preclude prosecution under this section. Prosecution under this section does not preclude prosecution under any other section of the Code. Page 35 Title 11 - Crimes and Criminal Procedure (d) Murder by abuse or neglect in the second degree is a class B felony. Notwithstanding any provision of this title to the contrary, the minimum sentence for a person convicted of murder by abuse or neglect in the second degree in violation of this section shall be 10 years at Level V. (70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 266, § 1; 70 Del. Laws, c. 382, § 1; 72 Del. Laws, c. 197, §§ 2-4; 78 Del. Laws, c. 406, § 1.) § 634. Murder by abuse or neglect in the first degree; class A felony. (a) A person is guilty of murder by abuse or neglect in the first degree when the person recklessly causes the death of a child: (1) Through an act of abuse and/or neglect of such child; or (2) When the person has engaged in a previous pattern of abuse and/or neglect of such child. (b) For the purpose of this section: (1) “Abuse” and “neglect” shall have the same meaning as set forth in § 1100 of this title. (2) “Child” shall refer to any person who has not yet reached that person’s fourteenth birthday. (3) “Previous pattern” of abuse and/or neglect shall mean 2 or more incidents of conduct: a. That constitute an act of abuse and/or neglect; and b. Are not so closely related to each other or connected in point of time and place that they constitute a single event. (c) A conviction is not required for an act of abuse or neglect to be used in prosecution of a matter under this section including an act used as proof of the previous pattern as defined in paragraph (b)(3) of this section. A conviction for any act of abuse or neglect including one which may be relied upon to establish the previous pattern of abuse and/or neglect does not preclude prosecution under this section. Prosecution under this section does not preclude prosecution under any other section of the Code. (d) Murder by abuse or neglect in the first degree is a class A felony. (70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 266, § 2; 72 Del. Laws, c. 197, §§ 5, 6; 78 Del. Laws, c. 406, § 1.) § 635. Murder in the second degree; class A felony. A person is guilty of murder in the second degree when: (1) The person recklessly causes the death of another person under circumstances which manifest a cruel, wicked and depraved indifference to human life; or (2) While engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any felony, the person, with criminal negligence, causes the death of another person. Murder in the second degree is a class A felony. (11 Del. C. 1953, § 635; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 35; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 350, § 29; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 106, § 3; 74 Del. Laws, c. 246, § 1.) § 636. Murder in the first degree; class A felony. (a) A person is guilty of murder in the first degree when: (1) The person intentionally causes the death of another person; (2) While engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any felony, the person recklessly causes the death of another person. (3) The person intentionally causes another person to commit suicide by force or duress; (4) The person recklessly causes the death of a law-enforcement officer, corrections employee, fire fighter, paramedic, emergency medical technician, fire marshal or fire police officer while such officer is in the lawful performance of duties; (5) The person causes the death of another person by the use of or detonation of any bomb or similar destructive device; (6) The person causes the death of another person in order to avoid or prevent the lawful arrest of any person, or in the course of and in furtherance of the commission or attempted commission of escape in the second degree or escape after conviction. (b) Murder in the first degree is a class A felony and shall be punished: (1) As provided in § 4209 of this title for an offense that was committed after the person had reached the person’s eighteenth birthday; and (2) As provided in § 4209A of this title for an offense that was committed before the person had reached the person’s eighteenth birthday. (11 Del. C. 1953, § 636; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 284, § 1; 63 Del. Laws, c. 354, § 1; 66 Del. Laws, c. 269, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 285, § 2; 74 Del. Laws, c. 246, §§ 2, 3; 77 Del. Laws, c. 191, § 1; 79 Del. Laws, c. 37, § 1.) §§ 637-640. [Reserved.] § 641. Extreme emotional distress. The fact that the accused intentionally caused the death of another person under the influence of extreme emotional distress is a mitigating circumstance, reducing the crime of murder in the first degree as defined by § 636 of this title to the crime of manslaughter Page 36 Title 11 - Crimes and Criminal Procedure as defined by § 632 of this title. The fact that the accused acted under the influence of extreme emotional distress must be proved by a preponderance of the evidence. The accused must further prove by a preponderance of the evidence that there is a reasonable explanation or excuse for the existence of the extreme emotional distress. The reasonableness of the explanation or excuse shall be determined from the viewpoint of a reasonable person in the accused’s situation under the circumstances as the accused believed them to be. Extreme emotional distress is not reasonably explained or excused when it is caused or occasioned by the accused’s own mental disturbance for which the accused was culpably responsible, or by any provocation, event or situation for which the accused was culpably responsible, or when there is no causal relationship between the provocation, event or situation which caused the extreme emotional distress and the victim of the murder. Evidence of voluntary intoxication shall not be admissible for the purpose of showing that the accused was acting under the influence of extreme emotional distress. (11 Del. C. 1953, § 641; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 127, § 1.) §§ 642-644. [Reserved.] § 645. Promoting suicide; class F felony. A person is guilty of promoting suicide when the person intentionally causes or aids another person to attempt suicide, or when the person intentionally aids another person to commit suicide. Promoting suicide is a class F felony. (11 Del. C. 1953, § 645; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) §§ 646-650. [Reserved.] C Abortion and Related Offenses § 651. Abortion; class F felony [Repealed]. (11 Del. C. 1953, § 651; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; repealed by 83 Del. Laws, c. 200, § 1, effective Sept. 17, 2021.) § 652. Self-abortion; class A misdemeanor [Repealed]. (11 Del. C. 1953, § 652; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; repealed by 83 Del. Laws, c. 200, § 1, effective Sept. 17, 2021.) § 653. Issuing abortional articles; class B misdemeanor [Repealed]. (11 Del. C. 1953, § 653; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; repealed by 83 Del. Laws, c. 200, § 1, effective Sept. 17, 2021.) § 654. “Abortion” defined [Repealed]. (11 Del. C. 1953, § 654; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; repealed by 83 Del. Laws, c. 200, § 1, effective Sept. 17, 2021.) §§ 655-760. [Reserved.] D Sexual Offenses § 761. Definitions generally applicable to sexual offenses. (a) “Cognitive disability” means a developmental disability that substantially impairs an individual’s cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. “Cognitive disability” also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation. (b) “Cunnilingus” means any oral contact with the female genitalia. (c) “Fellatio” means any oral contact with the male genitalia. (d) “Object” means any item, device, instrument, substance or any part of the body. It does not mean a medical instrument used by a licensed medical doctor or nurse for the purpose of diagnosis or treatment. (e) “Position of trust, authority or supervision over a child” includes, but is not limited to: (1) Familial, guardianship or custodial authority or supervision; or (2) A teacher, coach, counselor, advisor, mentor or any other person providing instruction or educational services to a child or children, whether such person is compensated or acting as a volunteer; or Page 37 Title 11 - Crimes and Criminal Procedure (3) A babysitter, child care provider, or child care aide, whether such person is compensated or acting as a volunteer; or (4) A health professional, meaning any person who is licensed or who holds himself or herself out to be licensed or who otherwise provides professional physical or mental health services, diagnosis, treatment or counseling which shall include, but not be limited to, doctors of medicine and osteopathy, dentists, nurses, physical therapists, chiropractors, psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors, marriage and family counselors or therapists and hypnotherapists, whether such person is compensated or acting as a volunteer; or (5) Clergy, including but not limited to any minister, pastor, rabbi, lay religious leader, pastoral counselor or any other person having regular direct contact with children through affiliation with a church or religious institution, whether such person is compensated or acting as a volunteer; or (6) Any law-enforcement officer, as that term is defined in § 222 of this title, and including any person acting as an officer or counselor at a correctional or counseling institution, facility or organization, whether such person is compensated or acting as a volunteer; or (7) Any other person who because of that person’s familial relationship, profession, employment, vocation, avocation or volunteer service has regular direct contact with a child or children and in the course thereof assumes responsibility, whether temporarily or permanently, for the care or supervision of a child or children. (f) “Semen” means fluid produced in the male reproductive organs, which may include spermatozoa. (g) (1) “Sexual contact” means any of the following touching, if the touching, under the circumstances as viewed by a reasonable person, is intended to be sexual in nature: a. Any intentional touching by the defendant of the anus, breast, buttocks, or genitalia of another person. b. Any intentional touching of another person with the defendant’s anus, breast, buttocks, semen, or genitalia. c. Intentionally causing or allowing another person to touch the defendant’s anus, breast, buttocks, or genitalia. (2) “Sexual contact” includes touching when covered by clothing. (h) “Sexual intercourse” means: (1) Any act of physical union of the genitalia or anus of 1 person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight. Ejaculation is not required. This offense encompasses the crimes commonly known as rape and sodomy; or (2) Any act of cunnilingus or fellatio regardless of whether penetration occurs. Ejaculation is not required. (i) “Sexual offense” means any offense defined by §§ 763 through 780, 783(4), 783(6), 783A(4), 783A(6), 787(b)(3), 787(b)(4), 1100A, 1108 through 1112B, 1335(a)(6), 1335(a)(7), 1352(2), and 1353(2), and 1361(b) of this title. (j) “Sexual penetration” means: (1) The unlawful placement of an object, as defined in subsection (d) of this section, inside the anus or vagina of another person; or (2) The unlawful placement of the genitalia or any sexual device inside the mouth of another person. (k) “Without consent” means: (1) The defendant compelled the victim to submit by any act of coercion as defined in §§ 791 and 792 of this title, or by force, by gesture, or by threat of death, physical injury, pain or kidnapping to be inflicted upon the victim or a third party, or by any other means which would compel a reasonable person under the circumstances to submit. It is not required that the victim resist such force or threat to the utmost, or to resist if resistance would be futile or foolhardy, but the victim need resist only to the extent that it is reasonably necessary to make the victim’s refusal to consent known to the defendant; or (2) The defendant knew that the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed; or (3) The defendant knew that the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting; or (4) Where the defendant is a health professional, as defined herein, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested. For purposes of this paragraph, “health professional” includes all individuals who are licensed or who hold themselves out to be licensed or who otherwise provide professional physical or mental health services, diagnosis, treatment or counseling and shall include, but not be limited to, doctors of medicine and osteopathy, dentists, nurses, physical therapists, chiropractors, psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors, marriage and family counselors or therapists and hypnotherapists; or (5) The defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance. Page 38 Title 11 - Crimes and Criminal Procedure (l) A child who has not yet reached that child’s sixteenth birthday is deemed unable to consent to a sexual act with a person more than 4 years older than said child. Children who have not yet reached their twelfth birthday are deemed unable to consent to a sexual act under any circumstances. (11 Del. C. 1953, § 773; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 416, § 1; 61 Del. Laws, c. 56; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, §§ 27, 28; 69 Del. Laws, c. 44, § 1; 69 Del. Laws, c. 440, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 285, §§ 3-7; 71 Del. Laws, c. 467, § 6; 72 Del. Laws, c. 109, § 1; 74 Del. Laws, c. 345, § 2; 75 Del. Laws, c. 392, § 2; 76 Del. Laws, c. 66, § 1; 77 Del. Laws, c. 150, §§ 1-3; 77 Del. Laws, c. 318, § 1; 80 Del. Laws, c. 175, § 2; 82 Del. Laws, c. 150, § 1; 83 Del. Laws, c. 37, § 5.) § 762. Provisions generally applicable to sexual offenses. (a) Mistake as to age. — Whenever in the definition of a sexual offense, the criminality of conduct or the degree of the offense depends on whether the person has reached that person’s sixteenth birthday, it is no defense that the actor did not know the person’s age, or that the actor reasonably believed that the person had reached that person’s sixteenth birthday. (b) Gender. — Unless a contrary meaning is clearly required, the male pronoun shall be deemed to refer to both male and female. (c) Separate acts of sexual contact, penetration and sexual intercourse. — Nothing in this title precludes a defendant from being charged with separate offenses when multiple acts of sexual contact, penetration or intercourse are committed against the same victim. (d) Teenage defendant. — As to sexual offenses in which the victim’s age is an element of the offense because the victim has not yet reached that victim’s sixteenth birthday, where the person committing the sexual act is no more than 4 years older than the victim, it is an affirmative defense that the victim consented to the act “knowingly” as defined in § 231 of this title. Sexual conduct pursuant to this section will not be a crime. This affirmative defense will not apply if the victim had not yet reached that victim’s twelfth birthday at the time of the act. (11 Del. C. 1953, § 772; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 3; 61 Del. Laws, c. 56, § 3; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, §§ 33, 34; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 285, §§ 8, 9; 75 Del. Laws, c. 392, § 3.) § 763. Sexual harassment; unclassified misdemeanor. A person is guilty of sexual harassment when: (1) The person threatens to engage in conduct likely to result in the commission of a sexual offense against any person; or (2) The person suggests, solicits, requests, commands, importunes or otherwise attempts to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration with the actor, knowing that the actor is thereby likely to cause annoyance, offense or alarm to that person. Sexual harassment is an unclassified misdemeanor. (65 Del. Laws, c. 494, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 764. Indecent exposure in the second degree; unclassified misdemeanor. (a) A male is guilty of indecent exposure in the second degree if he exposes his genitals or buttocks under circumstances in which he knows his conduct is likely to cause affront or alarm to another person. (b) A female is guilty of indecent exposure in the second degree if she exposes her genitals, breast or buttocks under circumstances in which she knows her conduct is likely to cause affront or alarm to another person. Indecent exposure in the second degree is an unclassified misdemeanor. (11 Del. C. 1953, § 768; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, § 17; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 765. Indecent exposure in the first degree; class A misdemeanor. (a) A male is guilty of indecent exposure in the first degree if he exposes his genitals or buttocks to a person who is less than 16 years of age under circumstances in which he knows his conduct is likely to cause affront or alarm. (b) A female is guilty of indecent exposure in the first degree if she exposes her genitals, breast or buttocks to a person who is less than 16 years of age under circumstances in which she knows her conduct is likely to cause affront or alarm. Indecent exposure in the first degree is a class A misdemeanor. (11 Del. C. 1953, § 768; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, § 18; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 766. Incest; class A misdemeanor. (a) A person is guilty of incest if the person engages in sexual intercourse with another person with whom the person has 1 of the following relationships: A male and his child. A male and his parent. A male and his brother. A male and his sister. Page 39 Title 11 - Crimes and Criminal Procedure A male and his grandchild. A male and his niece or nephew. A male and his father’s sister or brother. A male and his mother’s sister or brother. A male and his father’s wife. A male and his wife’s child. A male and the child of his wife’s son or daughter. A female and her parent. A female and her child. A female and her brother. A female and her sister. A female and her grandchild. A female and her niece or nephew. A female and her father’s sister or brother. A female and her mother’s sister or brother. A female and her mother’s husband. A female and her husband’s child. A female and the child of her husband’s son or daughter. (b) The relationships referred to herein include blood relationships without regard to legitimacy and relationships by adoption. Incest is a class A misdemeanor and is an offense within the original jurisdiction of the Family Court. (11 Del. C. 1953, § 771; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 494, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 767. Unlawful sexual contact in the third degree; class A misdemeanor. A person is guilty of unlawful sexual contact in the third degree when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim’s consent. Unlawful sexual contact in the third degree is a class A misdemeanor. (11 Del. C. 1953, § 761; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, § 19; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 768. Unlawful sexual contact in the second degree; class F felony. A person is guilty of unlawful sexual contact in the second degree when the person intentionally has sexual contact with another person who is less than 18 years of age or causes the victim to have sexual contact with the person or a third person. Unlawful sexual contact in the second degree is a class F felony. (11 Del. C. 1953, §§ 761, 762; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, § 20; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 364, § 1; 77 Del. Laws, c. 148, § 33.) § 769. Unlawful sexual contact in the first degree; class D felony. (a) A person is guilty of unlawful sexual contact in the first degree when: (1) In the course of committing unlawful sexual contact in the third degree or in the course of committing unlawful sexual contact in the second degree, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury to the victim or the person displays what appears to be a deadly weapon or dangerous instrument; or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument. (2) [Repealed.] (3) The person intentionally has sexual contact with another person who is less than 13 years of age or causes the victim to have sexual contact with the person or a third person. (b) Unlawful sexual contact in the first degree is a class D felony. (11 Del. C. 1953, § 767; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 56, § 2; 65 Del. Laws, c. 494, § 1; 66 Del. Laws, c. 269, § 21; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 93, § 3; 75 Del. Laws, c. 392, § 1; 76 Del. Laws, c. 364, § 2; 77 Del. Laws, c. 148, § 34; 77 Del. Laws, c. 318, § 7.) § 770. Rape in the fourth degree; class C felony. (a) A person is guilty of rape in the fourth degree when the person: (1) Intentionally engages in sexual intercourse with another person, and the victim has not yet reached that victim’s sixteenth birthday; or Page 40 Title 11 - Crimes and Criminal Procedure (2) Intentionally engages in sexual intercourse with another person, and the victim has not yet reached that victim’s eighteenth birthday, and the person is 30 years of age or older, except that such intercourse shall not be unlawful if the victim and person are married at the time of such intercourse; or (3) Intentionally engages in sexual penetration with another person under any of the following circumstances: a. The sexual penetration occurs without the victim’s consent; or b. The victim has not reached that victim’s sixteenth birthday. (4) [Repealed.] (b) Paragraph (a)(3) of this section does not apply to a licensed medical doctor or nurse who places 1 or more fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment or to a law-enforcement officer who is engaged in the lawful performance of his or her duties. Rape in the fourth degree is a class C felony. (71 Del. Laws, c. 285, § 10; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 318, §§ 7, 9.) § 771. Rape in the third degree; class B felony. (a) A person is guilty of rape in the third degree when the person: (1) Intentionally engages in sexual intercourse with another person, and the victim has not reached that victim’s sixteenth birthday and the person is at least 10 years older than the victim, or the victim has not yet reached that victim’s fourteenth birthday and the person has reached that person’s nineteenth birthday and is not otherwise subject to prosecution pursuant to § 772 or § 773 of this title; or (2) Intentionally engages in sexual penetration with another person under any of the following circumstances: a. The sexual penetration occurs without the victim’s consent and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim; or b. The victim has not reached that victim’s sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim. (3) [Repealed.] (b) Paragraph (a)(2) of this section does not apply to a licensed medical doctor or nurse who places 1 or more fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment, or to a law-enforcement officer who is engaged in the lawful performance of his or her duties. (c) Notwithstanding any law to the contrary, in any case in which a violation of subsection (a) of this section has resulted in the birth of a child who is in the custody and care of the victim or the victim’s legal guardian or guardians, the court shall order that the defendant, as a condition of any probation imposed pursuant to a conviction under this section, timely pay any child support ordered by the Family Court for such child. (d) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. Rape in the third degree is a class B felony. (71 Del. Laws, c. 285, § 11; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 271, §§ 4-6; 77 Del. Laws, c. 318, §§ 7, 8.) § 772. Rape in the second degree; class B felony. (a) A person is guilty of rape in the second degree when the person: (1) Intentionally engages in sexual intercourse with another person, and the intercourse occurs without the victim’s consent; or (2) Intentionally engages in sexual penetration with another person under any of the following circumstances: a. The sexual penetration occurs without the victim’s consent and during the commission of the crime, or during the immediate flight following the commission of the crime, or during an attempt to prevent the reporting of the crime, the person causes serious physical injury to the victim; or b. The sexual penetration occurs without the victim’s consent, and was facilitated by or occurred during the course of the commission or attempted commission of: 1. Any felony; or 2. Any of the following misdemeanors: reckless endangering in the second degree; assault in the third degree; terroristic threatening; unlawfully administering drugs; unlawful imprisonment in the second degree; coercion or criminal trespass in the first, second or third degree; or c. The victim has not yet reached that victim’s sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes serious physical injury to the victim; or Page 41 Title 11 - Crimes and Criminal Procedure d. The sexual penetration occurs without the victim’s consent and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person displays what appears to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument; or e. The victim has not yet reached that victim’s sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person displays what appears to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument; or f. The sexual penetration occurs without the victim’s consent, and a principal-accomplice relationship within the meaning set forth in § 271 of this title existed between the defendant and another person or persons with respect to the commission of the crime; or g. The victim has not yet reached that victim’s twelfth birthday, and the defendant has reached that defendant’s eighteenth birthday. h. [Repealed.] (b) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (c) Notwithstanding any provision of this title to the contrary, the minimum sentence for a person convicted of rape in the second degree in violation of this section shall be 10 years at Level V. Rape in the second degree is a class B felony. (71 Del. Laws, c. 285, § 12; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 93, § 3; 77 Del. Laws, c. 318, § 7.) § 773. Rape in the first degree; class A felony. (a) A person is guilty of rape in the first degree when the person intentionally engages in sexual intercourse with another person and any of the following circumstances exist: (1) The sexual intercourse occurs without the victim’s consent and during the commission of the crime, or during the immediate flight following the commission of the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim; or (2) The sexual intercourse occurs without the victim’s consent and it was facilitated by or occurred during the course of the commission or attempted commission of: a. Any felony; or b. Any of the following misdemeanors: reckless endangering in the second degree; assault in the third degree; terroristic threatening; unlawfully administering drugs; unlawful imprisonment in the second degree; coercion; or criminal trespass in the first, second or third degree; or (3) In the course of the commission of rape in the second, third or fourth degree, or while in the immediate flight therefrom, the defendant displayed what appeared to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument; or (4) The sexual intercourse occurs without the victim’s consent, and a principal-accomplice relationship within the meaning set forth in § 271 of this title existed between the defendant and another person or persons with respect to the commission of the crime; or (5) The victim has not yet reached that victim’s twelfth birthday, and the defendant has reached that defendant’s eighteenth birthday. (6) [Repealed.] (b) Nothing contained in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (c) Notwithstanding any law to the contrary, a person convicted of rape in the first degree shall be sentenced to life imprisonment without benefit of probation, parole or any other reduction if: (1) The victim had not yet reached that victim’s sixteenth birthday at the time of the offense and the person inflicts serious physical injury on the victim; or (2) The person intentionally causes serious and prolonged disfigurement to the victim permanently, or intentionally destroys, amputates or permanently disables a member or organ of the victim’s body; or (3) The person is convicted of rape against 3 or more separate victims; or (4) The person has previously been convicted of unlawful sexual intercourse in the first degree, rape in the second degree or rape in the first degree, or any equivalent offense under the laws of this State, any other state or the United States. Rape in the first degree is a class A felony. (71 Del. Laws, c. 285, § 13; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 93, § 3; 77 Del. Laws, c. 318, § 7.) § 774. Sexual extortion; class E felony. A person is guilty of sexual extortion when the person intentionally compels or induces another person to engage in any sexual act involving contact, penetration or intercourse with the person or another or others, or to produce a visual depiction of the person or another who is nude, or who is engaging in sexual conduct, with the person or another or others by means of instilling in the victim a fear that, if such sexual act or production is not performed, the defendant or another will: Page 42 Title 11 - Crimes and Criminal Procedure (1) Cause physical injury to anyone; (2) Cause damage to property; (3) Engage in other conduct constituting a crime; (4) Accuse anyone of a crime or cause criminal charges to be instituted against anyone; (5) Expose a secret or publicize an asserted fact, whether true or false, intending to subject anyone to hatred, contempt or ridicule; (6) Falsely testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; (7) Reproduce, distribute, exhibit, publish, transmit, or otherwise disseminate a visual depiction of any person who is nude, or who is engaging in sexual conduct; or (8) Perform any other act which is calculated to harm another person materially with respect to the other person’s health, safety, business, calling, career, financial condition, reputation or personal relationships. Sexual extortion is a class E felony. (68 Del. Laws, c. 379, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 318, §§ 2, 6; 83 Del. Laws, c. 406, § 1.) § 775. Bestiality. A person is guilty of bestiality when the person intentionally engages in any sexual act involving sexual contact, penetration or intercourse with the genitalia of an animal or intentionally causes another person to engage in any such sexual act with an animal for purposes of sexual gratification. Bestiality is a class D felony. (69 Del. Laws, c. 91, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 318, § 6.) § 776. Continuous sexual abuse of a child; class B felony. (a) A person is guilty of continuous sexual abuse of a child when, either residing in the same home with the minor child or having recurring access to the child, the person intentionally engages in 3 or more acts of sexual conduct with a child under the age of 18 years of age over a period of time, not less than 3 months in duration. (b) Sexual conduct under this section is defined as any of those criminal sexual acts defined under § 768, § 769, § 770, § 771, § 772, § 773, 777A, § 778, § 778A or § 1108 of this title. (c) To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred, not on which acts constitute the requisite number. (d) Continuous sexual abuse of a child is a class B felony. (69 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 392, § 4; 77 Del. Laws, c. 318, §§ 3, 4, 6.) § 777. Dangerous crime against a child, definitions, sentences. (a) A “dangerous crime against a child” means any criminal sexual conduct against a minor under the age of 14 years as defined in §§ 770-773, § 777A, §§ 778 through 778A, or §§ 1108 through 1112B of this title. For purposes of this section only, and § 762(a) of this title to the contrary notwithstanding, the defendant may use as an affirmative defense that the defendant believed that the victim of the crime was over the age of 16 years of age. (b) Except as otherwise provided in this title, a person who is at least 18 years of age, or who has been tried as an adult and who is convicted of a dangerous crime against a child as defined in subsection (a) of this section, shall be guilty of a class B felony. For a second offense under this section, the Court shall impose a mandatory sentence of life imprisonment. (c) A person sentence pursuant to this section shall not be eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the sentence imposed by the Court has been served. (70 Del. Laws, c. 124, § 1; 71 Del. Laws, c. 467, § 7; 77 Del. Laws, c. 318, §§ 5, 6; 80 Del. Laws, c. 175, § 3.) § 777A. Sex offender unlawful sexual conduct against a child. (a) A sex offender who knowingly commits any sexual offense against a child is guilty of sex offender unlawful sexual conduct against a child. (b) For purposes of this section, “sex offender” means as defined in § 4121 of this title. (c) For purposes of this section, the term “sexual offense” shall mean any offense designated as a sexual offense by § 761(i) of this title. (d) For purposes of this section, “child” means any individual who has not reached that child’s eighteenth birthday. If the underlying sexual offense involves an offense defined by §§ 1108 through 1112B of this title, “child” also means any individual who is intended by the defendant to appear to be 14 years of age or less. A sex offender who knowingly possesses any material prohibited by § 1111 of this title is committing an offense against a child for purposes of this section. (e) Sex offender unlawful sexual conduct against a child shall be punished as follows: (1) If the underlying sexual offense is a misdemeanor, the crime of sex offender unlawful sexual conduct against a child shall be a class G felony except where the child against whom a sexual offense is committed is a child younger than 12 years of age in which case the crime of sex offender unlawful sexual conduct against a child shall be a class C felony; Page 43 Title 11 - Crimes and Criminal Procedure (2) If the underlying sexual offense is a class C, D, E, F, or G felony, the crime of sex offender unlawful sexual conduct against a child shall be a felony 1 grade higher than the underlying offense except where the child against whom a sexual offense is committed is a child younger than 12 years of age in which case the crime of sex offender unlawful sexual conduct against a child shall be a class B felony; (3) If the underlying sexual offense is a misdemeanor and the victim is under 18 years of age and has a cognitive disability, the crime of sex offender unlawful sexual conduct against a child shall be a class C felony; (4) If the underlying sexual offense is a class C, D, E, F, or G felony and the victim is under 18 years of age and has a cognitive disability, the crime of sex offender unlawful sexual conduct against a child shall be a class B felony; (5) If the underlying sexual offense is a class A or B felony, the crime of sex offender unlawful sexual conduct against a child shall be the same grade as the underlying offense, and the minimum sentence of imprisonment required for the underlying offense shall be doubled. (f) The provisions of this section shall not apply if the defendant is also a child. (76 Del. Laws, c. 66, § 2; 77 Del. Laws, c. 149, §§ 1, 2; 77 Del. Laws, c. 150, § 4; 77 Del. Laws, c. 318, § 6; 80 Del. Laws, c. 175, § 4; 82 Del. Laws, c. 150, § 1.) § 778. Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree; penalties. A person is guilty of sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree when the person: (1) Intentionally engages in sexual intercourse with a child who has not yet reached that child’s own sixteenth birthday and the person stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over the child. (2) Intentionally engages in sexual penetration with a child who has not yet reached that child’s own sixteenth birthday and the person stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over the child. (3) Intentionally engages in sexual intercourse or sexual penetration with a child who has reached that child’s own sixteenth birthday but has not yet reached that child’s own eighteenth birthday when the person is at least 4 years older than the child and the person stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over the child. (4) Intentionally engages in sexual intercourse or sexual penetration with a child and the victim has reached that child’s own sixteenth birthday but has not yet reached that child’s own eighteenth birthday and the person stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over the child. (5) Engages in an act of sexual extortion, as defined in § 774 of this title, against a child who has not yet reached that child’s own sixteenth birthday and the person stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over the child. (6) a. 1. Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in paragraph (1) of this section is a class A felony. 2. Notwithstanding any law to the contrary, a person convicted of sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in this paragraph (6) shall be sentenced to life imprisonment without benefit of probation, parole or any other reduction if: A. At the time of the offense the person inflicts serious physical injury on the victim; or B. The person intentionally causes serious and prolonged disfigurement to the victim permanently, or intentionally destroys, amputates or permanently disables a member or organ of the victim’s body; or C. The person is convicted of sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in this paragraph (6) against 3 or more separate victims; or D. The person has previously been convicted of sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree, unlawful sexual intercourse in the first degree, rape in the second degree or rape in the first degree, or any equivalent offense under the laws of this State, any other state or the United States. b. Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in paragraph (2) of this section is a class B felony. Notwithstanding any provision of this title to the contrary, the minimum sentence for a person convicted of sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in paragraph (2) of this section shall be 10 years at Level V. c. Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in paragraph (3) of this section is a class B felony. d. Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in paragraph (4) of this section is a class C felony. Page 44 Title 11 - Crimes and Criminal Procedure e. Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree as set forth in paragraph (5) of this section is a class D felony. (7) Nothing contained in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (77 Del. Laws, c. 318, § 6; 70 Del. Laws, c. 186, § 1.) § 778A. Sexual abuse of a child by a person in a position of trust, authority, or supervision in the second degree; penalties. (a) A person is guilty of sexual abuse of a child by a person in a position of trust, authority, or supervision in the second degree when the person: (1) Intentionally has sexual contact with a child who has not yet reached that child’s sixteenth birthday or causes the child to have sexual contact with the person or a third person and the person stands in a position of trust, authority, or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority, or supervision over the child. (2) a. Is a male who intentionally exposes his genitals or buttocks to a child who has not yet reached that child’s sixteenth birthday under circumstances in which he knows his conduct is likely to cause annoyance, affront, offense, or alarm when the person is at least 4 years older than the child and he stands in a position of trust, authority, or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority, or supervision over the child. b. Is a female who intentionally exposes her genitals, breast or buttocks to a child who has not yet reached that child’s sixteenth birthday under circumstances in which she knows her conduct is likely to cause annoyance, affront, offense, or alarm when the person is at least 4 years older than the child and she stands in a position of trust, authority, or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority, or supervision over the child. (3) Suggests, solicits, requests, commands, importunes, or otherwise attempts to induce a child who has not yet reached that child’s sixteenth birthday to have sexual contact or sexual intercourse or unlawful sexual penetration with the person or a third person, knowing that the person is thereby likely to cause annoyance, affront, offense, or alarm to the child or another when the person is at least 4 years older than the child and the person stands in a position of trust, authority, or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority, or supervision over the child. (b) (1) Sexual abuse of a child by a person in a position of trust, authority, or supervision in the second degree as set forth in paragraph (a)(1) of this section is a class D felony. (2) Sexual abuse of a child by a person in a position of trust, authority, or supervision in the second degree as set forth in paragraph (a)(2) of this section is a class F felony. (3) Sexual abuse of a child by a person in a position of trust, authority, or supervision in the second degree as set forth in paragraph (a)(3) of this section is a class G felony. (c) Nothing contained in this section shall preclude a separate charge, conviction, and sentence for any other crime set forth in this title, or in the Delaware Code. (77 Del. Laws, c. 318, § 6; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 283, § 9.) §§ 779, 779A. Dangerous crime against a child, definitions, sentences; sex offender unlawful conduct against a child [Transferred]. Transferred to §§ 777 and 777A of this title by 77 Del. Laws, c. 318, § 6, effective June 30, 2010. § 780. Female genital mutilation. (a) A person is guilty of female genital mutilation when: (1) A person knowingly circumcises, excises or infibulates the whole or any part of the labia majora, labia minora or clitoris of a female minor; or (2) A parent, guardian or other person legally responsible or charged with the care or custody of a female minor allows the circumcision, excision or infibulation, in whole or in part, of such minor’s labia majora, labia minora or clitoris. (b) Female genital mutilation is a class E felony. (c) It is not a defense to a violation that the conduct described in subsection (a) of this section above is required as a matter of custom, ritual or standard practice, or that the minor on whom it is performed or the minor’s parent or legal guardian consented to the procedure. (d) A surgical procedure is not a violation of this section if the procedure is: (1) Necessary to the health of the minor on whom it is performed and is performed by a licensed physician under § 1720 of Title 24 or a physician-in-training under the supervision of a licensed physician; or (2) Performed on a minor who is in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a licensed physician under § 1720 of Title 24 or a physician-in-training under the supervision of a licensed physician, or a licensed midwife under § 3336 of Title 18. (70 Del. Laws, c. 438, § 1; 70 Del. Laws, c. 186, § 1.) Page 45 Title 11 - Crimes and Criminal Procedure § 780A. Sexual intercourse or penetration with a person in custody; class F felony. (a) It is unlawful for a law-enforcement officer, an employee working at a detention facility, a contractor or employee of a contractor working at a detention facility, or a volunteer working at a detention facility to engage in sexual intercourse or sexual penetration with a person who is in custody, as defined in § 1258 of this title. (b) Subsection (a) of this section does not apply to a licensed medical doctor or nurse when the penetration occurs for the purpose of diagnosis or treatment or to a law-enforcement officer who is lawfully performing job duties. (c) Consent of the person in custody is not a defense to an act in violation of subsection (a) of this section. (d) A violation of subsection (a) of this section is a class F felony. (81 Del. Laws, c. 389, § 1.) § 780B. Unlawful sexual contact with a person in custody; class G felony. (a) It is unlawful for a law-enforcement officer, an employee working at a detention facility, a contractor or employee of a contractor working at a detention facility, or a volunteer working at a detention facility to intentionally have sexual contact with a person in custody, as defined in § 1258 of this title. (b) Subsection (a) of this section does not apply to a licensed medical doctor or nurse when the contact occurs for the purpose of diagnosis or treatment or to a law-enforcement officer who is lawfully performing job duties. (c) Consent of the person in custody is not a defense to an act in violation of subsection (a) of this section. (d) A violation of subsection (a) of this section is a class G felony. (81 Del. Laws, c. 389, § 1.) E Kidnapping and Related Offenses § 781. Unlawful imprisonment in the second degree; class A misdemeanor. A person is guilty of unlawful imprisonment in the second degree when the person knowingly and unlawfully restrains another person. Unlawful imprisonment in the second degree is a class A misdemeanor. (11 Del. C. 1953, § 781; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 782. Unlawful imprisonment in the first degree; class G felony. A person is guilty of unlawful imprisonment in the first degree when the person knowingly and unlawfully restrains another person under circumstances which expose that person to the risk of serious physical injury. Unlawful imprisonment in the first degree is a class G felony. (11 Del. C. 1953, § 782; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 783. Kidnapping in the second degree; class C felony. A person is guilty of kidnapping in the second degree when the person unlawfully restrains another person with any of the following purposes: (1) To hold the victim for ransom or reward; or (2) To use the victim as a shield or hostage; or (3) To facilitate the commission of any felony or flight thereafter; or (4) To inflict physical injury upon the victim, or to violate or abuse the victim sexually; or (5) To terrorize the victim or a third person; or (6) To take or entice any child less than 18 years of age from the custody of the child’s parent, guardian or lawful custodian; and the actor voluntarily releases the victim alive, unharmed and in a safe place prior to trial. Kidnapping in the second degree is a class C felony. (11 Del. C. 1953, § 783; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 5; 66 Del. Laws, c. 398, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 148, § 35.) § 783A. Kidnapping in the first degree; class B felony. A person is guilty of kidnapping in the first degree when the person unlawfully restrains another person with any of the following purposes: (1) To hold the victim for ransom or reward; or (2) To use the victim as a shield or hostage; or (3) To facilitate the commission of any felony or flight thereafter; or (4) To inflict physical injury upon the victim, or to violate or abuse the victim sexually; or (5) To terrorize the victim or a third person; or (6) To take or entice any child less than 18 years of age from the custody of the child’s parent, guardian or lawful custodian; Page 46 Title 11 - Crimes and Criminal Procedure and the actor does not voluntarily release the victim alive, unharmed and in a safe place prior to trial. Kidnapping in the first degree is a class B felony. (59 Del. Laws, c. 547, § 5; 66 Del. Laws, c. 398, § 2; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 148, § 36.) § 784. Defense to unlawful imprisonment and kidnapping. In any prosecution for unlawful imprisonment or kidnapping it is an affirmative defense that the accused was a relative of the victim, and the accused’s sole purpose was to assume custody of the victim. In that case, the liability of the accused, if any, is governed by § 785 of this title, and the accused may be convicted under § 785 when indicted for unlawful imprisonment or kidnapping. (11 Del. C. 1953, § 784; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 785. Interference with custody; class G felony; class A misdemeanor. A person is guilty of interference with custody when: (1) Being a relative of a child less than 16 years old, intending to hold the child permanently or for a prolonged period and knowing that the person has no legal right to do so, the person takes or entices the child from the child’s lawful custodian; or (2) Knowing that the person has no legal right to do so, the person takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or an institution. Interference with custody is a class A misdemeanor except that if the person who interferes with the custody of a child thereafter causes the removal of said child from Delaware, it is a class G felony. (11 Del. C. 1953, § 785; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 268, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 786. Kidnapping and related offenses; definitions. (a) “Harm” to a kidnap victim, in addition to its ordinary meaning, includes rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, even if such rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact is not accompanied by physical violence. (b) “Relative” means a parent, ancestor, brother, sister, uncle or aunt. (c) “Restrain” means to restrict another person’s movements intentionally in such a manner as to interfere substantially with the person’s liberty by moving the person from 1 place to another, or by confining the person either in the place where the restriction commences or in a place to which the person has been moved, without consent. A person is moved or confined “without consent” when the movement or confinement is accomplished by physical force, intimidation or deception, or by any means, including acquiescence of the victim, if the victim is a child less than 16 years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of the person has not acquiesced in the movement or confinement. (11 Del. C. 1953, § 786; 58 Del. Laws, c. 497, § 1; 66 Del. Laws, c. 269, § 2; 70 Del. Laws, c. 186, § 1.) § 787. Trafficking an individual, forced labor and sexual servitude; class D felony; class C felony; class B felony; class A felony. (a) For the purposes of this section: (1) “Adult” has the meaning ascribed in § 302 of Title 1; (2) “Adult entertainment establishment” means as defined in § 1602 of Title 24. (3) “Along a major highway” means abutting Interstate 95, Interstate 295, Interstate 495, Route 1, Route 9, Route 13, Route 40, Route 113, Route 141, or Route 202. (4) “Bar” means “cabaret,” “taproom,” or “tavern,” as defined in § 101 of Title 4. (5) “Casino” means “video lottery agent,” as defined in § 4803 of Title 29. (6) “Coercion” means: a. The use or threat of force against, abduction of, serious harm to, or physical restraint of an individual; b. The use of a plan, pattern, or statement with intent to cause an individual to believe that failure to perform an act will result in the use of force against, abduction of, serious harm to, or physical restraint of an individual; c. The abuse or threatened abuse of law or legal process; d. Controlling or threatening to control an individual’s access to a controlled substance enumerated in § 4714, § 4716, § 4718, § 4720 or § 4722 of Title 16; e. The destruction of, taking of, or the threat to destroy or take an individual’s identification document or other property; f. Use of debt bondage; g. The use of an individual’s physical, cognitive disability or mental impairment, where such impairment has substantial adverse effects on the individual’s cognitive or volitional functions; or h. The commission of civil or criminal fraud; Page 47 Title 11 - Crimes and Criminal Procedure (7) “Commercial sexual activity” means any sexual activity for which anything of value is given, promised to, or received by any person; (8) “Debt bondage” means inducing an individual to provide: a. Commercial sexual activity in payment toward or satisfaction of a real or purported debt; or b. Labor or services in payment toward or satisfaction of a real or purported debt if: 1. The reasonable value of the labor or services is not applied toward the liquidation of the debt; or 2. The length of the labor or services is not limited and the nature of the labor or services is not defined; (9) “Department” as used in subsection (l) of this section, means the Department of Labor, unless a different Department is specified by name. (10) “Establishment” means an individual, partnership, limited liability company, corporation, firm, trust, association, society, or other entity engaged in a business, industry, profession, trade, or other enterprise, including a nonprofit entity, with a physical premises open to employees or the public in the State of Delaware. (11) “Forced labor or services” means labor, as defined in this section, or services, as defined in this section, that are performed or provided by another person and are obtained or maintained through coercion as enumerated in paragraph (b)(1) of this section; (12) “Hotel” means “hotel,” “motel,” or “tourist home,” as defined in § 2301 of Title 30. (13) “Human trafficking” means the commission of any of the offenses created in subsection (b) of this section; (14) “Identification document” means a passport, driver’s license, immigration document, travel document, or other governmentissued identification document, including a document issued by a foreign government, whether actual or purported; (15) “Labor or services” means activity having economic or financial value, including commercial sexual activity. Nothing in this definition should be construed to legitimize or legalize prostitution; (16) “Maintain” means in relation to labor or services, to secure continued performance thereof, regardless of any initial agreement on the part of the victim to perform such type of service; (17) “Massage establishment” means as defined in § 5302 of Title 24. (18) “Minor” has the meaning ascribed in § 302 of Title 1; (19) “Obtain” means in relation to labor or services, to secure performance thereof; (20) “Public awareness sign” as used in subsection (l) of this section, means the sign created under paragraph (k)(3)e. of this section or a sign created by an establishment that meets all of the following requirements: a. Is at least 8 inches wide by 11 inches long. b. Contains at least all of the information required to be in a sign under paragraph (k)(3)e. of this section. c. Meets any other requirements established by regulation. (21) “Residential child care facility” means as defined in the Office of Child Care Licensing regulations promulgated under Chapter 30A of Title 14. (22) “Restaurant with a liquor license” means a “restaurant,” as defined in § 101 of Title 4, with a “license,” as defined in § 101 of Title 4. (23) “Serious harm” means harm, whether physical or nonphysical, including psychological, economic, or reputational, to an individual which would compel a reasonable individual of the same background and in the same circumstances to perform or continue to perform labor or services or sexual activity to avoid incurring the harm; (24) “Sexual activity” means any of the sex-related acts enumerated in § 761 of this title, or in § 1342, § 1351, § 1352(1), § 1353(1), § 1354 or § 1355 of this title or sexually-explicit performances; (25) “Sexually explicit performance” means a live public act or show, production of pornography, or the digital transfer of any of such, intended to arouse or satisfy the sexual desires or appeal to the prurient interest of viewers; (26) “Shopping mall” means an enclosed indoor retail complex containing a variety of shops and restaurants, whether contained in a series of connected or adjacent buildings or in a single large building, and usually anchored by department stores. (27) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by state; and (28) “Victim” means a person who is subjected to the practices set forth in subsection (b) of this section or to conduct that would have constituted a violation of subsection (b) of this section had 79 Del. Laws, c. 276 been in effect when the conduct occurred, regardless of whether a perpetrator is identified, apprehended, prosecuted or convicted. (29) “Wellness center” means an urgent care clinic, walk-in health clinic, “school-based health center,” as defined in § 3571G of Title 18, substance abuse treatment clinic, psychiatric treatment facility, family planning clinic, or community health clinic. (b) Prohibited activities. — (1) Trafficking an individual. — A person is guilty of trafficking an individual if the person knowingly recruits, transports, harbors, receives, provides, obtains, isolates, maintains, advertises, solicits, or entices an individual in furtherance of Page 48 Title 11 - Crimes and Criminal Procedure forced labor in violation of paragraph (b)(2) of this section or sexual servitude in violation of paragraph (b)(3) of this section. Trafficking an individual is a class C felony unless the individual is a minor, in which case it is a class B felony. (2) Forced labor. — A person is guilty of forced labor if the person knowingly uses coercion to compel an individual to provide labor or services, except where such conduct is permissible under federal law or law of this State other than 79 Del. Laws, c. 276. Forced labor is a class C felony unless the individual is a minor, in which case it is a class B felony. (3) Sexual servitude. — a. A person commits the offense of sexual servitude if the person knowingly: 1. Maintains or makes available a minor for the purpose of engaging the minor in commercial sexual activity; or 2. Uses coercion or deception to compel an adult to engage in commercial sexual activity. b. Sexual servitude is a class C felony unless the individual is a minor, in which case it is a class B felony. c. It is not a defense in a prosecution under paragraph (b)(3)a.1. of this section that the minor consented to engage in commercial sexual activity or that the defendant believed the minor was an adult. (4) Patronizing a victim of sexual servitude. — A person is guilty of patronizing a victim of sexual servitude if the person knowingly gives, agrees to give, or offers to give anything of value so that the person may engage in commercial sexual activity with another person and the person knows that the other person is a victim of sexual servitude. Patronizing a victim of sexual servitude is a class D felony unless the victim of sexual servitude is a minor, in which case it is a class C felony. It is not a defense in a prosecution when the victim of sexual servitude is a minor that the minor consented to engage in commercial sexual activity or that the defendant believed the minor was an adult. (5) Trafficking of persons for use of body parts. — A person is guilty of trafficking of persons for use of body parts when a person knowingly: a. Recruits, entices, harbors, provides or obtains by any means, another person, intending or knowing that the person will have body parts removed for sale; or b. Benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of this section. Such person shall be guilty of a class A felony. Nothing contained herein shall be construed as prohibiting the donation of an organ by an individual at a licensed medical facility after giving an informed voluntary consent. (6) Aggravating circumstance. — An aggravating circumstance during the commission of an offense under paragraphs (b)(1)-(3) of this section occurs when: a. The person recruited, enticed, or obtained the victim from a shelter designed to serve victims of human trafficking, victims of domestic violence, victims of sexual assault, runaway youth, foster children, or the homeless; or b. The person used or threatened use of force against, abduction of, serious harm to, or physical restraint of the victim. If an aggravating circumstance occurred, the classification of the offense under paragraphs (b)(1)-(3) of this section is elevated by 1 felony grade higher than the underlying offense. (c) Organizational liability. — (1) An organization may be prosecuted for an offense under this section pursuant to § 281 of this title (Criminal liability of organizations). (2) The court may consider the severity of an organization’s offense under this section and order penalties in addition to those otherwise provided for the offense, including: a. A fine of not more than $25,000 per offense; b. Disgorgement of profit from illegal activity in violation of this section; and c. Debarment from state and local government contracts. (d) Restitution is mandatory under this section. — (1) In addition to any other amount of loss identified, the court shall order restitution, including the greater of: a. The gross income or value to the defendant of the victim’s labor or services; or b. The value of the victim’s labor as guaranteed under the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) or of Title 19, whichever is greater. (2) The court shall order restitution under this subsection (d) even if the victim is unavailable to accept payment of restitution. (3) If the victim is unavailable for 5 years from the date of the restitution order, the restitution ordered under this subsection (d) must be paid to the Victim Compensation Fund established under § 9016 of this title. (e) Forfeiture. — (1) On motion, the court shall order a person convicted of an offense under paragraphs (b)(1)-(3) of this section to forfeit any interest in real or personal property that was used or intended to be used to commit or facilitate the commission of the offense or that constitutes or derives from proceeds that the person obtained, directly or indirectly, as a result of the offense. (2) In any proceeding against real or personal property under this section, the owner may assert a defense, and has the burden of establishing, by a preponderance of the evidence, that the forfeiture is manifestly disproportional to the seriousness of the offense. (3) Proceeds from the public sale or auction of property forfeited under this subsection must be distributed in the manner otherwise provided for the distribution of proceeds of judicial sales. Page 49 Title 11 - Crimes and Criminal Procedure (f) Admissibility of certain evidence. — In a prosecution or civil action for damages under this section, evidence of a specific instance of the alleged victim’s past sexual behavior, or reputation or opinion evidence of past sexual behavior of the alleged victim, is not admissible unless the evidence is: (1) Admitted in accordance with §§ 3508 and 3509 of this title; or (2) Offered by the prosecution in a criminal case to prove a pattern of trafficking by the defendant. (g) Special provisions regarding a minor. — (1) A minor who has engaged in commercial sexual activity is presumed to be a neglected or abused child under § 901 et seq. of Title 10. Whenever a police officer has probable cause to believe that a minor has engaged in commercial sexual activity, the police officer shall make an immediate report to the Department of Services for Children, Youth and Their Families pursuant to § 901 et seq. of Title 16. (2) A party to a juvenile delinquency proceeding in which a minor is charged with prostitution or loitering, or an attorney guardian ad litem or court-appointed special advocate appointed in a proceeding under § 901 et seq. of Title 10, may file a motion on behalf of a minor in a juvenile delinquency proceeding seeking to stay the juvenile delinquency proceedings. Such motion may be opposed by the Attorney General. The Family Court may consider such a motion and, in its discretion, may stay the juvenile delinquency proceeding indefinitely. Upon such motion, the Department of Services for Children, Youth and Their Families and/or the Family Court may identify and order available specialized services for the minor that, in the opinion of the Department of Services for Children, Youth and Their Families or Family Court, are best suited to the needs of the juvenile. So long as the minor substantially complies with the requirement of services identified by the Department of Services for Children, Youth and Their Families and/or ordered by the Family Court, the Attorney General shall, upon motion, nolle prosequi the stayed charges no earlier than 1 year after the stay was imposed. Upon motion of the Attorney General that the minor has not substantially complied with the requirement of services identified by the Department of Services for Children, Youth and Their Families and/or ordered by the Family Court, the Family Court shall lift the stay for further proceedings in accordance with the regular course of such proceedings. (h) Defense to charge of prostitution or loitering. — An individual charged with prostitution or loitering committed as a direct result of being a victim of human trafficking may assert as an affirmative defense that the individual is a victim of human trafficking. (i) Civil action. — (1) A victim may bring a civil action against a person that commits an offense under subsection (b) of this section for compensatory damages, punitive damages, injunctive relief, and any other appropriate relief. (2) In an action under this subsection, the court shall award a prevailing victim reasonable attorneys’ fees and costs, including reasonable fees for expert witnesses. (3) An action under this subsection must be commenced not later than 5 years after the later of the date on which the victim: a. Was freed from the human trafficking situation; or b. Attained 18 years of age. (4) Damages awarded to the victim under this subsection for an item must be offset by any restitution paid to the victim pursuant to subsection (d) of this section for the same item. (5) This subsection does not preclude any other remedy available to the victim under federal law or law of this State other than this section. (j) Application for pardon and petition to expunge; motion to vacate adjudication of delinquency or conviction and expungement record. — (1) Notwithstanding any provision of Chapter 43 of this title or any other law to the contrary, a person arrested or convicted of any crime, except those deemed to be violent felonies pursuant to § 4201 of this title committed as a direct result of being a victim of human trafficking may file an application for a pardon pursuant to article VII of the Delaware Constitution and § 4361 et seq. of this title and may file a petition requesting expungement of such criminal record pursuant to § 4371 et seq. of this title. (2) A person convicted or adjudicated delinquent of any crime, except those deemed to be violent felonies pursuant to § 4201 of this title, committed as a direct result of being a victim of human trafficking may file a motion in the court in which the adjudication of delinquency or conviction was obtained to vacate the adjudication or judgment of conviction. A motion filed under this paragraph must: a. Be in writing; b. Be sent to the Delaware Department of Justice; c. [Repealed.] d. Describe the evidence and provide copies of any official documents showing that the person is entitled to relief under this paragraph. If the motion satisfies the foregoing requirements, the court shall hold a hearing on a motion, provided that the court may dismiss a motion without a hearing if the court finds that the motion fails to assert grounds on which relief may be granted. Official documentation of the person’s status as a victim of this section, “trafficking in persons”, or “a severe form of trafficking” from a federal, state, or local government agency shall create a presumption that the person’s participation in any crime, except those deemed to be violent felonies pursuant to § 4201 of this title, committed was a direct result of having been a victim of human trafficking but shall not be required for the court to grant a petition under this paragraph. If the petitioner can show to the satisfaction of the court that such petitioner is entitled to relief in a proceeding under this paragraph, the court shall grant the motion and, pursuant to this paragraph, enter an order vacating Page 50 Title 11 - Crimes and Criminal Procedure the adjudication of delinquency or judgment of conviction and dismissing the accusatory pleading, and may take such additional action as is appropriate in the circumstances or as justice requires. (3) Notwithstanding any provisions of Chapter 43 of this title, Chapter 9 of Title 10, or any other law to the contrary, any person filing a motion under paragraph (j)(2) of this section in Superior Court or Family Court may also seek in that motion expungement of the criminal or juvenile record related to such conviction. If the court grants the motion to vacate the adjudication of delinquency or conviction under paragraph (j)(2) of this section and the movant also requested expungement, the court’s order shall require expungement of the police and court records relating to the charge and conviction or adjudication of delinquency. This order must contain a statement that the expungement is ordered under this paragraph (j)(3) and, notwithstanding any limitations to the contrary, that the provisions of §§ 4372(e), 4376, and 4377 of this title and § 1019 of Title 10 apply to the order. (4) Notwithstanding any provision of Chapter 43 of this title or any other law to the contrary, upon granting the motion, the Court of Common Pleas shall provide Superior Court with the certified order granting the motion to vacate. Upon finding that the Court of Common Pleas entered an order under paragraph (j)(2) of this section, the Superior Court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. This order must contain a statement that the expungement is ordered under this paragraph (j)(4) and, notwithstanding any limitations to the contrary, that the provisions of § § 4372(e), 4376, and 4377 of this title apply to the order. (k) (1) The Human Trafficking Interagency Coordinating Council is renamed as the Delaware Anti-Trafficking Action Council (Council). The Council shall administer and implement this subsection, and perform such other responsibilities as may be entrusted to it by law. (2) The Council consists of the following 24 members: a. Three representatives of the Judicial Branch, as appointed by the Chief Justice; b. A representative of the Department of Justice to be appointed by the Attorney General; c. A representative of the Office of Defense Services to be appointed by the Chief Defender; d. A representative of the law-enforcement community to be appointed by the Speaker of the Delaware House of Representatives; e. A representative of the heath-care community to be appointed by the President Pro Tempore of the Delaware State Senate; f. A representative of the Department of Health and Social Services to be appointed by the Secretary of the Department of Health and Social Services; g. A representative of the Department of Labor to be appointed by the Secretary of Labor; h. A representative of the Department of Services for the Children, Youth and Their Families to be appointed by the Secretary of the Department of Services for the Children, Youth and Their Families; i. Four members who are advocates or persons who work with victims of human trafficking to be appointed by the Governor for a 3 year term and shall be eligible for reappointment. Members shall include representation from all 3 counties of the State. j. [Repealed.] k. A representative of the Delaware Department of Education to be appointed by the Secretary of the Department of Education. l. A representative of the Division of Professional Regulation to be appointed by the Director of the Division of Professional Regulation. m. Two members of the House of Representatives to be appointed by the Speaker of the House, 1 of which must be a member of the minority caucus. n. Two members of the Senate to be appointed by the President Pro Tempore of the Senate, 1 of which must be a member of the minority caucus. o. A representative of the Department of Transportation to be appointed by the Secretary of the Department of Transportation. p. A representative from the Criminal Justice Council to be appointed by the Executive Director of the Criminal Justice Council. q. A person who has been a victim of human trafficking to be appointed by the Governor for a 3 year term and shall be eligible for reappointment. r. A resident of any county who has prior experience in working with victims of human trafficking in a legal or advocacy capacity to be appointed by the Chair of the Council with approval of a quorum of all members of the Council. (3) The Council shall do all of the following: a. Develop a comprehensive plan to provide victims of human trafficking with services. b. Effectuate coordination between agencies, departments, and the courts with victims of human trafficking. c. Collect and evaluate data on human trafficking in this State. d. Promote public awareness about human trafficking, victim remedies and services, and trafficking prevention. e. Create a public-awareness sign that contains centralized human trafficking hotline information. f. Coordinate training on human trafficking prevention and victim services for individuals who may have recurring contact with victims or perpetrators, including government employees, health-care workers, business owners, potential victims of human trafficking, and private sector employees. Page 51 Title 11 - Crimes and Criminal Procedure g. Pursue funding opportunities, including federal grants, through the Criminal Justice Council. h. Conduct other appropriate activities. (4) Meetings; quorum; officers; committees; procedure. a. The Council shall meet at least 4 times per year. Thirteen members constitute a quorum. b. A Chair and Vice Chair must be elected annually from among the members of the Council. c. The Chair shall convene and preside over meetings of the Council and prepare an agenda for meetings. d. The Vice Chair shall act as Chair in the absence of the Chair. e. The Council shall establish committees composed of Council members and other knowledgeable individuals, as it deems advisable, to assist in planning, policy, goal and priority recommendations, and developing implementation plans to carry out the statutory duties of the Council. f. 1. The Council shall submit an annual written report of its activities and recommendations to the Governor, General Assembly, the Chief Justice of the Supreme Court, and the Executive Director of the Criminal Justice Council on or before September 15. 2. For purposes of submitting the report to the General Assembly, the Council shall submit the report to the Secretary of the Senate, Chief Clerk of the House, the Chair of the Joint Finance Committee, and the Vice Chair of the Joint Finance Committee, who shall distribute the report to the General Assembly and the Joint Finance Committee. 3. The Council shall include in the annual report that it submits under paragraph (k)(4)f.1. of this section how the Council spent any state funds received for the previous fiscal year. 4. At each full council meeting, the Council shall provide a report to meeting attendees on how it has, since the previous full council meeting, spent any state funding received. (5) a. The Council shall employ an Executive Director to be appointed by the Chair with approval of a quorum of the Council. The Executive Director will serve at the pleasure of a quorum of the Council. b. The Executive Director of the Council shall support the Council in carrying out its duties under this subsection. c. Subject to the approval of a quorum of the Council and within the limits of any appropriation made by the General Assembly or available funding from another funding source, the Executive Director of the Council shall employ staff and contract for services as necessary to carry out the functions of the Council. d. The Executive Director of the Council shall report to the Council. For matters involving anything that may affect the Criminal Justice Council’s budget, the Executive Director of the Council shall also report to the Executive Director of the Criminal Justice Council. The Executive Director of the Criminal Justice Council has final approval over matters involving anything that may affect the Criminal Justice Council’s budget. (l) Display of public awareness sign; civil penalty for failure to display. — (1) a. Display of a public awareness sign in State of Delaware facilities. — The Department of Transportation shall display a public awareness sign in every State-of-Delaware-operated transportation station, rest area, and welcome center which is open to the public. b. The Department of Health and Social Services shall display a public awareness sign in every State of Delaware service center and wellness center that is operated by the Department of Health and Social Services. c. The Department of Services for Children, Youth and Their Families shall display a public awareness sign in every residential child care facility that is operated by the Department of Services for Children, Youth and Their Families. (2) a. A public awareness sign must be displayed in an establishment within a category designated by the Delaware Anti-Trafficking Action Council (Council) and within all of the following categories: 1. Adult entertainment establishment. 2. Entity found to be maintaining a criminal nuisance involving prostitution under § 7104 of Title 10. 3. Job recruitment center. 4. Hospital. 5. [Repealed.] 6. Wellness center other than those covered in paragraph (l)(1)b. of this section. 7. Shelter or residential service designed to serve victims of domestic violence or sexual assault, or individuals experiencing homelessness or food insecurity. 8. Residential child care facility other than those covered in paragraph (l)(1)c. of this section. 9. Independent and transitional living service provider for youth aging out of foster care. 10. Hotel. 11. Convenience store along a major highway. 12. Gas station along a major highway. 13. Casino. Page 52 Title 11 - Crimes and Criminal Procedure 14. Restaurant with a liquor license. 15. Poultry processing plant. 16. Bus or train station other than those covered in paragraph (l)(1)a. of this section. 17. Bar. 18. Massage establishment. 19. Shopping mall. b. 1. The Council may promulgate regulations to designate a category of establishments that must display a public awareness sign in addition to those categories identified in paragraph (l)(2)a. of this section. 2. The Council may promulgate regulations to designate a specific location on the premises for a category of establishments where a public awareness sign must be displayed. If the Council designates a specific location, the Council shall include the specific location requirement within the list under paragraph (l)(2)d. of this section. c. The Council may promulgate regulations to change the requirements as to what constitutes a public awareness sign so long as the regulations are consistent with paragraph (k)(3)e. of this section and subsection (a) of this section. If the Council promulgates regulations under this paragraph (l)(2)c., the Executive Director of the Council, or their designee, shall inform the Director of the Department’s Division of Industrial Affairs, Office of Labor Law Enforcement of the changes. d. The Council shall publish a list of categories of establishments that must display a public awareness sign on an annual basis for notification and outreach purposes. The publication must occur in all of the following: 1. A newspaper with statewide circulation. 2. The Register of Regulations. 3. Department website. e. 1. Except as otherwise provided in (l)(2)e.2. through (l)(2)e.8. of this section, an establishment shall display a public awareness sign in a place that is clearly conspicuous and visible to employees and the public. To comply with the requirement that a public awareness sign be clearly conspicuous and visible to employees and the public, an establishment may need to display a public awareness sign at more than 1 location on its premises. 2. An establishment with a location on its premises designated by the Council through promulgation of regulations under paragraph (l)(2)b.2. of this section shall comply with the specific location requirement. If the establishment does not have that specific location on its premises, then the establishment shall display the public awareness sign as described in paragraph (l)(2)e.1. of this section unless the regulations state otherwise. 3. An establishment that is a hotel may not be required to display a public awareness sign in guest bedrooms. However, a public awareness sign must be displayed in a manner that is clearly conspicuous and visible in all public restrooms, all staff breakrooms, and at least 1 of the following publicly accessible locations that is present on the premises: A. All lobbies. B. All elevators. C. All stairwells. D. All vending machine or ice machine areas. 4. An establishment that is a restaurant with a liquor license must display a public awareness sign in a manner that is clearly conspicuous and visible in all staff breakrooms, or if no staff breakrooms, where clearly conspicuous and visible to employees. 5. An establishment that is a poultry processing plant must display a public awareness sign in a manner that is clearly conspicuous and visible in all staff breakrooms, or if no staff breakrooms, where clearly conspicuous and visible to employees. 6. An establishment that is a casino must display a public awareness sign in a manner that is clearly conspicuous and visible in all public restrooms, all staff breakrooms, and all lobbies. 7. An establishment that is a massage establishment must display a public awareness sign in a manner that is clearly conspicuous and visible in all staff breakrooms, or if no staff breakrooms, where clearly conspicuous and visible to employees. 8. An establishment that is a shopping mall must display a public awareness sign in a manner that is clearly conspicuous and visible in all food courts and all public restrooms provided by the management of the shopping mall. f. The Executive Director of the Council, or their designee, shall oversee the distribution of public awareness signs to State of Delaware facilities and establishments. The public awareness signs must be provided free of cost to all State of Delaware facilities and establishments that request them. (3) The Department may enforce the public awareness sign requirements in paragraphs (l)(2)a. and (l)(2)e. of this section, as well as determine whether a sign not distributed by the Council satisfies the definition of “public awareness sign” under subsection (a) of this section, using the rules and procedures of the Administrative Procedures Act, Chapter 101 of Title 29. (4) a. The Department may conduct an inspection of an establishment following receipt of a complaint alleging that the establishment is noncompliant with public awareness sign requirements. If the Department conducts an inspection and confirms that the establishment Page 53 Title 11 - Crimes and Criminal Procedure has failed to comply with 1 or more public awareness sign requirements, the Department shall provide the establishment with public awareness signs, if needed, and written notice of all the following: 1. What noncompliance has occurred, including a citation to the specific law or regulation with which the establishment has not complied. 2. The date the Department inspected and determined there was noncompliance. 3. The possible civil penalties for noncompliance. 4. A prominently displayed statement that this notice serves as a warning. b. If, within 3 years from the postmark date or date of hand delivery of the warning notice under paragraph (l)(4)a. of this section, the Department determines the establishment is exhibiting the same, or a substantially similar, noncompliance that was identified in the warning notice under paragraph (l)(4)a. of this section, then the Department shall assess a civil penalty against the noncompliant establishment. The Department shall provide the noncompliant establishment with public awareness signs, if needed, and written notice of all the following: 1. What noncompliance has occurred, including a citation to the specific law or regulation with which the establishment has not complied. 2. The dates the Department inspected and determined there was noncompliance. 3. The postmark or hand delivery date of the warning notice under paragraph (l)(4)a. of this section. 4. Whether this is a first or subsequent violation. 5. The civil penalty assessed. 6. That the owner of the establishment may file an appeal, including instructions on how to request a hearing. c. 1. A request for a hearing must be made in writing, addressed to the Secretary of the Department (Secretary), and made within 10 business days from the postmark date or the date of hand delivery of the notice under paragraph (l)(4)b. of this section. 2. If a hearing is not requested under paragraph (l)(4)c.1. of this section, the determination made by the Department under paragraph (l)(4)b. of this section is final. 3. The Department shall review a request for a hearing under paragraph (l)(4)c.1. of this section to determine if the dispute can be resolved at an informal settlement conference. If the Department determines a dispute cannot be resolved at an informal settlement conference or if the Department holds an informal settlement conference and a settlement is not reached, the Department shall forward the hearing request to the Secretary to schedule a hearing. 4. The Secretary shall issue a final case decision at the conclusion of a hearing held under paragraph (l)(4)c. of this section as required under Chapter 101 of Title 29. 5. An establishment owner may seek judicial review of the Secretary’s final case decision by commencing an action in Superior Court within 30 days of the date of the final decision under paragraph (l)(4)c.4. of this section. d. The notices required under paragraphs (l)(4)a. and (l)(4)b. of this section may be hand delivered or mailed to the noncomplying establishment. e. The notice under paragraph (l)(4)a. of this section is not a case decision for purposes of the Administrative Procedures Act, Chapter 101 of Title 29. f. All civil penalties collected under this subsection must be paid to the State of Delaware General Fund. g. If the Council becomes aware of potential noncompliance with the public awareness sign requirements, the Executive Director of the Council, or their designee, shall report the potential noncompliance to the Director of the Department’s Division of Industrial Affairs, Office of Labor Law Enforcement and the Department may conduct an inspection. h. The Department has the same authority under this subsection as in § 107 of Title 19. i. Nothing in this subsection may be interpreted to prevent the Department from initiating its own inspections into an establishment’s compliance with the public awareness sign requirements independent of a report from the Council or a complaint. (5) The civil penalties for noncompliance with the public awareness sign requirements in paragraphs (l)(2)a. and (l)(2)e. of this section or for failure to use a sign that satisfies the definition of “public awareness sign” under subsection (a) of this section are as follows: a. If an establishment does not correct the same, or a substantially similar, noncompliance identified in the warning notice under paragraph (l)(4)a. of this section, the establishment owner is subject to a civil penalty of not more than $500. b. On a second or subsequent failure by an establishment to correct the same, or a substantially similar, noncompliance identified in the warning notice under paragraph (l)(4)a. of this section, the establishment owner is subject to a civil penalty of not more than $2,500. (6) a. The Department shall submit to the General Assembly and the Council an annual written report that contains all of the following information: 1. Number of inspections conducted by the Department to check compliance with the public awareness sign requirements in paragraphs (l)(2)a. and (l)(2)e. of this section, as well as determine whether a sign not distributed by the Council satisfies the definition of “public awareness sign” under subsection (a) of this section. Page 54 Title 11 - Crimes and Criminal Procedure 2. Number of warning notices under paragraph (l)(4)a. of this section issued by the Department, disaggregated by category of establishments. 3. Number of noncompliance notices under paragraph (l)(4)b. of this section issued by the Department, disaggregated by first, second, and subsequent violations and further disaggregated by category of establishments. 4. Total amount of civil penalties collected by the Department from enforcement of this subsection. b. For purposes of submitting the report to the General Assembly, the Department shall submit the report to the Secretary of the Senate, Chief Clerk of the House, the Director and Librarian of the Division of Research, and the Controller General of the Office of the Controller General. c. The Department shall submit its report by December 1 of each year, beginning December 1, 2023. If the deadline falls on a weekend or Delaware state holiday, then the report is due by the State of Delaware’s next following business day. (m) Eligibility for services. (1) A victim of human trafficking is eligible for a benefit or service, which is available through the State and identified in the plan developed under paragraph (k)(3)a. of this section, including compensation under § 9009 of this title, regardless of immigration status. (2) A minor engaged in commercial sexual activity is eligible for a benefit or service, which is available through the State and identified in the plan developed under paragraph (k)(3)a. of this section, regardless of immigration status. (3) As soon as practicable after a first encounter with an individual who reasonably appears to a police officer to be a victim or a minor engaged in commercial sexual activity, the police officer shall notify the appropriate state or local agency, as identified in the plan developed under paragraph (k)(3)a. of this section, that the individual may be eligible for a benefit or service under this section. (n) Law-enforcement agency protocol. — (1) On request from an individual who a police officer or prosecutor reasonably believes is a victim who is or has been subjected to a severe form of trafficking or criminal offense required for the individual to qualify for a nonimmigrant T or U visa under 8 U.S.C. § 1101(a)(15)(T), as amended from time to time, or 8 U.S.C. § 1101(a)(15)(U), as amended from time to time, or for continued presence, under 22 U.S.C. § 7105(c)(3), as amended from time to time, the police officer or prosecutor, as soon as practicable after receiving the request, shall request that a certifying official in that police officer’s or prosecutor’s lawenforcement agency complete, sign, and give to the individual the Form I-914B or Form I-918B provided by the United States Citizenship and Immigration Services on its Internet website, and ask a federal law-enforcement officer to request continued presence. (2) If the law-enforcement agency having responsibility under paragraph (n)(1) of this section determines that an individual does not meet the requirements for such agency to comply with paragraph (n)(1) of this section, that agency shall inform the individual of the reason and that the individual may make another request under paragraph (n)(1) of this section and submit additional evidence satisfying the requirements. (o) Nothing contained in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (76 Del. Laws, c. 125, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 276, § 1; 80 Del. Laws, c. 26, § 3; 81 Del. Laws, c. 110, § 1; 81 Del. Laws, c. 174, § 1; 81 Del. Laws, c. 211, § 1; 82 Del. Laws, c. 60, § 1; 82 Del. Laws, c. 83, § 8; 83 Del. Laws, c. 44, § 1; 83 Del. Laws, c. 45, § 1; 83 Del. Laws, c. 283, § 8; 83 Del. Laws, c. 389, § 1; 84 Del. Laws, c. 42, § 1; 84 Del. Laws, c. 211, § 1.) §§ 788-790. [Reserved.] F Coercion § 791. Acts constituting coercion; class A misdemeanor. A person is guilty of coercion when the person compels or induces a person to engage in conduct which the victim has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which the victim has a legal right to engage, by means of instilling in the victim a fear that, if the demand is not complied with, the defendant or another will: (1) Cause physical injury to a person; or (2) Cause damage to property; or (3) Engage in other conduct constituting a crime; or (4) Accuse some person of a crime or cause criminal charges to be instituted against a person; or (5) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or (6) Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or (7) Use or abuse the defendant’s position as a public servant by performing some act within or related to the defendant’s official duties, or by failing or refusing to perform an official duty in such manner as to affect some person adversely; or (8) Perform any other act which is calculated to harm another person materially with respect to that person’s health, safety, business, calling, career, financial condition, reputation or personal relationships. Coercion is a class A misdemeanor. (11 Del. C. 1953, § 791; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) Page 55 Title 11 - Crimes and Criminal Procedure § 792. Coercion; truth and proper motive as a defense. In any prosecution for coercion committed by instilling in the victim a fear that the victim or another person would be charged with a crime, it is a defense that the defendant believed the threatened charge to be true and that the defendant’s sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of the threatened charge. (11 Del. C. 1953, § 792; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) Subchapter III Offenses Involving Property A Arson and Related Offenses § 801. Arson in the third degree; affirmative defense; class G felony. (a) A person is guilty of arson in the third degree when the person recklessly damages a building by intentionally starting a fire or causing an explosion. (b) In any prosecution under this section it is an affirmative defense that no person other than the accused had a possessory or proprietary interest in the building. Arson in the third degree is a class G felony. (11 Del. C. 1953, § 801; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 802. Arson in the second degree; affirmative defense; class D felony. (a) A person is guilty of arson in the second degree when the person intentionally damages a building by starting a fire or causing an explosion. (b) In any prosecution under this section it is an affirmative defense that: (1) No person other than the accused had a possessory or proprietary interest in the building, or if other persons had such interests, all of them consented to the accused’s conduct; and (2) The accused’s sole intent was to destroy or damage the building for a lawful purpose; and (3) The accused had no reasonable ground to believe that the conduct might endanger the life or safety of another person or damage another building. Arson in the second degree is a class D felony. (11 Del. C. 1953, § 802; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 803. Arson in the first degree; class C felony. A person is guilty of arson in the first degree when the person intentionally damages a building by starting a fire or causing an explosion and when: (1) The person knows that another person not an accomplice is present in the building at the time; or (2) The person knows of circumstances which render the presence of another person not an accomplice therein a reasonable possibility. Arson in the first degree is a class C felony. (11 Del. C. 1953, § 803; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 804. Reckless burning or exploding; class A misdemeanor. (a) A person is guilty of reckless burning or exploding when the person intentionally starts a fire or causes an explosion, whether on the person’s own property or on another’s, and thereby recklessly places a building or other real or personal property of another in danger of destruction or damage or places another person in danger of physical injury. (b) Reckless burning or exploding shall be punished as follows: (1) Where the total amount of pecuniary loss caused by the burning or exploding, when totaled for all victims, is less than $1,500, such burning or exploding shall be a class A misdemeanor. (2) Where the total amount of pecuniary loss caused by the burning or exploding, when totaled for all victims, is $1,500 or more, such burning or exploding shall be a class G felony. (11 Del. C. 1953, § 804; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 344, §§ 1, 2.) § 805. Cross or religious symbol burning; class A misdemeanor [Transferred]. Transferred to § 1306 of this title by 83 Del. Laws, c. 477, § 3, effective Oct. 21, 2022. §§ 806-810. [Reserved.] § 811. Criminal mischief; classification of crime; defense. (a) A person is guilty of criminal mischief when the person intentionally or recklessly: Page 56 Title 11 - Crimes and Criminal Procedure (1) Damages tangible property of another person; or (2) Tampers with tangible property of another person so as to endanger person or property; or (3) Tampers or makes connection with tangible property of a gas, electric, steam or waterworks corporation, telegraph or telephone corporation or other public utility, except that in any prosecution under this subsection it is an affirmative defense that the accused engaged in the conduct charged to constitute an offense for a lawful purpose. (b) Criminal mischief is punished as follows: (1) Criminal mischief is a class G felony if the actor intentionally causes pecuniary loss of $5,000 or more, or if the actor intentionally causes a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service; (2) Criminal mischief is a class A misdemeanor if the actor intentionally or recklessly causes pecuniary loss in excess of $1,000; (3) Otherwise criminal mischief is an unclassified misdemeanor; (4) If an actor commits an act of criminal mischief of any degree on or along a Delaware byway, as defined in §101 of Title 17, the court shall impose a minimum mandatory fine of at least $500. (c) It is a defense that the defendant has a reasonable ground to believe that the defendant has a right to engage in the conduct set forth in subsection (a) of this section. (11 Del. C. 1953, § 811; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 590, § 6; 65 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 211, § 1; 77 Del. Laws, c. 133, § 14; 77 Del. Laws, c. 350, § 1.) § 812. Graffiti and possession of graffiti implements; class G felony; class A misdemeanor; class B misdemeanor. (a) (1) A person is guilty of the act of graffiti when the person intentionally, knowingly or recklessly draws, paints, etches or makes any significant mark or inscription upon any public or private, real or personal property of another without the permission of the owner. (2) Graffiti is a class A misdemeanor, unless the property damage caused thereby exceeds $1500, in which case it is a class G felony. The penalty for graffiti shall include a minimum fine of not less than $1000 which shall not be subject to suspension, restitution for damages to the property and 250 hours of community service, at least 1/2 of which shall be served removing graffiti on public property. The minimum fine and community service hours shall be doubled for a second or subsequent conviction of an act of graffiti. The minimum fine shall also be doubled, and may not be suspended, for a first, second, or subsequent conviction of an act of graffiti which is performed on or along a “Delaware byway,” as defined in § 101 of Title 17. (b) (1) A person is guilty of possession of graffiti implements when the person possesses any tool, instrument, article, substance, solution or other compound designed or commonly used to etch, paint, cover, draw upon or otherwise place a mark upon a piece of property which that person has no permission or authority to etch, paint, cover, draw upon or otherwise mark, under circumstances evidencing an intent to use the same in order to commit an act of graffiti or damage such property. (2) Possession of graffiti implements is a class B misdemeanor. The penalty for possession of graffiti implements shall include a minimum fine of not less than $500 which shall not be subject to suspension, restitution for damages to the property and 100 hours of community service, at least 1/2 of which shall be served removing graffiti on public property. The minimum fine and community service hours shall be doubled for a second or subsequent conviction of possession of graffiti implements. (71 Del. Laws, c. 464, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 68, § 1; 76 Del. Laws, c. 377, § 1; 77 Del. Laws, c. 181, §§ 1, 2; 77 Del. Laws, c. 350, § 2.) § 813. Theft of property from a cemetery. A person commits theft of property from a cemetery when, with the intent as prescribed in § 841 of this title, the person exercises control over flowers, burial mounds, mementos or any other property left by its owner in a cemetery for purposes of honoring the dead; provided, however, that this section shall not be applicable to employees of a cemetery who remove property from a grave site pursuant to cemetery regulations. Whoever commits theft of property from a cemetery shall be guilty of a class A misdemeanor. (78 Del. Laws, c. 125, § 1.) §§ 814-819. [Reserved.] B Criminal Trespass and Burglary § 820. Trespassing with intent to peer or peep into a window or door of another; class B misdemeanor. A person is guilty of trespassing with intent to peer or peep into a window or door of another when the person knowingly enters upon the occupied property or premises of another utilized as a dwelling, with intent to peer or peep into the window or door of such property or premises and who, while on such property or premises, otherwise acts in a manner commonly referred to as “Peeping Tom.” Any person violating this section may be referred by the court to the Delaware Psychiatric Center for examination and for treatment. Justices of the peace shall have concurrent jurisdiction of violations of this section. Page 57 Title 11 - Crimes and Criminal Procedure Trespassing with intent to peer or peep into a window or door of another is a class B misdemeanor. (11 Del. C. 1953, § 820; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1.) § 821. Criminal trespass in the third degree; a violation. A person is guilty of criminal trespass in the third degree when the person knowingly enters or remains unlawfully upon real property. Criminal trespass in the third degree is a violation. (11 Del. C. 1953, § 821; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 822. Criminal trespass in the second degree; unclassified misdemeanor. A person is guilty of criminal trespass in the second degree when the person knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner manifestly designed to exclude intruders. Criminal trespass in the second degree is an unclassified misdemeanor. (11 Del. C. 1953, § 822; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 823. Criminal trespass in the first degree; class A misdemeanor. A person is guilty of criminal trespass in the first degree when the person knowingly enters or remains unlawfully in a dwelling or building used to shelter, house, milk, raise, feed, breed, study or exhibit animals. Criminal trespass in the first degree is a class A misdemeanor. (11 Del. C. 1953, § 823; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 482, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 824. Burglary in the third degree; class F felony. A person is guilty of burglary in the third degree when the person knowingly enters or remains unlawfully in a building with intent to commit a crime therein. Burglary in the third degree is a class F felony. (11 Del. C. 1953, § 824; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 82 Del. Laws, c. 215, § 1.) § 825. Burglary in the second degree; class D felony. (a) A person is guilty of burglary in the second degree when the person knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein. (b) A person is guilty of burglary in the second degree when the person knowingly enters or remains unlawfully in a building with intent to commit a crime therein and where the person is armed with explosives or a deadly weapon or where the person causes physical injury to any other person who is not a participant in the crime. Burglary in the second degree is class D felony. (c) [Repealed.] (11 Del. C. 1953, § 825; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 126, § 7; 74 Del. Laws, c. 106, § 4; 74 Del. Laws, c. 345, § 4; 82 Del. Laws, c. 215, § 1.) § 826. Burglary in the first degree; class C or B felony. (a) A person is guilty of burglary in the first degree when the person knowingly enters or remains unlawfully in an occupied dwelling with intent to commit a crime therein. (b) A person is guilty of home invasion burglary first degree if the elements of subsection (a) of this section are met and in effecting entry or when in the dwelling or immediate flight therefrom, the person or another participant in the crime engages in the commission of, or attempts to commit, any of the following felonies: (1) Robbery in the first or second degree; (2) Assault in the first or second degree; (3) Murder in the first or second degree; (4) Manslaughter; (5) Rape in any degree; (6) Kidnapping in the first or second degree; (c) Burglary in the first degree is a class C felony. A person convicted of burglary in the first degree shall receive a minimum sentence of 1 year at Level V. (d) Notwithstanding any provision of this section or Code to the contrary, where a person is convicted of burglary in the first degree pursuant to subsection (a) of this section and who either (1) is armed with explosives or a deadly weapon; or (2) causes physical injury to any person who is not a participant in the crime, burglary in the first degree is a class B felony. (e) Notwithstanding any provision of this section or Code to the contrary, any person convicted of home invasion burglary first degree as defined in subsection (b) of this section, shall receive a minimum sentence of 6 years at Level V. Page 58 Title 11 - Crimes and Criminal Procedure (f) The sentencing provisions applicable to this section apply to the attempted burglary in the first degree as well as attempted home invasion burglary in the first degree. (g) It is no defense that the accused did not know that the dwelling was occupied at the time of entry. (11 Del. C. 1953, § 826; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 126, § 8; 74 Del. Laws, c. 106, § 5; 74 Del. Laws, c. 345, § 5; 82 Del. Laws, c. 215, § 1.) § 826A. Home invasion; class B felony [Repealed]. (78 Del. Laws, c. 252, § 1; repealed by 82 Del. Laws, c. 215, § 1, effective Sept. 16, 2019.) § 827. Multiple offenses. A person may be convicted both of burglary and of the offense which it was the purpose of the person’s unlawful entry to commit or for an attempt to commit that offense. A person may be convicted both of home invasion burglary first degree and any of the underlying offenses designated in § 826(b) of this title. (11 Del. C. 1953, § 827; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 252, § 6; 82 Del. Laws, c. 215, § 1; 83 Del. Laws, c. 37, § 6.) § 828. Possession of burglar’s tools or instruments facilitating theft; class F felony. (a) A person is guilty of possession of burglar’s tools or instruments facilitating theft when, under circumstances evidencing an intent to use or knowledge that some other person intends to use the same in the commission of an offense of such character, the person possesses any tool, instrument, or other thing adapted, designed, or commonly used for committing or facilitating: (1) Offenses involving unlawful entry into or upon premises, (2) Offenses involving the unlocking, overriding, or disabling of a security device without authorization, (3) Offenses involving forcible breaking or opening of safes, vending machines, automatic teller machines, lock boxes, gates, doors or any container or depositories of property, or (4) The offense of identity theft, such as a credit card, driver license or other document issued in a name other than the name of the person who possesses the document. (b) Possession of burglar’s tools or instruments facilitating theft is a class F felony. (11 Del. C. 1953, § 828; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 478, §§ 1, 2; 72 Del. Laws, c. 297, § 2; 75 Del. Laws, c. 162, § 1; 82 Del. Laws, c. 215, § 1.) § 829. Definitions relating to criminal trespass, burglary and home invasion. (a) “Burglar’s tool or instruments” includes the term “bump key” which is a type of key used for a specific lock picking technique called lock bumping. (b) “Dwelling” means a building which is usually occupied by a person lodging therein at night including a building that has been adapted or is customarily used for overnight accommodation. (c) “Occupied dwelling” means a dwelling, and a person is lawfully present on the property at the time of the offense. (d) A person “enters” upon premises when the person introduces any body part or any part of any instrument, by whatever means, into or upon the premises. (e) A person “enters or remains unlawfully” in or upon premises when the person is not licensed or privileged to do so. A person who, regardless of intent, enters or remains upon premises which appear at the time to be open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated by the owner of the premises or another authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. (f) The “intent to commit a crime therein” may be formed prior to the unlawful entry, be concurrent with the unlawful entry or such intent may be formed after the entry while the person remains unlawfully. (g) “Night” means a period between 30 minutes after sunset and 30 minutes before sunrise. (h) “Premises” include the term “building” as defined in § 222 of this title, and any real property. (i) “Security device” includes any lock, whether mechanical or electronic; or any warning device designed to alert a person or the general public of a possible attempt to gain unlawful entry into or upon premises or a possible attempt to unlock, bypass or otherwise disable a lock. (j) A person possesses burglar tools or instruments facilitating theft “under circumstances evincing an intent to use or knowledge that some other person intends to use” such when the person possesses the tools or instruments at a time and a place proximate to the commission or attempt to commit a trespass, burglary, home invasion, or theft-related offense or otherwise under circumstances not manifestly appropriate for what lawful uses the tools or instruments may have. (11 Del. C. 1953, § 829; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 478, § 3; 76 Del. Laws, c. 267, § 1; 76 Del. Laws, c. 310, § 1; 78 Del. Laws, c. 252, §§ 7, 8; 82 Del. Laws, c. 215, § 1.) Page 59 Title 11 - Crimes and Criminal Procedure § 830. [Reserved.] C Robbery § 831. Robbery in the second degree; class E or D felony. (a) A person is guilty of robbery in the second degree when, in the course of committing theft, the person uses or threatens the immediate use of force upon another person with intent to: (1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft. (b) Except as provided in paragraph (d) of this section, robbery second degree is a class E felony. (c) In addition to its ordinary meaning, the phrase “in the course of committing theft” includes any act which occurs in an attempt to commit theft or in immediate flight after the attempt or commission of the theft. (d) Robbery in the second degree is a class D felony when, in the course of committing an offense under subsection (a) of this section, the person takes possession of a motor vehicle, and while in possession or control of such vehicle, the person does any of the following: (1) Commits or attempts to commit a class D or greater felony. (2) Drives or operates the vehicle in violation of § 4177 of Title 21. (3) Commits any offense set forth in Chapter 47 of Title 16. (4) Engages in conduct which causes or creates a substantial risk of physical injury to another person. (e) Definitions relating to subsection (d) of this section. — (1) “Another person” means and includes the owner of the motor vehicle or any operator, occupant, passenger of the motor vehicle or any other person who has an interest in the use of the motor vehicle which the offender is not privileged to infringe. (2) “Motor vehicle” or “vehicle,” means its ordinary meaning and includes any watercraft. (11 Del. C. 1953, § 831; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 517, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 129, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 47, § 1; 82 Del. Laws, c. 216, § 1.) § 832. Robbery in the first degree; class B felony. (a) A person is guilty of robbery in the first degree when the person commits the crime of robbery in the second degree and when, in the course of the commission of the crime or of immediate flight therefrom, the person or another participant in the crime: (1) Causes physical injury to any person who is not a participant in the crime; or (2) Displays what appears to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon; or (3) Is armed with and uses or threatens the use of a dangerous instrument; or (4) Commits said crime against a person who is 65 years of age or older; or (5) Threatens death upon another. Robbery in the first degree is a class B felony. (b) Notwithstanding any provisions of this section or Code to the contrary, any person convicted of robbery in the first degree shall receive a minimum sentence of: (1) Three years at Level V; or (2) Five years at Level V, if the conviction was either of the following: a. For an offense that was committed pursuant to paragraph (a)(3) of this section and the deadly weapon was a firearm, and within 7 years of the date of a previous conviction for robbery in the first degree or if the conviction is for an offense that was committed within 7 years of the date of termination of all periods of incarceration or confinement imposed pursuant to a previous conviction for robbery in the first degree, whichever is the later date. b. For an offense committed within 2 years of the date of a previous conviction for robbery in the first degree or if the conviction is for an offense that was committed within 2 years of the date of termination of all periods of incarceration or confinement imposed pursuant to a previous conviction for robbery in the first degree, whichever is the later date. (c) The sentencing provisions of this section apply to attempted robbery in the first degree as well as robbery in the first degree. (11 Del. C. 1953, § 832; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 6; 60 Del. Laws, c. 240, §§ 1, 2; 63 Del. Laws, c. 329, § 1; 67 Del. Laws, c. 130, §§ 8, 13; 68 Del. Laws, c. 129, § 5; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 126, § 9; 74 Del. Laws, c. 93, § 1; 74 Del. Laws, c. 106, § 6; 74 Del. Laws, c. 345, § 6; 80 Del. Laws, c. 358, § 1; 82 Del. Laws, c. 216, § 1.) §§ 833,834. [Reserved.] § 835. Carjacking in the second degree; class E felony; class D felony [Repealed]. (72 Del. Laws, c. 34, § 1; repealed by 82 Del. Laws, c. 216, § 1, effective Sept. 16, 2019.) Page 60 Title 11 - Crimes and Criminal Procedure § 836. Carjacking in the first degree; class C felony; class B felony [Repealed]. (72 Del. Laws, c. 34, § 2; 74 Del. Laws, c. 93, § 2; repealed by 82 Del. Laws, c. 216, § 1, effective Sept. 16, 2019.) § 837. Definitions relating to carjacking [Repealed]. (72 Del. Laws, c. 34, § 3; repealed by 82 Del. Laws, c. 216, § 1, effective Sept. 16, 2019.) §§ 838,839. [Reserved.] D Theft and Related Offenses § 840. Shoplifting; class G felony; class A misdemeanor. (a) A person is guilty of shoplifting if, while in a mercantile establishment in which goods, wares or merchandise are displayed for sale, the person: (1) Removes any such goods, wares or merchandise from the immediate use of display or from any other place within the establishment, with intent to appropriate the same to the use of the person so taking, or to deprive the owner of the use, the value or possession thereof without paying to the owner the value thereof; or (2) Obtains possession of any goods, wares or merchandise by charging the same to any person without the authority of such person or to a fictitious person with a like intent; or (3) Conceals any such goods, wares or merchandise with like intent; or (4) Alters, removes or otherwise disfigures any label, price tag or marking upon any such goods, wares or merchandise with a like intent; or (5) Transfers any goods, wares or merchandise from a container in which same shall be displayed or packaged to any other container with like intent; or (6) Uses any instrument whatsoever, credit slips or chose in action to obtain any goods, wares or merchandise with intent to appropriate the same to the use of the person so taking or to deprive the owner of the use, the value or the possession thereof without paying to the owner the value thereof. (b) Any person wilfully concealing unpurchased merchandise of any store or other mercantile establishment, inside or outside the premises of such store or other mercantile establishment, shall be presumed to have so concealed such merchandise with the intention of converting the same to the person’s own use without paying the purchase price thereof within the meaning of subsection (a) of this section, and the finding of such merchandise concealed upon the person or among the belongings of such person, outside of such store or other mercantile establishment, shall be presumptive evidence of intentional concealment; and if such person conceals or causes to be concealed such merchandise upon the person or among the belongings of another, the finding of the same shall also be presumptive evidence of intentional concealment on the part of the person so concealing such merchandise. (c) A merchant, a store supervisor, agent or employee of the merchant 18 years of age or older, who has probable cause for believing that a person has intentionally concealed unpurchased merchandise or has committed shoplifting as defined in subsection (a) of this section, may, for the purpose of summoning a law-enforcement officer, take the person into custody and detain the person in a reasonable manner on the premises for a reasonable time. (d) A merchant, a store supervisor, agent or employee of the merchant 18 years of age or older who detains, or a merchant, a store supervisor, agent or employee of the merchant who causes or provides information leading to the arrest of any person under subsection (a), (b) or (c) of this section, shall not be held civilly or criminally liable for such detention or arrest provided they had, at the time of such detention or arrest, probable cause to believe that the person committed the crime of shoplifting as defined in subsection (a) of this section. Shoplifting is a class G felony when the goods, wares or merchandise shoplifted are of the value of $1,500 or more, or when the goods, wares or merchandise shoplifted are from 3 or more separate mercantile establishments and were shoplifted in the same or continuing course of conduct and the aggregate value of the goods is $1,500 or more. When the goods, wares or merchandise shoplifted are of the value of less than $1,500, it is a class A misdemeanor. (11 Del. C. 1953, § 840; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 590, § 1; 61 Del. Laws, c. 35, § 1; 61 Del. Laws, c. 482, § 1; 65 Del. Laws, c. 497, § 2; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 211, § 2; 72 Del. Laws, c. 222, § 1; 77 Del. Laws, c. 133, § 1.) § 840A. Use of illegitimate retail sales receipt or Universal Product Code Label. (a) A person who, with intent to cheat or defraud another, possesses, uses, transfers, makes, alters, counterfeits or reproduces a retail sales receipt or Universal Product Code Label is guilty of an offense under this section. (b) A person convicted of violating this section shall be guilty of a class A misdemeanor, unless the person is convicted of possessing 15 or more illegitimate retail sales receipts or Universal Product Code Labels or the aggregate value of the money, property or services illegally obtained or credited to an account is $1,500 or more, in which case it is a class F felony. (73 Del. Laws, c. 31, § 1; 77 Del. Laws, c. 133, § 2.) Page 61 Title 11 - Crimes and Criminal Procedure § 841. Theft; class B felony; class D felony; class F felony; class G felony; class A misdemeanor; restitution. (a) A person is guilty of theft when the person takes, exercises control over or obtains property of another person intending to deprive that person of it or appropriate it. Theft includes the acts described in this section, as well as those described in §§ 841A-846 of this title. (b) A person is guilty of theft if the person, in any capacity, legally receives, takes, exercises control over or obtains property of another which is the subject of theft, and fraudulently converts same to the person’s own use. (c) (1) Except where a victim is 62 years of age or older, or an “adult who is impaired” as defined in § 3902(2) of Title 31, or a “person with a disability” as defined in § 3901(a)(2) of Title 12, theft is a class A misdemeanor unless the value of the property received, retained or disposed of is $1,500 or more, in which case it is a class G felony. (2) Where a victim is 62 years of age or older, or an “adult who is impaired” as defined in § 3902(2) of Title 31, or a “person with a disability” as defined in § 3901(a)(2) of Title 12, theft is a class G felony unless the value of the property received, retained or disposed of is $1,500 or more, in which case it is a class F felony. (3) Notwithstanding paragraphs (c)(1) and (2) of this section: a. Where the value of the property received, retained or disposed of is more than $50,000 but less than $100,000, theft is a class D felony; b. Where the value of the property received, retained or disposed of is $100,000 or more, theft is a class B felony. (d) Upon conviction, the sentencing judge shall require full restitution to the victim for any monetary losses suffered and shall consider the imposition of community service and/or an appropriate curfew for a minor. (11 Del. C. 1953, § 841; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 590, § 2; 65 Del. Laws, c. 497, § 3; 67 Del. Laws, c. 130, § 8; 69 Del. Laws, c. 315, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 209, § 1; 70 Del. Laws, c. 364, §§ 1, 2; 73 Del. Laws, c. 126, §§ 10, 11; 76 Del. Laws, c. 98, § 3; 77 Del. Laws, c. 133, § 3; 78 Del. Laws, c. 179, §§ 83-91, 371; 78 Del. Laws, c. 353, §§ 1, 2.) § 841A. Theft of a motor vehicle; class G felony. (a) A person is guilty of theft of a motor vehicle when the person takes, exercises control over or obtains a motor vehicle of another person intending to deprive the other person of it or appropriate it. (b) As used in this section “motor vehicle” means an automobile, motorcycle, van, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle which is self-propelled, which is designed to be operated primarily on a roadway as defined in § 101 of Title 21, and in, upon or by which any person or property is or may be transported. “Motor vehicle” as used in this section shall not include any device that is included within the definitions of “moped,” “off-highway (OHV),” “triped,” “motorized scooter or skateboard,” “motorized wheelchair” or “electric personal assistive mobility device (EPAMD)” as defined in § 101 of Title 21. (c) Theft of a motor vehicle is a class G felony. (75 Del. Laws, c. 290, § 1.) § 841B. Theft: Organized retail crime; class A misdemeanor; class E felony. (a) A person is guilty of “theft: organized retail crime” when the person takes, exercises control over, or obtains retail merchandise of another person intending to deprive that person of it, or receives stolen property in violation of § 851 of this title, in quantities that would not normally be purchased for personal use or consumption, with the intent to appropriate or to resell or reenter the merchandise into commerce. (b) For purposes of this section, a series of organized retail crime thefts committed by a person or group of persons may be aggregated into 1 count or charge, with the sum of the value of all the retail merchandise being the value considered in determining the degree of theft: organized retail crime. (c) In addition to the provisions of § 841(c) and (d) of this title, if a defendant has 2 or more times been convicted of theft: organized retail crime, the offense of theft: organized retail crime is a class E felony. (76 Del. Laws, c. 98, § 4.) § 841C. Possession or theft of a prescription form or a pad. (a) A person in possession of a blank prescription form or pad who is not a practitioner as defined in this section shall be guilty of a class G felony. “Possession” in addition to its ordinary meaning, includes location on or about the defendant’s person, premises, belongings, vehicle or otherwise within the defendant’s reasonable control. (b) A person is guilty of theft of a blank prescription form or pad when the person is not a practitioner as defined in this section and takes, exercises control over, obtains or receives, produces or reproduces any facsimile or counterfeit version of, or transfers, uses, gives, or sells any copies, facsimiles or counterfeit versions, a prescription form or pad of a practitioner with the intent to deprive the practitioner of the use thereof or to facilitate the commission of drug diversion. (1) A “practitioner” means: a. A physician, dentist, veterinarian, scientific investigator or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled or noncontrolled substance in the course of professional practice or research in this State. Page 62 Title 11 - Crimes and Criminal Procedure b. A pharmacy, hospital or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled or noncontrolled substance in the course of professional practice or research in this State. (2) Theft of a blank prescription form or pad is a class F felony. (77 Del. Laws, c. 161, § 1.) § 841D. Wage theft; class E felony. (a) A person is guilty of wage theft when the person violates § 1102A(a)(1), (a)(4), (a)(5), or (a)(6) of Title 19. (b) For purposes of this section, a series of wage thefts committed by a person or group of persons may be aggregated into 1 count or charge, with the sum of the aggregate loss to employees and this State being the value considered in determining the degree of wage theft. (c) Wage theft is punishable under § 841(c) and (d) of this title, except that if the person has 2 or more convictions for wage theft, wage theft is a class E felony. (83 Del. Laws, c. 443, § 1.) § 842. Theft; lost or mislaid property; mistaken delivery. A person commits theft when, with the intent prescribed in § 841 of this title, the person exercises control over property of another person which the person knows to have been lost or mislaid, or to have been delivered under a mistake as to the identity of the recipient or the nature or value of the property, without taking reasonable measures to return the property to its owner. (11 Del. C. 1953, § 842; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 843. Theft; false pretense. A person commits theft when, with the intent prescribed in § 841 of this title, the person obtains property of another person by intentionally creating or reinforcing a false impression as to a present or past fact, or by preventing the other person from acquiring information which would adversely affect the other person’s judgment of a transaction. (11 Del. C. 1953, § 843; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 844. Theft; false promise. A person commits theft when, with the intent prescribed in § 841 of this title, the person obtains property of another person by means of a representation, express or implied, that the person or a third person will in the future engage in particular conduct, and when the person does not intend to engage in such conduct or, as the case may be, does not believe the third person intends to engage in such conduct. The accused’s intention or belief that a promise would not be performed may not be established by or inferred from the fact alone that the promise was not performed. (11 Del. C. 1953, § 844; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 845. Theft of services. (a) A person commits theft when, with the intent specified in § 841 of this title, the person obtains services which the person knows are available only for compensation by deception, threat, false token, false representation or statement or by installing, rearranging or tampering with any facility or equipment or by any other trick, contrivance or any other device to avoid payment for the services. (b) In any prosecution for theft of services where services have been obtained from a public utility by the installation of, rearrangement of or tampering with any facility or equipment owned or used by the public utility to provide such services, without the consent or permission of the public utility, or by any other trick or contrivance, it shall be a rebuttable presumption that the person to whom the services are being furnished has created, caused or knows of the condition which is a violation of this section. (c) A person who has obtained services from a public utility by installing, rearranging or tampering with any facility or equipment owned or used by the public utility to provide such services, or by any other trick or contrivance, is presumed to have done so with an intent to avoid, or to enable others to avoid, payment for the services involved. (d) The rebuttable presumptions referred to in subsections (b) and (c) of this section shall not apply to any person to whom such services have been furnished for less than 31 days or until there has been at least 1 meter reading. (11 Del. C. 1953, § 845; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 227, §§ 1, 2; 70 Del. Laws, c. 186, § 1.) § 846. Extortion; class E felony. A person commits extortion when, with the intent prescribed in § 841 of this title, the person compels or induces another person to deliver property to the person or to a third person by means of instilling in the victim a fear that, if the property is not so delivered, the defendant or another will: (1) Cause physical injury to anyone; or (2) Cause damage to property; or (3) Engage in other conduct constituting a crime; or (4) Accuse anyone of a crime or cause criminal charges to be instituted against anyone; or (5) Expose a secret or publicize an asserted fact, whether true or false, tending to subject anyone to hatred, contempt or ridicule; or Page 63 Title 11 - Crimes and Criminal Procedure (6) Falsely testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or (7) Use or abuse the defendant’s position as a public servant by performing some act within or related to the defendant’s official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or (8) Perform any other act which is calculated to harm another person materially with respect to the person’s health, safety, business, calling, career, financial condition, reputation or personal relationships. Extortion is a class E felony, except where the victim is a person 62 years of age or older, in which case any violation of this section shall be a class D felony. (11 Del. C. 1953, § 846; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 126, § 12.) § 847. Theft, extortion; claim of right as an affirmative defense. (a) In any prosecution for theft or extortion it is an affirmative defense that the property was appropriated by the actor under a claim of right, made in good faith, to do substantially what the actor did in the manner in which it was done. (b) In any prosecution for extortion where the facts are as described in § 846(4) of this title, it is an affirmative defense that the accused believed the threatened criminal charge to be true and that the accused’s sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of the threatened charge. (11 Del. C. 1953, § 847; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 848. Misapplication of property; class G felony; class A misdemeanor. A person is guilty of misapplication of property when, knowingly possessing personal property of another pursuant to an agreement that it will be returned to the owner at a future time, the person sells, loans, leases, pledges, pawns or otherwise encumbers the property without the consent of the owner thereof in such a manner as to create a risk that the owner will be unable to recover it or will suffer pecuniary loss. Misapplication of property is a class A misdemeanor, unless the value of the property received, retained or disposed of is $1,500 or more, in which case it is a class G felony. (11 Del. C. 1953, § 848; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 590, § 3; 65 Del. Laws, c. 497, § 4; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 211, § 4; 77 Del. Laws, c. 133, § 4.) § 849. Theft of rented property; class A misdemeanor or class G felony. (a) A person is guilty of theft of rental property if the person, with the intent specified in § 841 of this title, takes, destroys, converts, wrongfully withholds or appropriates by fraud, deception, threat, false token, false representation or statement, or by any trick, contrivance or other device to avoid payment for or to otherwise appropriate rental property entrusted to said person. For purposes of this section, “property” shall include the use of vehicles or other movable property. (b) If the finder of fact shall find: (1) That one who has leased or rented the personal property of another, failed to return or make arrangements acceptable to the rentor (lessor) to return the property to the rentor or the rentor’s agent within 10 days after proper notice, following the expiration of the rental (lease) contract; and/or (2) That one who has leased or rented the personal property of another and has returned such property, failed to make payment, at the agreed rental rate, for the full period which the property was rented or leased, except when said person has a good faith dispute with the owner of the rental property as to whether any payment, or additional payment, is due to the owner of the rental property; and/or (3) That the rentee (lessee) presented identification to the rentor which was materially false, fictitious or not current with respect to name, address, place of employment or other appropriate items, then the finder of fact shall be permitted, but not required, to presume intent to commit theft. (c) As used in subsection (b) of this section, “proper notice” shall consist of a written demand by the rentor made after the expiration of the rental period mailed by certified or registered mail to the rentee at: (1) The address the rentee gave when the rental contract was made; or (2) The rentee’s last known address if later furnished in writing by the rentee or the rentee’s agent. (d) The reasonable and fair market value of the property obtained shall be utilized in determining the amount involved in the theft. (e) The following 3 factors, if established by the rentee by a preponderance of the evidence, shall constitute an affirmative defense to prosecution for theft, that the rentee: (1) Accurately stated the rentee’s name, address and other material items of identification at the time of the rental; (2) Failed to receive the rentor’s notice personally due in no significant part to the fault of the rentee; and (3) Returned the personal property to the rentor or the rentor’s agent within 48 hours of the commencement of the prosecution, together with any charges for the overdue period and the value of damages (if any) to the property. Theft of rented property is a class A misdemeanor, unless the value of the property is $1,500 or more, in which case it is a class G felony. (69 Del. Laws, c. 110, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 211, § 5; 70 Del. Laws, c. 260, §§ 1-3; 77 Del. Laws, c. 133, § 5.) Page 64 Title 11 - Crimes and Criminal Procedure § 850. Use, possession, manufacture, distribution and sale of unlawful telecommunication and access devices. (a) Prohibited acts. — A person is guilty of a violation of this section if the person knowingly: (1) Manufactures, assembles, distributes, possesses with intent to distribute, transfers, sells, promotes, offers or advertises for sale, use or distribution any unlawful telecommunication device or modifies, alters, programs or reprograms a telecommunication device: a. For the unauthorized acquisition or theft of any telecommunication service or to receive, disrupt, transmit, decrypt, acquire or facilitate the receipt, disruption, transmission, decryption or acquisition of any telecommunication service without the express consent or express authorization of the telecommunication service provider; or b. To conceal, or to assist another to conceal from any telecommunication service provider or from any lawful authority, the existence or place of origin or destination, or the originating and receiving telephone numbers, of any telecommunication under circumstances evincing an intent to use the same in the commission of any offense. (2) Manufacturers, assembles, distributes, possesses with intent to distribute, transfers, sells, offers, promotes or advertises for sale, use or distribution any unlawful access device; (3) Prepares, distributes, possesses with intent to distribute, sells, gives, transfers, offers, promotes or advertises for sale, use or distribution: a. Plans or instructions for the manufacture or assembly of an unlawful telecommunication or access or device under circumstances evincing an intent to use or employ the unlawful telecommunication access device, or to allow the unlawful telecommunication or access device to be used, for a purpose prohibited by this section, or knowing or having reason to believe that the unlawful telecommunication or access device is intended to be so used, or that the plan or instruction is intended to be used for the manufacture of assembly of the unlawful telecommunication or access device; or b. Material, including hardware, cables, tools, data, computer software or other information or equipment, knowing that the purchaser or a third person intends to use the material in the manufacture of an unlawful telecommunication or access device. (b) Criminal penalties. — (1) Except as provided for in paragraph (b)(2) or (3) of this section, an offense under this section is an unclassified misdemeanor with a sentence up to 1 year incarceration at Level V, and a fine of up to $10,000 for all violations of this section. (2) A person shall be guilty of a class F felony if: a. The defendant has been convicted previously under this section or convicted of any similar crime in this or any Federal or other state jurisdiction; or b. The violation of this section involves at least 10, but not more than 50, unlawful telecommunication or access devices. (3) A person shall be guilty of a class D felony if: a. The defendant has been convicted previously on 2 or more occasions for offenses under this section or for any similar crime in this or any federal or other state jurisdiction; or b. The violation of this section involves more than 50 unlawful telecommunication or access devices. (4) For purposes of grading an offense based upon a prior conviction under this section or for any similar crime pursuant to paragraphs (b)(2)a. and (3)a. of this section, a prior conviction shall consist of convictions upon separate indictments or criminal complaints for offenses under this section or any similar crime in this or any federal or other state jurisdiction. (5) As provided for in paragraphs (b)(2)a. and (3)a. of this section, in grading an offense under this section based upon a prior conviction, the term “any similar crime” shall include, but not be limited to, offenses involving theft of service or fraud, including violations of the Cable Communications Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779). (6) Separate offenses. — For purposes of all criminal fines established for violations of this section, the prohibited activity established herein as it applies to each unlawful telecommunication or access device shall be deemed a separate offense. (7) Fines. — For purposes of imposing fines upon conviction of a defendant for an offense under this section, all fines shall be imposed for each unlawful telecommunication or access device involved in the violation. (8) Restitution. — The court shall, in addition to any other sentence authorized by law, sentence a person convicted of violating this section to make restitution in the manner provided in § 4106 of this title. (9) Forfeiture of unlawful telecommunication or access devices. — Upon conviction of a defendant under this section, the court may, in addition to any other sentence authorized by law, direct that the defendant forfeit any unlawful telecommunication or access devices in the defendant’s possession or control which were involved in the violation for which the defendant was convicted. (c) Venue. — An offense under this section may be deemed to have been committed at either the place where the defendant manufactures or assembles an unlawful telecommunication or access device, or assists others in doing so, or the places where the unlawful telecommunication or access device is sold or delivered to a purchaser or recipient. It shall be no defense to a violation of this section that some of the acts constituting the offense occurred outside of this State. (d) Civil action. — (1) Any person aggrieved by a violation of this section may bring a civil action in any court of competent jurisdiction. (2) The court may: a. Grant preliminary and final injunctions to prevent or restrain violations of this section; Page 65 Title 11 - Crimes and Criminal Procedure b. At any time while an action is pending, order the impounding, on such terms as it deems reasonable, of any unlawful telecommunication or access device that is in the custody or control of the violator and that the court has reasonable cause to believe was involved in the alleged violation of this section; c. Award damages as described in paragraph (d)(3) of this section; d. In its discretion, award reasonable attorney fees and costs, including, but not limited to, costs for investigation, testing and expert witness fees, to an aggrieved party who prevails; and e. As part of a final judgment or decree finding a violation of this section, order the remedial modification or destruction of any unlawful telecommunication or access device involved in the violation that is in the custody or control of the violator or has been impounded under subsection (b) of this section. (3) Types of damages recoverable. — Damages awarded by a court under this section shall be computed as either of the following: a. Upon the complaining party’s election of such damages at any time before final judgment is entered, the complaining party may recover the actual damages suffered by the complaining party as a result of the violation of this section and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages. In determining the violator’s profits, the complaining party shall be required to prove only the violator’s gross revenue, and the violator shall be required to prove the violator’s own deductible expenses and the elements of profit attributable to factors other than the violation; or b. Upon election by the complaining party at any time before final judgment is entered, that party may recover in lieu of actual damages an award of statutory damages of between $250 to $10,000 for each unlawful telecommunication or access device involved in the action, with the amount of statutory damages to be determined by the court as the court considers just. In any case where the court finds that any of the violations of this section were committed wilfully and for purposes of commercial advantage or private financial gain, the court in its discretion may increase the award of statutory damages by an amount of not more than $50,000 for each unlawful telecommunication or access device involved in the action. (4) For purposes of all civil remedies established for violations of this section, the prohibited activity established in this section applies to each unlawful telecommunication or access device and shall be deemed a separate violation. (e) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection. (1) “Manufacture or assembly of any unlawful access device”. — To make, produce or assemble an unlawful access device or modify, alter, program or reprogram any instrument, device, machine, equipment, technology or software so that it is capable of defeating or circumventing any technology, device or software used by the provider, owner or licensee of a telecommunication service, or of any data, audio or video programs or transmissions, to protect any such telecommunication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, access, decryption, disclosure, communication, transmission or retransmission, or to knowingly assist others in those activities. (2) “Manufacture or assembly of unlawful telecommunications device”. — To make, produce or assemble an unlawful telecommunication device or to modify, alter, program or reprogram a telecommunication device to be capable of acquiring, disrupting, receiving, transmitting, decrypting or facilitating the acquisition, disruption, receipt, transmission or decryption of a telecommunication service without the express consent or express authorization of the telecommunication service provider, or to knowingly assist others in those activities. (3) “Telecommunications device”. — Any type of instrument, device, machine, equipment, technology or software which is capable of transmitting, acquiring, decrypting or receiving any telephonic, electronic, data, Internet access, audio, video, microwave or radio transmissions, signals, communications or services, including the receipt, acquisition, transmission or decryption of all such communications, transmissions, signals or services provided by or through any cable television, fiber optic, telephone, satellite, microwave, data transmission, radio, Internet-based or wireless distribution network, system or facility, or any part, accessory or components thereof, including any computer circuit, security module, smart card, software, computer chip, electronic mechanism or other component, accessory or part of any telecommunication device which is capable of facilitating the transmission, decryption, acquisition or reception of all such communications, transmissions, signals or services. (4) “Telecommunication service”. — Any service provided for a charge or compensation to facilitate the origination, transmission, emission or reception of signs, signals, data, writing, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, wireless, radio, electromagnetic, photelectronic or photo-optical system, network, facility or technology; and any service provided by any radio, telephone, fiber optic, cable television, satellite, microwave, data transmission, wireless or Internetbased distribution system, network, facility or technology, including, but not limited to, any and all electronic, data, video, audio, Internet access, telephonic, microwave and radio communications, transmissions, signals and services, and any such communications, transmissions, signals and services provided directly or indirectly by or through any of the aforementioned systems, networks, facilities or technologies. (5) “Telecommunication service provider”. — a. A person or entity providing a telecommunication service, whether directly or indirectly as a reseller, including, but not limited to, a cellular, paging or other wireless communications company or other person or entity which, for a fee, supplies the facility, cell site, mobile telephone switching office or other equipment or telecommunication service; Page 66 Title 11 - Crimes and Criminal Procedure b. Any person or entity owning or operating any cable television, satellite, Internet-based, telephone, wireless, microwave, data transmission or radio distribution system, network or facility; and c. Any person or entity providing any telecommunication service directly or indirectly by or through any such distribution systems, networks or facilities. (6) “Unlawful access device”. — Any type of instrument, device, machine, equipment, technology or software which is primarily designed, assembled, manufactured, sold, distributed, possessed, used or offered, promoted or advertised for the purpose of defeating or circumventing any technology, device or software, or any component or part thereof, used by the provider, owner or licensee of any telecommunication service or of any data, audio or video programs or transmissions, to protect any such telecommunication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, access, decryption, disclosure, communication, transmission or retransmission. (7) “Unlawful telecommunication device”. — Any electronic serial number, mobile identification number, personal identification number or any telecommunication device that is capable of acquiring or facilitating the acquisition of a telecommunication service without the express consent or express authorization of the telecommunication service provider, or that has been altered, modified, programmed or reprogrammed alone or in conjunction with another telecommunication device or other equipment to so acquire or facilitate the unauthorized acquisition of a telecommunication service. “Unlawful telecommunication device” also means: a. Phones altered to obtain service without the express consent or express authorization of the telecommunication service provider, tumbler phones, counterfeit or clone phones, tumbler microchips, counterfeit or clone microchips, and other instruments capable of disguising their identity or location or of gaining unauthorized access to a telecommunications system, network or facility operated by a telecommunication service provider; and b. Any telecommunication device which is capable of, or has been altered, designed, modified, programmed or reprogrammed, alone or in conjunction with another telecommunication device, so as to be capable of facilitating the disruption, acquisition, receipt, transmission or decryption of a telecommunication service without the express consent or express authorization of the telecommunication service provider, including, but not limited to, any device, technology, product, service, equipment, computer software, or component or part thereof, primarily distributed, sold, designed, assembled, manufactured, modified, programmed, reprogrammed or used for the purpose of providing the unauthorized receipt of, transmission of, disruption of, decryption of, access to, or acquisition of any telecommunication service provided by any telecommunication service provider. (11 Del. C. 1953, § 850; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 21; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 475, § 1; 73 Del. Laws, c. 106, § 1.) § 851. Receiving stolen property; class G felony; class A misdemeanor. A person is guilty of receiving stolen property if the person intentionally receives, retains or disposes of property of another person with intent to deprive the owner of it or to appropriate it, knowing that it has been acquired under circumstances amounting to theft, or believing that it has been so acquired. Receiving stolen property is a class A misdemeanor unless the value of the property received, retained or disposed of is $1,500 or more, or unless the receiver has twice before been convicted of receiving stolen property, in which case it is a class G felony. (11 Del. C. 1953, § 851; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 590, § 4; 65 Del. Laws, c. 497, § 5; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 211, § 6; 77 Del. Laws, c. 133, § 6.) § 852. Receiving stolen property; presumption of knowledge. Knowledge that property has been acquired under circumstances amounting to theft may be presumed in the case of a person who acquires it for a consideration which the person knows is substantially below its reasonable value, or that a person possesses property whose affixed identification or serial number is altered, removed, defaced or falsified. In addition, knowledge that property has been acquired under circumstances amounting to theft shall be presumed in the case of a person or dealer who acquires it for a consideration, when such property consists of traffic signs, other traffic control devices or historical markers and the acquisition is not accompanied by a written authorization for the property’s disposition from the Department of Transportation, Department of State or other entity which owns the property. (11 Del. C. 1953, § 852; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 27; 67 Del. Laws, c. 238, § 1; 69 Del. Laws, c. 408, § 1; 70 Del. Laws, c. 186, § 1.) § 852A. Selling stolen property; class A misdemeanor; class G felony. A person is guilty of selling stolen property if, after the person receives stolen property pursuant to § 851 of this title, the person sells some or all of the stolen property received. A person may be convicted of both receiving stolen property and selling stolen property. Selling stolen property is a class A misdemeanor, unless the value of the resold property is $1,500 or more, or unless the seller has been convicted 2 or more times of selling stolen property, in which cases it is a class G felony. (76 Del. Laws, c. 147, § 1; 77 Del. Laws, c. 133, § 7.) § 853. Unauthorized use of a vehicle; class A misdemeanor. A person is guilty of unauthorized use of a vehicle when: Page 67 Title 11 - Crimes and Criminal Procedure (1) Knowing that the person does not have the consent of the owner the person takes, operates, exercises control over, rides in or otherwise uses a vehicle; (2) Having custody of a vehicle pursuant to an agreement between the person or another and the owner thereof whereby the person or another is to perform for compensation a specific service for the owner involving the maintenance, repair or use of the vehicle, the person intentionally uses or operates it, without the consent of the owner, for the person’s own purposes in a manner constituting a gross deviation from the agreed purpose; (3) Having custody of a vehicle pursuant to an agreement with its owner whereby it is to be returned to the owner at a specified time, the person intentionally retains or withholds possession thereof, without the consent of the owner, for so lengthy a period beyond the specified time as to render the retention or possession a gross deviation from the agreement; or (4) Such person obtains possession or control over a vehicle, knowing of the existence of a creditor or creditors who are entitled to receive payments on a debt where such vehicle is the only security or represents the major portion of the creditor’s security, and such person transfers or purports to transfer the vehicle and responsibility for making payments on such vehicle to a third party, whether or not such third party continues or resumes payment to the creditor or creditors. Unauthorized use of a vehicle is a class A misdemeanor. (11 Del. C. 1953, § 853; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 333, §§ 1, 2; 70 Del. Laws, c. 186, § 1.) § 854. Identity theft; class D felony. (a) A person commits identity theft when the person knowingly or recklessly obtains, produces, possesses, uses, sells, gives or transfers personal identifying information belonging or pertaining to another person without the consent of the other person and with intent to use the information to commit or facilitate any crime set forth in this title. (b) A person commits identity theft when the person knowingly or recklessly obtains, produces, possesses, uses, sells, gives or transfers personal identifying information belonging or pertaining to another person without the consent of the other person, thereby knowingly or recklessly facilitating the use of the information by a third person to commit or facilitate any crime set forth in this title. (c) For the purposes of this section, “personal identifying information” includes name, address, birth date, Social Security number, driver’s license number, telephone number, financial services account number, savings account number, checking account number, payment card number, identification document or false identification document, electronic identification number, educational record, health care record, financial record, credit record, employment record, e-mail address, computer system password, mother’s maiden name or similar personal number, record or information. (d) Identity theft is a class D felony. (e) When a person is convicted of or pleads guilty to identity theft, the sentencing judge shall order full restitution for monetary loss, including documented loss of wages and reasonable attorney fees, suffered by the victim. (f) Prosecution under this section does not preclude prosecution or sentencing under any other section of this Code. (72 Del. Laws, c. 297, § 1; 74 Del. Laws, c. 425, § 1; 79 Del. Laws, c. 260, § 7.) § 854A. Identity theft passport; application; issuance. (a) The Office of the Attorney General, in cooperation with any law-enforcement agency, may issue an identity theft passport to a person who is a victim of identity theft in this State and who has filed a police report citing that such person is a victim of a violation of § 854 of this title. A person who has filed with a law-enforcement agency a police report alleging identity theft may apply for an identity theft passport through any law-enforcement agency. The agency shall send a copy of the application and the supporting police report to the Office of the Attorney General. After processing the application and police report, the Office of the Attorney General may issue to the victim an identity theft passport in the form of a card or certificate which may include photo identification. (b) A victim of identity theft may present that victim’s identity theft passport issued under subsection (a) of this section to the following: (1) A law-enforcement agency to help prevent the victim’s arrest or detention for an offense committed by someone other than the victim who is using the victim’s identity; (2) Any of the victim’s creditors to aid in a creditor’s investigation and establishment of whether fraudulent charges were made against accounts in the victim’s name or whether accounts were opened using the victim’s identity; (3) A consumer reporting agency, as defined in § 603(f) of the federal Fair Credit Reporting Act (15 U.S.C. § 1681a(f)), which must accept the passport as an official notice of a dispute and must include notice of the dispute in all future reports that contain disputed information caused by the identity theft. (c) Acceptance or rejection of an identity theft passport presented by the victim to a law-enforcement agency or creditor pursuant to paragraph (b)(1) or (2) of this section is at the discretion of the law-enforcement agency or creditor. In making a decision for acceptance or rejection, a law-enforcement agency or creditor may consider the surrounding circumstances and available information regarding the offense of identity theft pertaining to the victim. (d) An application made with the Office of the Attorney General pursuant to subsection (a) of this section, including any supporting documentation, is confidential criminal justice information, is not a public record, and is specifically exempted from public disclosure Page 68 Title 11 - Crimes and Criminal Procedure under the Freedom of Information Act, Chapter 100 of Title 29. However, the Office of the Attorney General may provide access to applications and supporting documentation filed pursuant to this section to other criminal justice agencies in this or another State. (e) The Office of the Attorney General shall adopt regulations to implement this section. The regulations must include a procedure by which the Office of the Attorney General is reasonably assured that an identity theft passport applicant has an identity theft claim that is legitimate and adequately substantiated. (75 Del. Laws, c. 338, § 1; 70 Del. Laws, c. 186, § 1.) § 855. Theft; indictment and proof. (a) Every prosecution for theft shall be based upon § 841 of this title. (b) The defendant may be found guilty of theft if the defendant’s conduct falls within any of the sections defining theft. Proof of any conduct constituting theft is sufficient to support an indictment or information charging theft, provided that the conduct proved is sufficiently related to the conduct charged that the accused is not unfairly surprised by the case the accused must meet. (c) When theft or any related offense is committed in violation of this title pursuant to 1 scheme or continuous course of conduct, whether from the same or several sources, the conduct may be considered as 1 offense and the value of the property or services aggregated in determining whether the theft is a felony or misdemeanor. For purposes of this subsection, related offenses shall include, but are not limited to, violations of §§ 861, 900 and 903 of this title. (11 Del. C. 1953, § 855; 58 Del. Laws, c. 497, § 1; 66 Del. Laws, c. 251, § 1; 70 Del. Laws, c. 186, § 1.) § 856. Theft, receiving stolen property no defense; receiving stolen property, theft no defense; conviction of both offenses. (a) In any prosecution for theft or theft of a firearm, it is no defense that the accused is in fact guilty of receiving stolen property or receiving a stolen firearm. A person may be convicted of the crime which the person has in fact committed. (b) In any prosecution for receiving stolen property or receiving a stolen firearm, it is no defense that the accused is in fact guilty of theft or theft of a firearm. A person may be convicted of the crime which the person has in fact committed. (c) A person may not be convicted of both theft and receiving stolen property, or both theft of a firearm and receiving a stolen firearm, with regard to property appropriated in the same transaction or series of transactions. A person may be charged with the crime the person seems most likely to have committed and may be convicted as provided in subsections (a) and (b) of this section. (11 Del. C. 1953, § 856; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 260, §§ 1-3.) § 857. Theft and related offenses; definitions. For purposes of §§ 841-856, 1450 and 1451 of this title: (1) “Appropriate” means to exercise control, or to aid a third person to exercise control, over property of another person permanently or for so extended a period or under such circumstances as to acquire a major portion of its economic value or benefit, or to dispose of property for the benefit of the actor or a third person. (2) “Dealer” means a person in the business of buying, selling or lending on the security of goods. (3) “Deprive” means to withhold property of another person permanently or for so extended a period or under such circumstances as to withhold a major portion of its economic value or benefit, or with intent to restore it only upon payment of a reward or other compensation, or to dispose of property of another person so as to make it unlikely that the owner will recover it. (4) “Obtain” means to bring about or receive a transfer or purported transfer of any interest in property, whether to the defendant or to another person. (5) “Owner” means a person who has an interest in property which the defendant is not privileged to infringe, as described in paragraph (5) of this section. (6) “Property” means anything of value except land, and includes things growing on, affixed to or found in land such as topsoil, sand, minerals, gravel and the like, documents although the rights represented thereby have no physical location, contract rights, trade secrets, choses in action and other interests in or claims to admission or transportation tickets, captured or domestic animals, food, drink and electric or other power. (7) “Property of another person” includes property in which any person other than the defendant has an interest which the defendant is not privileged to infringe, regardless of the fact that the defendant also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement. (8) “Services” include labor, professional service, transportation, telephone, gas, electricity or other public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions and use of vehicles or other movable property. (9) “Trade secret” shall mean “trade secret” as defined in § 2001 of Title 6. (11 Del. C. 1953, § 857; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 218, §§ 2, 3; 64 Del. Laws, c. 134, § 1.) Page 69 Title 11 - Crimes and Criminal Procedure § 858. Unlawful operation of a recording device. (a) (1) Any person who knowingly operates the audiovisual recording function of any device in a motion picture theater while the motion picture is being exhibited, for the purpose of distributing or transmitting a still photographic image of the motion picture, without the consent of the motion picture theater owner, is guilty of a class B misdemeanor. (2) Any person who knowingly operates the audiovisual recording function of any device in a motion picture theater for the purpose of recording a motion picture, while the motion picture is being exhibited, without the consent of the motion picture theater owner, is guilty of a is guilty of a class A misdemeanor which notwithstanding any law to the contrary, may also include a fine of up to $50,000. (b) The term “audiovisual recording function” means the capability of a device to record or transmit a motion picture or any part thereof by means of any technology now known or later developed. (c) The term “motion picture theater” means a movie theater, screening room, or other public venue that is being utilized primarily for the exhibition of a motion picture at the time of the offense. (d) A motion picture theater owner, a supervisor, agent or employee, 18 years of age or older, who has probable cause to believe that a person has recorded or transmitted a substantial portion of a motion picture and has intentionally violated paragraph (a)(2) of this section, may, for the purpose of summoning a law-enforcement officer, take the person into custody and detain the person in a reasonable manner on the premises for a reasonable time. (e) A motion picture theater owner, a supervisor, agent or employee, 18 years of age or older who detains a person pursuant to subsection (d) of this section, or who causes or provides information leading to the arrest of any person under subsection (a) of this section, shall not be held civilly or criminally liable for such detention or arrest provided they had, at the time of such detention or arrest, probable cause to believe that the person committed a crime defined in subsection (a) of this section. (f) A motion picture theater owner, a supervisor, agent or employee, 18 years of age or older, who has probable cause to believe that a person has committed a crime defined in subsection (a) of this section may eject such person from the premises and shall not be held civilly or criminally liable for such ejection. (g) This section does not prevent any lawfully authorized investigative, law-enforcement protective, or intelligence gathering employee or agent, of the local, state or federal government, from operating any audiovisual recording device in a motion picture theater, as part of lawfully authorized investigative, protective, law-enforcement, or intelligence-gathering activities. (75 Del. Laws, c. 316, § 1.) § 859. Larceny of livestock; penalty. (a) Whoever feloniously steals, takes and carries away any cow, steer, bull, calf, heifer or swine is guilty of larceny and a class G felony. (b) The minimum sentence of imprisonment required by subsection (a) of this section shall not be subject to suspension and no person convicted under this section shall be eligible for probation or parole during the first 6 months of the sentence. (11 Del. C. 1953, § 859; 59 Del. Laws, c. 60, § 1; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 350, § 7; 70 Del. Laws, c. 186, § 1.) § 860. Possession of shoplifter’s tools or instruments facilitating theft; class F felony. (a) A person is guilty of possession of shoplifter’s tools or instruments facilitating theft when the person possesses any tool, instrument or other thing adapted, designed or commonly used for committing or facilitating: (1) Offenses involving shoplifting; or (2) Offenses involving the overriding, disabling or evading of a security device without authorization. (3) [Deleted.] (b) “Security device” includes any lock, whether mechanical or electronic, or any warning device designed to alert a person or the general public of a possible attempt to shoplift any goods, wares or merchandise that are displayed for sale. “Security device” specifically includes, but is not limited to, any electronic or other device that is attached or affixed to any goods, wares or merchandise on display for sale in a mercantile establishment. (c) A person possesses shoplifting tools or instruments facilitating theft “under circumstances evincing an attempt to use or knowledge that some other person intends to use such” when the person possesses the tools or instruments at a time and a place proximate to the commission or attempt to commit a shoplifting offense or otherwise under circumstances not manifestly appropriate for what lawful uses the tools or instruments may have. (d) Possession of shoplifters tools or instruments facilitating theft is a class F felony. (72 Del. Laws, c. 222, § 2; 75 Del. Laws, c. 162, § 2.) E Forgery and Related Offenses § 861. Forgery; class F felony; class G felony; class A misdemeanor; restitution required. (a) A person is guilty of forgery when, intending to defraud, deceive or injure another person, or knowing that the person is facilitating a fraud or injury to be perpetrated by anyone, the person: (1) Alters any written instrument of another person without the other person’s authority; or Page 70 Title 11 - Crimes and Criminal Procedure (2) Makes, completes, executes, authenticates, issues or transfers any written instrument which purports to be the act of another person, whether real or fictitious, who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case or to be a copy of an original when no original existed; or (3) Possesses a written instrument, knowing that it was made, completed or altered under circumstances constituting forgery. (b) Forgery is classified and punished as follows: (1) Forgery is forgery in the first degree if the written instrument is or purports to be: a. Part of an issue of money, stamps, securities or other valuable instruments issued by a government or a governmental instrumentality; or b. Part of an issue of stock, bonds or other instruments representing interests in or claims against a corporation, business enterprise or other organization or its property. Forgery in the first degree is a class F felony. (2) Forgery is forgery in the second degree if the written instrument is or purports to be any of the following: a. A deed, will, codicil, contract, release, assignment, commercial instrument, check, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status. b. A public record, or an instrument filed or required to be filed in or with a public office or public servant. c. A written instrument officially issued or created by a public office, public servant, or governmental instrumentality. d. Part of an issue of tokens, tickets, public transportation transfers, certificates, or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services. e. A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device for which a prescription is required by law. Forgery in the second degree is a class G felony. (3) All other forgery is forgery in the third degree, a class A misdemeanor. (4) If the written instrument is or purports to be provided to an individual by a vaccine provider documenting that an individual has been vaccinated, which bears a government logo or other indication that the written instrument is created by a governmental instrumentality and includes information such as the date an individual received a vaccination and the type of vaccine and lot number, forgery is classified and punished as follows: a. A first offense by an individual involving a single written instrument under this paragraph (b)(4) is forgery in the third degree, a class A misdemeanor. b. All other forgery under this paragraph (b)(4) is forgery in the second degree, a class G felony. (c) In addition to any other penalty provided by law for violation of this section, the court shall require a person convicted of a violation of this section to make restitution to the party or parties who suffered loss as a result of such forgery. (11 Del. C. 1953, § 861; 58 Del. Laws, c. 497, § 1; 62 Del. Laws, c. 241, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 498, § 1.) § 862. Possession of forgery devices; class G felony. A person is guilty of possession of forgery devices when: (1) The person makes or possesses with knowledge of its character and intending to use it unlawfully any plate, die or other device, apparatus, equipment or article specifically designed for use in counterfeiting or otherwise forging written instruments; or (2) The person makes or possesses any device, apparatus, equipment or article capable of or adaptable to use for purposes of forgery, intending to use it unlawfully. Possession of forgery devices is a class G felony. (11 Del. C. 1953, § 862; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 22; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 863. Forgery and related offenses; definition. “Written instrument” means any instrument or article containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information or constituting a symbol or evidence of value, right, privilege or identification. (11 Del. C. 1953, § 863; 58 Del. Laws, c. 497, § 1.) §§ 864-870. [Reserved.] F Offenses Involving Falsification of Records § 871. Falsifying business records; class A misdemeanor. (a) For purposes of this section, “medical record” means a record that pertains to a person’s medical history, evaluations, tests, diagnoses, prognoses, laboratory reports, medical imaging, treatments, prescriptions, or any other information used in assessing a person’s physical, mental, or emotional condition. Page 71 Title 11 - Crimes and Criminal Procedure (b) A person is guilty of falsifying business records when, with intent to defraud, the person: (1) Makes or causes a false entry in the business records of an enterprise; or (2) Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or (3) Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which the person knows to be imposed by law or by the nature of the person's position; or (4) Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise; or (5) Alters or modifies, or causes the alteration or modification of the medical record of any person; or (6) Creates or causes to be created any false medical record. (c) Falsifying business records is a class A misdemeanor. (11 Del. C. 1953, § 871; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 275, § 1.) § 872. Falsifying business records; defense. In any prosecution for falsifying business records it is an affirmative defense that the defendant was a clerk, bookkeeper or other employee who, without personal benefit, merely executed the orders of the employer or of a superior officer or employee generally authorized to direct the defendant’s activities. (11 Del. C. 1953, § 872; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 873. Tampering with public records in the second degree; class A misdemeanor. A person is guilty of tampering with public records in the second degree when, knowing that the person does not have the authority of anyone entitled to grant it, the person knowingly removes, mutilates, destroys, conceals, makes a false entry in or falsely alters any record or other written instrument filed with, deposited in or otherwise constituting a record of a public office or public servant. Tampering with public records in the second degree is a class A misdemeanor. (11 Del. C. 1953, § 873; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) §§ 874,875. [Reserved.] § 876. Tampering with public records in the first degree; class E felony. A person is guilty of tampering with public records in the first degree when, with intent to defraud, and knowing that the person does not have the authority of anyone entitled to grant it, the person knowingly removes, mutilates, destroys, conceals, makes a false entry in or falsely alters any record or other written instrument filed with, deposited in or otherwise constituting a record of a public office or public servant. Tampering with public records in the first degree is a class E felony. (11 Del. C. 1953, § 876; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 877. Offering a false instrument for filing; class A misdemeanor. A person is guilty of offering a false instrument for filing when, knowing that a written instrument contains a false statement or false information, and intending to defraud the State, a political subdivision thereof or another person, the person offers or presents it to a public office or a public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of the public office or public servant. Offering a false instrument for filing is a class A misdemeanor. (11 Del. C. 1953, § 877; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 878. Issuing a false certificate; class G felony. A person is guilty of issuing a false certificate when, being a public servant authorized by law to make or issue official certificates or other official written instruments, and with intent to defraud, deceive or injure another person, the person issues such an instrument, or makes the same with intent that it be issued, knowing that it contains a false statement or false information. Issuing a false certificate is a class G felony. (11 Del. C. 1953, § 878; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) §§ 879,880. [Reserved.] G Bribery Not Involving Public Servants § 881. Bribery; class A misdemeanor. A person is guilty of bribing when: (1) The person offers, confers or agrees to confer any benefit upon any employee, agent or fiduciary without the consent of the latter’s employer or principal, with intent to influence the latter to take some action with regard to the latter’s employer’s or principal’s affairs which would not be warranted upon reasonable consideration of the factors which that person should have taken into account; or Page 72 Title 11 - Crimes and Criminal Procedure (2) The person offers, confers or agrees to confer any benefit upon duly appointed representative of a labor organization or duly appointed trustee or representative of an employee welfare trust fund, with intent to influence the latter in respect to any of that person’s acts, decisions or duties as a representative or trustee; or (3) The person offers, confers or agrees to confer any benefit upon a participant in a sports contest, with intent to influence that the participant not to give the best effort in a sports contest; or (4) The person offers, confers or agrees to confer any benefit upon an official in a sports contest, with intent to influence the official to perform duties improperly. Bribing is a class A misdemeanor. (11 Del. C. 1953, § 881; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 882. Bribe receiving; class A misdemeanor. A person is guilty of bribe receiving if: Being an employee, agent or fiduciary and, without the consent of the employer or principal, the person solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that the benefit will influence the person to take some action with regard to the employer’s or principal’s affairs which would not be warranted upon reasonable consideration of the factors which the person should have taken into account; or Being a duly appointed representative of a labor organization or a duly appointed trustee or representative of an employee welfare trust fund, the person solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that the benefit will influence the person in respect to any of the person’s acts, decisions or duties as representative or trustee; or Being a participant in a sports contest, the person solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that the person will thereby be influenced not to give the best effort in a sports contest; or Being an official in a sports contest, the person solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that the person will perform duties improperly. Bribe receiving is a class A misdemeanor. (11 Del. C. 1953, § 882; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) §§ 883-890. [Reserved.] H Frauds on Creditors § 891. Defrauding secured creditors; class A misdemeanor. A person is guilty of defrauding secured creditors if the person destroys, removes, conceals, encumbers, transfers or otherwise deals with property subject to a security interest, intending to defeat enforcement of that interest. Defrauding secured creditors is a class A misdemeanor. (11 Del. C. 1953, § 891; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 892. Fraud in insolvency; class A misdemeanor. A person is guilty of fraud in insolvency when, with intent to defraud any creditor and knowing that a receiver or other person entitled to administer property for the benefit of creditors has been appointed, or that any other composition or liquidation for the benefit of creditors has been made, the person: (1) Conveys, transfers, removes, conceals, destroys, encumbers or otherwise disposes of any part of or any interest in the debtor’s estate; or (2) Obtains any substantial part of or interest in the debtor’s estate; or (3) Presents to any creditor or to the receiver or administrator any writing or record relating to the debtor’s estate knowing the same to contain a false material statement; or (4) Misrepresents or fails or refuses to disclose to the receiver or administrator the existence, amount or location of any part of or any interest in the debtor’s estate, or any other information which the person is legally required to furnish to the administrator. Fraud in insolvency is a class A misdemeanor. (11 Del. C. 1953, § 892; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 893. Interference with levied-upon property; class A misdemeanor. A person is guilty of interference with levied-upon property when the person hides, destroys or removes from the county in which it is situated when levied upon or seized any property which the person knows has been levied upon or seized under execution, attachment process or distress for rent. Interference with levied-upon property is a class A misdemeanor. (11 Del. C. 1953, § 893; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) Page 73 Title 11 - Crimes and Criminal Procedure §§ 894-899. [Reserved.] I Other Frauds and Cheats § 900. Issuing a bad check; class A misdemeanor; class G felony. (a) A person is guilty of issuing a bad check when the person issues or passes a check knowing that it will not be honored by the drawee. For the purpose of this section, as well as in any prosecution for theft committed by means of a bad check, it is prima facie evidence of knowledge that the check (other than a postdated check) would not be honored that: (1) The issuer had no account with the drawee at the time the check was issued; or (2) Payment was refused by the drawee upon presentation because the issuer had insufficient funds or credit, and the issuer failed to make good within 10 days after receiving notice of that refusal. Issuing a bad check is a class A misdemeanor unless the amount of the check is $1,500 or more, in which case it is a class G felony. (b) The failure of any business or other commercial entity, prior to the completion of a transaction (other than a transaction by mail) for which a check is accepted in person by the payee as consideration for goods or services provided by the payee, to: (1) Request and inspect the person’s valid driver’s license or other photo identification card, which lists the person’s name, address, date of birth and approximate height and weight, to validate the identity of the person presenting the check; and (2) Record on the check being presented the person’s name, driver’s license number, if such person has a driver’s license, date of birth and address, may result in the refusal of a law-enforcement agency to investigate violations of subsection (a) of this section. (11 Del. C. 1953, § 900; 58 Del. Laws, c. 497, § 1; 64 Del. Laws, c. 125, § 1; 65 Del. Laws, c. 497, § 6; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 211, § 7; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 501, § 1; 77 Del. Laws, c. 133, § 8.) § 900A. Conditional discharge for issuing a bad check as first offense. (a) Whenever any person who has not previously been convicted of issuing or passing a bad check under § 900 of this title or under any statute of the United States or of any state relating to the issuing or passing of bad checks pleads guilty to issuing or passing a bad check in violation of § 900 of this title in an amount under $1,500 at the time of arraignment, the court without entering a judgment of guilt and with the consent of the accused may defer further proceedings and place the accused on probation upon terms and conditions, which terms and conditions shall include payment of full restitution in the amount of the check plus any reasonable service fee in connection therewith to the victim of the offense and payment to the State of any court costs associated with the offense. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. (b) Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person and shall simultaneously with said discharge and dismissal submit to the State Bureau of Identification pursuant to Chapter 85 of this title the disposition specifying the name of the person and the nature of the proceedings which dispositional information shall be retained by the State Bureau of Identification in accordance with its standard operating procedures. (c) Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. There may be only 1 discharge and dismissal under this section with respect to any person and no person who is charged with multiple violations of § 900 of this title is eligible for treatment as a first offender under this section. (66 Del. Laws, c. 252, § 1; 70 Del. Laws, c. 211, § 8; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 133, § 9.) § 901. Definition of “issues” and “passes.” (a) “Issues.” — A person issues a check when, as drawer thereof or as a person who signs a check as drawer in a representative capacity or as agent of the person whose name appears thereon as the principal drawer or obligor, the person delivers it or causes it to be delivered to a person who thereby acquires a right against the drawer with respect to the check. One who draws a check with intent that it be so delivered is deemed to have issued it if the delivery occurs. (b) “Passes.” — A person passes a check when, being a payee, holder or bearer of a check which previously has been or purports to have been drawn and issued by another, the person delivers it, for a purpose other than collection to a third person who thereby acquires a right with respect thereto. (11 Del. C. 1953, § 901; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 902. Issuance of bad check by employee as affirmative defense. In any prosecution for issuing a bad check, it is an affirmative defense that the accused, in acting as drawer in a representative capacity or as agent of the person whose name appears on the check as principal drawer or obligor, did so as an employee who, without personal benefit, merely executed the orders of the employer or of a superior officer or employee generally authorized to direct the accused’s activities. (11 Del. C. 1953, § 902; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) Page 74 Title 11 - Crimes and Criminal Procedure § 903. Unlawful use of payment card; class G felony; class A misdemeanor. (a) A person is guilty of unlawful use of a payment card when the person uses or knowingly permits or encourages another to use a payment card for the purpose of obtaining money, goods, services, or anything of value knowing that: (1) The card is stolen, forged or fictitious; or (2) The card belongs to another person who has not authorized its use; or (3) The card has been revoked or canceled; or (4) For any other reason use of the card is unauthorized by the issuer. (b) A person is guilty of unlawful use of a payment card where such person knowingly: (1) Makes, possesses, sells, gives or otherwise transfers to another, or offers or advertises a payment card with the intent that it be used or with the knowledge or reason to believe that it will be used to obtain money, goods, services, or anything of value without payment of the lawful charges therefor or without authorization of the card holder; or (2) Publishes a payment card or code of an existing, canceled, revoked, expired or nonexistent payment card, or the numbering or coding which is employed in the issuance of payment cards, with the intent that it be used or with knowledge or reason to believe that it will be used either: to avoid the payment for any money, goods, services, or anything of value; or without authorization of the card holder. As used in this section “publishes” means the communication of information to any 1 or more persons, either orally, in person or by telephone, radio or television, or in a writing of any kind, including without limitation a letter or memorandum, circular or handbill, newspaper or magazine article or book. (c) (1) Except where the victim of any violation of this section is a person 62 years of age or older, unlawful use of a payment card is a class A misdemeanor unless the value of the money, goods, services, or anything of value secured or sought to be secured by means of the payment card is $1,500 or more, in which case it is a class G felony. (2) Where the victim of any violation of this section is a person 62 years of age or older, unlawful use of a payment card is a class G felony unless the value of the money, goods, services, or anything of value secured or sought to be secured by means of the payment card is $1,500 or more, in which case it is a class F felony. (d) Amounts involved in unlawful use of a payment card pursuant to 1 scheme or course of conduct, whether from the same issuer or several issuers, may be aggregated in determining whether such unlawful use constitutes a class A misdemeanor or a class G felony under this section. (e) A person may be prosecuted and convicted under this section in such county or counties within Delaware where the money, goods, services, or anything of value giving rise to the prosecution were solicited, were received, or were attempted to be received, or where the charges for the money, goods, services, or anything of value were billable in the normal course of business. (11 Del. C. 1953, § 903; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 590, § 5; 65 Del. Laws, c. 497, § 7; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 211, § 9; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 126, § 13; 77 Del. Laws, c. 133, § 10; 79 Del. Laws, c. 260, § 2.) § 903A. Reencoder and scanning devices. (a) Any person who knowingly, wilfully, and with the intent to defraud, possesses a scanning device, or who knowingly, wilfully, and with intent to defraud, uses a scanning device to access, read, obtain, memorize or store, temporarily or permanently, information encoded on the computer chip or magnetic strip or stripe of a payment card without the permission of the authorized user of the payment card is guilty of a class D felony. (b) Any person who knowingly, wilfully, and with the intent to defraud, possesses a reencoder, or who knowingly, wilfully, and with intent to defraud, uses a reencoder to place encoded information on the computer chip or magnetic strip or stripe of a payment card or any electronic medium that allows an authorized transaction to occur, without the permission of the authorized user of the payment card from which the information is being reencoded is guilty of a class D felony. (c) Any scanning device or reencoder described in subsection (e) of this section allegedly possessed or used in violation of subsection (a) or (b) of this section shall be seized and upon conviction shall be forfeited. (d) Any computer, computer system, computer network, or any software or data, owned by the defendant, which is used during the commission of any public offense described in this section or any computer, owned by the defendant, which is used as a repository for the storage of software or data illegally obtained in violation of this section shall be subject to forfeiture. (e) As used in this section, the following definitions apply: (1) “Reencoder” means an electronic device that places encoded information from the computer chip or magnetic strip or stripe of a payment card onto the computer chip or magnetic strip or stripe of a different payment card or any electronic medium that allows an authorized transaction to occur. (2) “Scanning device” means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on the computer chip or magnetic strip or stripe of a payment card. (f) Nothing in this section shall preclude prosecution under any other provision of law. (74 Del. Laws, c. 248, § 1; 79 Del. Laws, c. 260, § 3.) Page 75 Title 11 - Crimes and Criminal Procedure § 904. Definition of “payment card”. “Payment card” includes any instrument or device, whether known as a credit card, credit plate, bank service card, banking card, check guarantee card, electronic benefits transfer (“EBT”) card, or debit card or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services, or anything else of value on credit, by the withdrawing of funds from a deposit account, or through the use of value stored on the card. “Payment card” also includes the number that is assigned to the card even if the physical card, instrument or device is not used or presented. (11 Del. C. 1953, § 904; 58 Del. Laws, c. 497, § 1; 79 Del. Laws, c. 260, § 1.) § 905. Intention and ability to meet obligations as affirmative defense. In any prosecution for unauthorized use of a payment card under § 903(a)(4) of this title it is an affirmative defense that the accused had the intention and ability to meet all obligations to the issuer arising out of the use of the card. (11 Del. C. 1953, § 905; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 260, § 4.) § 906. Deceptive business practices; class A misdemeanor. A person is guilty of deceptive business practices when in the course of business the person knowingly or recklessly: (1) Uses or possesses for use a false weight or measure, or any other device for falsely determining or recording any quality or quantity; or (2) Sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service; or (3) Takes or attempts to take more than the represented quantity of any commodity or service; or (4) Sells, offers or exposes for sale adulterated or mislabeled commodities. “Adulterated” means varying from the standard of composition or quality prescribed by or pursuant to any statute providing criminal penalties for such variance, or set by established commercial usage. “Mislabeled” means varying from the standard of truth or disclosure in labeling prescribed by or pursuant to any statute providing criminal penalties for such variance, or set by established commercial usage; or (5) Makes a false or misleading statement in any advertisement addressed to the public or to a substantial segment thereof intending to promote the sale or increase the consumption of property or services; or (6) Makes a false or misleading written statement for the purpose of promoting the sale of securities, or omits information required by law to be disclosed in written documents relating to securities; or (7) Notifies any other person that the other person has won a prize, received an award or has been selected or is eligible to receive anything of value if the other person is required to respond through the use of a 900 service telephone number or similar service number. This section shall not apply to publishers, broadcasters, printers or other persons engaged in the dissemination of information or reproduction of printed or pictorial matter who publish, broadcast or reproduce material without knowledge of its deceptive character. Deceptive business practices are a class A misdemeanor. (11 Del. C. 1953, § 906; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 240, § 1; 70 Del. Laws, c. 186, § 1.) § 907. Criminal impersonation; class A misdemeanor. A person is guilty of criminal impersonation when the person: (1) Impersonates another person and does an act in an assumed character intending to obtain a benefit or to injure or defraud another person; or (2) Pretends to be a representative of some person or organization and does an act in a pretended capacity with intent to obtain a benefit or to injure or defraud another person; or (3) Pretends to be a public servant, or wears or displays without authority any identification, uniform or badge by which a public servant is lawfully distinguished or identified. Criminal impersonation is a class A misdemeanor. (11 Del. C. 1953, § 907; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 907A. Criminal impersonation, accident related; class G felony. A person is guilty of criminal impersonation, accident related, when after being in a motor vehicle accident involving serious physical injury or death to any person: (1) A driver knowingly pretends to have been someone other than the driver of the vehicle the person was operating; or (2) Any person knowingly pretends to have been a driver of 1 of the vehicles involved in the accident. Criminal impersonation, accident related, is a class G felony. The driving privileges of anyone convicted of violating paragraph (1) of this section shall be suspended by the Division of Motor Vehicles for a period of 2 years. (68 Del. Laws, c. 195, § 1; 70 Del. Laws, c. 186, § 1.) Page 76 Title 11 - Crimes and Criminal Procedure § 907B. Criminal impersonation of a police officer, firefighter, emergency medical technician (EMT), paramedic or fire police; class E felony, class C felony. (a) A person is guilty of criminal impersonation of a police officer, firefighter, emergency medical technician (EMT), paramedic or fire police when the person, intending to facilitate the commission of a crime or while in immediate flight therefrom: (1) Intentionally and without lawful authority impersonates or otherwise pretends to be a police officer, firefighter, emergency medical technician (EMT), paramedic or fire police; or (2) Without lawful authority does any act intended to create or reinforce a false impression that the person is a police officer, firefighter, emergency medical technician (EMT), paramedic or fire police. (b) Criminal impersonation of a police officer, firefighter, emergency medical technician (EMT), paramedic or fire police is a class E felony, unless during the course of the commission of the crime, or while in immediate flight therefrom, the person or another participant in the crime: (1) Causes physical injury to any person who is not a participant in the crime; or (2) Commits a class A felony or class B felony as defined by this title or any sexual offense as defined by § 761(i) of this title, in which case it is a class C felony. (c) Nothing in this section shall preclude a separate charge, conviction or sentence for any other crime. (71 Del. Laws, c. 97, § 1; 76 Del. Laws, c. 68, § 1; 82 Del. Laws, c. 150, § 1.) § 907C. Impersonation as a member or veteran of the United States Armed Forces, class A misdemeanor. (a) A person is guilty of criminal impersonation of a member or veteran of the United States Armed Forces when he or she intentionally, and without lawful authority, impersonates or otherwise holds himself or herself out to be a veteran or member of the United States Armed Forces or to hold oneself out to have an unearned rank in the United States Armed Forces with the purpose of obtaining money, property, or other tangible benefit. (b) Any person found guilty of criminal impersonation of a member or veteran of the United States Armed Forces shall be guilty of a class A misdemeanor and receive a minimum fine of not less than $1000, which shall not be subject to suspension. (80 Del. Laws, c. 368, § 1; 70 Del. Laws, c. 186, § 1.) § 908. Unlawfully concealing a will; class G felony. A person is guilty of unlawfully concealing a will when, with intent to defraud, the person conceals, secretes, suppresses, mutilates or destroys a will, codicil or other testamentary instrument. Unlawfully concealing a will is a class G felony. (11 Del. C. 1953, § 908; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 909. Securing execution of documents by deception; class A misdemeanor. A person is guilty of securing execution of documents by deception when, by knowingly misrepresenting the nature of the document, the person causes another person to execute any instrument affecting, purporting to affect or likely to affect the pecuniary interest of any person. Securing execution of documents by deception is a class A misdemeanor. (11 Del. C. 1953, § 909; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 910. Debt adjusting; class B misdemeanor. A person is guilty of debt adjusting if the person makes a contract, either express or implied, with a particular debtor, whereby the debtor agrees to pay a certain amount of money periodically to the person engaged in the debt-adjusting business who shall, for a consideration, distribute the same among certain specified creditors in accordance with a plan agreed upon. This section shall not apply to those situations involving debt adjusting incurred incidentally in the lawful practice of law in this State, nor shall anything in this section be construed to apply to any provider which is licensed under Chapter 24A of Title 6. Debt adjusting is a class B misdemeanor. (11 Del. C. 1953, § 910; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 430, § 5.) § 911. Fraudulent conveyance of public lands; class G felony. A person is guilty of fraudulent conveyance of public lands when the person executes any deed or other written instrument purporting to convey an interest in land any part of which is public lands of this State, when such person at the time of execution of such instrument knows that the person has no legal or equitable interest in the land described in said instrument. Fraudulent conveyance of public lands is a class G felony. (63 Del. Laws, c. 400, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) Page 77 Title 11 - Crimes and Criminal Procedure § 912. Fraudulent receipt of public lands; class G felony. A person is guilty of fraudulent receipt of public lands when the person records any deed or other written instrument purporting to transfer to the person an interest in land any part of which is public lands of this State, when such person at the time of recording knows that the transferor had no legal or equitable interest in the land described in said instrument. Fraudulent receipt of public lands is a class G felony. (63 Del. Laws, c. 426, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 913. Insurance fraud; class G felony. (a) A person is guilty of insurance fraud when, with the intent to injure, defraud or deceive any insurer the person: (1) Presents or causes to be presented to any insurer, any written or oral statement including computer-generated documents as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains false, incomplete or misleading information concerning any fact or thing material to such claim; or (2) Assists, abets, solicits or conspires with another to prepare or make any written or oral statement that is intended to be presented to any insurer in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete or misleading information concerning any fact or thing material to such claim. Insurance fraud is a class G felony. (b) All insurance claims forms shall contain a statement that clearly states in substance the following: “Any person who knowingly, and with intent to injure, defraud or deceive any insurer, files a statement of claim containing any false, incomplete or misleading information is guilty of a felony.” The lack of such a statement shall not constitute a defense against prosecution under this section. (c) For the purposes of this section, “statement” includes, but is not limited to, a police report, any notice, statement, proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or doctor records, X rays, test result or other evidence of loss, injury or expense; “insurer” shall include, but is not limited to, a health service corporation or health maintenance organization; and “insurance policy” shall include, but is not limited to, the subscriber and members contracts of health service corporations and health maintenance organizations. (64 Del. Laws, c. 194; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 913A. Health-care fraud; class B felony; class D felony; class G felony. (a) A person is guilty of health-care fraud when the person knowingly: (1) Presents or causes to be presented any fraudulent health-care claim to any health-care benefit program; or (2) Engages in a pattern of presenting or causing to be presented fraudulent health-care claims to any health-care benefit program. (b) For the purpose of this section: (1) “Fraudulent health-care claim” means any statement, whether written, oral or in any other form, which is made as part of or in support of a claim or request for payment from any health-care benefit program when such statement knowingly contains false, incomplete or misleading information concerning any fact or thing material to such claim. (2) “Health-care benefit program” means any plan or contract, whether public or private, under which any medical benefit, equipment, medication or service is provided to any individual. “Health-care benefit program” also includes any individual or entity who is providing a medical benefit, equipment, medication or service for which payment may be made under a plan or contract for the provision of such benefits or services. (3) “Health-care professional,” “health-care practice,” “health-care facility” or “health-care services” includes but is not limited to any person who or entity which, for payment, practices in or employs the procedures of medicine, surgery, chiropractic, podiatry, dentistry, optometry, psychology, social work, pharmacy, nursing, physical therapy or any other field concerned with the maintenance or restoration of the health of the body or mind. (4) “Health-care provider” means any health-care professional, an owner or operator of a health-care practice or facility, any person who creates the impression that the person or the person’s practice or facility can provide health-care services, or any person employed or acting on behalf of any of the aforementioned persons. (5) “Pattern of presenting or causing to be presented” means 3 or more instances of conduct that constitute presenting or causing to be presented fraudulent health-care claims. (c) (1) Except as provided in paragraphs (2) and (3) of this subsection, health-care fraud is a class G felony. (2) Health-care fraud is a class D felony if the elements of subsection (a) of this section are met and if: a. The intended loss to the health-care benefit program is more than $50,000 but less than $100,000; b. The offender is a health-care provider at the time of the offense or offenses; or, c. The conduct constitutes a pattern of presenting or causing to be presented fraudulent health-care claims. (3) Health-care fraud is a class B felony if the elements of subsection (a) of this section are met and if: Page 78 Title 11 - Crimes and Criminal Procedure a. The intended loss to the health-care benefit program is $100,000 or more; or b. The offender is a health-care provider at the time of the offense or offenses and the conduct constitutes a pattern of presenting or causing to be presented fraudulent health-care claims. (4) In addition to the penalties otherwise authorized by this subsection, a person convicted under this section may be subject to a fine of up to 5 times the pecuniary benefit obtained or sought to be obtained through the person’s violation of this section. (d) A conviction is not required for an act of presenting or causing presentation of a fraudulent health-care claim to be used in prosecution of a matter under this section, including an act used as proof of a pattern as defined in paragraph (b)(3) of this section. A conviction for any act of presenting or causing presentation of fraudulent health-care claims, including one which may be relied upon to establish a pattern of presenting or causing presentation of a fraudulent health-care claim, does not preclude prosecution under this section. Prosecution under this section does not preclude prosecution under any other section of the Code. (72 Del. Laws, c. 337, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 353, §§ 3-5.) § 914. Use of consumer identification information. (a) Except as provided in subsection (b) of this section, as a condition of accepting a payment card as payment for consumer credit, goods, realty, or services, a person may not write down or request to be written down the address and/or telephone number of the payment card holder on the payment card transaction form. (b) A person may record the address or telephone number of a payment card holder if the information is necessary for: (1) The shipping, delivery or installation of consumer goods; or (2) Special orders of consumer goods or services. (c) Violation of this section is an unclassified misdemeanor. (67 Del. Laws, c. 423, § 1; 68 Del. Laws, c. 221, § 1; 79 Del. Laws, c. 260, § 5.) § 915. Use of payment card information. (a) In this section, the following words have the meanings indicated: (1) “Draft” does not include a credit or debit card sales draft. (2) “Drawer” means the individual who makes or signs a check or other draft; (b) Subject to the provisions of subsection (c) of this section, as a condition of accepting a check or other draft as payment for consumer credit, goods, realty or services, a person may not request or record the account number of any payment card of the drawer of the check or other draft. (c) The provisions of this section do not prohibit a person from: (1) Requesting the drawer to display a payment card for purposes only of identification or credit worthiness; (2) Requesting or recording the type or issuer of a payment card of the drawer; or (3) Recording the number and expiration date of a payment card if the person requesting the information has agreed with the payment card issuer to cash checks as a service to the issuer’s cardholders and the issuer has agreed to guarantee payment of cardholder checks cashed by that person. (d) Violation of this section is an unclassified misdemeanor. (67 Del. Laws, c. 420, § 1; 79 Del. Laws, c. 260, § 6.) § 915A. Credit and debit card transaction receipts; unclassified misdemeanor. (a) Except as provided in subsection (b) of this section, a person who accepts credit or debit cards in exchange for goods or services shall print not more than 5 digits of that credit or debit card account number on the credit or debit card receipt provided to the cardholder. (b) This section applies only to receipts that are electronically printed and does not apply to transactions in which the sole means of recording the credit or debit card number is by handwriting or by an imprint or copy of the credit or debit card. (c) Violation of this section is an unclassified misdemeanor. (74 Del. Laws, c. 151, § 1.) § 916. Home improvement fraud; class B felony; class D felony; class F felony; class G felony, class A misdemeanor. (a) For the purpose of this section, the following definitions shall apply: (1) “Contract price” means the total price agreed upon under a home improvement contract. (2) “Home improvement” means any alteration, repair, addition, modification or improvement to any dwelling or the property on which it is situated, including but not limited to the construction, painting or coating, installation, replacement or repair of driveways, sidewalks, swimming pools, unattached structures, porches, kitchens, bathrooms, chimneys, fireplaces, stoves, air conditioning or heating systems, hot water heaters, water treatment systems, electrical wiring or systems, plumbing fixtures or systems, doors or windows, roofs, gutters, downspouts and siding. Page 79 Title 11 - Crimes and Criminal Procedure (3) A “home improvement contract” is any agreement, whether written or oral, whereby a person offers or agrees to provide home improvements in exchange for payment in any form, regardless of whether any such payments have been made, and includes all agreements for labor, services, and materials to be furnished and performed under the contract. (4) A “material fact” is a fact that a reasonable person would consider important when purchasing a home improvement of the variety being offered. (b) A person is guilty of home improvement fraud who enters, or offers to enter, into a home improvement contract as the provider of home improvements to another person, and who with the intent specified in § 841 of this title: (1) Uses or employs any false pretense or false promise as those acts are defined in §§ 843 and 844 of this title; (2) Creates or reinforces a person’s impression or belief concerning the condition of any portion of that person’s dwelling or property involved in said home improvement contract knowing that the impression or belief is false; (3) Makes any untrue statement of a material fact or omits to state a material fact relating to the terms of the home improvement contract or the existing condition of any portion of the property which is the subject of said contract; (4) Receives money for the purpose of obtaining or paying for services, labor, materials or equipment and fails to apply such money for such purpose by: a. Failing to substantially complete the home improvement for which the funds were provided; or b. Failing to pay for the services, labor, materials or equipment provided incident to such home improvement; or c. Diverting said funds to a use other than for which the funds were received; or (5) Fails to provide that person’s own true name, or provides a false name, address or phone number of the business offering said home improvements. (c) For home improvement fraud under this section, it shall be prima facie evidence of the intent specified in § 841 of this title that the person offering or agreeing to provide home improvements: (1) Has been previously convicted under this section or under a similar statute of the United States or of any state or of the District of Columbia within 10 years of the home improvement contract in question; (2) Is currently subject to any administrative orders, judgments or injunctions that relate to home improvements under Chapter 25 of Title 6; (3) Failed to comply with Chapter 44 of Title 6 with respect to the home improvement contract in question; or (4) Used or threatened the use of force against the person or property of the person purchasing said home improvement and said person is 62 years of age or older. (d) (1) Except where the person who purchased the home improvement is 62 years of age or older, or an “adult who is impaired” as defined in § 3902 of Title 31, or a “person with a disability” as defined in § 3901(a)(2) of Title 12, home improvement fraud is a class A misdemeanor, unless the loss to the person who purchased the home improvement is $1500 or more, in which case it is a class G felony. (2) Where the person who purchased the home improvement is 62 years of age or older, or an “adult who is impaired” as defined in § 3902 of Title 31, or a “person with a disability” as defined in § 3901(a)(2) of Title 12, home improvement fraud is a class G felony, unless the loss to the person who purchased the home improvement is $1500 or more, in which case it is a class F felony. (3) Notwithstanding paragraphs (d)(1) and (2) of this section: a. Where the loss to the person who purchased the home improvement is at least $50,000 but less than $100,000, home improvement fraud is a class D felony. b. Where the loss to the person who purchased the home improvement is at least $100,000, home improvement fraud is a class B felony. (70 Del. Laws, c. 63, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 462, § 1; 73 Del. Laws, c. 126, §§ 14, 15; 77 Del. Laws, c. 133, § 11; 81 Del. Laws, c. 237, § 1.) § 917. New home construction fraud; class B felony; class D felony; class G felony; class A misdemeanor. (a) For the purpose of this section, the following definitions shall apply: (1) A “dwelling” means a building which is usually occupied by a person lodging therein at night but shall not include a mobile home as defined in § 7003(12) of Title 25. (2) A “home buyer” means a person who intends to enter into a new home construction contract for himself or herself or on behalf of any person. (3) A “new home contractor” means any person who offers or provides new home construction services as a general contractor or a subcontractor and shall, in addition, include, but not be limited to, an architect, engineer or real estate broker or agent. (4) “New home construction” means the erection, installation or construction of a dwelling on a fixed foundation on land which is owned or purchased by a home buyer. (5) A “new home construction contract” is any agreement, whether written or oral, between a new home contractor and a home buyer whereby the new home contractor agrees to provide new home construction services in exchange for a payment of money. Page 80 Title 11 - Crimes and Criminal Procedure (6) “Payment of money” means tender of money or other consideration of value by a home buyer or by any lending institution on behalf of the home buyer to a new home contractor as part of a new home construction contract. (7) For the purpose of this section, land is “purchased” by a home buyer when the home buyer acquires it by sale, negotiation, mortgage, pledge, lien, gift or any other transaction creating an interest in the property prior to the formation of the new home construction contract, or if the home buyer is to purchase the land as part of the new home construction contract. (b) A person is guilty of new home construction fraud who, with the intent specified in § 841 of this title, enters into a new home construction contract and: (1) Uses or employs any false pretense or false promise as those acts are defined in §§ 843 and 844 of this title; or (2) Receives payments and intentionally fails to use said payment or payments for the purpose or purposes identified in the new home construction contract and/or diverts said payment or payments to a use or uses other than the erection, installation or construction of the dwelling identified therein; or (3) Receives payment or payments and fails to provide that person’s own true name or provides a false name, address or phone number of the business offering said new home construction services. (c) For new home construction fraud under this section, it shall be prima facie evidence of the intent specified in § 841 of this title that the new home contractor: (1) Has been previously convicted under this section, § 916 of this title, or § 3505 of Title 6 within 10 years of the first payment under the new home construction contract in question; or (2) Is currently subject to any administrative order, judgment or injunction under Chapter 25 of Title 6 relating to new home construction or home improvements (as defined in paragraph (a)(4) of this section). (d) New construction fraud is a class A misdemeanor, unless: (1) The loss to the home buyer is $1,500 or more but less than $50,000, in which case it is a class G felony; (2) The loss to the home buyer is at least $50,000 but less than $100,000, in which case it is a class D felony; or (3) The loss to the home buyer is $100,000 or more, in which case it is a class B felony. (e) For the purpose of calculating the amount of the loss to the home buyer, the loss shall be deemed to be the lesser of the total of all payments actually made by the home buyer or the cost to the home buyer to complete the new home construction according to the terms of the original new home construction contract, whether or not said new home is actually completed. (71 Del. Laws, c. 46, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 133, § 12; 78 Del. Laws, c. 353, §§ 6- 8; 83 Del. Laws, c. 341, § 1.) § 918. Ticket scalping. (a) No person shall sell, resell or exchange any ticket to any event or exhibit at a price higher than the original price on the day preceding or on the day of an event at the Bob Carpenter Sports/Convocation Center on the South Campus of the University of Delaware or of a NASCAR Race held at Dover Downs, or on any state or federal highway artery within this State. (b) Any person who violates this section shall be guilty of ticket scalping. Any person convicted a first time of ticket scalping is guilty of a class B misdemeanor. Any person convicted a second or subsequent time of ticket scalping shall be guilty of a class A misdemeanor. The Superior Court shall have jurisdiction over any offense charged under this section. (c) For purposes of this section the word “ticket” shall mean any admittance, receipt, entrance ticket or other evidence of a right to be admitted to an event or exhibit. (70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 233, § 1; 71 Del. Laws, c. 46, § 1.) § 919. [Reserved.] J Offenses Relating to Recorded Devices and Trademark Counterfeiting § 920. Transfer of recorded sounds; class G felony. (a) No person shall knowingly transfer or cause to be transferred, directly or indirectly by any means, any sounds recorded on a phonograph record, disc, wire, tape, film or other article upon which sounds are recorded, with the intent to sell or cause to be sold, or to use for profit through public performance, or to use to promote the sale of any product, such article on which sounds are so transferred, without consent of the owner; provided, that such owner is domiciled or has its principal place of business in a country which is a signatory to the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (executed on October 29, 1971, Geneva). (b) For the purposes of this section, “owner” means the person who owns the original fixation of sounds embodied in the master phonograph record, master disc, master wire, master tape, master film or other device used for reproducing sounds on phonograph records, discs, wires, tapes, films or other articles upon which sound is recorded, and from which the transferred recorded sounds are directly or indirectly derived. (c) Violation of this section shall constitute a class G felony. (60 Del. Laws, c. 611, § 1; 67 Del. Laws, c. 130, § 8.) Page 81 Title 11 - Crimes and Criminal Procedure § 921. Sale of transferred recorded sounds; class A misdemeanor. (a) No person shall knowingly, or with reasonable grounds to know, advertise or offer for sale or resale, or sell or resell, distribute or possess for such purposes, any article that has been produced in violation of § 920 of this title. (b) Violation of this section shall constitute a class A misdemeanor. (60 Del. Laws, c. 611, § 1; 67 Del. Laws, c. 130, § 8.) § 922. Improper labeling; class G felony. (a) No person shall advertise or offer for sale or resale, or sell or resell, or possess for such purposes, any phonograph record, disc, wire, tape, film or other article on which sounds are recorded, unless the cover, box, jacket, or label clearly and conspicuously discloses the actual name and address of the manufacturer thereof, and the name of the actual performer or group. (b) Violation of this section involving 100 or more improperly labeled sound recordings shall constitute a class G felony, otherwise it is/shall constitute an unclassified misdemeanor. (c) A second or subsequent violation of this section involving 100 or more improperly labeled sound recordings, or in which the second or subsequent violation plus any and all prior violations of this section added together involve 100 or more improperly labeled sound recordings, shall constitute a class F felony. (60 Del. Laws, c. 611, § 1; 67 Del. Laws, c. 130, § 8; 75 Del. Laws, c. 410, §§ 1, 2.) § 923. Exceptions. This subpart shall not apply to: (1) Any broadcaster who, in connection with or as part of a radio, television or cable broadcast transmission, or for the purpose of archival preservation, transfers any such sounds recorded on a sound recording; (2) Any person who transfers such sounds in the home, for personal use, and without compensation for such transfer; (3) Any phonograph record, disc, wire, tape, film or other article upon which sound is recorded where a period of 50 years has transpired since the original fixation of sounds thereon was made by the owner or on the owner’s behalf. (60 Del. Laws, c. 611, § 1; 70 Del. Laws, c. 186, § 1.) § 924. Civil litigation. This subpart shall neither enlarge nor diminish the rights of parties in civil litigation. (60 Del. Laws, c. 611, § 1.) § 924A. Forfeiture. If a person is convicted of a violation of § 922 of this title, the court in its sentencing order shall order the forfeiture and destruction or other disposition of: (1) All articles on which the conviction is based; and (2) All implements, devices, materials, and equipment used or intended to be used in the manufacture of the recordings on which the conviction is based. (75 Del. Laws, c. 410, § 3.) § 925. Video privacy protection. (a) A videotape distributor may not wrongfully disclose an individual or summary listing of any videotapes purchased or rented by a protected individual from the videotape distributor. (b) In this section the following words or terms have the meanings indicated: (1) “Protected individual” means: a. The individual described by any information the wrongful disclosure of which is prohibited under this section; or b. An agent of that individual. (2) “Publication” means distribution to a person other than the protected individual. (3) “Videotape distributor” means a person who sells or rents videotapes. (4) a. “Wrongful disclosure” means any publication that occurs in circumstances in which a protected individual who rents or purchases a videotape has a reasonable expectation of privacy. b. “Wrongful disclosure” does not include: 1. Any disclosure made incident to the normal course of the business of renting or selling videotapes to a person whom the protected individual authorizes, prior to distribution, to receive the information; 2. Any disclosure made under summons or subpoena to appropriately authorized law enforcement personnel; 3. Any disclosure made to a collection agency or person designated by the videotape distributor for the purpose of collecting an unreturned videotape or an amount equal to the value of the unreturned videotape; or 4. Any disclosure of names and addresses only for commercial mailing list purposes. Page 82 Title 11 - Crimes and Criminal Procedure (c) A person convicted of violating this section shall be subject to a fine of not more than $500 for each violation, or imprisonment for not more than 6 months for all violations, or both. (66 Del. Laws, c. 383, § 1.) § 926. Trademark counterfeiting. (a) Any person who knowingly manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any items or services bearing or identified by a counterfeit mark shall be guilty of the crime of trademark counterfeiting. (b) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection: (1) “Counterfeit mark” means: a. Any unauthorized reproduction or copy of intellectual property. b. Intellectual property affixed to any item knowingly sold, offered for sale, manufactured or distributed or identifying services offered or rendered, without the authority of the owner of the intellectual property. (2) “Intellectual property” means any trademark, service mark, trade name, label, term, device, design or word adopted or used by a person to identify that person’s goods or services. (3) “Retail value” means the counterfeiter’s regular selling price for the item or service bearing or identified by the counterfeit mark. In the case of items bearing a counterfeit mark which are components of a finished product, the retail value shall be the counterfeiter’s regular selling price of the finished product on or in which the component would be utilized. (c) Presumption. — A person having possession, custody or control of more than 25 items bearing a counterfeit mark shall be presumed to possess said items with intent to sell or distribute. (d) Penalties. — (1) Except as provided in paragraphs (d)(2) and (3) of this section, a violation of this section constitutes a class A misdemeanor. (2) A violation of this section constitutes a class G felony if: a. The defendant has previously been convicted under this section; or b. The violation involved more than 100 but less than 1,000 items bearing a counterfeit mark or the total retail value of all items or services bearing or identified by a counterfeit mark is more than $2,000, but less than $10,000. (3) A violation of this section constitutes a class E felony if: a. The defendant has been previously convicted of 2 or more offenses under this section; b. The violation involved the manufacture or production of items bearing counterfeit marks; or c. The violation involved 1,000 or more items bearing a counterfeit mark or the total retail value of all items or services bearing or identified by a counterfeit mark is $10,000 or more. (e) Quantity or retail value. — The quantity or retail value of items or services shall include the aggregate quantity or retail value of all items or services bearing or identified by every counterfeit mark the defendant manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses. (f) Fine. — Any person convicted under this section shall be fined not less than $5,000 or an amount up to 3 times the retail value of the items or services bearing or identified by a counterfeit mark, whichever is greater, unless extenuating circumstances are shown by the defendant. (g) Seizure, forfeiture and disposition. — (1) Any items bearing a counterfeit mark, and all personal property, including, but not limited to, any items, objects, tools, machines, equipment, instrumentalities or vehicles of any kind, knowingly employed or used in connection with a violation of this section may be seized by any law enforcement officer. (2) All seized personal property referenced in paragraph (g)(1) of this section shall be forfeited in accordance with applicable law, unless the prosecuting attorney responsible for the charges and the intellectual property owner consent in writing to another disposition. (h) Evidence. — Any federal or state certificate of registration of any intellectual property shall be prima facie evidence of the facts stated therein. (75 Del. Laws, c. 120, § 2.) §§ 927-930. [Reserved.] K Computer-Related Offenses § 931. Definitions. As used in this subpart: (1) “Access” means to instruct, communicate with, store data in or retrieve data from a computer, computer system or computer network. (2) “Commercial electronic mail” or “commercial e-mail” means any electronic mail message that is sent to a receiving address or account for the purposes of advertising, promoting, marketing or otherwise attempting to solicit interest in any good service or enterprise. Page 83 Title 11 - Crimes and Criminal Procedure (3) “Computer” means a programmable, electronic device capable of accepting and processing data. (4) “Computer network” means: a. A set of related devices connected to a computer by communications facilities; b. A complex of 2 or more computers, including related devices, connected by communications facilities; or c. The communications transmission facilities and devices used to interconnect computational equipment, along with control mechanisms associated thereto. (5) “Computer program” means a set of instructions, statements or related data that, in actual or modified form, is capable of causing a computer or computer system to perform specified functions. (6) “Computer services” includes, but is not limited to, computer access, data processing and data storage. (7) “Computer software” means 1 or more computer programs, existing in any form, or any associated operational procedures, manuals or other documentation. (8) “Computer system” means a computer, its software, related equipment and communications facilities, if any, and includes computer networks. (9) “Data” means information of any kind in any form, including computer software. (10) “Electronic mail” or “e-mail” means any message that is automatically passed from an originating address or account to a receiving address or account; (11) “Electronic mail service provider” means any person who: a. Is an intermediary in sending and receiving electronic mail; and b. Provides to end-users of electronic mail services the ability to send or receive electronic mail. (12) The “Internet” is a hierarchy of computer networks and systems that includes, but is not limited to, commercial (.com or .co), university (.ac or .edu) and other research networks (.org, .net) and military (.mil) networks and spans many different physical networks and systems around the world. (13) “Person” means a natural person, corporation, trust, partnership, incorporated or unincorporated association and any other legal or governmental entity, including any state or municipal entity or public official. (14) “Private personal data” means data concerning a natural person which a reasonable person would want to keep private and which is protectable under law. (15) “Property” means anything of value, including data. (16) “Originating address” or “originating account” means the string used to specify the source of any electronic mail message (e.g. company@sender.com); (17) “Receiving address” or “receiving account” means the string used to specify the destination of any electronic mail message (e.g. person@receiver.com); (64 Del. Laws, c. 438, § 1; 72 Del. Laws, c. 135, § 3.) § 932. Unauthorized access. A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that the person is not authorized to do so, the person accesses or causes to be accessed any computer system without authorization. (64 Del. Laws, c. 438, § 1; 70 Del. Laws, c. 186, § 1.) § 933. Theft of computer services. A person is guilty of the computer crime of theft of computer services when the person accesses or causes to be accessed or otherwise uses or causes to be used a computer system with the intent to obtain unauthorized computer services, computer software or data. (64 Del. Laws, c. 438, § 1; 70 Del. Laws, c. 186, § 1.) § 934. Interruption of computer services. A person is guilty of the computer crime of interruption of computer services when that person, without authorization, intentionally or recklessly disrupts or degrades or causes the disruption or degradation of computer services or denies or causes the denial of computer services to an authorized user of a computer system. (64 Del. Laws, c. 438, § 1.) § 935. Misuse of computer system information. A person is guilty of the computer crime of misuse of computer system information when: (1) As a result of accessing or causing to be accessed a computer system, the person intentionally makes or causes to be made an unauthorized display, use, disclosure or copy, in any form, of data residing in, communicated by or produced by a computer system; (2) That person intentionally or recklessly and without authorization: a. Alters, deletes, tampers with, damages, destroys or takes data intended for use by a computer system, whether residing within or external to a computer system; or Page 84 Title 11 - Crimes and Criminal Procedure b. Interrupts or adds data to data residing within a computer system; (3) That person knowingly receives or retains data obtained in violation of paragraph (1) or (2) of this section; or (4) That person uses or discloses any data which that person knows or believes was obtained in violation of paragraph (1) or (2) of this section. (64 Del. Laws, c. 438, § 1; 70 Del. Laws, c. 186, § 1.) § 936. Destruction of computer equipment. A person is guilty of the computer crime of destruction of computer equipment when that person, without authorization, intentionally or recklessly tampers with, takes, transfers, conceals, alters, damages or destroys any equipment used in a computer system or intentionally or recklessly causes any of the foregoing to occur. (64 Del. Laws, c. 438, § 1.) § 937. Unrequested or unauthorized electronic mail or use of network or software to cause same. A person is guilty of the computer crime of unrequested or unauthorized electronic mail: (1) When that person, without authorization, intentionally or recklessly distributes any unsolicited bulk commercial electronic mail (commercial E-mail) to any receiving address or account under the control of any authorized user of a computer system. This section shall not apply to electronic mail that is sent between human beings, or when the individual has requested said information. This section shall not apply to the transmission of electronic mail from an organization to its members or where there is a preexisting business relationship. No Internet/interactive service provider shall be liable for merely transmitting an unsolicited, bulk commercial electronic mail message in its network. No Internet/interactive service provider shall be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any unsolicited, bulk electronic mail which it believes is, or will be, sent in violation to disconnect or terminate the service of any person that is in violation of this article; or (2) When a person uses a computer or computer network without authority with the intent to: Falsify or forge electronic mail transmission information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers; or (3) When a person sells, gives or otherwise distributes or possesses with the intent to sell, give or distribute software which: a. Is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information; b. Has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or c. Is marketed by that person or another acting in concert with that person’s knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information. (4) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time the authorized user received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility. (72 Del. Laws, c. 135, § 1; 70 Del. Laws, c. 186, § 1.) § 938. Failure to promptly cease electronic communication upon request. (a) A person is guilty of the computer crime of failure to promptly cease electronic communication upon request when that person intentionally, recklessly or negligently, fails to stop sending commercial electronic mail to any receiving address or account under the control of any authorized user of a computer system after being requested to do so. All commercial electronic mail sent to any receiving address within the State shall have information to the recipient on how to unsubscribe or stop further receipt of commercial electronic mail from the sender. (b) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time the authorized user received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility. (72 Del. Laws, c. 135, § 1; 70 Del. Laws, c. 186, § 1.) § 939. Penalties. (a) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the first degree when the damage to or the value of the property or computer services affected exceeds $10,000. Computer crime in the first degree is a class D felony. (b) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the second degree when the damage to or the value of the property or computer services affected exceeds $5,000. Page 85 Title 11 - Crimes and Criminal Procedure Computer crime in the second degree is a class E felony. (c) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the third degree when: (1) The damage to or the value of the property or computer services affected is $1,500 or more; or (2) That person engages in conduct which creates a risk of serious physical injury to another person. Computer crime in the third degree is a class G felony. (d) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the fourth degree when the damage to or the value of the property or computer services, if any, is under $1,500. Computer crime in the fourth degree is a class A misdemeanor. (e) Any person gaining money, property services or other consideration through the commission of any offense under this subpart, upon conviction, in lieu of having a fine imposed, may be sentenced by the court to pay an amount, fixed by the court, not to exceed double the amount of the defendant’s gain from the commission of such offense. In such case, the court shall make a finding as to the amount of the defendant’s gain from the offense and, if the record does not contain sufficient evidence to support such a finding, the court may conduct a hearing upon the issue. For the purpose of this section, “gain” means the amount of money or the value of property or computer services or other consideration derived. (f) Amounts included in violations of this subpart committed pursuant to 1 scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the degree of the crime. (g) For the purposes of this subpart, the value of property or computer services shall be: (1) The market value of the property or computer services at the time of the violation; or (2) If the property or computer services are unrecoverable, damaged or destroyed as a result of a violation of this subpart, the cost of reproducing or replacing the property or computer services at the time of the violation. When the value of the property or computer services or damage thereto cannot be satisfactorily ascertained, the value shall be deemed to be $250. (h) Notwithstanding this section, the value of private personal data shall be deemed to be $500. (64 Del. Laws, c. 438, § 1; 67 Del. Laws, c. 130, § 8; 72 Del. Laws, c. 135, §§ 1, 2; 77 Del. Laws, c. 133, § 13.) § 940. Venue. (a) In any prosecution for any violation of §§ 932-938 of this title, the offense shall be deemed to have been committed in the place at which the act occurred or in which the computer system or part thereof involved in the violation was located. (b) In any prosecution for any violation of §§ 932-938 of this title based upon more than 1 act in violation thereof, the offense shall be deemed to have been committed in any of the places at which any of the acts occurred or in which a computer system or part thereof involved in a violation was located. (c) If any act performed in furtherance of the offenses set out in §§ 932-938 of this title occurs in this State or if any computer system or part thereof accessed in violation of §§ 932-936 of this title is located in this State, the offense shall be deemed to have occurred in this State. (64 Del. Laws, c. 438, § 1; 72 Del. Laws, c. 135, §§ 1, 2.) § 941. Remedies of aggrieved persons. (a) Any aggrieved person who has reason to believe that any other person has been engaged, is engaged or is about to engage in an alleged violation of any provision of §§ 932-938 or § 9616A of this title may bring an action against such person and may apply to the Court of Chancery for: (1) An order temporarily or permanently restraining and enjoining the commencement or continuance of such act or acts; (2) An order directing restitution; or (3) An order directing the appointment of a receiver. Subject to making due provisions for the rights of innocent persons, a receiver shall have the power to sue for, collect, receive and take into possession any property which belongs to the person who is alleged to have violated any provision of this subpart and which may have been derived by, been used in or aided in any manner such alleged violation. Such property shall include goods and chattels, rights and credits, moneys and effects, books, records, documents, papers, choses in action, bills, notes and property of every description including all computer system equipment and data, and including property with which such property has been commingled if it cannot be identified in kind because of such commingling. The receiver shall also have the power to sell, convey and assign all of the foregoing and hold and dispose of the proceeds thereof under the direction of the Court. Any person who has suffered damages as a result of an alleged violation of any provision of §§ 932-938 or § 9616A of this title, and submits proof to the satisfaction of the Court that the person has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent the person has sustained outof-pocket losses. The Court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required. (b) The Court may award the relief applied for or such other relief as it may deem appropriate in equity. Page 86 Title 11 - Crimes and Criminal Procedure (c) Independent of or in conjunction with an action under subsection (a) of this section, any person who suffers any injury to person, business or property may bring an action for damages against a person who is alleged to have violated any provision of §§ 932-938 or § 9616A of this title. The aggrieved person shall recover actual damages and damages for unjust enrichment not taken into account in computing damages for actual loss and treble damages where there has been a showing of wilful and malicious conduct. (d) Proof of pecuniary loss is not required to establish actual damages in connection with an alleged violation of § 935 of this title arising from misuse of private personal data. (e) In any civil action brought under this section, the Court shall award to any aggrieved person who prevails reasonable costs and reasonable attorneys’ fees. (f) The filing of a criminal action against a person is not a prerequisite to the bringing of a civil action under this section against such person. (g) No civil action under this section may be brought but within 3 years from the date the alleged violation of §§ 932-938 or § 9616A of this title is discovered or should have been discovered by the exercise of reasonable diligence. (64 Del. Laws, c. 439, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 135, §§ 1, 2; 80 Del. Laws, c. 147, § 1.) L Concealment of Funds § 951. Money laundering; class D felony. (a) A person is guilty of money laundering when: (1) The person knowingly acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal activity; or (2) The person knowingly conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; or (3) The person knowingly invests, expends, or receives, or offers to invest, expend, or receive the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity; or (4) The person knowingly finances or invests or intends to finance or invest funds that the person believes are intended to further the commission of criminal activity; or (5) The person knowingly engages in a transaction involving the proceeds of criminal activity intended, in whole or in part, to avoid a currency transaction reporting requirement under the laws of this State or any other state or of the United States. (b) Knowledge of the specific nature of the criminal activity giving rise to the proceeds is not required to establish a culpable mental state under this section. (c) For purposes of this section, the following definitions shall apply: (1) “Criminal activity” means any offense that is a crime under the Laws of Delaware, another state, or the United States. (2) “Funds” includes: a. Coin or currency of the United States or any other country; b. Bank checks or money orders; or c. Investment or negotiable instruments, in bearer form or otherwise in such form that title thereto passes upon delivery. (3) “Funds that the person believes are the proceeds of criminal activity” means any funds that are believed to be proceeds of criminal activity including funds that are not the proceeds of criminal activity. (4) “Proceeds” means funds acquired or derived directly or indirectly from, produced through, or realized through an act. (5) “Structure” or “structuring” means that a person, acting alone, or in conjunction with, or on behalf of, other persons, conducts or attempts to conduct 1 or more transactions in currency, in any amount, at 1 or more financial institutions, including video lottery facilities, on 1 or more days, in any manner, for the purpose of evading currency transaction reporting requirements provided by state or federal law. “In any manner” includes, but is not limited to, the breaking down into smaller sums of a single sum of currency meeting or exceeding that which is necessary to trigger a currency reporting requirement or the conduct of a transaction, or series of currency transactions, at or below the reporting requirement. The transaction or transactions need not exceed the reporting threshold at any single financial institution on any single day in order to meet the definition of “structure” or “structuring” provided in this paragraph. Among the factors that the finder of fact may consider in determining that a transaction has been designed to avoid a transaction reporting requirement shall be whether the person, acting alone or with others, conducted 1 or more transactions in currency, in any amount, at 1 or more financial institutions, on 1 or more days, in any manner. (d) It is a defense to prosecution under this section that the transaction was necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment of the United States Constitution or by article I, § 17 of the Delaware Constitution or that the funds were received as bona fide legal fees by a licensed attorney and at the time of their receipt, the attorney did not have actual knowledge that the funds were derived from criminal activity. (e) A violation of subsection (a) of this section is a class D felony. (f) Structuring; avoiding a transaction reporting requirement. — A person is guilty of a crime if, with the purpose to evade a transaction reporting requirement of this State or of 31 U.S.C. § 5311 et seq. or 31 C.F.R. § 103 et seq., or any rules or regulations adopted under those chapters and sections, the person: Page 87 Title 11 - Crimes and Criminal Procedure (1) Causes or attempts to cause a financial institution, including a video lottery facility, foreign or domestic money transmitter or an authorized delegate thereof, check casher, person engaged in a trade or business or any other individual or entity required by state or federal law to file a report regarding currency transactions or suspicious transactions to fail to file a report; or (2) Causes or attempts to cause a financial institution, including a video lottery facility, foreign or domestic money transmitter or an authorized delegate thereof, check casher, person engaged in a trade or business or any other individual or entity required by state or federal law to file a report regarding currency transactions or suspicious transactions to file a report that contains a material omission or misstatement of fact; or (3) Structures or assists in structuring, or attempts to structure or assist in structuring, any transaction with one or more financial institutions, including a video lottery facility, foreign or domestic money transmitters or an authorized delegate thereof, check cashers, persons engaged in a trade or business or any other individuals or entities required by state or federal law to file a report regarding currency transactions or suspicious transactions. (g) A violation of subsection (f) of this section is a class G felony. (h) Money laundering shall not be deemed to be a related or included offense of any other provision of this Code. Prosecution and sentencing for money laundering shall not be deemed to preclude prosecution or sentencing under any other provision of this Code. (76 Del. Laws, c. 271, § 1; 77 Del. Laws, c. 221, §§ 6-9.) Subchapter IV Offenses Relating to Marriage § 1001. Bigamy; class G felony. A person is guilty of bigamy when the person contracts or purports to contract a marriage with another person knowing the person has a living spouse, or knowing the other person has a living spouse. Bigamy is a class G felony. (11 Del. C. 1953, § 1001; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1002. Bigamy; defenses. In any prosecution for bigamy it is a defense that, at the time of the allegedly bigamous marriage: (1) The accused believed, after diligent inquiry, that the prior spouse was dead; or (2) The parties to the former marriage had been living apart for 7 consecutive years throughout which the accused had no reasonable grounds to believe that the prior spouse was alive; or (3) A court in any American or foreign jurisdiction had entered a judgment purporting to terminate or annul any prior disqualifying marriage, and the accused did not know that judgment to be invalid; or (4) The accused otherwise reasonably believed that the accused was legally eligible to remarry. (11 Del. C. 1953, § 1002; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1003. Bigamous marriage contracted outside the State. Whoever, being a resident of Delaware, goes out of the State and contracts a marriage contrary to § 1001 of this title, intending to return and reside in Delaware, and returns accordingly, is guilty of bigamy. (11 Del. C. 1953, § 1003; 58 Del. Laws, c. 497, § 1.) § 1004. Advertising marriage in another state. A person is guilty of advertising marriage in another state when the person erects any sign or billboard, or publishes or distributes any material giving information relative to the performance of marriage in another state. Advertising marriage in another state is a violation. In addition, a peace officer of this State may seize and destroy any sign, billboard or material which the officer observes in violation of this section. (11 Del. C. 1953, § 1004; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) Subchapter V Offenses Relating to Children and Vulnerable Adults A Child Welfare; Sexual Offenses § 1100. Definitions relating to children. When used in this subchapter: (1) “Abuse” means causing any physical injury to a child through unjustified force as defined in § 468(1)(c) of this title, torture, negligent treatment, sexual abuse, exploitation, maltreatment, mistreatment or any means other than accident. (2) “Child” shall mean any individual less than 18 years of age. For the purposes of §§ 1108, 1109, 1110, and 1111 of this title, “child” shall also mean any individual who is intended by the defendant to appear to be 14 years of age or less. Page 88 Title 11 - Crimes and Criminal Procedure (3) “Delinquent child” means a child who commits an act which if committed by an adult would constitute a crime. (4) “Neglect” or “neglected child” is as defined in § 901 of Title 10. (5) “Physical injury” to a child shall mean any impairment of physical condition or pain. (6) “Previous pattern” of abuse and/or neglect shall mean 2 or more incidents of conduct: a. That constitute an act of abuse and/or neglect; and b. Are not so closely related to each other or connected in point of time and place that they constitute a single event. A conviction is not required for an act of abuse or neglect to be used in prosecution of a matter under this subchapter, including an act used as proof of a previous pattern as defined in this paragraph. A conviction for any act of abuse or neglect, including 1 which may be relied upon to establish a previous pattern of abuse and/or neglect, does not preclude prosecution under this subchapter. (7) “Prohibited sexual act” shall include: a. Sexual intercourse; b. Anal intercourse; c. Masturbation; d. Bestiality; e. Sadism; f. Masochism; g. Fellatio; h. Cunnilingus; i. Nudity, if such nudity is to be depicted for the purpose of the sexual stimulation or the sexual gratification of any individual who may view such depiction; j. Partial nudity, if the child in the image depicted is all of the following: 1. Scantily clothed. 2. Posed provocatively, or otherwise posed in a fashion obviously intended to arouse even though genitalia is not blatantly displayed. 3. Is intended for the purpose of the sexual stimulation or the sexual gratification of any individual who may view such depiction. k. Sexual contact; l. Lascivious exhibition of the genitals or pubic area of any child; m. Any other act which is intended to be a depiction or simulation of any act described in this paragraph. (8) “Serious physical injury” shall mean physical injury which creates a risk of death, or which causes disfigurement, impairment of health or loss or impairment of the function of any bodily organ or limb, or which causes the unlawful termination of a pregnancy without the consent of the pregnant female. (9) “Significant intellectual or developmental disabilities” means impairment in the intellectual or physical capacity of a child as evidenced by a discernible inability to function within the normal range of performance and behavior with regard to age, development, and environment. (10) “Truancy” or “truant” shall refer to a pupil enrolled in grades kindergarten through 12 of a public school who has been absent from school for more than 3 school days during a school year without a valid excuse as defined in regulations of the district board of education of the school district in which the pupil is or should be enrolled pursuant to the provisions of Title 14, or where a student is enrolled in a charter school, by the board of directors of the charter school. (11) “Visual depiction” includes, but is not limited to: a. Any image which is recorded, stored or contained on or by developed or undeveloped photographic film, motion picture film or videotape; or b. Data which is stored or transmitted on or by any computer, or on or by any digital storage medium or by any other electronic means which is capable of conversion into a visual image; or c. Any picture, or computer-generated image or picture, or any other image whether made, stored or produced by electronic, digital, mechanical or other means. (11 Del. C. 1953, § 1103; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 7; 60 Del. Laws, c. 449, § 2; 61 Del. Laws, c. 179, §§ 1, 2; 61 Del. Laws, c. 334, § 4; 63 Del. Laws, c. 290, § 8; 65 Del. Laws, c. 494, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 266, §§ 3, 4; 72 Del. Laws, c. 346, § 17; 72 Del. Laws, c. 480, §§ 1-4; 74 Del. Laws, c. 175, § 13; 76 Del. Laws, c. 136, § 8; 78 Del. Laws, c. 406, § 1; 80 Del. Laws, c. 175, § 5; 83 Del. Laws, c. 410, § 1.) § 1100A. Dealing in children; class E felony. A person is guilty of dealing in a child if the person intentionally or knowingly trades, barters, buys or negotiates to trade, barter, buy or sell a child under the age of 18; provided, however, that payment of reasonable medical expenses related to the pregnancy and reasonable room and board to the providers of those services in conjunction with placement of a child for adoption in accordance with § 904(a)(2) of Title 13 shall not constitute a violation of this section. Page 89 Title 11 - Crimes and Criminal Procedure Dealing in a child is a class E felony. (67 Del. Laws, c. 100, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 406, § 1.) § 1101. Abandonment of child; class E felony; class F felony. A person is guilty of abandonment of a child when, being a parent, guardian or other person legally charged with the care or custody of a child, the person deserts the child in any place intending permanently to abandon the child. Abandonment of a child is a class E felony unless the child is 14 years of age or older. Abandonment of a child 14 years of age or older is a class F felony. (11 Del. C. 1953, § 1101; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 33, § 1.) § 1102. Endangering the welfare of a child; class A misdemeanor; class B, C, D, E, or G felony. (a) A person is guilty of endangering the welfare of a child when: (1) Being a parent, guardian or any other person who has assumed responsibility for the care or supervision of a child the person: a. Intentionally, knowingly or recklessly acts in a manner likely to be injurious to the physical, mental or moral welfare of the child; or b. Intentionally, knowingly or recklessly does or fails to do any act, including failing to report a missing child, with the result that the child becomes a neglected or abused child; or (2) The person knowingly contributes to the delinquency of any child less than 18 years old by doing or failing to do any act with the result, alone or in conjunction with other acts or circumstances, that the child becomes a delinquent child; or (3) The person knowingly encourages, aids, abets or conspires with the child to run away from the home of the child’s parents, guardian or custodian; or the person knowingly and illegally harbors a child who has run away from home; or (4) The person commits any violent felony, or reckless endangering second degree, assault third degree, terroristic threatening, unlawful imprisonment second degree, or child abuse third or fourth degree against a victim, knowing that such felony or misdemeanor was witnessed, either by sight or sound, by a child less than 18 years of age who is a member of the person’s family or the victim’s family; or (5) The person commits the offense of driving under the influence as set forth in § 4177 of Title 21, or the offense of operating a vessel or boat under the influence as set forth in § 2302 of Title 23, and during the commission of the offense knowingly permits a child less than 18 years of age to be a passenger in or on such vehicle, vessel or boat; or (6) The person commits any offense set forth in Chapter 47 of Title 16 in any dwelling, knowing that any child less than 18 years of age is present in the dwelling at the time; or (7) a. A child dies, suffers a serious physical injury, suffers a physical injury, or suffers a period of altered mental or physical state because the person intentionally, knowingly, or recklessly makes available to the child through exposure, consumption, or inhalation any of the following: 1. A controlled substance that is not prescribed to the child by a physician. 2. A prescription drug that is not a controlled substance but for which a prescription is required. b. As used in this paragraph (a)(7): 1. “Controlled substance” means as defined in § 4701 of Title 16. 2. “Prescription drug” means as defined in § 4701 of Title 16. (b) Endangering the welfare of a child, except paragraph (a)(7) of this section, shall be punished as follows: (1) When the death of a child occurs while the child’s welfare was endangered as defined in subsection (a) of this section, endangering the welfare of a child is a class E felony; (2) When serious physical injury to a child occurs while the child’s welfare was endangered as defined in subsection (a) of this section, endangering the welfare of a child is a class G felony; (3) When a child becomes the victim of a sexual offense as defined in § 761(i) of this title while the child’s welfare was endangered as defined in subsection (a) of this section, endangering the welfare of a child is a class G felony; (4) In all other cases, endangering the welfare of a child is a class A misdemeanor. (c) Endangering the welfare of a child, as set forth in paragraph (a)(7) of this section, shall be punished as follows: (1) When the death of a child occurs while the child’s welfare was endangered as defined in paragraph (a)(7) of this section, endangering the welfare of a child is a class B felony. (2) When serious physical injury to a child occurs while the child’s welfare was endangered as defined in paragraph (a)(7) of this section, endangering the welfare of a child is a class C felony. (3) When physical injury to a child occurs while the child’s welfare was endangered as defined in paragraph (a)(7) of this section, endangering the welfare of a child is a class D felony. Page 90 Title 11 - Crimes and Criminal Procedure (4) When physical injury to a child does not occur while the child’s welfare was endangered as defined in paragraph (a)(7) of this section, but the child suffers a period of altered mental or physical state, endangering the welfare of a child is a class A misdemeanor. (d) For the purpose of imposing the penalties prescribed in paragraph (b)(1), (b)(2), (b)(3), (c)(1), (c)(2), (c)(3), or (c)(4) of this section, it is not necessary to prove the person’s state of mind or liability for causation with regard to the resulting death of or physical injury to the child, sexual offense against the child, or altered mental or physical state of the child, notwithstanding the provisions of § 251, § 252, § 261, § 262, § 263 or § 264 of this title, or any other statutes to the contrary. (11 Del. C. 1953, § 1102; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 334, § 6; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 451, §§ 1, 2; 71 Del. Laws, c. 424, § 3; 73 Del. Laws, c. 208, §§ 1, 2, 3; 77 Del. Laws, c. 34, § 1; 78 Del. Laws, c. 242, § 1; 78 Del. Laws, c. 406, § 2; 80 Del. Laws, c. 175, § 6; 81 Del. Laws, c. 79, § 9; 82 Del. Laws, c. 150, § 1; 84 Del. Laws, c. 126, § 7; 84 Del. Laws, c. 127, § 1.) § 1102A. Abandonment of a baby at a safe haven as defense. (a) For purposes of this section, “baby” means as defined in § 902 of Title 16. (b) In any prosecution for an offense under § 1101 or § 1102 of this title, it is a defense if the person surrendered care or custody of a baby directly to an employee or volunteer of a safe haven under § 907A(b) of Title 16, if the baby is surrendered alive, unharmed, and is in a safe place in the safe haven. (73 Del. Laws, c. 187, §§ 1, 8; 75 Del. Laws, c. 376, § 1; 83 Del. Laws, c. 242, § 4.) § 1103. Child abuse in the fourth degree; class A misdemeanor. (a) A person is guilty of child abuse in the fourth degree when the person intentionally or recklessly causes physical injury to a child. (b) Child abuse in the fourth degree is a class A misdemeanor. (78 Del. Laws, c. 406, § 3; 84 Del. Laws, c. 126, § 1.) § 1103A. Child abuse in the third degree; class D felony. (a) A person is guilty of child abuse in the third degree when the person intentionally or recklessly causes physical injury to a child and any 1 of the following applies: (1) The child is less than 6 years of age. (2) The child has an intellectual, developmental, or physical disability. (3) The injury was caused by means of a deadly weapon or dangerous instrument. (b) For an offense under this section, it is not a defense that the person did not know the child’s age or that the person reasonably believed the child to be 6 years of age or older. (c) For an offense under this section, it is not a defense that the person did not know the child has an intellectual, developmental, or physical disability or that the person reasonably believed the child did not have an intellectual, developmental, or physical disability. (d) Child abuse in the third degree is a class D felony. (78 Del. Laws, c. 406, § 3; 84 Del. Laws, c. 126, § 2.) § 1103B. Child abuse in the second degree; class B felony. (a) A person is guilty of child abuse in the second degree when the person intentionally or recklessly causes serious physical injury to a child. (b) Child abuse in the second degree is a class B felony. (c) Notwithstanding any provision of this title to the contrary, any person who commits child abuse in the second degree must receive a minimum sentence of 5 years at Level V if any 1 of the following applies: (1) The child is less than 6 years of age at the time of offense. (2) The child has an intellectual, developmental, or physical disability. (3) The injury was caused by means of a deadly weapon or dangerous instrument. (d) For an offense under this section, it is not a defense that the person did not know the child’s age or that the person reasonably believed the child to be 6 years of age or older. (e) For an offense under this section, it is not a defense that the person did not know the child has an intellectual, developmental, or physical disability or that the person reasonably believed the child did not have an intellectual, developmental, or physical disability. (72 Del. Laws, c. 197, § 1; 78 Del. Laws, c. 406, § 3; 84 Del. Laws, c. 126, § 3.) § 1103C. Child abuse in the first degree; class A felony. (a) A person is guilty of child abuse in the first degree when the person intentionally or recklessly causes serious physical injury to a child and that injury causes permanent disfigurement, permanent impairment of health, or permanent loss or impairment of a bodily organ. (b) Child abuse in the first degree is a class A felony. (84 Del. Laws, c. 126, § 4.) Page 91 Title 11 - Crimes and Criminal Procedure § 1103D. Child torture; class B felony. (a) As used in this section: (1) “Torture” means a course of conduct consisting of 1 or more instances of any of the following acts which occur over a period of more than 24 hours and are done with malice or an extreme indifference to the well-being of the child: a. Child abuse under §§ 1103, 1103A, 1103B, and 1103C of this title. b. Maltreatment or emotional abuse of a child. c. Deprivation of, or failure to provide, necessary care such as food, water, clothing, shelter, or medical care. (2) “Torture” includes unreasonable or extended confinement or restraint, cruel punishment, or intentional or reckless failure to provide for the health, safety, medical, or nutritional needs of a child. (b) A person is guilty of child torture if all of the following conditions are satisfied: (1) The child is under the person’s care, custody, or control, or the person is charged by law with or has assumed responsibility for the child’s care. (2) The person intentionally or recklessly commits or allows another person to commit torture to the child. (c) Child torture is a class B felony. (d) A charge under this section does not limit or preclude any other charge being brought against the person. (e) The crime of child torture does not require any proof that the child suffered physical pain or physical injury. (84 Del. Laws, c. 126, § 5.) § 1103E. Continuous child abuse; class G or B felony. (a) A person is guilty of continuous child abuse when the person intentionally or recklessly engages in 3 or more acts of child abuse under § 1103, § 1103A, § 1103B, § 1103C, or § 1103D of this title over a period of time not less than 3 weeks in duration. (b) (1) Except as provided under paragraph (b)(2) of this section, continuous child abuse is a class G felony. (2) When 3 or more of the acts of child abuse committed under subsection (a) of this section are acts under § 1103A, § 1103B, § 1103C, or § 1103D of this title, continuous child abuse is a class B felony. (84 Del. Laws, c. 126, § 6.) § 1104. Treatment of a child by a prayer as a defense to a charge of not providing medical care or treatment. In any prosecution for endangering the welfare of a child, except where it is alleged to be punishable under § 1102(b)(1) or (b)(2) of this title, which is based upon an alleged failure or refusal to provide proper medical care or treatment to an ill child, it is an affirmative defense that the accused is a member or adherent of an organized church or religious group, the tenets of which prescribe prayer as the principal treatment for illness, and treated or caused the ill child to be treated in accordance with those tenets; provided, that the accused may not assert this defense when the person has violated any laws relating to communicable or reportable diseases and to sanitary matters. (11 Del. C. 1953, § 1104; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 451, § 3.) § 1105. Crime against a vulnerable adult. (a) Any person who commits, or attempts to commit, any of the crimes or offenses set forth in subsection (f) of this section against a person who is a vulnerable adult is guilty of a crime against a vulnerable adult. (b) A crime against a vulnerable adult shall be punished as follows: (1) If the underlying offense is an unclassified misdemeanor, or a class B misdemeanor, the crime against a vulnerable adult shall be a class A misdemeanor; (2) If the underlying offense is a class A misdemeanor, the crime against a vulnerable adult shall be a class G felony; (3) If the underlying offense is a class D, E, F, or G felony, the crime against a vulnerable adult shall be 1 class higher than the underlying offense. (c) “Vulnerable adult” means a person 18 years of age or older who, by reason of isolation, sickness, debilitation, mental illness or physical, mental or cognitive disability, is easily susceptible to abuse, neglect, mistreatment, intimidation, manipulation, coercion or exploitation. Without limitation, the term “vulnerable adult” includes any adult for whom a guardian or the person or property has been appointed. (d) Notwithstanding any provision of law to the contrary, it is no defense to an offense or sentencing provision set forth in this section that the accused did not know that the victim was a vulnerable adult or that the accused reasonably believed the person was not a vulnerable adult unless the statute defining the underlying offense, or a related statute, expressly provides that knowledge that the victim is a vulnerable adult is a defense. (e) No person shall be sentenced for both an underlying offense and a crime against a vulnerable adult. No person shall be sentenced for a violation of subsection (a) of this section if the underlying offense, as charged against the accused, has an element that the victim was 62 years of age or older or was an “adult who is impaired” as defined in § 3902 of Title 31. Page 92 Title 11 - Crimes and Criminal Procedure (f) The following shall be underlying offenses for the purposes of this section: Page 93 Title 11 - Crimes and Criminal Procedure Title 11: § 601 § 602(a) § 602(b) § 603 § 604 § 605 § 606 § 611 § 612 § 621 § 622 § 625 § 626 § 645 § 763 § 764 § 766 § 767 § 769 § 770 § 774 § 780 § 781 § 782 § 783 § 791 § 811 § 825 § 831 § 835 § 841 § 841A § 842 § 843 § 844 § 846 § 848 § 853 § 854 § 861 § 903 § 909 § 914 § 916 § 917 § 1001 § 1311 § 1312 § 1335 § 1339 § 1451 Offensive touching Menacing Aggravated Menacing Reckless endangering in the second degree Reckless endangering in the first degree Abuse of a pregnant female in the second degree Abuse of a pregnant female in the first degree Assault in the third degree Assault in the second degree Terroristic threatening Hoax device Unlawfully administering drugs Unlawfully administering controlled substance or counterfeit substance or narcotic drugs Promoting suicide Sexual harassment Indecent exposure in the second degree Incest Unlawful sexual contact in the third degree Unlawful sexual contact in the first degree Rape in the fourth degree Sexual extortion Female genital mutilation Unlawful imprisonment in the second degree Unlawful imprisonment in the first degree Kidnapping in the second degree Acts constituting coercion Criminal mischief Burglary in the second degree Robbery in the second degree Carjacking in the second degree Theft, except paragraph (c)(3)b. Theft of a motor vehicle Theft; lost or mislaid property Theft; false pretense Theft; false promise Extortion Misapplication of property Unauthorized use of a vehicle Identity theft Forgery Unlawful use of payment card Securing execution of documents by deception Use of consumer identification information Home improvement fraud New home construction fraud, except paragraph (d)(3) Bigamy Harassment Stalking, except paragraphs (d)(1) and (d)(2) Violation of privacy Adulteration Theft of a firearm Title 6: § 73-604 Securities fraud. (11 Del. C. 1953, § 1105; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 416, § 1; 78 Del. Laws, c. 175, § 106; 78 Del. Laws, c. 224, § 15; 79 Del. Laws, c. 260, § 10; 82 Del. Laws, c. 216, § 1.) Page 94 Title 11 - Crimes and Criminal Procedure § 1106. Unlawfully dealing with a child; class B misdemeanor. A person is guilty of unlawfully dealing with a child when: (1) The person knowingly permits a child less than 18 years old to enter or remain in a place where unlawful narcotics or dangerous drugs activity is maintained or conducted; or (2) The person knowingly permits a child less than 18 years old to enter or remain in a place where unlawful sexual activity is maintained or conducted; or (3) The person knowingly permits a child less than 18 years old to enter or remain in a place where gambling activity which is made unlawful by this Criminal Code is maintained or conducted; or (4) The person, being the proprietor or person in charge of any dance house, concert saloon, theater, museum or similar place of amusement, where wines or spirituous or malt liquors are sold or given away, knowingly admits or permits to remain therein any minor under the age of 18 years, unless accompanied by a parent or guardian. Unlawfully dealing with a child is a class B misdemeanor. (11 Del. C. 1953, § 1106; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 318, § 1; 73 Del. Laws, c. 425, §§ 1, 2.) § 1107. Endangering children; unclassified misdemeanor. A person is guilty of endangering children when the person negligently abandons or leaves unattended in any place accessible to children any refrigerator, icebox or similar airtight box or container which has a locking device inoperable from within, without first unhinging and removing the door or lid thereof or detaching the locking device from the door or lid. Nothing in this section prohibits the normal use of a refrigerator, icebox or freezer for the storage of food. Endangering children is an unclassified misdemeanor. (11 Del. C. 1953, § 1107; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1108. Sexual exploitation of a child; class B or D felony. A person is guilty of sexual exploitation of a child when: (1) The person knowingly, photographs or films a child engaging in a prohibited sexual act or in the simulation of such an act, or otherwise knowingly creates a visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or (2) The person knowingly, finances or produces any motion picture, video or other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or (3) The person knowingly publishes or makes available for public distribution or sale by any means, including but not limited to computer, any book, magazine, periodical, pamphlet, photograph, Internet site or web page which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, or knowingly publishes or makes available for public distribution or sale by any means, including computer, any other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or (4) The person permits, causes, promotes, facilitates, finances, produces or otherwise advances an exhibition, display or performances of a child engaging in a prohibited sexual act or the simulation of such an act. Sexual exploitation of a child is a class B felony unless the prohibited sex act is “partial nudity” as defined in § 1100 of this title, then it is a class D felony. (61 Del. Laws, c. 179, § 3; 63 Del. Laws, c. 28, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 480, §§ 5-7; 83 Del. Laws, c. 410, § 1.) § 1109. Dealing in child pornography; class B or D felony. A person is guilty of dealing in child pornography when: (1) The person knowingly ships, transmits, mails or transports by any means, including by computer or any other electronic or digital method, any book, magazine, periodical, pamphlet, video or film depicting a child engaging in a prohibited sexual act or in the simulation of such an act, or knowingly ships, transmits, mails or transports by any means, including by computer or any other electronic or digital method, any other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; (2) The person knowingly receives for the purpose of selling or sells any magazine, photograph or film which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, or knowingly receives for the purpose of selling or sells any other visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; (3) The person knowingly distributes or disseminates, by means of computer or any other electronic or digital method, or by shows or viewings, any motion picture, video or other visual depiction of a child engaging in a prohibited sexual act or the simulation of such an act. The possession or showing of such motion pictures shall create a rebuttable presumption of ownership thereof for the purposes of distribution or dissemination; (4) The person, intentionally compiles, enters, accesses, transmits, receives, exchanges, disseminates, stores, makes, prints, reproduces or otherwise possesses any photograph, image, file, data or other visual depiction of a child engaging in a prohibited sexual Page 95 Title 11 - Crimes and Criminal Procedure act or in the simulation of such an act. For the purposes of this subsection, conduct occurring outside the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if such photograph, image, file or data was compiled, entered, accessed, transmitted, received, exchanged, disseminated, stored, made, printed, reproduced or otherwise possessed by, through or with any computer located within Delaware and the person was aware of circumstances which rendered the presence of such computer within Delaware a reasonable possibility; or (5) The person knowingly advertises, promotes, presents, describes, transmits or distributes any visual depiction, exhibition, display or performance with intent to create or convey the impression that such visual depiction, exhibition, display or performance is or contains a depiction of a child engaging in a prohibited sexual act or in the simulation of such an act. Unlawfully dealing in child pornography is a class B felony unless the prohibited sex act is “partial nudity” as defined in § 1100 of this title, then it is a class D felony. (61 Del. Laws, c. 179, § 4; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 467, §§ 1, 2; 72 Del. Laws, c. 480, §§ 8-14; 76 Del. Laws, c. 364, §§ 3, 4; 83 Del. Laws, c. 410, § 1.) § 1110. Subsequent convictions of § 1108 or § 1109 of this title; class B felony. Any person convicted of a class B felony under § 1109 of this title who is convicted of a second or subsequent violation of that section shall, upon such second or subsequent conviction, be guilty of a class B felony. Any person convicted of a class B felony under § 1108 of this title who is convicted of a second or subsequent violation of that section shall, upon such second or subsequent conviction, be sentenced to life imprisonment. (61 Del. Laws, c. 179, § 5; 67 Del. Laws, c. 130, § 8; 83 Del. Laws, c. 410, § 1.) § 1110A. Exclusion for §§ 1108 and 1109 of this title. Where the underlying prohibited sexual act is “partial nudity” as defined in § 1100 of this title, a person can only be guilty of sexual exploitation of a child under § 1108 of this title or dealing in child pornography under § 1109 of this title if the person is 18 years of age or older. (83 Del. Laws, c. 410, § 1.) § 1111. Possession of child pornography; class F felony. A person is guilty of possession of child pornography when: (1) The person knowingly possesses any visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act; or (2) The person knowingly possesses any visual depiction which has been created, adapted, modified or edited so as to appear that a child is engaging in a prohibited sexual act or in the simulation of such an act. Possession of child pornography is a class F felony. (67 Del. Laws, c. 202, § 1; 71 Del. Laws, c. 467, §§ 3, 4; 72 Del. Laws, c. 480, § 15.) § 1112. Sexual offenders; prohibitions from school zones. (a) Any person who is a sexual offender and who: (1) Resides on or within 500 feet of the property of any school shall be guilty of a class G felony. (2) Loiters on or within 500 feet of the property of any school shall be guilty of a class F felony. (b) For purposes of this section, the following definitions shall apply: (1) “Loiter” means: a. Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school property, while not having reason or relationship involving custody of or responsibility for a pupil or any other specific or legitimate reason for being there; or b. Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school property, for the purpose of engaging or soliciting another person to engage in sexual intercourse, sexual penetration, sexual contact, or sexual harassment, sexual extortion, or indecent exposure. (2) “Reside” means to dwell permanently or continuously or to occupy a dwelling or home as one’s permanent or temporary place of abode. (3) “School” means any preschool, kindergarten, elementary school, secondary school, vocational technical school or any other institution which has as its primary purpose the education or instruction of children under 16 years of age. (4) “Sex offender” means as defined in § 4121 of this title. (c) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place on or within 500 feet of any school property. (70 Del. Laws, c. 279, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 467, § 8; 77 Del. Laws, c. 318, § 10; 80 Del. Laws, c. 175, § 7.) Page 96 Title 11 - Crimes and Criminal Procedure § 1112A. Sexual solicitation of a child; class C felony; class B felony. (a) A person is guilty of sexual solicitation of a child if the person, being 18 years of age or older, intentionally or knowingly: (1) Solicits, requests, commands, importunes or otherwise attempts to cause any child to engage in a prohibited sexual act; or (2) Uses a computer, cellular telephone or other electronic device to communicate with another person, including a child, to solicit, request, command, importune, entice, encourage or otherwise attempt to cause a child to engage in a prohibited sexual act. (3) [Repealed.] (b) For purposes of this section, “child” means: (1) An individual who is younger than 18 years of age; or (2) An individual who represents himself or herself to be younger than 18 years of age; or (3) An individual whom the person committing the offense believes to be younger than 18 years of age. (c) For the purposes of this section, conduct occurring outside the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or in the instance of any manner of electronic communication or other communication that does not occur in person, the offense is committed in this State if such communication either originated in this State or is received in this State. (d) For the purposes of this section, and notwithstanding any section of this title to the contrary, it is a defense to prosecution that at the time the conduct described in subsection (a) of this section occurred the person was married to the child. (e) For the purposes of this section, it is not a defense to prosecution that at the time the conduct described in subsection (a) of this section occurred: (1) The solicited prohibited sexual act did not occur; or (2) The person was engaged in a fantasy or role playing at the time of the commission of the offense. (f) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (g) Sexual solicitation of a child is a class C felony, except as provided in subsection (h) of this section. (h) Sexual solicitation of a child is a class B felony if the defendant meets in person or attempts to meet in person with the child for the purpose of engaging in a prohibited sexual act. (71 Del. Laws, c. 467, § 5; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 148, § 37; 79 Del. Laws, c. 262, § 1.) § 1112B. Promoting sexual solicitation of a child. (a) A person is guilty of promoting sexual solicitation of a child if the person, being 18 years of age or older, intentionally or knowingly: (1) Promotes, entices, offers, encourages, solicits or otherwise attempts to cause any child to engage in a prohibited sexual act; or (2) Uses a computer, cellular telephone, or other electronic device to communicate with another person to solicit, request, command, importune, entice, encourage or otherwise attempt to cause that person to engage in a prohibited sexual act with a child. (b) For purposes of this section, “child” means: (1) An individual who is younger than 18 years of age; or (2) An individual who represents himself or herself to be younger than 18 years of age; or (3) An individual whom the person committing the offense believes to be younger than 18 years of age. (c) For the purposes of this section, conduct occurring outside the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or in the instance of any manner of electronic communication or other communication that does not occur in person, the offense is committed in this State if such communication either originated in this State or is received in this State. (d) For the purposes of this section, it is not a defense to prosecution that at the time the conduct described in subsection (a) of this section occurred: (1) The solicited prohibited sexual act did not occur; or (2) The person was engaged in a fantasy or role playing at the time of the commission of the offense. (e) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code. (f) Promoting sexual solicitation is a class C felony except as provided in subsection (g) of this section. (g) Promoting sexual solicitation of a child is a class B felony if the defendant meets in person or attempts to meet in person with another person and a child, or otherwise produces or delivers a child to another person, for the purpose of the person engaging in a prohibited sex act with the child. (79 Del. Laws, c. 262, § 1; 70 Del. Laws, c. 186, § 1.) § 1112C. Enticement for purposes of sexual contact; class F felony. (a) A person is guilty of enticement if the person, being 18 years of age or older and at least 4 years older than a child, knowingly engages in a course of conduct to persuade, induce, entice, or coerce that involves or results in the person gaining access to and time alone with that child, with the intent of building trust with that child for the purpose of ultimately engaging in sexual contact or penetration with that child. Page 97 Title 11 - Crimes and Criminal Procedure (b) For purposes of this section, “child” means any individual who is younger than 18 years of age. (c) For purposes of this section, “a course of conduct” means 3 or more separate incidents that a reasonable person would find inappropriate, in isolation or collectively, given the nature and circumstances of the relationship between the person and the child, including: (1) Showing, offering, or sending the child sexually-explicit materials, including images, videos, audio recordings, or any other depiction of sexual activity; (2) Exposing the child to sexually-explicit language or jokes; (3) Making comments to the child about that child’s sexual or physical development; (4) Bathing the child; (5) Walking in on the child who is changing clothes or using the toilet, or watching the child do either; (6) Asking the child to watch an adult change clothes or use the toilet; (7) Taking pictures of or videorecording the child while the child is nude or wearing only underwear; (8) Wrestling the child in underwear or while nude; (9) Tickling the child; (10) Playing games with the child that involve touching genitalia; (11) Buying the child gifts that are not in celebration of a holiday or birthday; (12) Giving special privileges to the child, such as car rides to or from school or practices; or (13) Committing any sexual offense, as defined in subpart D of subchapter II of Chapter 5 of this title, or any attempt or solicitation to commit any such sexual offense, against the child; (d) A conviction is not required for any predicate act relied upon to establish a course of conduct. A conviction for any predicate act relied upon to establish a course of conduct does not preclude prosecution under this section. Nothing in this section shall preclude a separate charge, conviction, or sentence for any other crime set forth in this title, or in the Delaware Code. (e) For the purposes of this section, it is not a defense to prosecution that no sexual contact or penetration actually occurred. (f) Enticement for purposes of sexual contact is a class F felony. (83 Del. Laws, c. 409, § 1; 70 Del. Laws, c. 186, § 1; 84 Del. Laws, c. 42, § 1; 84 Del. Laws, c. 233, § 12.) § 1113. Criminal nonsupport and aggravated criminal nonsupport. (a) A person is guilty of criminal nonsupport when that person knowingly fails, refuses or neglects to provide the minimal requirements of food, clothing or shelter for that person’s minor child. Criminal nonsupport is a class B misdemeanor unless the person has previously been convicted of the same offense or the offense of aggravated criminal nonsupport, in which case it is a class A misdemeanor. (b) A person is guilty of aggravated criminal nonsupport when, being subject to a support order, that person is delinquent in meeting, as and when due, the full obligation established by such support order and has been so delinquent for a period of at least 4 months’ duration. Aggravated criminal nonsupport is a class A misdemeanor, unless any 1 of the following aggravating factors is present, in which case aggravated criminal nonsupport is a class G felony: (1) The person has previously been convicted of aggravated criminal nonsupport; (2) The person has been delinquent in meeting, as and when due, the full obligation established by such support order for 8 consecutive months; or (3) The arrearage is $10,000 or more. (c) In any prosecution for criminal nonsupport, it is an affirmative defense that the accused has fully complied with a support order that was in effect for the support of the subject person during the time period of the offense charged. (d) In any prosecution for criminal nonsupport or aggravated criminal nonsupport, it is an affirmative defense that the accused was unable to pay or provide support, but the accused’s inability to pay or provide support must be the result of circumstances over which the accused had no control. Unemployment or underemployment with justifiable excuse shall constitute a defense to any prosecution for criminal nonsupport or aggravated criminal nonsupport. Justifiable excuse may be established where the accused has been involuntarily terminated from the accused’s employment or otherwise had the accused’s income involuntarily reduced and is diligently and in good faith seeking reasonably appropriate employment opportunities under all the circumstances or pursuing self-employment. (e) It is not a defense to a charge of criminal nonsupport or aggravated criminal nonsupport that the person to be supported received support from a source other than the accused. (f) In any prosecution for criminal nonsupport or aggravated criminal nonsupport, payment records maintained by an administrative agency or court through which a support order is payable, are prima facie evidence of the support paid or unpaid and the accrued arrearages. (g) A privilege against disclosure of confidential communications between spouses does not apply to a prosecution for criminal nonsupport or aggravated criminal nonsupport, and either spouse shall be competent to testify against the other as to any and all relevant matters. Page 98 Title 11 - Crimes and Criminal Procedure (h) No civil proceeding in any court or administrative agency shall be a bar to a prosecution for criminal nonsupport or aggravated criminal nonsupport. (i) The court, in its discretion, may order that any fine upon conviction for criminal nonsupport or aggravated criminal nonsupport be paid for the support of the person entitled to support. If a support order has been entered, a fine paid pursuant to this subsection shall be applied in accordance with the support order. (j) The court shall order any person convicted of criminal nonsupport or aggravated criminal nonsupport to make restitution to the person entitled to support. The amount of restitution is the arrearages that accrued under a support order during the time period for which the person was convicted of criminal nonsupport or aggravated criminal nonsupport, or, if there is no support order, an amount determined to be reasonable by the court. (k) As used in this section: (1) “Child” means any child, whether over or under the age of majority, with respect to whom a support order exists. (2) “Minor child” means any child, natural or adopted, whether born in or out of wedlock, under 18 years of age, or over 18 years of age but not yet 19 years of age if such child is a student in high school and is likely to graduate. (3) “Support order” means a judgment, decree or order, whether temporary, final or subject to modification, for the benefit of a child, a spouse or a former spouse or a parent, issued by a court or agency, which provides for monetary support, medical support, health care, arrearages or reimbursement, whether incidental to a proceeding for divorce, judicial or legal separation, separate maintenance, paternity, guardianship, civil protection or otherwise. (70 Del. Laws, c. 448, § 1; 70 Del. Laws, c. 186, § 1.) § 1114. Body-piercing, tattooing or branding; consent for minors; civil and criminal penalties. (a) No person shall knowingly or negligently tattoo, brand or perform body-piercing on a minor unless that person obtains the prior written consent of the minor’s parent over the age of 18 or legal guardian to the specific act of tattooing, branding or body-piercing. (b) No person shall tattoo, brand or perform body-piercing on another person if the other person is under the influence of alcoholic beverages, being beer, wine or spirits or a controlled substance. (c) Consent forms required by subsection (a) of this section shall be notarized. (d) (1) A person who violates this section shall be guilty of a class B misdemeanor for the first offense or a class A misdemeanor for a second or subsequent offense. The Court of Common Pleas shall have original jurisdiction over these offenses for those 18 years of age or older, and the Family Court shall have original jurisdiction for those under the age of 18 at the time of the offense. (2) In any prosecution for an offense under this subsection, it shall be an affirmative defense that the individual, who has not reached the age of 18, presented to the accused identification, with a photograph of such individual affixed thereon, which identification sets forth information which would lead a reasonable person to believe such individual was 18 years of age or older. A photocopy of the identification shall be attached to the information card that a customer shall complete at the time that the tattoo, body-piercing or branding is obtained. (e) A person who violates subsection (a) of this section is liable in a civil action for actual damages or $1,000, whichever is greater, plus reasonable court costs and attorney fees. (f) As used in this section: (1) “Body-piercing” means the perforation of human tissue excluding the ear for a nonmedical purpose. (2) “Branding” means a permanent mark made on human tissue by burning with a hot iron or other instrument. (3) “Controlled substance” means that term as defined in Chapter 47 of Title 16. (4) “Minor” means an individual under 18 years of age who is not emancipated. (5) “Tattoo” means 1 or more of the following: a. An indelible mark made upon the body of another person by the insertion of a pigment under the skin. b. An indelible design made upon the body of another person by production of scars other than by branding. (6) Nothing in this section shall require a person to tattoo, brand or body pierce a minor with parental consent if the person does not regularly tattoo, brand or body pierce customers under the age of 18. (71 Del. Laws, c. 243, § 1.) § 1114A. Tongue-splitting; class A misdemeanor; class B misdemeanor; class G felony; additional civil penalties. (a) A person is guilty of tongue-splitting in the first degree if the person is neither a physician nor a dentist, holding a valid license issued under the laws of the State of Delaware, and the person performs an act of tongue-splitting on any other person in this State. Tongue-splitting in the first degree is a class A misdemeanor. (b) A doctor or dentist is guilty of tongue-splitting in the second degree if the doctor or dentist performs an act of tongue-splitting in this State and the person on whom the act of tongue-splitting is performed is either: (1) Under the influence of alcohol or a controlled substance; or Page 99 Title 11 - Crimes and Criminal Procedure (2) Is a minor and the person has failed to obtain the prior written and notarized consent of the minor’s adult parent or legal guardian to the specific act of tongue-splitting. Tongue-splitting in the second degree is a class B misdemeanor. (c) Any person found guilty of a second or subsequent violation of this section is guilty of a class G felony for such second or subsequent offense. (d) In any prosecution for an offense under paragraph (b)(2) of this section, it shall be an affirmative defense that the accused was presented with a piece of photo identification by the person on whom the accused performed the procedure setting forth such information that would lead a reasonable person to believe the individual was the person pictured on the identification and that the person was 18 years of age or older. Failure of the accused to present a photocopy of the identification to the court when raising a defense under this subsection shall be affirmative proof that no such identification exists. (e) An act of tongue-splitting performed in violation of subsection (a) of this section constitutes both the practice of medicine without a license and the practice of dentistry without a license. Nothing in this section shall prohibit prosecution under the provisions of either § 1134 of Title 24 relating to the practice of dentistry without a license, or § 1766 of Title 24 relating to the practice of medicine without a license, or both. (f) In addition to the penalties set forth herein, any person who has performed an act of tongue-splitting in violation of this section shall be held liable in a civil action, brought by any person aggrieved by such act, for actual damages or $1,000, whichever is greater; plus reasonable court costs and attorney fees. (g) For the purposes of this section “tongue-splitting” means the surgical procedure of cutting a human tongue into 2 or more parts giving it a forked or multi-tipped appearance. (74 Del. Laws, c. 340, § 1; 70 Del. Laws, c. 186, § 1.) B Sale and Distribution of Tobacco Products § 1115. Definitions. (1) “Coupon” means any card, paper, note, form, statement, ticket or other issue distributed for commercial or promotional purposes to be later surrendered by the bearer so as to receive any tobacco product without charge or at a discounted price. (2) “Distribute” means give, deliver or sell, offer to give, deliver or sell, or cause or hire any person to give, deliver or sell, or offer to give, deliver or sell. (3) “Health warning” means any tobacco product or tobacco substitute label mandated by federal law and intended to alert all users of such tobacco product or tobacco substitute to the health risks associated with tobacco use, including, but not limited to, warning labels imposed under the Federal Cigarette Labeling and Advertising Act (15 U.S.C. § 1331 et seq.) and the Comprehensive Smokeless Tobacco Health Education Act of 1986 (15 U.S.C. § 4401 et seq.). (4) “Proof of age” means a driver’s license or other government-issued identification with a photograph of the individual affixed thereon that indicates that the individual is 21 years old or older. (5) “Public place” means any area to which the general public is invited or permitted, including, but not limited to, parks, streets, sidewalks or pedestrian concourses, sports arenas, pavilions, gymnasiums, public malls and property owned, occupied or operated by the State or by any agency thereof. (6) “Sample” means a tobacco product or tobacco substitute distributed to members of the general public at no cost for the purpose of promoting the product. (7) “Sampling” means the distribution of samples or coupons for redemption of tobacco products or tobacco substitutes to members of the general public in a public place. (8) “Tax stamp” means any required state or federal stamp imposed for the purpose of collecting excise tax revenue. (9) a. “Tobacco product” means any product that is made from or derived from tobacco or that contains nicotine, including: cigarettes, cigars, pipe tobacco, hookah tobacco, chewing tobacco, snuff, snus, or smokeless tobacco and is intended for human consumption by any means including smoking, heating, chewing, absorbing, dissolving, inhaling, or ingesting. b. “Tobacco product” also means a component or accessory used in the consumption of a tobacco product, including filters, rolling papers, and pipes. c. “Tobacco product” does not mean a drug, device, or combination product authorized for sale by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.). (10) “Tobacco store” means any retail establishment where 60% of the retail establishment’s gross revenue comes from the retail sale of tobacco products and smoking paraphernalia. (11) a. “Tobacco substitute” means an electronic smoking device employing a mechanical heating element, battery, or circuit to produce aerosol or vapor for inhalation into the body of an individual. b. “Tobacco substitute” also means liquid used in a device under paragraph (11)a. of this section, including liquids that contain nicotine and liquids that do not contain nicotine. Page 100 Title 11 - Crimes and Criminal Procedure c. “Tobacco substitute” does not mean a drug, device, or combination product authorized for sale by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.). (12) “Vending machine” means any mechanical, electronic or other similar device which automatically dispenses tobacco products or tobacco substitutes, usually upon the insertion of a coin, token or slug. (70 Del. Laws, c. 318, § 4; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 1.) § 1116. Sale or distribution of tobacco products or tobacco substitutes to individuals under the age of 21 years. (a) It shall be unlawful for any person to sell or distribute any tobacco product or tobacco substitute to an individual who has not attained the age of 21 years or to purchase any tobacco product or tobacco substitute on behalf of an individual under 21 years of age. (b) A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall have the right to demand proof of age from a prospective purchaser or recipient of such products. (c) A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall demand proof of age from a prospective purchaser or recipient of such products who is under 30 years of age. (70 Del. Laws, c. 318, § 4; 77 Del. Laws, c. 180, § 1; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 2.) § 1117. Notice. A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall post conspicuously at each point of purchase and each tobacco vending machine a notice stating that selling tobacco products or tobacco substitutes to anyone under 21 years of age is illegal, that the purchase of tobacco products or tobacco substitutes by anyone under 21 years of age is illegal and that a violator is subject to fines. The notice shall also state that all persons selling tobacco products or tobacco substitutes are required, under law, to check the proof of age of any purchaser of tobacco products or tobacco substitutes under the age of 30 years. The notice shall include a toll-free telephone number to the Department of Safety and Homeland Security for persons to report unlawful sales of tobacco products or tobacco substitutes. The owners of an establishment who fail to post a notice in compliance with this section shall be subject to a fine of $100. (70 Del. Laws, c. 318, § 4; 74 Del. Laws, c. 110, § 138; 77 Del. Laws, c. 180, § 2; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 3.) § 1118. Distribution of samples or coupons. (a) It shall be unlawful for any person to distribute tobacco product or tobacco substitute samples or coupons for subsequent receipt of free or discounted tobacco products or tobacco substitutes to an individual who has not attained the age of 21 years. (b) A person engaged in sampling shall have the right to demand proof of age from a prospective recipient of samples or of coupons for the redemption of tobacco products or tobacco substitutes. (70 Del. Laws, c. 318, § 4; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 4.) § 1119. Distribution of tobacco products or tobacco substitutes through vending machines. (a) It shall be unlawful for any person to distribute or permit the distribution of tobacco products or tobacco substitutes through the operation of a vending machine in a public place, except as provided in subsection (b) of this section. (b) Pursuant to subsection (a) of this section, a person may distribute or permit the distribution of tobacco products or tobacco substitutes through the operation of a vending machine in a taproom, tavern, tobacco shop or in premises in which an individual who has not attained the age of 21 years is prohibited by law from entering. A tobacco vending machine must be operated a minimum of 25 feet from any entrance to the premises and must be directly visible to the owner or supervisor of the premises. (c) It shall be unlawful for any person who owns, operates or manages a business establishment where tobacco products or tobacco substitutes are offered for sale over the counter at retail to maintain such products in any display accessible to customers that is not under the control of a cashier or other employee. This prohibition shall not apply to business establishments to which individuals under the age of 21 are not admitted unless accompanied by an adult, tobacco vending machines as permitted under subsection (b) of this section, or tobacco stores. As used in this subsection, “under the control” means customers cannot readily access the tobacco products or tobacco substitutes without the assistance of a cashier or other employee. A display that holds tobacco products or tobacco substitutes behind locked doors shall be construed as under the control of a cashier or other employee. (70 Del. Laws, c. 318, § 4; 72 Del. Laws, c. 472, § 2; 77 Del. Laws, c. 180, § 3; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 5.) § 1120. Distribution of tobacco products. (a) No person shall distribute a tobacco product for commercial purposes unless the product is in a sealed package provided by the manufacturer with the required health warning and tax stamp. (b) No person shall distribute any pack of cigarettes containing fewer than 20 cigarettes. (70 Del. Laws, c. 318, § 4; 72 Del. Laws, c. 472, § 1.) Page 101 Title 11 - Crimes and Criminal Procedure § 1121. Penalties. (a) (1) Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119, or § 1120 of this title regarding an individual who is under 18 years old is guilty of a violation and is fined $250 for the first offense, $500 for the second offense, and $1,000 for the third and all subsequent offenses. (2) Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119, or § 1120 of this title regarding an individual who is at least age 18 years old but fewer than 21 years old is subject to a civil penalty as follows: a. For a first occurrence, fined $250. b. For a second occurrence, fined $500. c. For a third or subsequent occurrence, fined $1,000. (3) a. Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119, or § 1120 of this title is subject to a civil penalty for selling or distributing any of the following: 1. A tobacco substitute that does not contain nicotine. 2. A tobacco product under paragraph § 1115(9)b. of this title. b. The civil penalty under paragraph (3)a. of this section is as follows: 1. For a first occurrence, fined $250. 2. For a second occurrence, fined $500. 3. For a third or subsequent occurrence, fined $1,000. (b) Additionally, and notwithstanding any other provision of Delaware law, in imposing a penalty for a second, third, or other subsequent offense under this subpart, the court may order the Department of Finance to suspend the defendant’s license for sale of tobacco products, issued under § 5307 of Title 30, for a period not to exceed 6 months. Upon the suspension of such license, the court shall advise the Department of Finance of the suspension in writing. The holder of the license shall surrender the license to the Department of Finance and no refund of fees will be paid. For purposes of this subpart, a subsequent offense is one that occurs within 12 months of a prior like offense. (70 Del. Laws, c. 318, § 4; 82 Del. Laws, c. 10, § 6.) § 1122. Affirmative defense. In any prosecution for an offense under this subpart, it shall be an affirmative defense that the purchaser or recipient of tobacco products or tobacco substitutes who had not reached the age of 21 years presented to the accused proof of age which set forth information that would lead a reasonable person to believe that such individual was 21 years of age or older. (70 Del. Laws, c. 318, § 4; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 7.) § 1123. Liability of employer. (a) If a sale or distribution of any tobacco product or tobacco substitute or coupon is made in violation of § 1116, § 1118, § 1119, or § 1120 of this title, the owner, proprietor, franchisee, store manager or other person in charge of the establishment where the violation occurred shall be guilty of the violation and shall be subject to the fine only if the retail licensee has received written notice of the provisions of §§ 1116 through 1121 of this title by the Department of Safety and Homeland Security. For purposes of determining the liability of a person who owns or controls franchises or business operations in multiple locations, for a second or subsequent violation of this subpart, each individual franchise or business location shall be deemed a separate establishment. (b) Notwithstanding any other provision of this subpart, in any prosecution for a violation of § 1116, § 1118, or § 1120 of this title, the owner, proprietor, franchisee, store manager, or other person in charge of the establishment where the alleged violation occurred has an affirmative defense if the person or entity can establish that before the date of the violation, the person or entity did all of the following: (1) Adopted and enforced a written policy against selling tobacco products or tobacco substitutes to individuals under 21 years of age. (2) Informed its employees of the applicable laws regarding the sale of tobacco products or tobacco substitutes to individuals under 21 years of age. (3) Required employees to sign a form indicating that they have been informed of and understand the written policy required under this subsection. (4) Required employees to verify the age of tobacco product or tobacco substitute customers by means of photographic identification. (5) Established and enforced disciplinary sanctions for noncompliance. (c) The affirmative defense established in subsection (b) of this section may be used by an owner, proprietor, franchisee, store manager, or other person in charge of the establishment no more than 1 time at each location within any 36-month period. (70 Del. Laws, c. 318, § 4; 72 Del. Laws, c. 69, § 1; 74 Del. Laws, c. 110, § 138; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 8; 83 Del. Laws, c. 37, § 7.) § 1124. Purchase or receipt of tobacco products or tobacco substitutes by minors [Repealed]. (70 Del. Laws, c. 318, § 4; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 249, § 1; repealed by 82 Del. Laws, c. 10, § 9, effective July 16, 2019.) Page 102 Title 11 - Crimes and Criminal Procedure § 1125. Unannounced inspections; reporting; enforcement. (a) The Department of Safety and Homeland Security or its delegates shall conduct annual, random, unannounced inspections at locations where tobacco products or tobacco substitutes are sold or distributed to test and ensure compliance with and enforcement of §§ 1116 through 1120 of this title. (b) An individual under the age of 21 may be enlisted by the Department of Safety and Homeland Security or its delegates to test compliance with and enforcement of §§ 1116 through 1120 of this title, provided however, that the individual may be used only under the direct supervision of the Department of Safety and Homeland Security, its employees or delegates and only where written parental consent has been provided for an individual under the age of 18. (c) Participation in the inspection and enforcement activities of this section by an individual under 21 years of age shall not constitute a violation of this subpart for the individual under 21 years of age, and the individual under 21 years of age is immune from prosecution thereunder, or under any other provision of law prohibiting the purchase of these products by an individual under 21 years of age. (d) The Department of Safety and Homeland Security shall adopt and publish guidelines for the use of individuals under 21 years of age in inspections conducted under this section. (e) The Department of Safety and Homeland Security may enter into an agreement with any local law-enforcement agency for delegation of the inspection and enforcement activities of this section within the local law-enforcement agency’s jurisdiction. The contract shall require the inspection and enforcement activities of the local law-enforcement agency to comply with this subpart and with all applicable laws. (f) In cases where inspection and enforcement activities have been delegated to a local law-enforcement agency pursuant to this section, any inspection or enforcement by the Department of Safety and Homeland Security in the jurisdiction of the local law-enforcement agency shall be coordinated with the local law enforcement agency. (g) The Delaware Department of Health and Social Services shall annually submit to the Secretary of the United States Department of Health and Human Services the report required by § 1926 of the federal Public Health Service Act (42 U.S.C. § 300x-26). A copy of this report shall be available to the Governor and the General Assembly. (70 Del. Laws, c. 318, § 4; 74 Del. Laws, c. 110, § 138; 79 Del. Laws, c. 249, § 1; 82 Del. Laws, c. 10, § 10; 83 Del. Laws, c. 37, § 8.) § 1126. Jurisdiction. The Justice of the Peace Court has jurisdiction over violations of this subpart, except in the instance of violations by an individual who has not attained the age of 18, in which case the Family Court has jurisdiction. (70 Del. Laws, c. 318, § 4; 83 Del. Laws, c. 37, § 9.) § 1127. Preemption. The provisions of this subpart shall preempt and supersede any provisions of any municipal or county ordinance or regulation on the subject of this subpart enacted after June 30, 1996. (70 Del. Laws, c. 318, § 4.) Subchapter VI Offenses Against Public Administration A Bribery and Improper Influence § 1201. Bribery; class E felony. A person is guilty of bribery when: (1) The person offers, confers or agrees to confer a personal benefit upon a public servant upon an agreement or understanding that the public servant’s vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced; or (2) The person offers, confers or agrees to confer a personal benefit upon a public servant or party officer upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office; or (3) The person offers, confers or agrees to confer a personal benefit upon a public servant for having violated a duty as a public servant. Bribery is a class E felony. (11 Del. C. 1953, § 1201; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1202. Bribery; defense. In any prosecution for bribery under § 1201(1) of this title, it is a defense that the accused offered, conferred or agreed to confer the benefit upon the public servant as a result of conduct of the public servant constituting theft or coercion or an attempt to commit theft or coercion. (11 Del. C. 1953, § 1202; 58 Del. Laws, c. 497, § 1.) Page 103 Title 11 - Crimes and Criminal Procedure § 1203. Receiving a bribe; class E felony. (a) A public servant is guilty of receiving a bribe when the public servant solicits, accepts or agrees to accept a personal benefit from another person upon an agreement or understanding that the public servant’s vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced. (b) A public servant or party officer is guilty of receiving a bribe when the public servant solicits, accepts or agrees to accept personal benefit from another person upon an agreement or understanding that some person will or may be appointed to a public office or designated or nominated as a candidate for public office. (c) A public servant is guilty of receiving a bribe when the public servant solicits, accepts or agrees to accept a personal benefit from another person for having violated the public servant’s duty as a public servant. Receiving a bribe is a class E felony. (11 Del. C. 1953, § 1203; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1204. Theft or coercion no defense to receiving a bribe. It is no defense to a prosecution for receiving a bribe that the conduct charged to constitute the offense also constitutes theft or coercion. (11 Del. C. 1953, § 1204; 58 Del. Laws, c. 497, § 1.) § 1205. Giving unlawful gratuities; class A misdemeanor. A person is guilty of giving unlawful gratuities when the person knowingly offers, confers or agrees to confer any personal benefit upon a public servant for engaging in official conduct which the public servant is required or authorized to perform, and for which the public servant is not entitled to any special or additional compensation. Giving unlawful gratuities is a class A misdemeanor. (11 Del. C. 1953, § 1205; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1206. Receiving unlawful gratuities; class A misdemeanor. A public servant is guilty of receiving unlawful gratuities when the public servant solicits, accepts, or agrees to accept any personal benefit for engaging in official conduct which the public servant is required or authorized to perform, and for which the public servant is not entitled to any special or additional compensation. Receiving unlawful gratuities is a class A misdemeanor. (11 Del. C. 1953, § 1206; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 283, § 10.) § 1207. Improper influence; class A misdemeanor. A person is guilty of improper influence when: (1) The person threatens unlawful harm to any person with intent to influence the latter’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party officer or voter; or (2) The person threatens unlawful harm to any public servant or party officer with intent to influence that public servant or party officer to violate that public servant’s or party officer’s duty as a public servant or party officer. Improper influence is a class A misdemeanor. (11 Del. C. 1953, § 1207; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1208. Defect in office no defense. It is no defense to a prosecution for improper influence that a person whom the accused sought to influence was not qualified to act in the desired way, whether because the person had not yet assumed office, or lacked jurisdiction or for any other reason. (11 Del. C. 1953, § 1208; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1209. Definitions relating to bribery and improper influence. As used in §§ 1201-1208 of this title: (1) “Harm” means loss, disadvantage or injury, or anything so regarded by the person affected, including loss, disadvantage or injury to any other person in whose welfare the person is interested. (2) “Party officer” means a person who holds any position or office in a political party, whether by election, appointment or otherwise. (3) “Personal benefit” means gain or advantage to the recipient personally or anything regarded by the recipient as such gain or advantage, including gain or advantage conferred on the behalf or at the request of the person upon another person in whose welfare the person is interested but not a gain or advantage promised generally to a group or class of voters as a consequence of public measures which a candidate engages to support or oppose. Page 104 Title 11 - Crimes and Criminal Procedure (4) “Public servant” means any officer or employee of the State or any political subdivision thereof, including legislators and judges, and any person participating as juror, advisor or consultant in performing a governmental function but the term does not include witnesses. This definition includes persons who are candidates for office or who have been elected to office but who have not yet assumed office. (11 Del. C. 1953, § 1209; 58 Del. Laws, c. 497, § 1; 62 Del. Laws, c. 109, § 1; 70 Del. Laws, c. 186, § 1.) § 1210. [Reserved.] B Abuse of Office § 1211. Official misconduct; class A misdemeanor, class G, F, D, B felony. (a) A public servant is guilty of official misconduct when, intending to obtain a personal benefit or to cause harm to another person, the public servant knowingly does any of the following: (1) Commits an act constituting an unauthorized exercise of official functions, knowing that the act is unauthorized. (2) Refrains from performing a duty, or breaches a duty which is imposed by law or is clearly inherent in the nature of the office. (3) Performs official functions in a way intended to benefit the public servant’s own property or financial interests under circumstances in which the public servant’s actions would not have been reasonably justified in consideration of the factors which ought to have been taken into account in performing official functions. (4) Performs official functions in a way intended to practice discrimination on the basis of race, religion, color, disability, sexual orientation, sex, age, gender identity, national origin, or ancestry. (5) Uses or relies upon their position of trust or authority to engage in criminal conduct. Official misconduct is a class A misdemeanor. (b) Official misconduct shall be punished as follows: (1) For a violation of either paragraph (a)(1) or (a)(2) of this section the offense shall be a class A misdemeanor. (2) For a violation of paragraph (a)(3), (a)(4), or (a)(5) of this section the offense shall be a class G felony. (3) Official misconduct is a class F felony where the value of the personal benefit received, or the harm caused, is $1,500 or more. (4) Official misconduct is a class D felony where the value of the personal benefit received, or the harm caused, is $50,000 or more, but less than $100,000. (5) Official misconduct is a class B felony where the value of the personal benefit received, or the harm caused, is $100,000 or more. (6) Official misconduct is a class F felony where the harm caused is physical injury, or the public servant engages in conduct constituting an offense which is punishable as an unclassified misdemeanor, a class B misdemeanor, or a class A misdemeanor. (7) Official misconduct is a class D felony where the harm caused is serious physical injury, or the public servant engages in conduct constituting an offense which is punishable as a class G felony, a class F felony, or a class E felony. (8) Official misconduct shall be 1 grade higher than the underlying offense where the public servant engages in conduct constituting an offense which is punishable as a class D felony or a class C felony. (9) Official misconduct shall be a class A felony where the public servant engages in conduct constituting an offense which is punishable as a class B felony or a class A felony or where the harm caused is death. (c) The Superior Court has exclusive jurisdiction over a violation of this section. (11 Del. C. 1953, § 1211; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 327, § 1; 64 Del. Laws, c. 48, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 84 Del. Laws, c. 225, § 1.) § 1212. Profiteering; class A misdemeanor. A public servant is guilty of profiteering when, in contemplation of official action by the public servant or by a governmental entity with which the public servant is associated, or in reliance on information to which the public servant has access in an official capacity and which has not been made public: (1) The public servant acquires a pecuniary interest in any property, transaction or enterprise which may be affected by the official action or information; or (2) The public servant speculates or wagers on the basis of the official action or information; or (3) The public servant aids another person to do any of the foregoing acts, intending to gain thereby a personal benefit. Profiteering is a class A misdemeanor. (11 Del. C. 1953, § 1212; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1213. Definitions relating to abuse of office. (a) The definitions under § 1209 of this title apply to §§ 1211 and 1212 of this title. (b) As used in § 1211 of this title: Page 105 Title 11 - Crimes and Criminal Procedure (1) “Protective hairstyle” includes braids, locks, and twists. (2) “Race” includes traits historically associated with race, including hair texture and a protective hairstyle. (11 Del. C. 1953, § 1213; 58 Del. Laws, c. 497, § 1; 83 Del. Laws, c. 13, § 7.) §§ 1214-1220. [Reserved.] C Perjury and Related Offenses § 1221. Perjury in the third degree; class A misdemeanor. A person is guilty of perjury in the third degree when the person swears falsely. Perjury in the third degree is a class A misdemeanor. (11 Del. C. 1953, § 1221; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1222. Perjury in the second degree; class F felony. A person is guilty of perjury in the second degree when the person swears falsely and when the false statement is: (1) Made in a written instrument for which an oath is required by law; and (2) Made with intent to mislead a public servant in the performance of official functions; and (3) Material to the action, proceeding or matter involved. Perjury in the second degree is a class F felony. (11 Del. C. 1953, § 1222; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1223. Perjury in the first degree; class D felony. A person is guilty of perjury in the first degree when the person swears falsely and when the false statement consists of testimony and is material to the action, proceeding or matter in which it is made. Perjury in the first degree is a class D felony. (11 Del. C. 1953, § 1223; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1224. Definition of “swears falsely.” A person “swears falsely” when the person intentionally makes a false statement or affirms the truth of a false statement previously made, knowing it to be false or not believing it to be true, while giving testimony or under oath in a written instrument or in an unsworn declaration made pursuant to Chapter 53A of Title 10 or § 3927 of Title 10. A false swearing in a written instrument is not complete until the instrument is delivered by its maker, or by someone acting in the maker’s behalf to another person with intent that it be uttered or published as true. A person who gives an oral and/or written statement while granted the privilege of the floor during a session of the House of Representatives or Senate of the General Assembly, whether or not that person is under oath, gives testimony within the scope of this section. (11 Del. C. 1953, § 1224; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 193, § 1; 77 Del. Laws, c. 332, § 2; 80 Del. Laws, c. 283, § 2.) § 1225. Inconsistent statements under oath; no need to prove one false; framing indictment; proof of irreconcilable inconsistency; conviction of lesser offense. When a person has made 2 statements under oath which are inconsistent to the degree that 1 of them is necessarily false, and the circumstances are such that each statement, if false, is perjurious, the inability of the prosecution to establish specifically which of the 2 statements is the false one does not preclude a prosecution for perjury. The prosecution may be conducted as follows: (1) The indictment or information may set forth the 2 statements and, without designating either, charge that 1 of them is false and perjurious. (2) The falsity of one or the other of the 2 statements may be established by proof of their irreconcilable inconsistency. Such proof is sufficient to establish a prima facie case of falsity. (3) If perjury of different degrees would be established by the making of the 2 statements, hypothetically assuming that each is false and perjurious, the defendant may be convicted of the lesser degree at most. (11 Del. C. 1953, § 1225; 58 Del. Laws, c. 497, § 1.) §§ 1226-1230. [Reserved.] § 1231. Retraction of false statement as affirmative defense. In any prosecution for perjury, it is an affirmative defense that the accused retracted the false statement in the course of the proceeding in which it was made, before the false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed. (11 Del. C. 1953, § 1231; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) Page 106 Title 11 - Crimes and Criminal Procedure § 1232. Perjury; no defense. It is no defense to a prosecution for perjury that: (1) The accused was not competent under the relevant rules of evidence to make the false statement alleged; or (2) The accused mistakenly believed the false statement to be immaterial; or (3) The oath was administered or taken in an irregular manner; or (4) A document purporting to be made upon oath and uttered or published as so made by the accused was not in fact made under oath; or (5) The court in which the acts constituting the offense were committed lacked jurisdiction over the person of the accused or over the subject matter. (11 Del. C. 1953, § 1232; 58 Del. Laws, c. 497, § 1.) § 1233. Making a false written statement; class A misdemeanor. A person is guilty of making a false written statement when the person makes a false statement which the person knows to be false or does not believe to be true in a written instrument bearing a notice, authorized by law, to the effect that false statements therein are punishable. Making a false written statement is a class A misdemeanor. (11 Del. C. 1953, § 1233; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1234. Corroboration of testimony of perjury or false written statement. In any prosecution for perjury or making a false written statement, falsity of a statement may not be established by the uncorroborated testimony of a single witness. Corroboration may be made by circumstantial evidence. (11 Del. C. 1953, § 1234; 58 Del. Laws, c. 497, § 1.) § 1235. Perjury and related offenses; definitions. (a) A statement is “material” when, regardless of its admissibility under the rules of evidence, it could have affected the course or outcome of the proceeding. (b) “Oath” includes an affirmation and every other mode authorized by law of attesting the truth of that which is stated. (c) An affidavit, deposition or other written instrument is one for which an “oath is required by law” when, absent an oath, it does not or would not, according to statute or appropriate regulatory provisions, have legal efficacy in a court of law or before any public or governmental body, agency or public servant to whom it is or might be submitted. (d) “Public servant” has the meaning given in § 1209(4) of this title. (e) “Swear” means to state under oath. (f) “Testimony” means an oral statement made under oath in a proceeding before any court, body, agency, public servant or other person authorized to conduct the proceeding and to administer the oath or cause it to be administered. (11 Del. C. 1953, § 1235; 58 Del. Laws, c. 497, § 1.) §§ 1236-1238. [Reserved.] D Offenses Involving Obstruction of Governmental Operations § 1239. Wearing a disguise during the commission of a felony; class E felony. (a) A person who wears a hood, mask or other disguise during the commission of any felony is guilty of wearing a disguise during the commission of a felony. Wearing a disguise during the commission of a felony is a class E felony. (b) A person may be found guilty of violating this section notwithstanding that the felony for which the person is convicted during which the person was wearing a disguise is a lesser included felony of the one originally charged. (70 Del. Laws, c. 372, § 1.) § 1240. Terroristic threatening of public officials or public servants; class G felony. (a) A person is guilty of terroristic threatening of a public official or public servant when the person threatens to commit any crime likely to result in death or in serious injury to a public official or public servant during or because of the public official’s or public servant’s exercise of the official’s or servant’s official functions. (b) “Public official or public servant” includes any elected official, appointed official, officer or employee of the State or any political subdivision thereof, any judge or other judicial officer, any person participating as a juror, or any person acting as an advisor, contractor or consultant in performing a governmental function. “Public official or public servant” shall include persons who are candidates for office or who have been elected to office, but who have not yet assumed office. For the purposes of this section “public official or public servant” also includes any person who formerly held a position as a public official or public servant. Page 107 Title 11 - Crimes and Criminal Procedure (c) Terroristic threatening of a public official or public servant is a class G felony. (70 Del. Laws, c. 551, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 176, § 13; 74 Del. Laws, c. 31, § 1.) § 1241. Refusing to aid a police officer; class B misdemeanor. A person is guilty of refusing to aid a police officer when, upon command by a police officer identifiable or identified by the officer as such, the person unreasonably fails or refuses to aid the police officer in effecting an arrest, or in preventing the commission by another person of any offense. Refusing to aid a police officer is a class B misdemeanor. (11 Del. C. 1953, § 1241; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1242. Limitation of civil liability for aiding a police officer. (a) A person who complies with § 1241 of this title by aiding a police officer, upon command, to affect an arrest or prevent the commission of an offense, shall not be held liable to any person for any damages resulting therefrom; provided, that the person employs means which would have been employed by a reasonable person under the circumstances known to the person at the time. (b) A duly licensed physician, medical technician or registered nurse requested to withdraw blood from a person by a police officer so as to prevent the loss of evidence of blood alcohol content or the presence of drugs in the blood stream, and a hospital employing such physician, technician or nurse shall not be liable for civil damages for any acts or omissions arising out of the taking of such sample, or the reporting of the results to law-enforcement officials. (11 Del. C. 1953, § 1242; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 88, § 7; 70 Del. Laws, c. 186, § 1.) § 1243. Obstructing fire-fighting operations; class A misdemeanor. A person is guilty of obstructing fire-fighting operations when the person intentionally and unreasonably obstructs the efforts of any firefighter in extinguishing a fire, or prevents or dissuades another person from extinguishing or helping to extinguish a fire. Obstructing fire-fighting operations is a class A misdemeanor. (11 Del. C. 1953, § 1243; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1244. Hindering prosecution; class A misdemeanor. (a) A person is guilty of hindering prosecution when, with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person whom the person accused of hindering prosecution knows has committed acts constituting a crime, or is being sought by law-enforcement officers for the commission of a crime, the person accused of hindering prosecution: (1) Harbors or conceals the person; or (2) Warns the person of impending discovery or apprehension; or (3) Provides the person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; or (4) Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of the person or in the lodging of a criminal charge against the person; or (5) Suppresses, by an act of concealment, alteration or destruction, any physical evidence which might aid in the discovery or apprehension of the person or in the lodging of a criminal charge against the person; or (6) Aids the person to protect or profit expeditiously from an advantage derived from the person’s crime. (b) Hindering prosecution is a class G felony if the person commits any of the acts set forth in subsection (a) of this section with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person whom that person knows committed acts constituting a felony, or is being sought by law-enforcement officers for the commission of a felony. (c) Hindering prosecution is a class A misdemeanor if the person commits any of the acts set forth in subsection (a) of this section with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person whom that person knows committed acts constituting a crime other than a felony, or is being sought by law-enforcement officers for the commission of a crime other than a felony. (11 Del. C. 1953, § 1244; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 52, §§ 1, 2; 70 Del. Laws, c. 186, § 1.) § 1244A. Obstruction of justice; class D felony; class G felony; class A misdemeanor. (a) A person is guilty of obstruction of justice when the person corruptly intimidates, influences, obstructs, or impedes the administration of law, a law-enforcement investigation, or any other inquiry authorized by law, including criminal, civil, or administrative inquiries. (b) Obstruction of justice is classified and punished as follows: (1) Obstruction of justice is a class D felony if a person uses force, violence, or physical interference when the person commits or attempts to commit an act under subsection (a) of this section. (2) Obstruction of justice is a class G felony if a person does any of the following when the person commits or attempts to commit an act under subsection (a) of this section: Page 108 Title 11 - Crimes and Criminal Procedure a. Conceals, alters, or destroys material evidence. b. Bestows money or any other benefit upon another person. c. Commits a breach of official duty or creates an obstacle. (3) If a person intentionally commits or attempts to commit any crime under the laws of this State, other than a crime enumerated under paragraphs (b)(1) or (b)(2) of this section, when the person commits or attempts to commit an act under subsection (a) of this section, obstruction of justice is 1 class higher than the underlying offense. (4) All other violations under subsection (a) of this section are a class A misdemeanor. (c) For purposes of this section: (1) “Corruptly” means acting with an improper purpose, personally or by influencing another, including any of the following: a. Making a false or misleading statement. b. Withholding, concealing, altering, or destroying a document or other information. (2) “Obstacle” means any effort or scheme intended to delay or interfere with a law-enforcement investigation or any other inquiry authorized by law, including criminal, civil, or administrative inquiries. An “obstacle” may be a threat, act, or physical object. (d) This section does not apply to any of the following: (1) Flight by a person charged with a crime. (2) Refusal to submit to arrest. (e) Superior Court has exclusive jurisdiction over violations of this section. (84 Del. Laws, c. 228, § 1.) § 1245. Falsely reporting an incident; class A misdemeanor. A person is guilty of falsely reporting an incident when, knowing the information reported, conveyed or circulated is false or baseless, the person: (1) Initiates or circulates a false report or warning of or impending occurrence of a fire, explosion, crime, catastrophe or emergency under circumstances in which it is likely that public alarm or inconvenience will result or that fire-fighting apparatus, ambulance or a rescue vehicle might be summoned; or (2) Reports, by word or action, to any official or quasi-official agency or organization having the function of dealing with emergencies involving danger to life or property, an alleged occurrence or impending occurrence of a fire, explosion or other catastrophe or emergency which did not in fact occur or does not in fact exist; or (3) Reports to a law-enforcement officer or agency: a. The alleged occurrence of an offense or incident which did not in fact occur; or b. An allegedly impending occurrence of an offense or incident which is not in fact about to occur; or c. False information relating to an actual offense or incident or to the alleged implication of some person therein; or d. The alleged abduction of a child which would generate the activation of a state-wide and interstate alert response and lawenforcement broadcast when such abduction has not, in fact, occurred. (4) Without just cause, calls or summons by telephone, fire alarm system or otherwise, any fire-fighting apparatus, ambulance or rescue truck. Falsely reporting an incident is a class A misdemeanor, unless the defendant has violated this section previously, in which case it shall be a class G felony. In addition to the penalties otherwise authorized by law, any person convicted of an offense in violation of this section shall pay a fine of not less than $500, or less than $1,000 for a violation of paragraph (3)d. of this section, which fine cannot be suspended and be sentenced to perform a minimum of 100 hours of community service, and shall be required to reimburse the State, or other responding or other investigating governmental agency, for any expenses expended in the investigation and/or response to the incident falsely reported. (11 Del. C. 1953, § 1245; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 469, § 1; 60 Del. Laws, c. 542, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 412, § 1; 73 Del. Laws, c. 87, § 1; 73 Del. Laws, c. 255, § 2; 75 Del. Laws, c. 86, §§ 1, 2.) § 1245A. Providing a false statement to law enforcement; class G felony; class A misdemeanor. (a) A person is guilty of providing a false statement to law enforcement when, with intent to prevent, hinder or delay the investigation of any crime or offense by a law-enforcement officer or agency, the person knowingly provides any false written or oral statement to the law-enforcement officer or agency when such statement is material to the investigation. (b) As used in this section: (1) A “statement” is any oral or written assertion and includes, but is not limited to, any oral utterance, any written document or instrument, any computer-generated document or instrument, any police report, or any representation that a person makes under Page 109 Title 11 - Crimes and Criminal Procedure circumstances evidencing an intent that such be used or knowledge that a law-enforcement officer or agency may use such as an assertion of fact. (2) A statement is “false” when such statement contains untrue, incomplete or misleading information concerning any fact or thing material to the investigation of a crime or offense by a law-enforcement officer or agency. (3) A statement is “material” when, regardless of its eventual use or admissibility in an official proceeding, it could have affected the course or outcome of the investigation of a crime or offense by a law-enforcement officer or agency. (4) An “official proceeding” includes any action or proceeding conducted by or before a legally constituted judicial, administrative or other governmental agency or official, in which evidence or testimony of witnesses may properly be received. (c) Providing a false statement to law enforcement is a class G felony if the crime or offense being investigated is a felony. (d) Providing a false statement to law enforcement is a class A misdemeanor if the crime or offense being investigated is other than a felony. (78 Del. Laws, c. 283, § 1.) § 1246. Compounding a crime; class A misdemeanor. A person is guilty of compounding a crime when: (1) The person solicits, accepts or agrees to accept any benefit from a person upon any representation or pretense that criminal prosecution of such person shall be dropped, withheld or abandoned, or the sentence thereon reduced, or upon any promise to assert pretended influence to cause such criminal prosecution to be dropped, withheld or abandoned or the sentence thereon reduced; or (2) The person offers, confers or agrees to confer any benefit upon another person upon an agreement or understanding that the other person will refrain from initiating a prosecution for a crime. Compounding a crime is a class A misdemeanor. (11 Del. C. 1953, § 1246; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1247. Defense to compounding a crime. In any prosecution for compounding a crime, it is an affirmative defense that the benefit did not exceed the amount which the accused believed to be due as restitution or indemnification for harm caused by the crime. (11 Del. C. 1953, § 1247; 58 Del. Laws, c. 497, § 1.) § 1248. Obstructing the control and suppression of rabies. (a) A person is guilty of obstructing the control and suppression of rabies when the person violates any lawful order of authorized state employees, or their agents, in the enforcement of laws to control and suppress rabies, pursuant to Chapter 82 of Title 3, or prevents or dissuades another person from complying with such orders. (b) Obstructing the control and suppression of rabies is a Class B misdemeanor. However, obstructing the control and suppression of rabies in a place and at a time when a state of emergency with respect to rabies has been declared pursuant to § 8211 of Title 3 is a class E felony. (66 Del. Laws, c. 247, § 2; 70 Del. Laws, c. 186, § 1.) § 1249. Abetting the violation of driver’s license restrictions. (a) It shall be unlawful for any person to blow into an ignition interlock device, or to start a motor vehicle equipped with such a device, for the purpose of providing an operable motor vehicle to a person whose driving privilege is restricted. (b) It shall be unlawful for any person to request or solicit any other person to blow into an ignition interlock device, or to start a motor vehicle equipped with such device, for the purpose of providing an operable motor vehicle to a person whose driving privilege is restricted. (c) It shall be unlawful to tamper with, or to circumvent the operation of, any ignition interlock device. (d) A violation of this section shall be a class A misdemeanor; provided, however, that a second or subsequent conviction of a violation of this section shall be a class G felony. Where a person violates this section, and such violation is a direct cause of the subsequent death of any person, such violation of this section shall be a class G felony. The Superior Court shall have jurisdiction over all violations of this section. (67 Del. Laws, c. 437, § 5; 68 Del. Laws, c. 125, § 6; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 353, § 1.) § 1250. Offenses against law-enforcement animals. (a) Harassment of law-enforcement animals. — (1) A person is guilty of harassment of a law-enforcement animal when such person intentionally harasses, taunts, menaces, challenges or alarms a law-enforcement animal in such a manner as is likely to provoke from such animal a violent, defensive or threatening response, such as lunging, baring of teeth, kicking, spinning or jumping, if such response from the animal causes alarm, distress, fear or risk of injury to any person or to the animal. (2) Harassment of a law-enforcement animal is an unclassified misdemeanor. Page 110 Title 11 - Crimes and Criminal Procedure (b) Assault in the second degree against a law-enforcement animal. — (1) A person is guilty of assault in the second degree against a law-enforcement animal when such person intentionally or recklessly engages in conduct which creates a substantial risk of physical injury or death to a law-enforcement animal, including, but not limited to, beating, poisoning or torturing such animal. (2) Assault in the second degree against a law-enforcement animal is a class A misdemeanor. (c) Assault in the first degree against a law-enforcement animal. — (1) A person is guilty of assault in the first degree against a lawenforcement animal when such person intentionally or recklessly causes serious physical injury or death to such law-enforcement animal. (2) Assault in the first degree against a law-enforcement animal is a class D felony. (d) “Law-enforcement animal” defined. — For purposes of this section, the words “law-enforcement animal” shall mean any animal, including, but not limited to, canines, K-9 dogs and horses utilized by any law-enforcement officer, including any corrections officer, in the performance of such officer’s duties. (68 Del. Laws, c. 116, § 2; 70 Del. Laws, c. 54, § 1.) E Escape and Other Offenses Relating to Custody § 1251. Escape in the third degree; class A misdemeanor. A person is guilty of escape in the third degree when the person escapes from custody, including placement in nonsecure facilities by the Division of Youth Rehabilitative Services. Escape in the third degree is a class A misdemeanor. (11 Del. C. 1953, § 1251; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 93, § 1.) § 1252. Escape in the second degree; class G felony. A person is guilty of escape in the second degree when the person escapes from a detention facility or from the custody of the Department of Health and Social Services or the Department of Correction. Escape in the second degree is a class G felony. (11 Del. C. 1953, § 1252; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 8; 63 Del. Laws, c. 168, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1253. Escape after conviction; class B felony; class C felony; class D felony. A person shall be guilty of escape after conviction if such person, after entering a plea of guilty or having been convicted by the court, escapes from a detention facility or other place having custody of such person or from the custody of the Department of Health and Social Services or the Department of Correction. Escape after conviction shall be a class D felony; provided, however, that if the defendant uses force or the threat of force against another person or possesses a deadly weapon at the time of escape, it shall be a class C felony. If the defendant inflicts injury upon another person during the escape or from the time of escape until such person is again in custody, it shall be a class B felony. Any sentence imposed upon conviction of escape after conviction shall not run concurrently with any other sentence. (11 Del. C. 1953, § 1253; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 8; 63 Del. Laws, c. 168, § 2; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 350, § 36; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 67, § 1.) § 1254. Assault in a detention facility; penalty; class B and class D felony. (a) (1) Any person who, being confined in a detention facility, intentionally or recklessly causes physical injury to a correctional officer, other state employee of a detention facility acting in the lawful performance of duties, any other person confined in a detention facility or any other person at a detention facility or other place having custody of such person shall be guilty of a class D felony. (2) Notwithstanding Chapter 45 of this title, any person convicted for a violation of this subsection shall be imprisoned for a mandatory minimum period of 2 years which shall commence upon final judgment of conviction. Such sentence shall not be suspended nor shall the defendant be eligible for parole or probation. (b) (1) Any person who, being confined in a detention facility, intentionally or recklessly causes serious physical injury to a correctional officer, other state employee of a detention facility acting in the lawful performance of duties, any other person confined in a detention facility or any other person at a detention facility or other place having custody of such person shall be guilty of a class B felony. (2) Notwithstanding Chapter 45 of this title, any person convicted for a violation of this subsection shall be imprisoned for a mandatory minimum period of 3 years which shall commence upon final judgment of conviction. Such sentence shall not be suspended nor shall the defendant be eligible for parole or probation. (c) (1) Any person who, being confined in a detention facility, intentionally or recklessly strikes with urine, feces or other bodily fluid a correctional officer or other state employee of a detention facility acting in the lawful performance of duties or any other person at a detention facility or other place having custody of such person, other than another person confined at a detention facility shall be guilty of a class D felony. Page 111 Title 11 - Crimes and Criminal Procedure (2) Notwithstanding Chapter 45 of this title, any person convicted for a violation of this subsection shall be imprisoned for a mandatory minimum period of 1 year, which shall commence upon final conviction. Such sentence shall not be suspended nor shall the defendant be eligible for parole or probation. (3) When charged with a violation of this subsection, the defendant shall be tested for diseases transmittable through bodily fluids, the cost of such tests to be assessed as costs upon conviction. The results of such tests shall be provided only to the Attorney General, the victim of the assault, the defendant and the Department’s medical care provider. (d) The execution and operation of the sentence for any other crime causing such original confinement shall, upon the commencement of the sentence for a violation of this section, be placed in suspension, to be continued only after completion of the sentence for the violation of this section. (59 Del. Laws, c. 247, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 88, §§ 1-3; 72 Del. Laws, c. 12, §§ 1-3; 81 Del. Laws, c. 167, § 1; 84 Del. Laws, c. 233, § 13.) § 1256. Promoting prison contraband; class F felony; class A misdemeanor. (a) A person is guilty of promoting prison contraband when: (1) The person knowingly and unlawfully introduces any contraband into a detention facility; or (2) The person possesses with intent to deliver any contraband to any person confined within a detention facility; or (3) Being a person confined in a detention facility, the person knowingly and unlawfully makes, obtains or possesses any contraband. (b) Promoting prison contraband is a class A misdemeanor. However, promoting prison contraband is a class F felony if any of the following applies: (1) The prison contraband is a deadly weapon, cellular telephone, or any prohibited electronic device not specifically authorized or approved by the Commissioner or designee, any illegal narcotic or look-a-like substance, or any prescription medication, or any item or article that could be used to facilitate an escape. (2) An unmanned aircraft system is used to deliver or attempt to deliver any of the following into a detention facility a. Contraband, as defined by § 1258 of this title. b. Any of the contraband listed in paragraph (b)(1) of this section. (11 Del. C. 1953, § 1256; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 367, § 1; 81 Del. Laws, c. 168, § 1; 82 Del. Laws, c. 190, § 1.) § 1257. Resisting arrest with force or violence, class G felony; resisting arrest, class A misdemeanor. (a) A person is guilty of resisting arrest with force or violence when: (1) The person intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of the person or another person by use of force or violence towards said peace officer; or (2) The person intentionally flees from a peace officer, who is effecting an arrest or detention of the person, by use of force or violence towards said peace officer; or (3) While a peace officer is effecting an arrest or detention of a person, the person causes physical injury to the peace officer. Resisting arrest with force or violence is a class G felony. (b) A person is guilty of resisting arrest when the person intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of the person or another person or intentionally flees from a peace officer who is effecting an arrest or detention of the person. Resisting arrest is a class A misdemeanor. (11 Del. C. 1953, § 1257; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 310, §§ 1-3; 77 Del. Laws, c. 266, § 1; 79 Del. Laws, c. 259, § 1.) § 1257A. Use of an animal to avoid capture, class G felony; “class A misdemeanor.” (a) A person is guilty of using an animal to avoid capture when, with the intent to prevent, hinder or delay the apprehension of a wanted person, including themselves, they release any animal against a law-enforcement or other authorized person to make arrests under Delaware law. (b) Use of an animal to avoid capture is a class G felony: (1) If the person commits any of the acts set forth in subsection (a) of this section with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person whom that person knows committed acts constituting a felony, or is being sought by law-enforcement officers for the commission of a felony, or (2) If the animal injures the law-enforcement officer. (c) Use of an animal to avoid capture is a class A misdemeanor if the person commits any of the acts set forth in subsection (a) of this section with intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against, a person Page 112 Title 11 - Crimes and Criminal Procedure whom that person knows committed acts constituting a crime other than a felony, or is being sought by law-enforcement officers for the commission of a crime other than a felony. (71 Del. Laws, c. 248, § 1.) § 1258. Escape and offenses relating to custody; definitions. As used in §§ 1251-1257 of this title: (1) “Contraband” means any intoxicating liquor or drug prohibited under Chapter 47 of Title 16, except as prescribed by a physician for medical treatment; tobacco; nicotine products; any money without the knowledge or consent of the Department of Health and Social Services or the Department of Correction; or any deadly weapon or part thereof or any instrument or article which may be used to effect an escape. (2) “Custody” means restraint by a public servant pursuant to an arrest, detention or an order of a court. (3) “Detention facility” means any place used for the confinement of a person: a. Charged with or convicted of an offense; or b. Charged with being a delinquent child as defined in § 901 of Title 10; or c. Held for extradition or as a material witness; or d. Otherwise confined pursuant to an order of a court. (4) “Escape” means departure from the place in which the actor is held or detained with knowledge that such departure is unpermitted. (5) “Other place having custody of such person” includes, but is not limited to, any building, facility, structure, vehicle or property in which a person may be placed while in custody, whether temporarily or permanently and regardless of whether such building, facility, structure, vehicle or property is owned or controlled by the Department of Correction or any other state agency. (11 Del. C. 1953, § 1258; 58 Del. Laws, c. 497, § 1; 72 Del. Laws, c. 12, § 4; 79 Del. Laws, c. 367, § 1; 81 Del. Laws, c. 79, § 10.) § 1259. Sexual relations in detention facility; class G felony [Repealed]. (62 Del. Laws, c. 282, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 241, § 1; repealed by 81 Del. Laws, c. 389, § 2, effective Aug. 29, 2018.) § 1260. Misuse of prisoner mail; class A misdemeanor; class G felony. A person is guilty of misuse of prisoner mail when being a person in custody in a state detention facility, or in the custody of the Department of Health and Social Services or the Department of Correction, that person intentionally: (1) Communicates by mail with a person not in custody in a manner which the person in custody knows is likely to cause inconvenience, annoyance or alarm; or (2) Designates a written communication as legal mail knowing that said written communication is wholly unrelated to any actual or potential legal matter or to the administration of justice. Misuse of prisoner mail is a class A misdemeanor unless the person has previously been convicted under this section, in which case it is a class G felony. (70 Del. Laws, c. 480, § 1; 70 Del. Laws, c. 186, § 1.) F Offenses Relating to Judicial and Similar Proceedings § 1261. Bribing a witness; class E felony. A person is guilty of bribing a witness when the person offers, confers or agrees to confer any benefit upon a witness or a person about to be called as a witness in any official proceeding upon an agreement or understanding that: (1) The testimony of the witness will thereby be influenced; or (2) The witness will be absent from, or otherwise avoid or seek to avoid appearing or testifying at, the official proceeding. Bribing a witness is a class E felony. (11 Del. C. 1953, § 1261; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1262. Bribe receiving by a witness; class E felony. A witness or a person about to be called as a witness in any official proceeding is guilty of bribe receiving by a witness when the witness solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that: (1) The witness’s testimony will thereby be influenced; or (2) The witness will be absent from, or otherwise avoid or seek to avoid appearing or testifying at, the official proceeding. Bribe receiving by a witness is a class E felony. (11 Del. C. 1953, § 1262; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) Page 113 Title 11 - Crimes and Criminal Procedure § 1263. Tampering with a witness; class E felony. A person is guilty of tampering with a witness when: (1) The person knowingly induces, influences or impedes any witness or victim by false statement, fraud or deceit, with intent to affect the testimony or availability of such witness; or (2) The person intentionally causes physical injury to any party or witness or intentionally damages the property of any party or witness on account of past, present or future attendance at any court proceeding or official proceeding of this State or on account of past, present, or future testimony in any action pending therein; or (3) The person knowingly intimidates a witness or victim under circumstances set forth in subchapter III of Chapter 35 of this title. Tampering with a witness is a class E felony. (11 Del. C. 1953, § 1263; 58 Del. Laws, c. 497, § 1; 63 Del. Laws, c. 20, § 1; 63 Del. Laws, c. 275, §§ 1, 2; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1263A. Interfering with child witness. (a) A person commits an offense if, intending to interfere with or prevent the prosecution of any person, the person intentionally or knowingly: (1) Removes a child from the county of residence of the child knowing that the child is or is likely to become a witness in a criminal case in the county of residence; or (2) Refuses or fails to produce a child in the person’s custody before a court in which there is pending a criminal case in which the child is a witness; or (3) Confers or offers or agrees to confer a benefit on another person in order to: a. Cause a child to be removed from the county of residence of the child, knowing the child is or is likely to become a witness in a criminal case in the county of residence; or b. Cause a person in custody of a child to refuse or fail to produce the child before a court in which there is pending a criminal case in which the child is a witness; or (4) Harms or threatens to harm another person in order to: a. Cause a child to be removed from the county of residence, knowing the child is or is likely to become a witness in a criminal case in the county of residence; or b. Cause a person in custody of a child to refuse to produce the child before a court in which there is pending a criminal case in which the child is a witness. (b) For purposes of this section: (1) The county of residence of a child is the county in which the child resides at the time of the commission of the offense being prosecuted in the criminal case in which the child is a witness; (2) A child is in the custody of a person if the person is the parent or guardian of the child, is acting in loco parentis to the child or exercises control over the location or supervision of the child; and (3) A criminal case is pending in a court if an indictment, information or complaint in the case has been filed with or presented to the court. (c) “Witness” as used in this section means any natural person: (1) Having knowledge of the existence or nonexistence of facts relating to any crime; or (2) Whose declaration under oath is received, or has been received, as evidence for any purpose; or (3) Who has reported any crime to any peace officer, prosecuting agency, law-enforcement officer, probation officer, parole officer, correctional officer or judicial official; or (4) Who has been served personally or through a parent, guardian, person acting in loco parentis or other custodian, with a subpoena issued under the authority of any court of this State, or any other state or of the United States; or (5) Who would be believed by any reasonable person to be an individual described in any paragraph of this subsection. An offense under paragraph (a)(2), (a)(3)b. or (a)(4)b. of this section is a class E felony. An offense under paragraph (a)(1), (a)(3)a. or (a)(4)a. of this section is a class G felony unless the child is a complaining witness, in which event the offense is a class F felony. (65 Del. Laws, c. 110, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1264. Bribing a juror; class E felony. A person is guilty of bribing a juror when the person offers, confers or agrees to confer any benefit upon a juror upon an agreement or understanding that the juror’s vote, opinion, judgment, decision or other action as a juror will thereby be influenced. Bribing a juror is a class E felony. (11 Del. C. 1953, § 1264; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) Page 114 Title 11 - Crimes and Criminal Procedure § 1265. Bribe receiving by a juror; class E felony. A juror is guilty of bribe receiving by a juror when the juror solicits, accepts or agrees to accept any benefit from another person upon agreement or understanding that the juror’s vote, opinion, judgment, decision or other action as a juror will thereby be influenced. Bribe receiving by a juror is a class E felony. (11 Del. C. 1953, § 1265; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1266. Tampering with a juror; class A misdemeanor. A person is guilty of tampering with a juror when: (1) With intent to influence the outcome of an official proceeding, the person communicates with a juror in the proceeding, except as permitted by the rules of evidence governing the proceeding; or (2) In relation to an official proceeding pending or about to be brought before the juror, the person offers, negotiates, confers or agrees to confer any payment or benefit to the juror or to a third person in consideration for supplying any information depicting the juror’s service. For purposes of this section, a juror shall be any person who has received notice of summons to appear for jury service. Tampering with a juror is a class A misdemeanor. (11 Del. C. 1953, § 1266; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 158, § 1.) § 1267. Misconduct by a juror; class A misdemeanor. A person is guilty of misconduct by a juror when, in relation to an official proceeding pending or about to be brought before the juror: (1) The juror agrees to give a vote, opinion, judgment decision or report for or against any party to the action or proceeding, or (2) The juror solicits, negotiates, accepts or agrees to accept any payment or benefit for himself or herself for a third person in consideration for supplying any information depicting the juror’s service. For purposes of this section, a juror shall be any person who has received notice of summons to appear for jury service. Misconduct by a juror is a class A misdemeanor. (11 Del. C. 1953, § 1267; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 323, § 1.) § 1268. Communications between jurors not tampering or misconduct. Nothing in § 1266 or § 1267 of this title applies to communications between jurors in the same proceeding with regard to matters admitted as evidence in the proceeding. (11 Del. C. 1953, § 1268; 58 Del. Laws, c. 497, § 1.) § 1269. Tampering with physical evidence; class G felony. A person is guilty of tampering with physical evidence when: (1) Intending that it be used or introduced in an official proceeding or a prospective official proceeding the person: a. Knowingly makes, devises, alters or prepares false physical evidence; or b. Produces or offers false physical evidence at a proceeding, knowing it to be false; or (2) Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent its production or use, the person suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person. Tampering with physical evidence is a class G felony. (11 Del. C. 1953, § 1269; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1270. [Reserved.] § 1271. Criminal contempt; class A misdemeanor; class B misdemeanor. A person is guilty of criminal contempt when the person engages in any of the following conduct: (1) Disorderly, contemptuous or insolent behavior, committed during the sitting of a court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority; or (2) Breach of the peace, noise or other disturbance directly tending to interrupt a court’s proceedings; or (3) Intentional disobedience or resistance to the process, injunction or other mandate of a court; or (4) Contumacious refusal to be sworn as a witness in any court proceeding or, after being sworn, to answer any proper interrogatory; or (5) Knowingly publishing a false or grossly inaccurate report of a court’s proceedings; or (6) Intentional refusal to serve as a juror; or Page 115 Title 11 - Crimes and Criminal Procedure (7) Intentional and unexcused failure by a juror to attend a trial at which the person has been chosen to serve as a juror; or (8) Intentional failure to appear personally on the required date, having been released from custody, with or without bail, by court order or by other lawful authority, upon condition that the person will subsequently appear personally in connection with a criminal action or proceeding. Criminal contempt is a class A misdemeanor, except for violations of paragraph (1) of this section. A violation of paragraph (1) of this section shall be a class B misdemeanor. (11 Del. C. 1953, § 1211; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1271A. Criminal contempt of a domestic violence protective order, lethal violence protective order, or sexual violence protective order; class A misdemeanor; class F felony. (a) (1) A person is guilty of criminal contempt of a domestic violence protective order when the person knowingly violates or fails to obey any provision of a protective order issued by: the Family Court; a court of any state, territory, or Indian nation in the United States, as long as such violation or failure to obey occurred in Delaware; or a court of Canada, as long as such violation or failure to obey occurred in Delaware. (2) A person is guilty of criminal contempt of a lethal violence protective order or sexual violence protective order when the person knowingly violates or fails to obey any provision of a protective order issued by the Justice of the Peace Court or Superior Court, as long as such violation or failure to obey occurred in Delaware. (b) Criminal contempt of a domestic violence protective order, lethal violence protective order, or sexual violence protective order is a class A misdemeanor, unless any of the elements set forth in subsection (c) of this section are met, in which case the offense shall be a class F felony. (c) A person is guilty of felony criminal contempt of a domestic violence protective order, a lethal violence protective order, or a sexual violence protective order if: (1) Such contempt resulted in physical injury. (2) Such contempt involved the use or threatened use of a deadly weapon or firearm. (d) A person found guilty of criminal contempt of a domestic violence protective order, lethal violence protective order, or sexual violence protective order shall receive a minimum sentence of 15 days incarceration if: (1) Such contempt resulted in physical injury. (2) Such contempt involved the use or threatened use of a deadly weapon or firearm. (3) The defendant was convicted of criminal contempt of a domestic violence protective order, lethal violence protective order, or sexual violence protective order under this section on 2 or more prior occasions. (e) The minimum sentence shall not be subject to suspension and no person subject to the minimum sentence shall be eligible for probation, parole, furlough, or suspended custody during the sentence. (f) The Superior Court has exclusive jurisdiction over offenses under paragraph (a)(2) of this section. (69 Del. Laws, c. 160, § 4; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 179, § 1; 72 Del. Laws, c. 63, § 1; 76 Del. Laws, c. 117, §§ 1-4; 80 Del. Laws, c. 373, § 2; 81 Del. Laws, c. 274, § 2; 83 Del. Laws, c. 449, § 2.) § 1272. Criminal contempt; summary punishment. A person who commits criminal contempt as defined by § 1271(1) of this title may in the discretion of the court be convicted and sentenced for that offense without further criminal proceedings during or immediately after the termination of the proceeding in which the act constituting criminal contempt occurred. (11 Del. C. 1953, § 1272; 58 Del. Laws, c. 497, § 1.) § 1273. Unlawful grand jury disclosure; class B misdemeanor. A person is guilty of unlawful grand jury disclosure when, being a grand juror, a public prosecutor, a grand jury stenographer, a grand jury interpreter, a peace officer guarding a witness in a grand jury proceeding, or a clerk, attendant, warden or other public servant having official duties in or about a grand jury room or proceeding, the person intentionally discloses to another person the nature or substance of any grand jury testimony, or any decision, result or other matter attending a grand jury proceeding which is required by law to be kept secret, except in the proper discharge of official duties or upon written order of the court. Unlawful grand jury disclosure is a class B misdemeanor. (11 Del. C. 1953, § 1273; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1274. Offenses relating to judicial and similar proceedings; definitions. As used in §§ 1261-1273 of this title: (1) “Benefit” means gain or advantage, or anything regarded by the beneficiary as gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested. Page 116 Title 11 - Crimes and Criminal Procedure (2) “Official proceeding” includes any action or proceeding conducted by or before a legally constituted judicial, legislative, administrative or other governmental agency or official, in which evidence or testimony of witnesses may properly be received. (3) “Physical evidence” means any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding. (11 Del. C. 1953, § 1274; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) Subchapter VII Offenses Against Public Health, Order and Decency A Riot, Disorderly Conduct and Related Offenses § 1301. Disorderly conduct; unclassified misdemeanor. A person is guilty of disorderly conduct when: (1) The person intentionally causes public inconvenience, annoyance or alarm to any other person, or creates a risk thereof by: a. Engaging in fighting or in violent, tumultuous or threatening behavior; or b. Making an unreasonable noise or an offensively coarse utterance, gesture or display, or addressing abusive language to any person present; or c. Disturbing any lawful assembly or meeting of persons without lawful authority; or d. Obstructing vehicular or pedestrian traffic; or e. Congregating with other persons in a public place and refusing to comply with a lawful order of the police to disperse; or f. Creating a hazardous or physically offensive condition which serves no legitimate purpose; or g. Congregating with other persons in a public place while wearing masks, hoods or other garments rendering their faces unrecognizable, for the purpose of and in a manner likely to imminently subject any person to the deprivation of any rights, privileges or immunities secured by the Constitution or laws of the United States of America. (2) The person engages with at least 1 other person in a course of disorderly conduct as defined in paragraph (1) of this section which is likely to cause substantial harm or serious inconvenience, annoyance or alarm, and refuses or knowingly fails to obey an order to disperse made by a peace officer to the participants. Disorderly conduct is an unclassified misdemeanor. (11 Del. C. 1953, § 1301; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, §§ 23, 24; 63 Del. Laws, c. 305, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1302. Riot; class F felony. A person is guilty of riot when the person participates with 2 or more persons in a course of disorderly conduct: (1) With intent to commit or facilitate the commission of a felony or misdemeanor; or (2) With intent to prevent or coerce official action; or (3) When the accused or any other participant to the knowledge of the accused uses or plans to use a firearm or other deadly weapon. Any other provision of this Criminal Code notwithstanding, whoever violates this section shall be guilty of a class F felony. Any other provision of this Criminal Code or Title 10 notwithstanding, any person over 16 years old who violates this section may be prosecuted as an adult pursuant to §§ 1010 and 1011 of Title 10. (11 Del. C. 1953, § 1302; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 199, § 1.) § 1303. Disorderly conduct; funeral or memorial service. (a) A person shall not do any of the following within 300 feet of the building or other location where a funeral or memorial service is being conducted, or within 1,000 feet of a funeral procession or burial: (1) Direct abusive epithets or make any threatening gesture which the person knows or reasonably should know is likely to provoke a violent reaction by another. (2) Disturb or disrupt the funeral, memorial service, funeral procession, or burial by conduct intended to disturb or disrupt the funeral, memorial service, funeral procession or burial. (b) This section applies to conduct within 1 hour preceding, during and within 2 hours after a funeral, memorial service, funeral procession or burial. (c) A person who commits a violation of this section commits: (1) A class A misdemeanor for a first offense. (2) A class F felony for a second or subsequent offense. Page 117 Title 11 - Crimes and Criminal Procedure (d) This section shall not preclude any county or municipality from legislating and enforcing its own more restrictive law in this regard. (75 Del. Laws, c. 271, § 1.) § 1304. Hate crimes; class A misdemeanor, class G felony, class F felony, class E felony, class D felony, class C felony, class B felony, class A felony. (a) Any person who commits, or attempts to commit, any crime as defined by the laws of this State, and who intentionally does any of the following is guilty of a hate crime: (1) Commits the crime for the purpose of interfering with the victim’s free exercise or enjoyment of any right, privilege, or immunity protected by the First Amendment to the United States Constitution, or commits the crime because the victim has exercised or enjoyed a First Amendment right, privilege, or immunity. (2) Commits the crime and is motivated in whole or in part by a belief or perception regarding the race, religion, color, disability, sexual orientation, sex, age, gender identity, national origin, or ancestry of a person or group, regardless of whether the belief or perception is accurate. (b) For purposes of this section: (1) “Group” includes an organization or association of persons, whether formal or informal. (2) “Protective hairstyle” includes braids, locks, and twists. (3) “Race” includes traits historically associated with race, including hair texture and protective hairstyle. (c) A hate crime is punished as follows: (1) If the underlying offense is a violation or unclassified misdemeanor, the hate crime is a class A misdemeanor; (2) If the underlying offense is a class A, B, or C misdemeanor, the hate crime is a class G felony; (3) If the underlying offense is a class C, D, E, F, or G felony, the hate crime is 1 grade higher than the underlying offense; (4) If the underlying offense is a class A or B felony, the hate crime is the same grade as the underlying offense, and the minimum sentence of imprisonment required for the underlying offense must be doubled. (d) The Superior Court has exclusive jurisdiction over a violation of this section. (70 Del. Laws, c. 138, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 175, §§ 1, 2; 79 Del. Laws, c. 47, § 15; 83 Del. Laws, c. 13, § 8; 83 Del. Laws, c. 195, § 3; 83 Del. Laws, c. 477, § 1; 84 Del. Laws, c. 215, § 3.) § 1305. Desecration; class A misdemeanor. (a) A person is guilty of desecration if the person attempts or does intentionally deface, damage, pollute or otherwise physically mistreat any of the following: (1) A burial place. (2) A public monument or structure. (3) A place of worship or place primarily used for religious purposes. (4) A school, educational institution, or community center. (b) (1) Any person who commits desecration of a burial place is guilty of a class A misdemeanor and upon conviction the court may impose a fine of up to $2,300. (2) Any person who commits desecration under paragraph (a)(2) through (a)(4) of this section is guilty of a class A misdemeanor. (3) The penalty for a violation of this section may include restitution and 250 hours of community service. (c) The Superior Court has exclusive jurisdiction over a violation of this section. (11 Del. C. 1953, § 1331; 58 Del. Laws, c. 497, § 1; 65 Del. Laws, c. 463, §§ 1, 2; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 477, § 2.) § 1306. Cross or religious symbol burning; class A misdemeanor. (a) A person is guilty of cross or religious symbol burning when the person attempts or does burn, or causes to be burned, any cross or other religious symbol, on any private or public property with the intent to intimidate an individual or a group of individuals. (b) A person is guilty of cross or religious symbol burning when the person burns, or causes to be burned, any cross or other religious symbol, on any private or public property without all of the following: (1) The express written consent of the owner of the property. (2) A minimum of 48 hours advanced notification of the proposed burning to the fire board or call board of the county in which the burning is to take place. (c) A violation of this section is a class A misdemeanor. (d) The Superior Court has exclusive jurisdiction over a violation of this section. (69 Del. Laws, c. 106, § 1; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 477, § 2.) Page 118 Title 11 - Crimes and Criminal Procedure § 1307. Civil remedies for violations of hate crimes and related offenses. (a) A person incurring injury to self, including emotional distress, or damage or loss to property, as a result of conduct committed in violation of § 1304, § 1305, or § 1306 of this title has a civil cause of action to secure an injunction, damages, or other appropriate relief in law or in equity. (b) In an action under subsection (a) of this section, whether a violation of § 1304, § 1305, or § 1306 of this title has occurred is to be determined according to the burden of proof used in other civil actions for similar relief. (c) (1) The Attorney General may initiate a cause of action against a person or group who violates § 1304, § 1305, or § 1306 of this title on behalf of any person or group that has sustained injury to person or property. (2) For purposes of this subsection, “group” means as defined under § 1304(b) of this title, (d) (1) In an action to enforce this section, the court may award the prevailing party or the Attorney General a reasonable attorneys’ fee. In awarding attorneys’ fees under this subsection, the court may include reasonable expert fees as part of the attorneys’ fee. (2) On prevailing in an action under subsection (a) of this section, the plaintiff may recover both special and general damages, including damages for emotional distress and punitive damages. (e) Notwithstanding any other provision of the law to the contrary, a parent or legal guardian of an unemancipated minor is liable for a judgment rendered against the minor under this section if the parent or legal guardian knew of the propensity of the minor to commit a violation of § 1304, § 1305, or § 1306 of this title. (83 Del. Laws, c. 477, § 2.) § 1308. Hate crime reporting requirement. (a) Police agencies shall report the number of violations, or investigations into a violation, of § 1304 of this title to the Division of Civil Rights and Public Trust, established under § 2553 of Title 29, at the request of the Division. (b) The Division of Civil Rights and Public Trust may request a police agency to provide any additional information deemed necessary to effectuate the Division’s mission. (c) The Division of Civil Rights and Public Trust shall post on the Division’s website annually the number and nature of violations of § 1304 of this title. (83 Del. Laws, c. 477, § 2.) § 1309. Deprivation of civil rights; class A misdemeanor; class B and D felony. (a) Whoever, under color of any law, statute, ordinance, regulation, or custom, knowingly subjects any person or group to the deprivation of any rights, privileges, or immunities secured or protected by the United States Constitution, the Delaware Constitution, or the laws of the State of Delaware, shall be guilty of a class A misdemeanor. (b) If physical injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous instrument, explosives, or fire, the defendant shall be guilty of a class D felony. (c) If serious physical injury or death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, a felony sex offense or an attempt to commit a felony sex offense, or an attempt to kill, the defendant shall be guilty of a class B felony. (d) The Superior Court shall have exclusive jurisdiction over violations of this section. (83 Del. Laws, c. 502, § 1.) § 1310. [Reserved.] § 1311. Harassment; class A misdemeanor. (a) A person is guilty of harassment when, with intent to harass, annoy or alarm another person: (1) That person insults, taunts or challenges another person or engages in any other course of alarming or distressing conduct which serves no legitimate purpose and is in a manner which the person knows is likely to provoke a violent or disorderly response or cause a reasonable person to suffer fear, alarm, or distress; (2) Communicates with a person by telephone, telegraph, mail or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm including, but not limited to, intrastate telephone calls initiated by vendors for the purpose of selling goods or services; (3) Knowingly permits any telephone under that person’s control to be used for a purpose prohibited by this section; (4) In the course of a telephone call that person uses obscene language or language suggesting that the recipient of the call engage with that person or another person in sexual relations of any sort, knowing that the person is thereby likely to cause annoyance or alarm to the recipient of the call; or (5) Makes repeated or anonymous telephone calls to another person whether or not conversation ensues, knowing that person is thereby likely to cause annoyance or alarm. Page 119 Title 11 - Crimes and Criminal Procedure (b) Harassment is a class A misdemeanor. (11 Del. C. 1953, § 1311; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 316, § 3; 74 Del. Laws, c. 362, § 1; 76 Del. Laws, c. 343, §§ 1, 2.) § 1312. Stalking; class G felony, class F felony, class C felony. (a) A person is guilty of stalking when the person knowingly engages in a course of conduct directed at a specific person and that conduct would cause a reasonable person to: (1) Fear physical injury to himself or herself or that of another person; or (2) Suffer other significant mental anguish or distress that may, but does not necessarily, require medical or other professional treatment or counseling. (b) A violation of subsection (a) of this section is a class G felony. (c) Stalking is a class F felony if a person is guilty of stalking and 1 or more of the following exists: (1) The person is age 21 or older and the victim is under the age of 14; or (2) The person violated any order prohibiting contact with the victim; or (3) The victim is age 62 years of age or older; or (4) The course of conduct includes a threat of death or threat of serious physical injury to the victim, or to another person; or (5) The person causes physical injury to the victim. (d) Stalking is a class C felony if the person is guilty of stalking and 1 or more of the following exists: (1) The person possesses a deadly weapon during any act; or (2) The person causes serious physical injury to the victim. (e) Definitions. — The following terms shall have the following meaning as used in this section: (1) “Course of conduct” means 3 or more separate incidents, including, but not limited to, acts in which the person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveys, threatens, or communicates to or about another, or interferes with, jeopardizes, damages, or disrupts another’s daily activities, property, employment, business, career, education, or medical care. A conviction is not required for any predicate act relied upon to establish a course of conduct. A conviction for any predicate act relied upon to establish a course of conduct does not preclude prosecution under this section. Prosecution under this section does not preclude prosecution under any other section of the Code. (2) “A reasonable person” means a reasonable person in the victim’s circumstances. (f) Notwithstanding any contrary provision of § 4205 of this title, any person who commits the crime of stalking by engaging in a course of conduct which includes any act or acts which have previously been prohibited by a then-existing court order or sentence shall receive a minimum sentence of 6 months incarceration at Level V. The first 6 months of said period of incarceration shall not be subject to suspension. (g) Notwithstanding any contrary provision of § 4205 of this title, any person who is convicted of stalking within 5 years of a prior conviction of stalking shall receive a minimum sentence of 1 year incarceration at Level V. The first year of said period of incarceration shall not be subject to suspension. (h) In any prosecution under this law, it shall not be a defense that the perpetrator was not given actual notice that the course of conduct was unwanted; or that the perpetrator did not intend to cause the victim fear or other emotional distress. (i) In any prosecution under this section, it is an affirmative defense that the person charged was engaged in lawful picketing. (j) This section shall not apply to conduct which occurs in furtherance of legitimate activities of law-enforcement, private investigators, security officers or private detectives as those activities are defined in Chapter 13 of Title 24. (68 Del. Laws, c. 250, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 316, § 1; 74 Del. Laws, c. 116, §§ 1, 2; 76 Del. Laws, c. 343, § 4.) § 1312A. Stalking; class F felony [Transferred]. Transferred to § 1312 of this title by 76 Del. Laws, c. 343, § 4, effective Oct. 14, 2008. § 1313. Malicious interference with emergency communications; class B misdemeanor. (a) As used in this section: (1) “Emergency communication” means any telephone call or any other form of communication made, transmitted or facilitated by radio, computer or any other electronic device which is intended by its maker to provide warning or information pertaining to any crime, fire, accident, disaster or risk of injury or damage to any person or property. (2) “Emergency communications center” means any public or private facility or entity which accepts emergency communications for the purpose of notifying, dispatching, directing or coordinating law enforcement, fire, medical, paramedic, ambulance, utility or other public safety personnel. Page 120 Title 11 - Crimes and Criminal Procedure (b) A person is guilty of malicious interference with emergency communications when the person: (1) Intentionally prevents or hinders the initiation, making or completion of an emergency communication by another person; or (2) Intentionally initiates or makes repeated nonemergency communications to any 911 or other emergency communications center, knowing it was thereby likely that the operations of such emergency communications center would be disrupted. (11 Del. C. 1953, § 1313; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 73 Del. Laws, c. 87, § 2.) § 1314. [Reserved.] § 1315. Public intoxication; unclassified misdemeanor; violation. A person is guilty of public intoxication when the person appears in a public place manifestly under the influence of alcohol or narcotics or any other drug not administered or prescribed to be taken by a physician, to the degree that the person may be in danger or endanger other persons or property, or annoy persons in the vicinity. Public intoxication is a violation, unless the accused has been convicted of public intoxication twice before within 1 year, in which case the offense is an unclassified misdemeanor. (11 Del. C. 1953, § 1315; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1316. Registration of out-of-state liquor agents; violation. (a) In order to promote and protect the public safety and the peace of the community, by reason of the presence of many persons engaged in the enforcement of the laws of other states, any agent, employee, or representative of another state shall register with the Delaware Alcoholic Beverage and Tobacco Enforcement not less than 30 days in advance of each entry into a county for the purpose of observing any alcoholic beverage sales. (b) At the time of registration the person shall provide the following information: (1) A written statement setting forth the identity of the out-of-state official; (2) The purpose of the intended entry into the county; (3) The make, model and license number of each and every vehicle to be used in the conduct of any surveillance activity; (4) The specific establishments at which surveillance will be conducted; and (5) The specific times for surveillance of each establishment. (c) Any person who registers shall be issued a certificate of registration which must be retained in the possession of the person during all investigative or surveillance activities. (d) Any person who fails to register as required by this section, or who having registered violates any provision of this section, shall lose the right to register or the person’s registration, as the case may be, for a period of 6 months. (e) Any person who, during the period imposed by subsection (d) of this section, violates this section is guilty of a violation. (f) Upon written request, the Delaware Alcoholic Beverage and Tobacco Enforcement shall release the information regarding agencies and officers who have registered under this section. (69 Del. Laws, c. 275, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 74.) §§ 1317-1319. [Reserved.] § 1320. Loitering on property of a state-supported school, college or university; violation. A person is guilty of loitering on property of a state-supported school, college or university when the person loiters or remains in or about the buildings or grounds of a school, college or university supported in whole or in part with state funds, not having any reason or relationship involving custody of or responsibility for a pupil or student, or any other specific, legitimate reason for being there, and not having written permission from anyone authorized to grant the same. Any law-enforcement officer, state official or employee, the owner or occupier of such lands or property, an agent or employee of such persons, or any other person or persons whom they may call to their assistance, may arrest such loiterer, either with or without warrant, either upon the premises or in immediate flight therefrom and, if with warrant, then at any place. Loitering on property of a state-supported school, college or university is a violation. (11 Del. C. 1953, § 1320; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1321. Loitering; violation. A person is guilty of loitering when: (1) The person fails or refuses to move on when lawfully ordered to do so by any police officer; or (2) The person stands, sits idling or loiters upon any pavement, sidewalk or crosswalk, or stands or sits in a group or congregates with others on any pavement, sidewalk, crosswalk or doorstep, in any street or way open to the public in this State so as to obstruct or hinder the free and convenient passage of persons walking, riding or driving over or along such pavement, walk, street or way, and fails to make way, remove or pass, after reasonable request from any person; or Page 121 Title 11 - Crimes and Criminal Procedure (3) The person loiters or remains in or about a school building or grounds, not having reason or relationship involving custody of or responsibility for a pupil or any other specific or legitimate reason for being there, unless the person has written permission from the principal; or (4) The person loiters, remains or wanders about in a public place for the purpose of begging; or (5) The person loiters or remains in a public place for the purpose of engaging or soliciting another person to engage in sexual intercourse or deviate sexual intercourse; or (6) The person loiters, congregates with others or prowls in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity, especially in light of the crime rate in the relevant area. Unless flight by the accused or other circumstances make it impracticable, a peace officer shall, prior to any arrest for an offense under this paragraph, afford the accused an opportunity to dispel any alarm which would otherwise be warranted, by requesting identification and an explanation of the person’s presence and conduct. No person shall be convicted of an offense under this paragraph if the peace officer did not comply with the preceding sentence, or if it appears that the explanation given by the accused was true and, if believed by the peace officer at the time, would have dispelled the alarm. Loitering is a violation. (11 Del. C. 1953, § 1321; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 113, § 1; 70 Del. Laws, c. 186, § 1.) § 1322. Criminal nuisance; unclassified misdemeanor. A person is guilty of criminal nuisance when: (1) By conduct either unlawful in itself or unreasonable under all the circumstances, the person knowingly or recklessly creates or maintains a condition which endangers the safety or health of others; or (2) The person knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct. Criminal nuisance is an unclassified misdemeanor. (11 Del. C. 1953, § 1322; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1323. Obstructing public passages; violation. A person is guilty of obstructing public passages when alone or with other persons and having no legal privilege to do so, the person intentionally or recklessly renders any public passage unreasonably inconvenient or hazardous to use, or the person wilfully enters upon or tampers with or obstructs any public utility right-of-way. Obstructing a public passage is a violation. (11 Del. C. 1953, § 1323; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1324. Obstructing ingress to or egress from public buildings; unclassified misdemeanor. A person is guilty of obstructing ingress to or egress from public buildings when the person knowingly prevents any person from passing through any entrance or exit to a public building, except that this section shall not apply to lawful picketing or to picketing for any lawful union objective. Obstructing ingress to or egress from public buildings is an unclassified misdemeanor. (11 Del. C. 1953, § 1324; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1325. Cruelty to animals; class A misdemeanor; class F felony. (a) For the purpose of this section, the following words and phrases shall include, but not be limited to, the meanings respectively ascribed to them as follows: (1) “Abandonment” includes completely forsaking or deserting an animal originally under one’s custody without making reasonable arrangements for custody of that animal to be assumed by another person. (2) “Animal” shall not include fish, crustacea or molluska. (3) “Cruel” includes every act or omission to act whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted. (4) “Cruel mistreatment” includes any treatment whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted. (5) “Cruel neglect” includes neglect of an animal, which is under the care and control of the neglector, whereby pain or suffering is caused to the animal or abandonment of any domesticated animal by its owner or custodian. By way of example, cruel neglect shall also include allowing an animal to live in unsanitary conditions, such as keeping an animal where the animal’s own excrement is not removed from the animal’s living area and/or other living conditions which are injurious to the animal’s health. Page 122 Title 11 - Crimes and Criminal Procedure (6) “Cruelty to animals” includes mistreatment of any animal or neglect of any animal under the care and control of the neglector, whereby unnecessary or unjustifiable physical pain or suffering is caused. By way of example, “cruelty to animals” includes the following: unjustifiable beating of an animal; overworking an animal; tormenting an animal; abandonment of an animal; tethering of any dog for 9 consecutive hours or more in any 24-hour period, except on any farm; tethering any dog for any amount of time if the dog is under 4 months of age or is a nursing mother while the offspring are present, except on any farm; and failure to feed properly or give proper shelter or veterinary care to an animal. (7) “Custody” includes the responsibility for the welfare of an animal subject to one’s care and control whether one owns it or not.A person who provides sterilization or care to a free-roaming cat that lacks discernible owner identification is not deemed to have “custody,” “care,” or “control” of the cat for purposes of this section. (8) “Farm” means any place that meets the 2017 USDA Federal Census of Agriculture definition of farm: “any place from which $1,000 or more of agricultural products were produced and sold, or normally would have been sold, during the census year”. (9) “Person” includes any individual, partnership, corporation or association living and/or doing business in the State. (10) “Proper feed” includes providing each animal with daily food and water of sufficient quality and quantity to prevent unnecessary or unjustifiable physical pain or suffering by the animal. (11) “Proper shelter” includes providing each animal with adequate shelter from the weather elements as required to prevent unnecessary or unjustifiable physical pain or suffering by the animal. (12) “Proper veterinary care” includes providing each animal with veterinary care sufficient to prevent unnecessary or unjustifiable physical pain or suffering by the animal. (13) “Serious injury” shall include any injury to any animal which creates a substantial risk of death, or which causes prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ. (14) “Tethering” shall include fastening or restraining with a rope, chain, cord, or similar device creating a fixed radius; tethering does not include walking a dog on a leash, regardless of the dog’s age. (b) A person is guilty of cruelty to animals when the person intentionally or recklessly: (1) Subjects any animal to cruel mistreatment; or (2) Subjects any animal in the person’s custody to cruel neglect; or (3) Kills or injures any animal belonging to another person without legal privilege or consent of the owner; or (4) Cruelly or unnecessarily kills or injures any animal. This section does not apply to the killing of any animal normally or commonly raised as food for human consumption, provided that such killing is not cruel. A person acts unnecessarily if the act is not required to terminate an animal’s suffering, to protect the life or property of the actor or another person or if other means of disposing of an animal exist which would not impair the health or well-being of that animal; or, (5) Captures, detains, transports, removes or delivers any animal known to be a pet or owned or unowned companion animal, or any other animal of scientific, environmental, economic or cultural value, under false pretenses to any public or private animal shelter, veterinary clinic or other facility, or otherwise causes the same through acts of deception or misrepresentation of the circumstances and disposition of any such animal. (6) Confines an animal unattended in a standing or parked motor vehicle in which the temperature is either so high or so low as to endanger the health or safety of the animal. A law-enforcement officer, animal welfare officer, or firefighter who has probable cause to believe that an animal is confined in a motor vehicle under conditions that are likely to cause suffering, injury, or death to the animal may use reasonable force to remove the animal left in the vehicle in violation of this provision. A person removing an animal under this section shall use reasonable means to contact the owner. If the person is unable to contact the owner, the person may take the animal to an animal shelter and must leave written notice bearing his or her name and office, and the address of the location where the animal can be claimed. This provision shall not apply to the legal transportation of horses, cattle, swine, sheep, poultry, or other agricultural animals in motor vehicles designed to transport such animals. The owner of the vehicle from which the animal is rescued and the owner of the animal rescued are not liable for injuries suffered by the person rescuing the animal. Paragraphs (b)(1), (2) and (4) of this section are inapplicable to accepted veterinary practices and activities carried on for scientific research. Cruelty to animals is a class A misdemeanor, unless the person intentionally kills or causes serious injury to any animal in violation of paragraph (b)(4) of this section or unless the animal is killed or seriously injured as a result of any action prohibited by paragraph (b) (5) of this section, in which case it is a class F felony. (c) Any person convicted of a misdemeanor violation of this section shall be prohibited from owning or possessing any animal for 5 years after said conviction, except for animals grown, raised or produced within the State for resale, or for sale of a product thereof, where the person has all necessary licenses for such sale or resale, and receives at least 25 percent of the person’s annual gross income from such sale or resale. Any person convicted of a second or subsequent misdemeanor violation of this section shall be prohibited from owning or possessing any animal for 5 years after said conviction without exception. A violation of this subsection is subject to a fine in the amount of $1,000 in any court of competent jurisdiction and to forfeiture of any animal illegally owned in accordance with the provisions of § 3035F of Title 16. Page 123 Title 11 - Crimes and Criminal Procedure (d) Any person convicted of a felony violation of this section shall be prohibited from owning or possessing any animal for 15 years after said conviction, except for animals grown, raised or produced within the State for resale, or for sale of a product thereof, where the person has all necessary licenses for such sale or resale, and receives at least 25 percent of the person’s annual gross income from such sale or resale. Any person convicted of a second or subsequent felony violation of this section shall be prohibited from owning or possessing any animal for 15 years after said conviction without exception. A violation of this subsection is subject to a fine in the amount of $5,000 in any court of competent jurisdiction and to forfeiture of any animal illegally owned in accordance with the provisions of § 3035F of Title 16. (e) Any trained and certified animal welfare officer of the Department of Health and Social Service’s Office of Animal Welfare or the Department of Agriculture may impound an animal owned or possessed in apparent violation of this section, consistent with § 3035F of Title 16. (f) This section shall not apply to the lawful hunting or trapping of animals as provided by law. (g) Notwithstanding any provision to the contrary, for a first offense misdemeanor violation of this section relating to animals left in motor vehicles or the tethering of dogs, a warning shall be issued. (h) Exclusive jurisdiction of offenses under this section relating to animals left in motor vehicles or the tethering of dogs shall be in the Superior Court. (11 Del. C. 1953, § 1325; 58 Del. Laws, c. 497, § 1; 62 Del. Laws, c. 71, §§ 1, 2; 63 Del. Laws, c. 260, § 1; 64 Del. Laws, c. 196, §§ 1-3; 67 Del. Laws, c. 130, § 8; 69 Del. Laws, c. 280, §§ 1, 2; 70 Del. Laws, c. 60, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 75, § 1; 73 Del. Laws, c. 182, §§ 1, 2; 73 Del. Laws, c. 238, §§ 1, 2; 78 Del. Laws, c. 390, §§ 1, 2; 79 Del. Laws, c. 375, § 4; 80 Del. Laws, c. 156, §§ 1, 2; 80 Del. Laws, c. 200, § 3; 80 Del. Laws, c. 248, § 2; 81 Del. Laws, c. 450, § 1; 82 Del. Laws, c. 238, § 3; 83 Del. Laws, c. 158, § 1.) § 1325A. The unlawful trade in dog or cat by-products; class B misdemeanor; class A misdemeanor, penalties. (a) (1) A person is guilty of the unlawful trade in dog or cat by-products in the second degree if the person knowingly or recklessly sells, barters or offers for sale or barter, the fur or hair of a domestic dog or cat or any product made in whole or in part from the fur or hair of a domestic dog or cat. (2) This subsection shall not apply to the sale or barter, or offering for sale or barter, of the fur or hair of a domestic dog or cat which has been cut at a commercial grooming establishment, or at a veterinary office or clinic, or for scientific research purposes. (3) The unlawful trade in dog or cat by-products in the second degree is a class B misdemeanor. (b) (1) A person is guilty of the unlawful trade in dog or cat by-products in the first degree if the person knowingly or recklessly sells, barters or offers for sale or barter, the flesh of a domestic dog or cat or any product made in whole or in part from the flesh of a domestic dog or cat. (2) The unlawful trade in dog or cat by-products in the first degree is a class A misdemeanor. (c) In addition to any other penalty provided by law, any person convicted of a violation of this section shall be: (1) Prohibited from owning or possessing any domestic dog or cat for 15 years after said conviction, except for those grown, raised or produced within the State for resale, where the person has all necessary licenses for such sale or resale, and receives at least 25 percent of the person’s annual gross income from such sale or resale; (2) Subject to a fine in the amount of $2,500 in any court of competent jurisdiction; and (3) Required to forfeit any domestic dog or cat illegally owned in accordance with the provisions of Chapter 79 of Title 3. (d) For the purposes of this section, the term “domestic dog or cat” means a dog (Canis familiaris) or cat (Felis catus or Felis domesticus) that is generally recognized in the United States as being a household pet and shall not include coyote, fox, lynx, bobcat or any other wild or commercially raised canine or feline species the fur or hair of which is recognized for use in warm clothing and outer wear by the United States Department of Agriculture and which species is not recognized as an endangered or threatened species by the United States Fish and Wild Life Service or the Delaware Department of Natural Resources and Environmental Control. (72 Del. Laws, c. 391, § 1.) § 1326. Animals; fighting and baiting prohibited; class E felony. (a) A person who owns, possesses, keeps, trains, or uses a bull, bear, dog, cock, or other animal or fowl for the purpose of fighting or baiting; or a person who is a party to or who causes the fighting or baiting of a bull, bear, dog, cock, or other animal or fowl; or a person who rents or otherwise obtains the use of a building, shed, room, yard, ground, or premises for the purpose of fighting or baiting an animal or fowl; or a person who knowingly suffers or permits the use of a building, shed, room, yard, ground, or premises belonging to the person, or that is under the person’s control, for any of the purposes described in this section, is guilty of a class E felony. (b) A person who is present at a building, shed, room, yard, ground, or premises where preparations are being made for an exhibition prohibited by subsection (a) of this section, and who knows that the exhibition is taking place or is about to take place, is guilty of a class F felony. (c) A person who gambles on the outcome of an exhibition prohibited by subsection (a) of this section is guilty of a class F felony. Page 124 Title 11 - Crimes and Criminal Procedure (d) All animals, equipment, devices, and money involved in a violation of this section must be forfeited to the State. Animals so forfeited must be evaluated by a duly incorporated society for the prevention of cruelty to animals, an authorized state agency, or a duly incorporated humane society in charge of animals for eligibility for adoption. After evaluation, animals may also be transferred to a rescue organization. Animals forfeited may be adopted to individuals other than the convicted person or person dwelling in the same household, who conspired, aided or abetted in the unlawful act which was the basis of the conviction, or who knew or should have known of the unlawful act, or humanely disposed of according to the provisions of subchapter I of Chapter 30F of Title 16. (e) Prosecution for any offense under this section may not be commenced after 5 years from the commission of the offense. (f) A person convicted of a violation of this section is prohibited from owning or possessing any animal or fowl for 15 years after conviction. (g) A fine issued as a result of a violation of this section may not be suspended. (h) In addition to the penalties provided under this section, the court may require a person convicted of violating this section to attend and participate in an appropriate treatment program or to obtain appropriate psychiatric or psychological counseling, or both. The court may impose the costs of any treatment program or counseling upon the person convicted. (66 Del. Laws, c. 369, § 2; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 350, §§ 34, 35; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 417, § 1; 73 Del. Laws, c. 238, §§ 3-5; 73 Del. Laws, c. 411, § 1; 76 Del. Laws, c. 259, §§ 1-3; 77 Del. Laws, c. 264, § 1; 79 Del. Laws, c. 374, § 3; 79 Del. Laws, c. 377, § 1.) § 1327. Maintaining a dangerous animal; class E felony; class F felony; class A misdemeanor. (a) A person is guilty of maintaining a dangerous animal when such person knowingly or recklessly owns, controls or has custody over any dangerous animal which causes death, serious physical injury or physical injury to another person or which causes death or serious injury to another animal. (b) For the purposes of this section, “dangerous animal” means any dog or other animal which: (1) Had been declared dangerous or potentially dangerous by the Justice of the Peace Court pursuant to subchapter V of Chapter 30F of Title 16; (2) Had been trained for animal fighting, or that has been used primarily or occasionally for animal fighting; (3) Had been intentionally trained so as to increase its viciousness, dangerousness or potential for unprovoked attacks upon human beings or other animals; or (4) Has an individualized and known propensity, tendency or disposition, specific to the individual dog, for viciousness, dangerousness or unprovoked attacks upon human beings or other animals. (c) No dog shall be considered dangerous or potentially dangerous solely because of the dog’s breed or perceived breed. (d) Maintaining a dangerous animal shall be punished as follows: (1) When a dangerous animal causes the death of a person, maintaining a dangerous animal is a class E felony; (2) When a dangerous animal causes serious physical injury to a person, maintaining a dangerous animal is a class F felony; (3) When a dangerous animal causes physical injury to a person or when a dangerous animal causes death or physical injury to another animal, maintaining a dangerous animal is a class A misdemeanor. (e) This section shall not apply to any dog or other animal trained or owned or used by any law-enforcement agency or any person, company, agency or entity licensed pursuant to Chapter 13 of Title 24. (f) In any prosecution under this section it shall be an affirmative defense that at the time of the attack during which physical injury, serious physical injury or death was inflicted upon a person: (1) The victim of the attack was in the course of committing criminal trespass or any violent felony as set forth in this title or was attempting to commit criminal trespass or said violent felony; (2) The victim had provoked the attack by committing cruelty to animals as defined in § 1325 of this title upon said dangerous animal or by inflicting physical injury upon said dangerous animal; or (3) The owner or custodian of the dangerous animal was in full compliance with the applicable provisions of subchapter III of Chapter 17 of Title 7, including the requirements pertaining to confinement, restraint and muzzling. (g) In any prosecution under this section it shall be an affirmative defense that at the time of the attack during which physical injury or death was inflicted upon an animal: (1) The animal which was injured or killed had entered onto the real property of the owner or custodian of the dangerous animal without permission; (2) The animal which was injured or killed had provoked the attack by menacing, biting or attacking the dangerous animal or its owner or custodian; or (3) The owner or custodian of the dangerous animal was in full compliance with the applicable provisions of subchapter V of Chapter 30F of Title 16, including the requirements pertaining to confinement, restraint and muzzling. (73 Del. Laws, c. 411, § 2; 81 Del. Laws, c. 31, § 1; 81 Del. Laws, c. 96, § 5.) Page 125 Title 11 - Crimes and Criminal Procedure §§ 1328, 1329. [Reserved.] § 1330. Smoking on trolleys and buses. (a) Whoever in any trackless trolley coach, or gasoline or diesel-engine-propelled bus being used as a public conveyance for carrying passengers within this State, smokes or carries a lighted cigarette, cigar or pipe shall be fined not less than $5.00 nor more than $25. (b) Justices of the peace shall have jurisdiction of offenses under this section. (60 Del. Laws, c. 66, § 1; 66 Del. Laws, c. 369, § 2; 73 Del. Laws, c. 411, § 2.) § 1331. Desecration; class A misdemeanor [Transferred]. Transferred to § 1305 of this title by 83 Del. Laws, c. 477, § 4, effective Oct. 21, 2022. § 1332. Abusing a corpse; class A misdemeanor. A person is guilty of abusing a corpse when, except as authorized by law, the person treats a corpse in a way that a reasonable person knows would outrage ordinary family sensibilities. Abusing a corpse is a class A misdemeanor. (11 Del. C. 1953, § 1332; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1333. Trading in human remains and Associated Funerary Objects. (a) As used in this section: (1) “Associated funerary objects” means an item of human manufacture or use that is intentionally placed with human remains at the time of interment in a burial site or later as a part of a death rite or ceremony of a culture, religion or group. “Associated funerary object” includes any gravestone, monument, tomb or other structure in or directly associated with a burial site. (b) A person is guilty of trading in human remains and associated funerary objects when the person knowingly sells, buys or transports for sale or profit, or offers to buy, sell or transport for sale or profit, within this State, any unlawfully removed human remains or any associated funerary objects. (c) The provisions of this section shall not apply to: (1) Any person acting in the course of medical, archaeological, educational or scientific study authorized by an accredited educational institution or governmental entity; or (2) A licensed mortician or other professional who transports human remains in the course of carrying out the individual’s professional duties and responsibilities. (d) Nothing in this section shall be construed to interfere with the normal operation and maintenance of a public or private cemetery including correction of improper burial siting, and, with the consent of any person who would qualify as an heir of the deceased, moving the remains within a public or private cemetery. Trading in human remains and associated funerary objects is a class B misdemeanor. (70 Del. Laws, c. 50, § 1.) § 1334. Unlawful use of an unmanned aircraft system; unclassified misdemeanor; class B misdemeanor; class A misdemeanor. (a) Definitions. — The following terms shall have the following meanings as used in this section. (1) “Critical infrastructure” means petroleum refineries, petroleum storage facilities, chemical storage facilities, chemical manufacturing facilities, fuel storage facilities, electric substations, power plants, electric generation facilities, military facilities, commercial port and harbor facilities, rail yard facilities, drinking water treatment or storage facilities, correctional facilities, government buildings, and public safety buildings or facilities. (2) “First responder” means federal, state, and local law-enforcement officers, fire, and emergency medical services personnel, hazardous materials response team members, 9-1-1 dispatchers, or any individual who is responsible for the protection and preservation of life and is directed to respond to an incident that could result in death or serious injury. (3) “Unmanned aircraft system” means a powered, aerial vehicle that: a. Does not carry a human operator; b. Uses aerodynamic forces to provide vehicle lift; c. Can fly autonomously or be piloted remotely; and d. Can be expendable or recoverable. (b) Prohibited acts. — Except as provided in this section, no person shall knowingly operate, direct, or program an unmanned aircraft system to fly: Page 126 Title 11 - Crimes and Criminal Procedure (1) Over any sporting event, concert, automobile race, festival, or other event at which more than 1500 people are in attendance; or (2) Over any critical infrastructure; or (3) Over any incident where first responders are actively engaged in response or air, water, vehicular, ground, or specialized transport; or (4) So as to subject another person, who is on private property, to harassment in violation of § 1311(a) of this title; or (5) So as to invade the privacy of another person, who is on private property, in violation of § 1335(a)(1), (2), (3), (4), or (6) of this title; or (6) So as to violate or fail to obey any provision of a protective order issued by any of the following: a. The Family Court. b. A court of any state, territory, or Indian nation in the United States, as long as such violation or failure to obey occurs in Delaware. c. A court of Canada, as long as such violation or failure to obey occurs in Delaware. (c) Exemptions. — The prohibitions set forth in subsection (b) of this section shall not apply to: (1) An unmanned aircraft system used for law enforcement purposes; or (2) An unmanned aircraft system flying over property where written permission has been granted by the property owner or occupier; or (3) An unmanned aircraft system operated by an institution of higher education for educational purposes in compliance with Federal Aviation Administration regulations; or (4) An unmanned aircraft system that is being used for a commercial or other purpose if the operator is authorized by the Federal Aviation Administration. (d) Penalties. — Except as set forth in § 1256 of this title, unlawful use of an unmanned aircraft system is an unclassified misdemeanor for a first offense and a class B misdemeanor for a second or subsequent offense, except that in any case where physical injury to a person or damage to property occurs as a result of a violation of this section unlawful use of an unmanned aircraft system is a class A misdemeanor. (e) Preemption. — Only the State may enact a law or take any other action to prohibit, restrict, or regulate the testing or operation of an unmanned aircraft systems in the State. This section preempts the authority of a county or municipality to prohibit, restrict, or regulate the testing or operating of unmanned aircraft systems and supersedes any existing law or ordinance of a county or municipality that prohibits, restricts, or regulates the testing or operating of unmanned aircraft systems. (81 Del. Laws, c. 264, § 1; 80 Del. Laws, c. 421, § 1; 82 Del. Laws, c. 190, § 2.) § 1335. Violation of privacy; class A misdemeanor; class G felony. (a) A person is guilty of violation of privacy when, except as authorized by law, the person: (1) Trespasses on property intending to subject anyone to eavesdropping or other surveillance in a private place; or (2) Installs in any private place, without consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place; or (3) Installs or uses outside a private place any device for hearing, recording, amplifying or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy there; or (4) Intercepts without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation; or (5) Divulges without the consent of the sender and the receiver the existence or contents of any message by telephone, telegraph, letter or other means of communicating privately if the accused knows that the message was unlawfully intercepted or if the accused learned of the message in the course of employment with an agency engaged in transmitting it. (6) Tape records, photographs, films, videotapes or otherwise reproduces the image of another person who is getting dressed or undressed or has that person’s genitals, buttocks or her breasts exposed, without consent, in any place where persons normally disrobe including but not limited to a fitting room, dressing room, locker room or bathroom, where there is a reasonable expectation of privacy. This paragraph shall not apply to any acts done by a parent or guardian inside of that person’s dwelling, or upon that person’s real property, when a subject of victim of such acts is intended to be any child of such parent or guardian who has not yet reached that child’s eighteenth birthday and whose primary residence is in or upon the dwelling or real property of the parent or guardian, unless the acts done by the parent or guardian are intended to produce sexual gratification for any person in which case this paragraph shall apply; or (7) Secretly or surreptitiously videotapes, films, photographs or otherwise records another person under or through that person’s clothing for the purpose of viewing the body of or the undergarments worn by that other person; or Page 127 Title 11 - Crimes and Criminal Procedure (8) Knowingly installs an electronic or mechanical location tracking device in or on a motor vehicle without the consent of the registered owner, lessor or lessee of said vehicle. This paragraph shall not apply to the lawful use of an electronic tracking device by a law-enforcement officer, nor shall it apply to a parent or legal guardian who installs such a device for the purpose of tracking the location of a minor child thereof; or (9) Knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a visual depiction of a person who is nude, or who is engaging in sexual conduct, when the person knows or should have known that the reproduction, distribution, exhibition, publication, transmission, or other dissemination was without the consent of the person depicted and that the visual depiction was created or provided to the person under circumstances in which the person depicted has a reasonable expectation of privacy. a. For the purposes of the introductory paragraph of this paragraph (a)(9), paragraphs (a)(9)b., and (a)(9)d. of this section: 1. “Nude” means any 1 or more of the following uncovered parts of the human body, or parts of the human body visible through less than opaque clothing: A. The genitals; B. The pubic area; C. The buttocks; D. Any portion of the female breast below the top of the areola. 2. “Personally identifiable information” means any information about a person that permits the physical or online identifying or contacting of a person. The term includes either a person’s face or a person’s first and last name or first initial and last name in combination with any 1 or more of the following: A. A home or other physical address, including street name and name of a city or town; B. An e-mail address; C. A telephone number; D. Geolocation data; E. Any other identifier that permits the physical or online identifying or contacting of a person. 3. “Sexual conduct” means actual or simulated: A. Sexual contact; B. Sexual intercourse; C. Sexual penetration; D. Masturbation; E. Bestiality; F. Sadism; G. Masochism; or H. Explicit representations of the defecation or urination functions. 4. “Sexual contact” means any touching by 1 person of the uncovered anus, breast, buttocks, or genitalia of another person or any touching of a person with the uncovered anus, breasts, buttocks or genitalia of another person. 5. “Sexual intercourse” means any act of physical union of the genitalia or anus of a person with the mouth, anus, or genitalia of another person. 6. “Sexual penetration” means the placement of an object inside the anus or vagina of a person or the placement of a sexual device inside the mouth of a person. 7. “Visual depiction” shall have the meaning as used in § 1100 of this title. b. A person who has, within the context of a private or confidential relationship, consented to the capture or possession of a visual depiction of the person when nude or when engaging in sexual conduct retains a reasonable expectation of privacy with regard to the reproduction, distribution, exhibition, publication, transmission, or other dissemination of the visual depiction beyond that relationship. c. For the purposes of this paragraph (a)(9), each of the following shall be an aggravating factor and shall be alleged in the charging information or indictment and constitute an element of the offense: 1. The actor knowingly obtains such visual depictions without the consent of the person depicted. A. A violation of this paragraph (a)(9)c.1. occurs when a person commits a theft as provided for in § 841, § 842, § 843, or § 844 of this title or obtains such visual depictions by committing unauthorized access to a computer system as provided for in § 932 of this title or by unauthorized access to electronic mail or an electronic mail service provider as defined in § 931 of this title. B. A violation of this paragraph (a)(9)c.1. consistent with § 932 of this title is subject to the venue provision in § 940 of this title. Page 128 Title 11 - Crimes and Criminal Procedure 2. The actor knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates such visual depictions for profit. 3. The actor knowingly maintains an Internet website, online service, online application, or mobile application for the purpose of reproducing, distributing, exhibiting, publishing, transmitting, or otherwise disseminating such visual depictions. 4. The actor knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates such visual depictions with the intent to harass, annoy, or alarm the person depicted and such conduct would cause a reasonable person to suffer significant mental anguish or distress. 5. The actor pairs such visual depiction with personally identifiable information of the person depicted. d. For purposes of this paragraph (a)(9), the fact the actor committed this offense within 5 years of a prior conviction for a violation of this paragraph (a)(9) shall be an aggravating factor for sentencing purposes only and, therefore, this fact is not to be alleged in the charging information or indictment and does not constitute an element of the offense. e. In addition to when the consent of the person depicted is given, the introductory paragraph of this paragraph (a)(9) and paragraph (a)(9)b. of this section do not apply to any of the following: 1. When the visual depiction is of an individual less than 18 years of age and does not violate § 1108, § 1109, or § 1111 of this title, or any similar provision of this title, and the reproduction, distribution, exhibition, publication, transmission, or other dissemination is not for commercial purposes. 2. When the visual depiction is reproduced, distributed, exhibited, published, transmitted, or otherwise disseminated in the course of lawful and common practices of a law-enforcement officer, the reporting of unlawful conduct, legal proceedings, or medical treatment procedures. 3. When the person depicted has consented to the reproduction, distribution, exhibition, transmission, or other dissemination of the visual depiction for commercial purposes. 4. When the person depicted has voluntarily appeared nude in public or voluntarily engages in sexual conduct in public. 5. When the reproduction, distribution, exhibition, publication, transmission, or other dissemination serves a legitimate public purpose. f. Nothing within this paragraph (a)(9) shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. § 230(f)(2), or an information service or telecommunications service, as defined in 47 U.S.C. § 153, for content provided by the actor or another person. (b) This section does not apply to: (1) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension or any other regularly installed instrument or equipment; or (2) Acts done by the telephone company or subscribers incident to the enforcement of telephone company regulations or subscriber rules relating to the use of facilities; or (3) Acts done by personnel of any telephone or telegraph carrier in the performance of their duties in connection with the construction, maintenance or operation of a telephone or telegraph system; or (4) The divulgence of the existence of any message in response to a subpoena issued by a court of competent jurisdiction or a governmental body having subpoena powers; or (5) Acts done by police officers as provided in §§ 1336 [repealed] and 1431 of this title. (c) Any violation of paragraph (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(8), or (a)(9) of this section shall be a class A misdemeanor. Any violation of paragraph (a)(6), (a)(7), (a)(9)c., or (a)(9)d. of this section shall be a class G felony. (11 Del. C. 1953, § 1335; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 180, §§ 1-3; 73 Del. Laws, c. 172, §§ 1, 2, 3; 75 Del. Laws, c. 341, §§ 1, 2; 79 Del. Laws, c. 415, § 1; 81 Del. Laws, c. 79, § 11.) § 1336. Wiretapping and electronic surveillance [Repealed]. Repealed by 72 Del. Laws, c. 232, effective July 23, 1999. § 1337. Definitions relating to riot, disorderly conduct and related offenses. (a) “Private place” means a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access. (b) “Public place” means a place to which the public or a substantial group of persons has access and includes highways, transportation facilities, schools, places of amusement, parks, playgrounds, prisons and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. (11 Del. C. 1953, § 1337; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 25.) § 1338. Bombs, incendiary devices, Molotov cocktails and explosive devices; class D felony. (a) For purposes of this section the following definitions shall be made applicable: Page 129 Title 11 - Crimes and Criminal Procedure (1) “Incendiary device” means any item designed to ignite by hand, chemical reaction or by spontaneous combustion and is not designed for any lawful purpose or use whatsoever, or any lawful purpose or use has been or is terminated. (2) “Molotov cocktail” means a makeshift incendiary bomb made of a breakable container filled with flammable liquid and provided with a wick composed of any substance capable of bringing flame into contact with the liquid. (b) Whoever manufactures, transfers, uses, possesses or transports any bomb, incendiary device, Molotov cocktail or device designed to explode or produce uncontained combustion with intent to cause bodily harm or damage to any property or thing shall be guilty of a class D felony. (c) Any other provision of this Criminal Code notwithstanding, any person over 16 years old who violates this section may be prosecuted as an adult pursuant to §§ 1010 and 1011 of Title 10. (d) In any prosecution under this section, it is prima facie evidence of intent to cause bodily harm or damage to any property or thing if the accused had possession of the device prescribed by this section. (11 Del. C. 1953, § 1338; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 81 Del. Laws, c. 199, § 2.) § 1339. Adulteration; class G felony; class E felony; class A felony. (a) A person is guilty of adulteration when: (1) The person adulterates any substance with the intent to cause death, physical injury or illness of a person; (2) The person distributes, disseminates, gives, sells or otherwise transfers an adulterated substance with the intent to cause death, physical injury or illness of a person knowing or having reason to know that the substance has been adulterated as defined in subsection (b) of this section. (b) “Adulteration” means the intentional adding of any substance, which has the capacity either acting alone or in conjunction with the other substance to cause death, physical injury or illness by ingestion, injection, inhalation or absorption, to another substance having a customary or reasonably foreseeable human use. (c) Adulteration is a class G felony unless the adulteration actually causes physical injury or illness in which case it is a class E felony, or causes death in which case it is a class A felony. (d) This offense is a separate and distinct offense and shall not limit or restrict prosecution for murder or any other criminal offense. (64 Del. Laws, c. 191, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1340. Desecration of burial place [Transferred]. Transferred to § 1305 of this title by 83 Del. Laws, c. 477, § 5, effective Oct. 21, 2022. B Offenses Involving Public Indecency § 1341. Lewdness; class B misdemeanor. A person is guilty of lewdness when the person does any lewd act in any public place or any lewd act which the person knows is likely to be observed by others who would be affronted or alarmed. Lewdness is a class B misdemeanor. (11 Del. C. 1953, § 1341; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1342. Prostitution; class B misdemeanor. (a) (1) A person, 18 years or older, is guilty of prostitution when the person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. (2) Prostitution is a class B misdemeanor. (b) (1) Any person, 18 years or older, found guilty of an act of prostitution when such crime has occurred on or within 1,000 feet of the property of any school, residence, church, synagogue or other place of worship shall be guilty of a class A misdemeanor. The minimum mandatory fine shall be $500. This fine shall not be suspended. (2) It shall not be a defense to prosecution for a violation of this section that the person was unaware that the prohibited conduct took place on or within 1,000 feet of any school property, residence, church, synagogue or other place of worship. (c) A minor who, if 18 years or older, could be charged with prostitution as defined in subsection (a) of this section, is presumed to be a neglected or abused child under § 901 of Title 10. Whenever a police officer has probable cause to believe that a minor has engaged in prostitution, the police officer shall make an immediate report to the Department of Services for Children, Youth and Their Families pursuant to § 903 of Title 16. (11 Del. C. 1953, § 1342; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 319, § 1; 82 Del. Laws, c. 59, § 1.) § 1343. Patronizing a prostitute prohibited. (a) A person is guilty of patronizing a prostitute when: Page 130 Title 11 - Crimes and Criminal Procedure (1) Pursuant to a prior agreement or understanding, the person pays a fee to another person as compensation for that person’s having engaged in sexual conduct with the person; or (2) The person pays or agrees to pay a fee to another person pursuant to an agreement or understanding that in return therefor that person or a third person will engage in sexual conduct with the person; or (3) The person solicits or requests another person to engage in sexual conduct with the person in return for a fee. (b) Patronizing a prostitute is a misdemeanor. The minimum mandatory fine shall be $500. This fine shall not be suspended. (c) Whenever any vehicle, as defined in § 2321 of this title, has been used in, or in connection with, the offense of patronizing a prostitute, it shall forthwith be seized and taken into custody by the peace officer or officers having knowledge of the facts of such use. (d) Vehicle seizure shall apply in the case of a defendant who has a previous conviction for the same offense in the previous 5 years. For the purpose of this section, “prior offense” shall be defined as a conviction of § 1343 of this title. (e) (1) Any person found guilty of patronizing a prostitute and such crime has occurred on or within 1,000 feet of the property of any school, residence, church, synagogue or other place of worship shall be guilty of a class A misdemeanor. The minimum mandatory fine shall be $1,000. This fine shall not be suspended. (2) It shall not be a defense to prosecution for a violation of this section that the person was unaware that the prohibited conduct took place on or within 1,000 feet of any school property, residence, church, synagogue or other place of worship. (11 Del. C. 1953, § 1343; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 69 Del. Laws, c. 23, §§ 1, 2, 5, 6; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 319, § 2.) § 1344. Prostitution and patronizing a prostitute; no defense. In any prosecution for prostitution it is no defense that the persons were of the same sex, or that the person who received, agreed to receive or solicited a fee was a male and the person who paid, agreed or offered to pay the fee was a female. (11 Del. C. 1953, § 1344; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1345. Screening for sexually transmissible diseases. (a) Any person convicted under § 1342 or § 1343 of this title shall be ordered to undergo testing for sexually transmitted diseases, abbreviated “STD,” as designated by the Department of Health and Social Services in its rules and regulations. (b) The result of any STD test conducted pursuant to this subsection shall not be a public record for purposes of Chapter 100 of Title 29. (c) The result of any STD testing conducted pursuant to this section shall only be released by the Division of Public Health to the defendant, the defendant’s spouse and the court issuing the order for testing except as otherwise permitted under § 711 of Title 16. (d) The cost of testing under this section shall be paid by the defendant tested unless the court has determined that the defendant is an indigent person. (e) Filing of a notice of appeal shall not automatically stay an order that the defendant submit to STD testing. (75 Del. Laws, c. 319, § 4.) §§ 1346-1350. [Reserved.] § 1351. Promoting prostitution in the third degree; class F felony. A person is guilty of promoting prostitution in the third degree when the person knowingly advances or profits from prostitution. Promoting prostitution in the third degree is a class F felony. (11 Del. C. 1953, § 1351; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 33, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1352. Promoting prostitution in the second degree; class E felony. A person is guilty of promoting prostitution in the second degree when the person knowingly: (1) Advances or profits from prostitution by managing, supervising, controlling or owning, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by 2 or more prostitutes; or (2) Advances or profits from prostitution of a person less than 18 years old. Promoting prostitution in the second degree is a class E felony. (11 Del. C. 1953, § 1352; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 33, § 2; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1353. Promoting prostitution in the first degree; class C felony. A person is guilty of promoting prostitution in the first degree when the person knowingly: (1) Advances prostitution by compelling a person by force or intimidation to engage in prostitution or profits from such coercive conduct by another; or Page 131 Title 11 - Crimes and Criminal Procedure (2) Advances or profits from prostitution of a person less than 16 years old. Promoting prostitution in the first degree is a class C felony. (11 Del. C. 1953, § 1353; 58 Del. Laws, c. 497, § 1; 61 Del. Laws, c. 33, § 3; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1354. Promoting prostitution; attempt to promote prostitution; corroboration. A person shall not be convicted of promoting prostitution or of an attempt to promote prostitution solely on the uncorroborated testimony of a person whose prostitution activity the person is alleged to have advanced or attempted to advance or from whose prostitution activity the person is alleged to have profited or attempted to profit. (11 Del. C. 1953, § 1354; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1355. Permitting prostitution; class B misdemeanor. A person is guilty of permitting prostitution when, having possession or control of premises which the person knows are being used for prostitution purposes, the person fails to halt or abate such use within a reasonable period of time. Permitting prostitution is a class B misdemeanor. (11 Del. C. 1953, § 1355; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1356. Definitions relating to prostitution. As used in §§ 1342-1355 of this title: (1) “Advance prostitution.” — A person advances prostitution when, acting other than as a prostitute or as a patron thereof, the person knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise or engages in any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution. (2) “Profit from prostitution.” — A person profits from prostitution when, acting other than as a prostitute receiving compensation for personally rendered prostitution services, the person accepts or receives money or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity. (3) “School” means any preschool, kindergarten, elementary school, secondary school, vocational technical school or any other institution which has as its primary purpose the education or instruction of children under 18 years of age. (4) “Sexual conduct” means any act designed to produce sexual gratification to either party. It is not limited to intercourse or deviate sexual intercourse. (11 Del. C. 1953, § 1356; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 319, § 3.) §§ 1357-1360. [Reserved.] C Obscenity § 1361. Obscenity; acts constituting; class E felony or class G felony; subsequent violations. (a) A person is guilty of obscenity when the person knowingly: (1) Sells, delivers or provides any obscene picture, videotape, video game, writing, record, audio cassette tape, compact disc or other representation or embodiment of the obscene; (2) Presents or directs an obscene play, dance or performance or participates in that portion thereof which makes it obscene; (3) Publishes, exhibits or otherwise makes available any obscene material; (4) Possesses any obscene material for purposes of sale or other commercial dissemination; or (5) Permits a person under the age of 12 to be on the premises where material harmful to minors, as defined by § 1365 of this title, is either sold or made available for commercial distribution and which material is readily accessible to or easily viewed by such minors. Any material covered by this paragraph shall not be considered readily accessible to or easily viewed by minors if it has been placed or otherwise located 5 feet or more above the floor of the subject premises or if the material is concealed so that no more than the top 3 inches is visible to the passerby. (b) Obscenity is a class E felony if a person sells, delivers or provides any obscene picture, videotape, video game, writing, record, audio cassette tape, compact disc or other representation or embodiment of the obscene to a person under the age of 18. In all other cases, obscenity is a class G felony. In addition to the above penalties, upon conviction of obscenity involving live conduct as defined in § 1364 of this title, the court shall order the business or establishment which presented, displayed or exhibited such conduct closed for a period of 6 months. (c) Notwithstanding Chapter 42 of this title, the minimum sentence for a subsequent violation of this section occurring within 5 years of a former conviction shall be a fine in the amount of $5,000, imprisonment for a minimum period of 9 months, no portion which may be suspended or reduced, and probation for a period of 2 years; provided, however, that where the defendant is an organization, the fine Page 132 Title 11 - Crimes and Criminal Procedure shall be $10,000. In addition to the above penalties, upon conviction of obscenity involving conduct as defined in § 1364 of this title, the court shall order the business or establishment which presented, displayed or exhibited such conduct closed for a period of 2 years. (d) Where the criminality of conduct depends on a child being under the age of 12, paragraph (a)(5) of this section, or under the age of 18, subsection (b) of this section, it is no defense that the actor did not know the child’s age. (11 Del. C. 1953, § 1361; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 445, § 1; 61 Del. Laws, c. 121, § 1; 63 Del. Laws, c. 111, §§ 1-3; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 350, §§ 11, 12; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 71, § 2; 74 Del. Laws, c. 380, §§ 1, 2.) § 1362. Obscenity; defenses. In any prosecution for obscenity it is an affirmative defense that dissemination was restricted to: (1) Institutions or persons having scientific, educational, governmental or other similar justification for possessing obscene material; or (2) Noncommercial dissemination to personal associates of the accused who are known by the accused not to object to the receipt of such material. (11 Del. C. 1953, § 1362; 58 Del. Laws, c. 497, § 1.) § 1363. Obscenity; presumption. A person who disseminates or possesses obscene material in the course of business is presumed to do so knowingly or recklessly. (11 Del. C. 1953, § 1363; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1364. Definition of obscene. Material or live conduct is obscene if: (1) The average person applying contemporary community standards would find the material or conduct, taken as a whole, appeals to the prurient interests; and (2) The material depicts or describes or the live conduct portrays: a. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; or b. Patently offensive representations or descriptions of masturbation, excretory functions, and/or lewd exhibitions of the genitals; and (3) The work or conduct taken as a whole lacks serious literary, artistic, political or scientific value. (11 Del. C. 1953, § 1364; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 236, § 1; 63 Del. Laws, c. 111, § 4.) § 1365. Obscene literature harmful to minors; class A misdemeanor. (a) Definitions as used in this section: (1) “Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse which predominately appeals to the prurient, shameful or morbid interest of minors and is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors. (2) “Known minor” is any person known, in fact, to be under the age of 18 years, or any person, in fact, under the age of 18 years unless a reasonable, bona fide attempt has been made to ascertain the age of that minor. (3) “Knows” means: a. Knowledge that the character and content of any material described in paragraph (i)(1) of this section is harmful to minors; or b. Knowledge of facts that would lead a reasonable person to inquire whether the character and content of any material described in paragraph (i)(1) of this section is harmful to minors; or c. Knowledge or information that the material described herein has been adjudged to be harmful to minors in a proceeding instituted pursuant to subsection (b) or (i) of this section or is the subject of a pending proceeding instituted pursuant to subsection (b) or (i) of this section. (4) “Minor” means any person under the age of 17 years. (5) “Nudity” means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state. (6) “Sado-masochistic abuse” means flagellation or torture practiced by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. (7) “Sexual conduct” means acts of masturbation, homosexuality, sexual intercourse or physical contact with a person’s unclothed genitals or pubic area or a female person’s breast. (8) “Sexual excitement” means the condition of human male or female genitals in a state of sexual stimulation or arousal. Page 133 Title 11 - Crimes and Criminal Procedure (b) Whenever the Attorney General of this State has reasonable cause to believe that any person is or may become engaged in any of the acts described in paragraph (i)(1), (i)(2) or (i)(4) of this section, the Attorney General shall institute an action in the Court of Chancery for the county where such act is or will be performed for adjudication of the question of whether such material is harmful to minors. (c) The action authorized by subsection (b) of this section shall be commenced by the filing of a complaint to which shall be attached as an exhibit a true copy of the allegedly harmful material. The complaint shall: (1) Be directed against such material by name or description; (2) Allege that such material is harmful to minors; (3) Designate as respondents and list the names and addresses, if known, of any person in this State engaged or about to be engaged in any of the acts described in paragraph (i)(1), (i)(2) or (i)(4) of this section with respect to such material; (4) Seek an adjudication that such material is harmful to minors; and (5) Seek a permanent injunction against any respondent prohibiting the respondent from performing any of the acts described in paragraph (i)(1), (i)(2) or (i)(4) of this section. (d) Upon the filing of the complaint described in subsection (c) of this section, the Attorney General shall present the same, together with the material attached thereto, as soon as practicable to the Court for its examination and reading. If after such examination and reading the Court finds no probable cause to believe such material to be harmful to minors, the Court shall cause an endorsement to that effect to be placed and dated upon the complaint and shall thereupon dismiss the action. If after such examination and reading the Court finds probable cause to believe such material to be harmful to minors, the Court shall cause an endorsement to that effect to be placed and dated upon the complaint whereupon it shall be the responsibility of the Attorney General promptly to request the Register in Chancery to issue summons and to furnish to the Register in Chancery such number of copies of such complaint and endorsement as are needed for the service of summons. Service of such summons and endorsed complaint shall be made upon the respondents thereto in any manner provided by law. (e) The author, publisher or any person interested in sending or causing to be sent, bringing or causing to be brought, into this State for sale or commercial distribution, or any person in this State preparing, selling, exhibiting or commercially distributing or possessing with intent to sell or commercially distribute or exhibit, the material exhibited to the endorsed complaint, may appear and may intervene in accordance with the Rules of the Court of Chancery. If no person appears and files an answer, or moves to intervene within the time set by the rule or by an order of the Court of Chancery, the Court may forthwith adjudge whether the material so exhibited to the endorsed complaint is harmful to minors and enter an appropriate final judgment. (f) (1) The public policy of this State requires that all proceedings prescribed in this section, other than criminal actions under subsection (i) of this section, be heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of the press and freedom of speech. (2) The Rules of the Court of Chancery shall be applicable, except as they may be modified by this section. (3) Any party or intervenor shall be entitled, upon request, to a trial of any issue with an advisory jury and the Court, with the consent of all parties, may order a trial of any issue with a jury whose verdict shall have the same effect as in cases of law. (4) In any action in which an injunction is sought under this section, any respondent or intervenor shall be entitled to a trial of the issues within 1 day, exclusive of Saturday, Sunday and holidays, after joinder of issue, and a decision shall be rendered by the Court or jury, as the case may be, within 2 days, exclusive of Saturday, Sunday and holidays, of the conclusion of the trial. If the issues are being tried before a jury and the jury shall not be able to render a decision within 2 days of the conclusion of the trial, then notwithstanding any other provision of this section, the jury shall be dismissed and a decision shall be rendered by the Court within 2 days of the conclusion of the trial. (5) In the event that the Court or jury, as the case may be, finds the material exhibited to the complaint not to be harmful to minors, the Court shall enter judgment accordingly and shall dismiss the complaint. (6) In the event that the Court or jury, as the case may be, finds the material exhibited to the complaint to be harmful to minors, the Court shall enter judgment to such effect and may, in such judgment or in subsequent orders of enforcement thereof, enter a permanent injunction against any respondent prohibiting the respondent from engaging in any of the acts described in paragraph (i)(1), (i)(2) or (i)(4) of this section. (g) If the Court, pursuant to subsection (d) of this section, finds probable cause to believe the exhibited material to be harmful to minors, and so endorses the complaint, the Court may, upon the motion of the Attorney General and in accordance with the Chancery Court Rules, issue a temporary restraining order against any respondent prohibiting the respondent from selling, commercially distributing or giving away such material to minors or from permitting minors to inspect such material. No temporary restraining order shall be granted without notice to the respondents unless it clearly appears from specific facts shown by affidavit or by the verified complaint that 1 or more of the respondents are engaged in the sale of material harmful to minors and that immediate and irreparable injury to the morals and general welfare of minors in this State will result before notice can be served and a hearing had thereon. All proceedings for temporary restraining order and preliminary injunction shall be governed by the Rules of the Court of Chancery. (h) Any respondent, or any officer, agent, servant, employee or attorney of such respondent, or any person in active concert or participation by contract or arrangement with such respondent, who receives actual notice, by personal service or otherwise, of any Page 134 Title 11 - Crimes and Criminal Procedure injunction or restraining order entered pursuant to subsection (f) or (g) of this section, and who shall disobey any of the provisions thereof, shall be guilty of contempt of court and upon conviction shall be guilty of a class A misdemeanor. (i) Any person is guilty of a class A misdemeanor who: (1) Exhibits for sale, sells, displays, transfers, gives gratis, loans, rents or advertises to a known minor any book, pamphlet, magazine or printed matter, however reproduced, or sound recording or picture, photograph, drawing, sculpture, motion picture film or similar visual representation that such person knows to be in whole or in part harmful to minors. (2) Sells, gives gratis or transfers an admission ticket or pass to a known minor or admits a known minor to a premises whereon there is exhibited a motion picture, show or other presentation which, in whole or in part, such person knows to be harmful to minors. (3) Misrepresents the person’s age as 17 years or older for the purpose of evading the restrictions of this section. (4) Exhibits for sale, sells, displays, gives gratis, transfers, loans or rents any matter enumerated in paragraph (i)(1) of this section that such person knows to be harmful to minors which does not prominently include in such advertisement the words “unlawful to persons under 17 years of age.” (j) No criminal proceeding shall be commenced against any person pursuant to paragraph (i)(1), (i)(2) or (i)(4) of this section unless, prior to the act which is the subject of such proceeding, such person: (1) Had written notice from the Attorney General that the material which is the subject of such proceeding has been adjudged harmful to minors pursuant to subsection (b) or (i) of this section; or (2) Has been subject to an order entered pursuant to subsection (b) of this section relating to the material which is the subject of such criminal proceeding, or any other material harmful to minors. (k) No person shall be subject to prosecution pursuant to this section: (1) For any sale to a minor where such person had reasonable cause to believe that the minor involved was 17 years old or more, and such minor exhibited to such person a draft card, driver’s license, birth certificate or other official or apparently official document purporting to establish that such minor was 17 years old or more; or (2) For any sale where a minor is accompanied by a parent or guardian, or accompanied by an adult and such person has no reason to suspect that the adult accompanying the minor is not the minor’s parent or guardian; or (3) Where such person is a bona fide school, museum or public library or is acting in an official capacity as an employee of such organization or as a retail outlet affiliated with and serving the educational purposes of such organization. (l) In order to provide for the uniform application of this section to all minors within this State, it is intended that the sole and only regulation of the matters herein discussed shall be under this section and no municipality, county or other governmental unit within this State shall make any law, ordinance or regulation relating to the subject matter hereof as to minors. All such laws, ordinances and regulations, as they affect minors, whether enacted before or after this section shall become void, unenforceable and of no effect upon April 1, 1973; provided, however, that such prior laws, ordinances and regulations shall govern litigations commenced prior to April 1, 1973, and shall continue in effect solely for that purpose. (m) This section may be known and cited as Delaware Law on the Protection of Minors From Harmful Materials, and may be referred to by that designation. (11 Del. C. 1953, § 1365; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 236, § 2; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1366. Outdoor motion picture theaters. (a) Whoever being the owner or operator of an outdoor motion picture theater exhibits or permits to be exhibited any film not suitable for minors or harmful to minors and which film can be viewed by such minors not in attendance at the said outdoor motion picture theater shall be guilty of a class A misdemeanor. (b) Definitions as used in this section: (1) “Code and Rating Administration of the Motion Picture Association of America” ratings are: “G” — All ages admitted. General audiences; “PG” — All ages admitted. Parental guidance suggested; “R” — Restricted. Under 17 requires accompanying parent or adult guardian; “X” — No one under 17 admitted. (2) “Film” means any motion picture film or series of films, whether full length or short subject, but does not include newsreels portraying actual current events or pictorial news of the day. (3) “Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse which predominately appeals to the prurient, shameful or morbid interest of minors and is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and taken as a whole the work lacks serious literary, artistical, political or scientific value for minors. (4) “Minor” means any person under the age of 17 years. Page 135 Title 11 - Crimes and Criminal Procedure (5) “Not suitable for minors” means any film, reel or view which has a rating of “R” or “X” according to the Code and Rating Administration of the Motion Picture Association of America. (6) “Nudity” means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state. (7) “Sado-masochistic abuse” means flagellation or torture practiced by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. (8) “Sexual conduct” means acts of masturbation, homosexuality, sexual intercourse or physical contact with a person’s unclothed genitals or pubic area or a female person’s breast. (9) “Sexual excitement” means the condition of human male or female genitals in a state of sexual stimulation or arousal. (10) “Suitable for minors” means any film, reel or view which has a rating of “G” or “PG” according to the Code and Rating Administration of the Motion Picture Association of America. (59 Del. Laws, c. 258, § 1; 70 Del. Laws, c. 186, § 1.) § 1367. Unauthorized promotion of boxing, mixed martial arts or of a combative sports or combative sports entertainment or combative fighting match, contest, or event; class A misdemeanor. (a) A person is guilty of the unauthorized promotion of boxing, mixed martial arts or of a combative sports or combative sports entertainment or combative fighting match, contest, or event if the person promotes, arranges, advertises, or conducts a combative sports entertainment or combative fighting match, contest, or event in violation of Chapter 1 of Title 28. (b) A charge of the unauthorized promotion of boxing, mixed martial arts or of a combative sports or combative sports entertainment or combative fighting match, contest, or event shall not exclude prosecution for other offenses or violations of this Code. (c) The unauthorized promotion of boxing, mixed martial arts or of a combative sports or combative sports entertainment or combative fighting match, contest, or event is a class A misdemeanor. (76 Del. Laws, c. 413, § 1; 81 Del. Laws, c. 79, § 12.) § 1368. Unauthorized participation in a boxing, mixed martial arts or in a combative sports or combative sports entertainment or combative fighting match, contest, or event; class A misdemeanor. (a) A person is guilty of the unauthorized participation in a boxing, mixed martial arts or in a combative sports or combative sports entertainment or combative fighting match, contest, or event if the person participates as a competitor in a boxing, mixed martial arts or in a combative sports entertainment or combative fighting match, contest, or event in violation of Chapter 1 of Title 28. (b) A charge of the unauthorized participation in a boxing, mixed martial arts or in a combative sports or combative sports entertainment or combative fighting match, contest, or event shall not exclude prosecution for other offenses or violations this Code. (c) The unauthorized participation in a boxing, mixed martial arts or in a combative sports or combative sports entertainment or combative fighting match, contest, or event is a class A misdemeanor. (76 Del. Laws, c. 413, § 1; 81 Del. Laws, c. 79, § 13.) §§ 1369-1400. [Reserved.] D Offenses Involving Gambling § 1401. Advancing gambling in the second degree; class A misdemeanor. A person is guilty of advancing gambling in the second degree when: (1) The person sells or disposes of, or has in the person’s possession with intent to sell or dispose of, a lottery policy, certificate or any other thing by which the person or another person or persons promises or promise, guarantees or guarantee that any particular number, series of numbers, character, ticket or certificate shall, in the event or on the happening of any contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property or evidence of debt; or (2) The person uses or employs any other device by which such person, or any other person, promises or guarantees as provided in paragraph (1) of this section; or (3) The person is concerned in interest in lottery policy writing, or in selling or disposing of any lottery policy, certificate, number or numbers or any other thing by which the person or another person or persons promises or promise, guarantees or guarantee that any particular number or numbers, character, ticket or certificate shall, in the event or on the happening of any contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property or evidence of debt; or (4) The person uses or employs any other device by which such person or any other person promises or guarantees as provided in paragraph (3) of this section. Advancing gambling in the second degree is a class A misdemeanor. (11 Del. C. 1953, § 1401; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) Page 136 Title 11 - Crimes and Criminal Procedure § 1402. Foreign lotteries; prima facie evidence; class A misdemeanor. (a) A person is guilty of engaging in a foreign lottery when the person brings, sends or procures to be brought or sent into this State any scheme of any lottery or any drawing of any such scheme or any ticket or part of a ticket or certificate of or a substitute for any ticket or part of a ticket, and sells or offers for sale any such ticket or part of ticket or any certificate or substitute for a certificate, and circulates in any manner any scheme or any drawing. (b) On the trial of any person under subsection (a) of this section any lottery scheme drawing, ticket, certificate of or a substitute for a ticket or parts of tickets, which shall be proved to have been by the accused brought or procured to be brought, or sent or procured to be sent into this State or printed or procured to be printed within this State, for the purpose of circulating the same by mail or otherwise, shall be prima facie evidence within the description of this section. (c) Engaging in foreign lotteries is a class A misdemeanor. (11 Del. C. 1953, § 1402; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1403. Advancing gambling in the first degree; class A misdemeanor. A person is guilty of advancing gambling in the first degree when: (1) The person keeps, exhibits or uses, or is concerned in interest in keeping, exhibiting or using any book, device, apparatus or paraphernalia for the purpose of receiving, recording or registering bets or wagers upon the result of any trial or contest, wherever conducted, of skill, speed or power of endurance of human or beast; or (2) Being the owner, lessee or occupant of a room, house, building, enclosure or place of any kind, the person keeps, exhibits, uses or employs therein or permits or allows to be kept, exhibited, used or employed therein, or is concerned in interest in keeping, exhibiting, using or employing therein any book, device, apparatus or paraphernalia for the purpose of receiving, recording or registering bets or wagers as provided in paragraph (1) of this section, or of forwarding in any manner money, thing or consideration of value for the purpose of being bet or wagered as provided in paragraph (1) of this section; or (3) The person records or registers bets or wagers, or receives, contracts or agrees to receive money or anything of value for the purpose or with the intent to bet or wager personally or for another person as provided in paragraph (1) of this section; or (4) The person directly or indirectly bets or wagers, or promises to bet or wager, money or anything of value as provided in paragraph (1) of this section. This section does not apply to a bet or wager made on a horse race within the enclosure of any race meeting licensed and conducted under the laws of this State, and made by or through the means of a pari-mutuel or totalizator pool, the conduct of which is licensed by the Delaware Racing Commission or other state licensing agency. Such exception need not be negatived in any indictment or information. Advancing gambling in the first degree is a class A misdemeanor. (11 Del. C. 1953, § 1403; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1404. Providing premises for gambling; class A misdemeanor; unclassified misdemeanor. A person is guilty of providing premises for gambling when: (1) The person lets, demises or transfers to another person any building, structure, room or rooms knowing that the same will be used for the purpose of committing any gambling offense; or (2) The person knowingly permits any house, structure, building, room or rooms of which the person has possession or control to be used for the purpose of committing any gambling offense; or (3) The person contributes to the support and maintenance of any house or place where gambling is carried on or conducted; or (4) The person keeps or maintains any house or place where gambling is carried on. Providing premises for gambling or contributing thereto is an unclassified misdemeanor, unless the accused has been convicted, within the previous 5 years, of the same offense or of an offense under § 663 or § 665 of this title as the same existed prior to July 1, 1973, in which case it is a class A misdemeanor. (11 Del. C. 1953, § 1404; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1405. Possessing a gambling device; class A misdemeanor. (a) A person is guilty of possessing a gambling device when the person knowingly manufactures, sells, transports, keeps, exhibits, manages, places, possesses or conducts or negotiates any transaction affecting or designed to effect ownership, custody or use of a slot machine or any other gambling device. (b) Possessing a gambling device is a class A misdemeanor. (c) A person is not guilty of a violation of this section if the device or machine is either: (1) An antique slot machine which is not used for gambling purposes; or (2) Any slot machine or gambling device which is manufactured (including, without limitation, the retrofitting or alteration of a finished machine or device), assembled, transported, kept, exhibited, managed, placed or possessed by a person within this State or which is the subject of any negotiation which involves a transaction affecting or designed to affect the ownership, custody or use of such machine or device by such person in this State where: Page 137 Title 11 - Crimes and Criminal Procedure a. Such person is duly licensed to conduct a manufacturing or other business in this State; and b. Such person is registered in accordance with the federal Gambling Devices Act of 1962 as amended (15 U.S.C. § 1171 et seq.) and is in the business of designing, assembling, manufacturing, selling, supplying, repairing or retrofitting slot machines, gambling devices or component parts thereof exclusively for lawful possession and use. (d) For purposes of this section, a slot machine is an antique machine if such machine is at least 25 years old. (e) For purposes of this section, a “video lottery machine,” as defined in § 4803 of Title 29, which is owned or leased by the State for use in the Delaware video lottery shall not constitute either a slot machine or a gaming device. (11 Del. C. 1953, § 1405; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 252, § 1; 69 Del. Laws, c. 375, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 421, §§ 1, 2; 77 Del. Laws, c. 219, § 4; 78 Del. Laws, c. 245, § 1.) § 1406. Being concerned in interest in keeping any gambling device; class A misdemeanor. (a) A person is guilty of being concerned in interest in keeping any gambling device when: (1) The person keeps or exhibits a gaming table, faro bank, sweat cloth, roulette table or other device under any denomination at which cards, dice or any other game of chance is played for money, or other thing of value or other gambling device of any kind whatsoever; or (2) The person, with the intent that it shall be kept or exhibited for use by the public, buys, sells or distributes a gaming table, faro bank, sweat cloth or other gambling device; or (3) The person is a partner or concerned in interest in the keeping or exhibiting of a gaming table, faro bank, sweat cloth or other gambling device. (b) Being concerned in interest in keeping any gambling device is a class A misdemeanor. (c) An antique slot machine, as defined in § 1405 of this title, is not a gambling device for purposes of this section. (11 Del. C. 1953, § 1406; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 252, § 2; 70 Del. Laws, c. 186, § 1.) § 1407. Engaging in a crap game; violation. A person is guilty of engaging in a crap game when the person takes part in or is knowingly present at the form of gambling commonly known as crap, in which money or other valuable things are played for by means of dice. Engaging in a crap game is a violation. (11 Del. C. 1953, § 1407; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1408. Merchandising plans are not gambling. Sections 1401-1405 of this title are inapplicable to any plan for stimulating public interest in, or sale of, merchandise, services or exhibitions unless the plan requires that the chance to win a prize be paid for in money or something of actual pecuniary value or that some items be bought or to any lottery under state control for the purpose of raising funds. (11 Del. C. 1953, § 1408; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 364, § 1.) § 1408A. Savings promotion raffle not gambling. A savings promotion raffle that conforms with the requirement of § 933 of Title 5 is not gambling and does not constitute a lottery unless the chance to win a prize requires consideration. The deposit of a specified minimum amount of money in a savings account or other savings program that results in an entry in a savings promotion raffle is not consideration. (81 Del. Laws, c. 13, § 2.) § 1409. Exemption of law-enforcement officer. Nothing in subpart D of subchapter VII of this chapter shall apply to any law-enforcement officer or officer’s agent while acting in the lawful performance of duty. (11 Del. C. 1953, § 1409; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1410. [Reserved.] § 1411. Unlawfully disseminating gambling information; class A misdemeanor. A person is guilty of unlawfully disseminating gambling information when: (1) Being a public utility it knowingly furnishes to another person a private wire for use in disseminating information in furtherance of gambling or for gambling purposes; or (2) The person knowingly uses a private wire in disseminating or receiving information in furtherance of gambling or for gambling purposes; or (3) The person engages in the business of or receives compensation in any form for disseminating or receiving information in furtherance of gambling or for gambling purposes by means of a private wire or a call service. Unlawfully disseminating gambling information is a class A misdemeanor. (11 Del. C. 1953, § 1411; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) Page 138 Title 11 - Crimes and Criminal Procedure § 1412. Revocation of service contracts or denial of application for service; exemption from liability. (a) The Attorney General, if the Attorney General has reasonable cause to believe that any service furnished by a public utility is being used or will be used to disseminate information in furtherance of gambling or for gambling purposes, may give notice to the person who has contracted with or is applying to the public utility for such service that the Attorney General intends to seek a court order that the service contract be revoked or the application for service be denied. (b) The notice permitted in subsection (a) of this section shall be served personally upon the person who has contracted with or is applying to the public utility for the service. If personal service is not reasonably possible, the notice may be posted in a conspicuous place on the premises to which the service is furnished. The notice shall specify the time and place where the hearing will be held, and the court before which it will be held. (c) A hearing shall be held in the Superior Court at the time specified in the notice. At the hearing, evidence bearing on the use of the public utility service in question may be presented by the State and by or on behalf of the person who has contracted for or is applying for the service. (d) If the Court, after hearing, determines that there is probable cause to believe that the service furnished by the public utility is being used or will be used to disseminate information in furtherance of gambling or for gambling purposes, it shall order that the contract to furnish the service be revoked or that the application for service be denied. (e) No public utility shall be held liable at law or in equity for revocation of a contract, or denying an application for service, when ordered to do so as provided by this section. (11 Del. C. 1953, § 1412; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1413. Exemption for operations of lottery under State control. The sale, lease, transport, ownership, possession, exhibition, manufacture, servicing, marketing or use of a video lottery machine, sports lottery machine, table game equipment or any equipment, supplies, information or data in connection with the operations of a lottery under State control (including the operations of a video lottery agent in accordance with Chapter 48 of Title 29) shall not be a violation of §§ 1401-1412 of this title. (77 Del. Laws, c. 219, § 27.) §§ 1414-1420. [Reserved.] § 1421. Obstructions; service of notice. If the Attorney General finds that access to a building, apartment or place, which the Attorney General has reasonable cause to believe is resorted to for the purpose of gambling in violation of the laws of this State, is barred by an obstruction, the Attorney General shall cause to be served in the manner provided by law for service of civil summons upon the occupant or owner a notice to appear before the Superior Court and to show cause why the unusual obstructions should not be removed. (11 Del. C. 1953, § 1421; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) § 1422. Posting of notice. If the occupant or owner cannot be found, the prescribed notice shall be posted upon the outside of the premises. (11 Del. C. 1953, § 1422; 58 Del. Laws, c. 497, § 1.) § 1423. Contents of notice. The notice which is served personally upon the occupant or owner or is posted upon the outside of the premises shall in all cases designate the name of the Court in which the rule will be heard, and shall further contain the time and the date upon which the rule will be brought on for hearing. (11 Del. C. 1953, § 1423; 58 Del. Laws, c. 497, § 1.) § 1424. Hearing. At the time stated in the notice, a hearing shall be held in the Superior Court. At the hearing, evidence bearing on the matter may be presented by the State and by or on behalf of the person served with the notice or alleged to be the occupant or owner of the premises. The Court may grant a continuance if it is reasonably necessary in order that all relevant evidence may be heard. (11 Del. C. 1953, § 1424; 58 Del. Laws, c. 497, § 1.) § 1425. Findings of Court; order for removal. If the Court, after a hearing upon the requisite matters, finds that there is reasonable cause to believe that the premises are resorted to for the purpose of gambling and that access is barred by an obstruction, the Court shall order the occupant or owner to remove the obstruction. (11 Del. C. 1953, § 1425; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, §§ 26, 31.) § 1426. Official removal upon noncompliance with removal order. In the event that the obstructions are not removed within a period of 7 days after the order for removal, the Attorney General shall cause the obstructions to be removed from the premises or place. (11 Del. C. 1953, § 1426; 58 Del. Laws, c. 497, § 1.) Page 139 Title 11 - Crimes and Criminal Procedure § 1427. Collection of removal expenses; status of contractor; amount of lien. The expenses of a removal under § 1426 of this title shall be collected by the Attorney General in the manner provided by law for the filing and collection of a mechanic’s lien. (11 Del. C. 1953, § 1427; 58 Del. Laws, c. 497, § 1.) § 1428. Maintaining an obstruction; class A misdemeanor; a violation. A person is guilty of maintaining an obstruction when, being the owner or occupant of a building or other place from which an obstruction has been removed as provided in §§ 1421-1427 of this title, the person again erects or permits the erection of an obstruction. Maintaining an obstruction is a violation unless the accused has been convicted of the same offense within the previous 2 years, in which case it is a class A misdemeanor. The section does not limit the power of the State to seek the removal of the obstruction as provided in §§ 1421-1427 of this title. (11 Del. C. 1953, § 1428; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) §§ 1429, 1430. [Reserved.] § 1431. Telephone messages received or overheard by police as evidence. In any prosecution for a gambling offense, evidence that a police officer, when making an arrest for a gambling offense, received or overheard telephone messages intended for the accused or an associate of the accused which tend to prove that gambling activity was being conducted is admissible. The gathering and disclosure of such evidence, including the contents of the telephone messages received or overheard, does not violate any law of this State. (11 Del. C. 1953, § 1431; 58 Del. Laws, c. 497, § 1.) § 1432. Gambling; definitions. (a) “Call service” means the furnishing of information upon request therefor or by prearrangement over general telegraphic, telephonic or teletypewriter exchange or toll service. (b) “Dissemination” means the act of transmitting, distributing, advising, spreading, communicating, conveying or making known. (c) “Gambling device” means any device, machine, paraphernalia or equipment which is used or usable in the playing phases of any gambling activity, whether the activity consists of gambling between persons or gambling by a person involving the playing of a machine. Lottery tickets, policy slips and other items used in the playing phases of lottery and policy schemes are not gambling devices. (d) “Gambling offense” means any offense defined in §§ 1401-1431 of this title. (e) “Private wire” means service equipment, facilities, conduits, poles, wires, circuits, systems by means of which service is furnished for communication purposes, either through the medium of telephone, telegraph, Morse, teletypewriter, loudspeaker or any other means, or by which the voice or electrical impulses are sent over a wire, and which services are contracted for or leased for services between 2 or more points specifically designated, and are not connected to or available for general telegraphic, telephonic or teletypewriter exchange or toll service, and includes such services known as “special contract leased wire service,” “leased line,” “private line,” “private system,” “Morse line,” “private wire,” but does not include the usual and customary telephone or teletypewriter service by which the subscriber may be connected at each separate call to any other telephone or teletypewriter designated by the subscriber only through the general telephone or teletypewriter exchange system or toll service. (f) “Public utility” means a person, partnership, association or corporation owning or operating in this State equipment or facilities for conveying or transmitting messages or communications by telephone or telegraph to the public for compensation. (g) “Obstruction” means a door, window, shutter, screen bar or grating of unusual strength, or any unnecessary number of doors, windows or obstructions other than what is usual and ordinary in the normal or usual use of a building, apartment or place, by which access to any building, apartment or place is barred. (h) “Slot machine” means a gambling device which, as a result of the insertion of a coin or other object, operates, either completely automatically or with the aid of a physical act by the player, in such manner that, depending upon elements of chance, it may eject something of value. (11 Del. C. 1953, § 1432; 58 Del. Laws, c. 497, § 1; 70 Del. Laws, c. 186, § 1.) §§ 1433-1440. [Reserved.] E Offenses Involving Deadly Weapons and Dangerous Instruments § 1441. License to carry concealed deadly weapons. (a) A person of full age and good moral character desiring to be licensed to carry a concealed deadly weapon for personal protection or the protection of the person’s property may be licensed to do so when the following conditions have been strictly complied with: (1) The person shall make application therefor in writing and file the same with the Prothonotary of the proper county, at least 15 days before the then next term of the Superior Court, clearly stating that the person is of full age and that the person is desirous of being Page 140 Title 11 - Crimes and Criminal Procedure licensed to carry a concealed deadly weapon for personal protection or protection of the person’s property, or both, and also stating the person’s residence and occupation. The person shall submit together with such application all information necessary to conduct a criminal history background check. The Superior Court may conduct a criminal history background check pursuant to the procedures set forth in Chapter 85 of Title 11 for the purposes of licensing any person pursuant to this section. (2) At the same time the person shall file, with the Prothonotary, a certificate of 5 respectable citizens of the county in which the applicant resides at the time of filing the application. The certificate shall clearly state that the applicant is a person of full age, sobriety and good moral character, that the applicant bears a good reputation for peace and good order in the community in which the applicant resides, and that the carrying of a concealed deadly weapon by the applicant is necessary for the protection of the applicant or the applicant’s property, or both. The certificate shall be signed with the proper signatures and in the proper handwriting of each such respectable citizen. (3) Every such applicant shall file in the office of the Prothonotary of the proper county the application verified by oath or affirmation in writing taken before an officer authorized by the laws of this State to administer the same, and shall under such verification state that the applicant’s certificate and recommendation were read to or by the signers thereof and that the signatures thereto are in the proper and genuine handwriting of each. Prior to the issuance of an initial license the person shall also file with the Prothonotary a notarized certificate signed by an instructor or authorized representative of a sponsoring agency, school, organization or institution certifying that the applicant: (i) has completed a firearms training course which contains at least the below-described minimum elements; and (ii) is sponsored by a federal, state, county or municipal law enforcement agency, a college, a nationally recognized organization that customarily offers firearms training, or a firearms training school with instructors certified by a nationally recognized organization that customarily offers firearms training. The firearms training course shall include the following elements: a. Instruction regarding knowledge and safe handling of firearms; b. Instruction regarding safe storage of firearms and child safety; c. Instruction regarding knowledge and safe handling of ammunition; d. Instruction regarding safe storage of ammunition and child safety; e. Instruction regarding safe firearms shooting fundamentals; f. Live fire shooting exercises conducted on a range, including the expenditure of a minimum of 100 rounds of ammunition; g. Identification of ways to develop and maintain firearm shooting skills; h. Instruction regarding federal and state laws pertaining to the lawful purchase, ownership, transportation, use and possession of firearms; i. Instruction regarding the laws of this State pertaining to the use of deadly force for self-defense; and j. Instruction regarding techniques for avoiding a criminal attack and how to manage a violent confrontation, including conflict resolution. (4) At the time the application is filed, the applicant shall pay a fee of $65 to the Prothonotary issuing the same. (5) a. The license issued upon initial application shall be valid for 3 years. On or before the date of expiration of such initial license, the licensee, without further application, may renew the same for the further period of 5 years upon payment to the Prothonotary of a fee of $65, and upon filing with said Prothonotary an affidavit setting forth that the carrying of a concealed deadly weapon by the licensee is necessary for personal protection or protection of the person’s property, or both, and that the person possesses all the requirements for the issuance of a license and may make like renewal every 5 years thereafter; provided, however, that the Superior Court, upon good cause presented to it, may inquire into the renewal request and deny the same for good cause shown. No requirements in addition to those specified in this paragraph may be imposed for the renewal of a license. b. Notwithstanding the time limitations in paragraph (a)(5) of this section, and notwithstanding any law, rule, or regulation to the contrary, any person licensed to carry a concealed deadly weapon pursuant to this section whose license expired in 2020 or 2021, may file for renewal of such license pursuant to paragraph (a)(5) of this section by satisfying all of the following conditions with the Prothonotary no later than December 31, 2022: 1. Filing an affidavit setting forth that the carrying of a concealed deadly weapon by the licensee is necessary for personal protection or protection of the person’s property, or both; 2. The person possesses all the requirements for the issuance of a license; and 3. Payment of the $65 fee required by paragraph (a)(5)a. of this section. (b) The Prothonotary of the county in which any applicant for a license files the same shall cause notice of every such application to be published once, at least 10 days before the next term of the Superior Court. The publication shall be made in a newspaper of general circulation published in the county. In making such publication it shall be sufficient for the Prothonotary to do the same as a list in alphabetical form stating therein simply the name and residence of each applicant respectively. (c) The Prothonotary of the county in which the application for license is made shall lay before the Superior Court, at its then next term, all applications for licenses, together with the certificate and recommendation accompanying the same, filed in the Prothonotary’s office, on the first day of such application. Page 141 Title 11 - Crimes and Criminal Procedure (d) The Court may or may not, in its discretion, approve any application, and in order to satisfy the Judges thereof fully in regard to the propriety of approving the same, may receive remonstrances and hear evidence and arguments for and against the same, and establish general rules for that purpose. (e) If any application is approved, as provided in this section, the Court shall endorse the word “approved” thereon and sign the same with the date of approval. If not approved, the Court shall endorse the words “not approved” and sign the same. The Prothonotary, immediately after any such application has been so approved, shall notify the applicant of such approval, and following receipt of the notarized certification of satisfactory completion of the firearms training course requirement as set forth in paragraph (a)(3) of this section above shall issue a proper license, signed as other state licenses are, to the applicant for the purposes provided in this section and for a term to expire on June 1 next succeeding the date of such approval. (f) The Secretary of State shall prepare blank forms of license to carry out the purposes of this section, and shall issue the same as required to the several Prothonotaries of the counties in this State. The Prothonotaries of all the counties shall affix to the license, before lamination, a photographic representation of the licensee. (g) The provisions of this section do not apply to the carrying of the usual weapon by the police or other peace officers. (h) Notwithstanding any provision to the contrary, anyone retired as a police officer, as “police officer” is defined by § 1911 of this title, who is retired after having served at least 20 years in any law-enforcement agency within this State, or who is retired and remains currently eligible for a duty-connected disability pension, may be licensed to carry a concealed deadly weapon for the protection of that retired police officer’s person or property after that retired police officer’s retirement, if the following conditions are strictly complied with: (1) If that retired police officer applies for the license within 90 days of the date of that retired police officer’s retirement, the retired police officer shall pay a fee of $65 to the Prothonotary in the county where that retired police officer resides and present to the Prothonotary both: a. A certification from the Attorney General’s office, in a form prescribed by the Attorney General’s office, verifying that the retired officer is in good standing with the law-enforcement agency from which the retired police officer is retired; and b. A letter from the chief of the retired officer’s agency verifying that the retired officer is in good standing with the lawenforcement agency from which the retired police officer is retired; or (2) If that retired police officer applies for the license more than 90 days, but within 20 years, of the date of that retired police officer’s retirement, the retired police officer shall pay a fee of $65 to the Prothonotary in the county where the retired police officer resides and present to the Prothonotary certification forms from the Attorney General’s office, or in a form prescribed by the Attorney General’s office, that: a. The retired officer is in good standing with the law-enforcement agency from which that retired police officer is retired; b. The retired officer’s criminal record has been reviewed and that the retired police officer has not been convicted of any crime greater than a violation since the date of the retired police officer’s retirement; and c. The retired officer has not been committed to a psychiatric facility since the date of the retired police officer’s retirement. (i) Notwithstanding anything contained in this section to the contrary, an adult person who, as a successful petitioner seeking relief pursuant to Part D, subchapter III of Chapter 9 of Title 10, has caused a protection from abuse order containing a firearms prohibition authorized by § 1045(a)(8) of Title 10 or a firearms prohibition pursuant to § 1448(a)(6) of this title to be entered against a person for alleged acts of domestic violence as defined in § 1041 of Title 10, shall be deemed to have shown the necessity for a license to carry a deadly weapon concealed for protection of themselves pursuant to this section. In such cases, all other requirements of subsection (a) of this section must still be satisfied. (j) Notwithstanding any other provision of this Code to the contrary, the State of Delaware shall give full faith and credit and shall otherwise honor and give full force and effect to all licenses/permits issued to the citizens of other states where those issuing states also give full faith and credit and otherwise honor the licenses issued by the State of Delaware pursuant to this section and where those licenses/permits are issued by authority pursuant to state law and which afford a reasonably similar degree of protection as is provided by licensure in Delaware. For the purpose of this subsection “reasonably similar” does not preclude alternative or differing provisions nor a different source and process by which eligibility is determined. Notwithstanding the forgoing, if there is evidence of a pattern of issuing licenses/permits to convicted felons in another state, the Attorney General shall not include that state under the exception contained in this subsection even if the law of that state is determined to be “reasonably similar.” The Attorney General shall communicate the provisions of this section to the Attorneys General of the several states and shall determine those states whose licensing/permit systems qualify for recognition under this section. The Attorney General shall publish on January 15 of each year a list of all States which have qualified for reciprocity under this subsection. Such list shall be valid for one year and any removal of a State from the list shall not occur without 1 year’s notice of such impending removal. Such list shall be made readily available to all State and local law-enforcement agencies within the State as well as to all then-current holders of licenses issued by the State of Delaware pursuant to this section. (k) The Attorney General shall have the discretion to issue, on a limited basis, a temporary license to carry concealed a deadly weapon to any individual who is not a resident of this State and whom the Attorney General determines has a short-term need to carry such a weapon within this State in conjunction with that individual’s employment for the protection of person or property. Said temporary license shall automatically expire 30 days from the date of issuance and shall not be subject to renewal, and must be carried at all times while Page 142 Title 11 - Crimes and Criminal Procedure within the State. However, nothing contained herein shall prohibit the issuance of a second or subsequent temporary license. The Attorney General shall have the authority to promulgate and enforce such regulations as may be necessary for the administration of such temporary licenses. No individual shall be issued more than 3 temporary licenses. (l) All applications for a temporary license to carry a concealed deadly weapon made pursuant to subsection (k) of this section shall be in writing and shall bear a notice stating that false statements therein are punishable by law. (m) Notwithstanding any other law or regulation to the contrary, any license issued pursuant to this section shall be void, and is automatically repealed by operation of law, if the licensee is or becomes prohibited from owning, possessing or controlling a deadly weapon as specified in § 1448 of this title. (11 Del. C. 1953, § 1441; 58 Del. Laws, c. 497, § 1; 60 Del. Laws, c. 419, §§ 1-3; 67 Del. Laws, c. 41, § 1; 67 Del. Laws, c. 260, § 1; 68 Del. Laws, c. 9, §§ 1, 2; 68 Del. Laws, c. 410, §§ 1-3; 69 Del. Laws, c. 299, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 343, § 1; 71 Del. Laws, c. 246, § 1; 71 Del. Laws, c. 252, § 1; 72 Del. Laws, c. 61, § 6; 73 Del. Laws, c. 7, § 1; 73 Del. Laws, c. 252, § 7; 74 Del. Laws, c. 140, §§ 1-3; 77 Del. Laws, c. 230, §§ 1-4; 83 Del. Laws, c. 339, § 20.) § 1441A. State implementation of the federal Law Enforcement Officers Safety Act of 2004 (18 U.S.C. § 926B as amended in 2010 and 2013); carrying of concealed firearms by qualified law-enforcement officers. (a) Notwithstanding any other provision of the law of any state or any political subdivision thereof, an individual who is a qualified law-enforcement officer and who is carrying the identification required by subsection (d) of this section may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b) of this section. (b) This section shall not be construed to supersede or limit the laws of any state that: (1) Permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) Prohibit or restrict the possession of firearms on any state or local government property, installation, building, base, or park. (c) As used in this section, the term “qualified law-enforcement officer” means an employee of a governmental agency who: (1) Is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under 10 U.S.C. § 807(b) (article 7(b) of the Uniform Code of Military Justice); (2) Is authorized by the agency to carry a firearm; (3) Is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers; (4) Meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm; (5) Is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and (6) Is not prohibited by federal law from receiving a firearm. (d) The identification required by this subsection is the photographic identification issued by the governmental agency for which the individual is employed that identifies the employee as a police officer or law-enforcement officer of the agency. (e) As used in this section, the term “firearm”: (1) Except as provided in this subsection, has the same meaning as in 18 U.S.C. § 921; (2) Includes ammunition not expressly prohibited by federal law or subject to the provisions of the National Firearms Act [26 U.S.C. § 5801 et seq.]; and (3) Does not include: a. Any machinegun (as defined in § 5845 of the National Firearms Act [26 U.S.C. § 5845]); b. Any firearm silencer (as defined in 18 U.S.C. § 921); and c. Any destructive device (as defined in 18 U.S.C. § 921). (f) For the purposes of this section, a law-enforcement officer of the Amtrak Police Department, a law-enforcement officer of the Federal Reserve, or a law-enforcement or police officer of the executive branch of the federal government qualifies as an employee of a governmental agency who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under 10 U.S.C. § 807(b) (article 7(b) of the Uniform Code of Military Justice). (76 Del. Laws, c. 320, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 181, § 1.) § 1441B. State implementation of the federal Law Enforcement Officers Safety Act of 2004 (18 U.S.C. § 926C as amended in 2010 and 2013); carrying of concealed firearms by qualified retired law-enforcement officers. (a) Notwithstanding any other provision of the law of any state or any political subdivision thereof, an individual who is a qualified retired law-enforcement officer and who is carrying the identification required by subsection (d) of this section may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection (b) of this section. (b) This section shall not be construed to supersede or limit the laws of any state that: Page 143 Title 11 - Crimes and Criminal Procedure (1) Permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) Prohibit or restrict the possession of firearms on any state or local government property, installation, building, base, or park. (c) As used in this section, the term “qualified retired law-enforcement officer” means an individual who: (1) Separated from service in good standing from service with a public agency as a law-enforcement officer; (2) Before such separation, was authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and had statutory powers of arrest or apprehension under 10 U.S.C. § 807(b) (article 7(b) of the Uniform Code of Military Justice); (3) a. Before such separation, served as a law-enforcement officer for an aggregate of 10 years or more; or b. Separated from service with such agency, after completing any applicable probationary period of such service, due to a serviceconnected disability, as determined by such agency; (4) During the most recent 12-month period, has met, at the expense of the individual, the standards for qualification in firearms training for active law-enforcement officers, as determined by the former agency of the individual, the state in which the individual resides or, if the state has not established such standards, either a law-enforcement agency within the state in which the individual resides or the standards used by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that state; (5) a. Has not been officially found by a qualified medical professional employed by the agency to be unqualified for reasons relating to mental health and as a result of this finding will not be issued the photographic identification as described in paragraph (d)(1) of this section; or b. Has not entered into an agreement with the agency from which the individual is separating from service in which that individual acknowledges he or she is not qualified under this section for reasons relating to mental health and for those reasons will not receive or accept the photographic identification as described in paragraph (d)(1) of this section; (6) Is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and (7) Is not prohibited by federal law from receiving a firearm. (d) The identification required by this subsection is: (1) A photographic identification issued by the agency from which the individual separated from service as a law-enforcement officer that identifies the person as having been employed as a police officer or law-enforcement officer and indicates that the individual has, not less recently than 1 year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the active duty standards for qualification in firearms training as established by the agency to carry a firearm of the same type as the concealed firearm; or (2) a. A photographic identification issued by the agency from which the individual separated from service as a law-enforcement officer that identifies the person as having been employed as a police officer or law-enforcement officer; and b. A certification issued by the state in which the individual resides or by a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that state that indicates that the individual has, not less than 1 year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the state or a certified firearms instructor that is qualified to conduct a firearms qualification test for active duty officers within that state to have met: 1. The active duty standards for qualification in firearms training, as established by the state, to carry a firearm of the same type as the concealed firearm; or 2. If the state has not established such standards, standards set by any law-enforcement agency within that state to carry a firearm of the same type as the concealed firearm. (e) As used in this section: (1) The term “firearm”: a. Except as provided in this paragraph, has the same meaning as in 18 U.S.C. § 921; b. Includes ammunition not expressly prohibited by federal law or subject to the provisions of the National Firearms Act [26 U.S.C. § 5801 et seq.]; and c. Does not include: 1. Any machinegun (as defined in § 5845 of the National Firearms Act [26 U.S.C. § 5845]); 2. Any firearm silencer (as defined in 18 U.S.C. § 921); and 3. Any destructive device (as defined in 18 U.S.C. § 921); and (2) The term “service with a public agency as a law-enforcement officer” includes service as a law-enforcement officer of the Amtrak Police Department, service as a law-enforcement officer of the Federal Reserve, or service as a law-enforcement or police officer of the executive branch of the federal government. (3) The term “a firearm of the same type” means a revolver or a semi-automatic pistol. (80 Del. Laws, c. 181, § 1; 70 Del. Laws, c. 186, § 1.) Page 144 Title 11 - Crimes and Criminal Procedure § 1442. Carrying a concealed deadly weapon; class G felony; class D felony. A person is guilty of carrying a concealed deadly weapon when the person carries concealed a deadly weapon upon or about the person without a license to do so as provided by § 1441 of this title. Carrying a concealed deadly weapon is a class G felony, unless the deadly weapon is a firearm, in which case it is a class D felony. It shall be a defense that the defendant has been issued an otherwise valid license to carry a concealed deadly weapon pursuant to terms of § 1441 of this title, where: (1) The license has expired, (2) The person had applied for renewal of said license within the allotted time frame prior to expiration of the license, and (3) The offense is alleged to have occurred while the application for renewal of said license was pending before the court. (11 Del. C. 1953, § 1442; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 13; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 313, §§ 1, 6.) § 1443. Carrying a concealed dangerous instrument; class A misdemeanor. (a) A person is guilty of carrying a concealed dangerous instrument when the person carries concealed a dangerous instrument upon or about the person. (b) It shall be a defense that the defendant was carrying the concealed dangerous instrument for a specific lawful purpose and that the defendant had no intention of causing any physical injury or threatening the same. (c) For the purposes of this section, disabling chemical spray, as defined in § 222 of this title, shall not be considered to be a dangerous instrument. (d) Carrying a concealed dangerous instrument is a class A misdemeanor. (11 Del. C. 1953, § 1443; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 14; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 374, § 6.) § 1444. Possessing a destructive weapon; class E felony. (a) A person is guilty of possessing a destructive weapon when the person makes, sells, transfers, buys, receives, or has possession of any of the following: (1) A bomb. (2) A bombshell. (3) A firearm silencer. (4) A sawed-off shotgun. (5) A machine gun or any other firearm or weapon which is adaptable for use as a machine gun. (6) A bump stock, trigger crank, or rapid fire device. a. “Bump stock” means an after-market device that increases the rate of fire achievable with a semi-automatic rifle by using energy from the recoil of the weapon to generate a reciprocating action that facilitates repeated activation of the trigger. b. “Rapid fire device” means a part, kit, tool, accessory, or device that increases the rate of fire of a semi-automatic firearm to a rate of fire that mimics the rate of fire of a machine gun. c. “Trigger crank” means an after-market device designed and intended to be added to a semi-automatic rifle as a crank operated trigger actuator capable of triggering multiple shots with a single rotation of the crank. (b) (1) Possessing a destructive weapon listed in paragraphs (a)(1) through (a)(5) of this section is a class E felony. This section does not apply to members of the military forces or to members of a police force in this State duly authorized to carry a weapon of the type described; nor shall the provisions contained herein apply to authorized and certified (by an accredited state enforcement agency) state and federal wildlife biologists possessing firearm silencers for the purposes of wildlife disease or wildlife population control, or persons possessing machine guns for scientific or experimental research and development purposes, which machine guns have been duly registered under the National Firearms Act of 1968 (26 U.S.C. § 5801 et seq.). (2) A person who is convicted of only having possession of a destructive weapon listed under paragraph (a)(6) of this section commits the following: a. A class B misdemeanor for a first offense. b. A class E felony for a second or subsequent offense. (c) For purposes of this section: (1) a. “Machine gun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. b. “Machine gun” includes the frame or receiver of a machine gun, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if the parts are in the possession or under the control of a person. Page 145 Title 11 - Crimes and Criminal Procedure (2) “Shotgun” means a weapon designed or redesigned, made, or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger. (3) “Sawed-off shotgun” means a shotgun having 1 or more barrels less than 18 inches in length or any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches. (d) The Superior Court has exclusive jurisdiction over offenses under this section. (e) (1) Any destructive weapon as defined in paragraph (a)(6) of this section shall be relinquished to a law-enforcement agency of this State and may be destroyed by the law-enforcement agency 30 days after relinquishment. (2) Relinquishment to a law-enforcement agency is not a transfer or evidence of possession under paragraph (a)(6) of this section. (f) [Repealed.] (11 Del. C. 1953, § 1444; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 547, § 12; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 411, § 1; 81 Del. Laws, c. 269, §§ 1-3, 5, 6; 83 Del. Laws, c. 333, § 1.) § 1445. Unlawfully dealing with a dangerous weapon; unclassified misdemeanor; Class E or G felony [Effective until June 30, 2025]. (a) A person is guilty of unlawfully dealing with a dangerous weapon when: (1) The person, who is not a qualified law-enforcement officer, possesses, sells, or in any manner has control of any of the following: a. A weapon which by compressed air or by spring discharges or projects a pellet, slug or bullet, except a BB gun, paintball gun, or air gun which does not discharge or project a pellet or slug larger than a .177 caliber shot. b. A pellet, slug or bullet, intending that it be used in any weapon prohibited by paragraph (a)(1)a. of this section (2) The person sells, gives or otherwise transfers to a child under 16 years of age a BB or air gun or spear gun or BB shot, unless the person is that child’s parent or guardian, or unless the person first receives the permission of said parent or guardian. (3) Being a parent, the person permits the person’s child under 16 years of age to have possession of a BB or air gun or spear gun unless under the direct supervision of a person 21 years of age or older. (4) The person sells, gives or otherwise transfers to a person under 21 years of age a firearm or ammunition for a firearm, unless permitted by § 1448 of this title. (5) The person sells, gives or otherwise transfers a firearm to any person knowing that said person intends to commit any felony, class A misdemeanor or drug related criminal offense while in possession of said firearm. (6) Being a parent, the person permits the person’s child under 18 years of age to have possession of a firearm unless under the direct supervision of a person 21 years of age or older. (b) As used in this section, “qualified law-enforcement officer” means as defined in § 1441A of this title. (c) Unlawfully dealing with a firearm or dangerous weapon is an unclassified misdemeanor, unless the person is convicted under paragraph (a)(4) of this section, in which case it is a class G felony, or unless the person is convicted under paragraph (a)(5) of this section, in which case it is a class E felony. (d) The Superior Court has exclusive jurisdiction over a violation of paragraphs (a)(3) and (a)(6) of this section. (11 Del. C. 1953, § 1445; 58 Del. Laws, c. 497, § 1; 64 Del. Laws, c. 44, § 1; 67 Del. Laws, c. 130, § 8; 69 Del. Laws, c. 312, §§ 1-3; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 329, § 1.) § 1445. Unlawfully dealing with a dangerous weapon; unclassified misdemeanor; Class E or G felony [Effective June 30, 2025]. (a) A person is guilty of unlawfully dealing with a dangerous weapon when: (1) The person, who is not a qualified law-enforcement officer, possesses, sells, or in any manner has control of any of the following: a. A weapon which by compressed air or by spring discharges or projects a pellet, slug or bullet, except a BB gun, paintball gun, or air gun which does not discharge or project a pellet or slug larger than a .177 caliber shot. b. A pellet, slug or bullet, intending that it be used in any weapon prohibited by paragraph (a)(1)a. of this section (2) The person sells, gives or otherwise transfers to a child under 16 years of age a BB or air gun or spear gun or BB shot, unless the person is that child’s parent or guardian, or unless the person first receives the permission of said parent or guardian. (3) Being a parent, the person permits the person’s child under 16 years of age to have possession of a BB or air gun or spear gun unless under the direct supervision of a person 21 years of age or older. (4) The person sells, gives or otherwise transfers to a person under 21 years of age a firearm or ammunition for a firearm, unless permitted by § 1448 of this title. (5) The person sells, gives or otherwise transfers a firearm to any person knowing that said person intends to commit any felony, class A misdemeanor or drug related criminal offense while in possession of said firearm. (6) [Repealed.] Page 146 Title 11 - Crimes and Criminal Procedure (b) As used in this section, “qualified law-enforcement officer” means as defined in § 1441A of this title. (c) Unlawfully dealing with a firearm or dangerous weapon is an unclassified misdemeanor, unless the person is convicted under paragraph (a)(4) of this section, in which case it is a class G felony, or unless the person is convicted under paragraph (a)(5) of this section, in which case it is a class E felony. (d) The Superior Court has exclusive jurisdiction over a violation of paragraphs (a)(3) and (a)(6) of this section. (11 Del. C. 1953, § 1445; 58 Del. Laws, c. 497, § 1; 64 Del. Laws, c. 44, § 1; 67 Del. Laws, c. 130, § 8; 69 Del. Laws, c. 312, §§ 1-3; 70 Del. Laws, c. 186, § 1; 83 Del. Laws, c. 329, § 1; 83 Del. Laws, c. 329, § 3.) § 1446. Unlawfully dealing with a switchblade knife; unclassified misdemeanor. A person is guilty of unlawfully dealing with a switchblade knife when the person sells, offers for sale or has in possession a knife, the blade of which is released by a spring mechanism or by gravity. Unlawfully dealing with a switchblade knife is an unclassified misdemeanor. (11 Del. C. 1953, § 1446; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1446A. Undetectable knives; commercial manufacture, import for commercial sale, or offers for commercial sale; or possession. (a) Any person in this state who commercially manufactures or causes to be commercially manufactured, or who knowingly imports into the state for commercial sale, keeps for commercial sale, or offers or exposes for commercial sale, or who possesses any undetectable knife is guilty of a class G felony. As used in this section, an “undetectable knife” means any knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict serious physical injury or death that is commercially manufactured to be used as a weapon and is not detectable by a metal detector or magnetometer because there is no material permanently affixed that would be detectable by a metal detector or magnetometer, either handheld or otherwise, that is set at standard calibration. (b) Notwithstanding any other provision of law, all knives or other instruments with or without a handguard that are capable of ready use as a stabbing weapon that may inflict serious physical injury or death that are commercially manufactured in this state that utilize materials that are not detectable by a metal detector or magnetometer, shall be manufactured to include permanently installed materials that will ensure they are detectable by a metal detector or magnetometer, either handheld or otherwise, that is set at standard calibration. (c) This section shall not apply to the manufacture or importation of undetectable knives for sale to a law-enforcement or military entity nor shall this section apply to the subsequent sale of these knives to law enforcement or military entity. (d) This section shall not apply to the manufacture or importation of undetectable knives for sale to federal, state, and local historical societies, museums, and institutional collections which are open to the public, provided that the undetectable knives are properly housed and secured from unauthorized handling, nor shall this section apply to the subsequent sale of the knives to these societies, museums, and collections. (75 Del. Laws, c. 348, § 1.) § 1447. Possession of a deadly weapon during commission of a felony; class B felony. (a) A person who is in possession of a deadly weapon during the commission of a felony is guilty of possession of a deadly weapon during commission of a felony. Possession of a deadly weapon during commission of a felony is a class B felony. (b), (c) [Repealed.] (d) Every person charged under this section over the age of 16 years may be tried as an adult pursuant to §§ 1010 and 1011 of Title 10, notwithstanding any contrary provision of statutes governing the Family Court or any other state law. (e) A person may be found guilty of violating this section notwithstanding that the felony for which the person is convicted and during which the person possessed the deadly weapon is a lesser included felony of the one originally charged. (11 Del. C. 1953, § 1447; 58 Del. Laws, c. 497, § 1; 59 Del. Laws, c. 203, § 34; 59 Del. Laws, c. 547, § 15; 60 Del. Laws, c. 306, §§ 1, 2; 63 Del. Laws, c. 412, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 107, § 1; 81 Del. Laws, c. 199, § 3; 82 Del. Laws, c. 66, § 2.) § 1447A. Possession of a firearm during commission of a felony; class B felony. (a) A person who is in possession of a firearm during the commission of a felony is guilty of possession of a firearm during the commission of a felony. Possession of a firearm during the commission of a felony is a class B felony. (b) A person convicted under subsection (a) of this section shall receive a minimum sentence of 3 years at Level V, notwithstanding the provisions of § 4205(b)(2) of this title. (c) A person convicted under subsection (a) of this section, and who has been at least twice previously convicted of a felony in this State or elsewhere, shall receive a minimum sentence of 5 years at Level V, notwithstanding the provisions of §§ 4205(b)(2) and 4215 of this title. (d), (e) [Repealed.] Page 147 Title 11 - Crimes and Criminal Procedure (f) Every person charged under this section over the age of 16 years who, following an evidentiary hearing where the Superior Court finds proof positive or presumption great that the accused used, displayed, or discharged a firearm during the commission of a Title 11 or a Title 31 violent felony as set forth in § 4201 (c) of this title, shall be tried as an adult, notwithstanding any contrary provisions or statutes governing the Family Court or any other state law. The provisions of this section notwithstanding, the Attorney General may elect to proceed in Family Court. (g) A person may be found guilty of violating this section notwithstanding that the felony for which the person is convicted and during which the person possessed the firearm is a lesser included felony of the one originally charged. (69 Del. Laws, c. 229, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 596, § 7; 73 Del. Laws, c. 107, §§ 2, 3; 81 Del. Laws, c. 252, § 1; 82 Del. Laws, c. 66, § 2.) § 1448. Possession and purchase of deadly weapons by persons prohibited; penalties [Effective until Dec. 20, 2023]. (a) Except as otherwise provided in this section, the following persons are prohibited from purchasing, owning, possessing, or controlling a deadly weapon or ammunition for a firearm within the State: (1) Any person who has been convicted in this State or other jurisdiction of a felony or a crime of violence involving physical injury to another person, whether or not armed with or while possessing any weapon during the commission of the felony or crime of violence. (2) Any person who meets any of the following: a. Has been involuntarily committed for a mental condition under Chapter 50 of Title 16, unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A(l) of this title. b. For a crime of violence, has been found not guilty by reason of insanity or guilty but mentally ill, including any juvenile who has been found not guilty by reason of insanity or guilty but mentally ill, unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm under § 1448A(l) of this title. c. For a crime of violence, has been found mentally incompetent to stand trial, including any juvenile who has been found mentally incompetent to stand trial, unless there has been a subsequent finding that the person has become competent, or unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm under § 1448A(l) of this title. d. Is the subject of an order of relinquishment issued under § 1448C of this title. (3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16. (4) Any person who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, until that person reaches the age of 25. (5) Any person under the age of 21. a. This paragraph (a)(5) shall not apply to the purchase, owning, possession, or control of the following deadly weapons: 1. A shotgun as defined in § 1444(c) of this title or ammunition for a shotgun. 2. A muzzle-loading rifle as defined in § 704(f) of Title 7. 3. Deadly weapons other than firearms if the person is 18 years of age or older. b. This paragraph (a)(5) shall not apply to any of the following persons 18 years of age or older: 1. An active member of the Armed Forces of the United States or the National Guard. 2. A qualified law-enforcement officer as defined in § 1441A of this title. 3. A person who has license to carry a concealed deadly weapon pursuant to § 1441 of this title. c. This paragraph (a)(5) shall not apply to any person under the age of 21 who does any of the following: 1. Possesses or controls a firearm for the purpose of engaging in lawful hunting, instruction, sporting, or recreational activity while under the direct supervision of a person 21 years of age or older. 2. Possesses or controls a firearm for the purpose of engaging in lawful hunting and is in compliance with § 704(g) of Title 7. 3. Possesses or controls a firearm for the purpose of transporting the firearm to the location of a lawful hunting, instruction, sporting, or recreational activity, for which the person is authorized to possess or control the firearm under paragraph (a)(5)c.1. of this section. d. It is not a violation of this paragraph (a)(5) if a person under the age of 21 possesses or uses a firearm during the use of force upon or towards another person if such use of force is justifiable pursuant to § 464, § 465, § 466, or § 469 of this title. e. This paragraph (a)(5) does not apply to the possession or control of a firearm by a person 18 years of age or older. (6) Any person who knows that the person is subject to a Family Court protection from abuse order, but only for so long as the order remains in effect, except that this paragraph shall not apply to a contested order issued solely upon § 1041(1)d., e., or h. of Title 10, or any combination thereof. Page 148 Title 11 - Crimes and Criminal Procedure (7) Any person who has been convicted in any court of any misdemeanor crime of domestic violence. For purposes of this paragraph, the term “misdemeanor crime of domestic violence” means any misdemeanor offense that: a. Was committed by a member of the victim’s family, as “family” is defined in § 901 of Title 10 (regardless, however, of the state of residence of the parties); by a former spouse of the victim; by a person who cohabited with the victim at the time of or within 3 years prior to the offense; by a person with a child in common with the victim; or by a person with whom the victim had a substantive dating relationship, as defined in § 1041 of Title 10, at the time of or within 3 years prior to the offense, b. Is an offense as defined under § 601, § 602, § 603, § 611, § 614, § 621, § 625, § 628A, § 763, § 765, § 766, § 767, § 781, § 785 or § 791 of this title, or any similar offense when committed or prosecuted in another jurisdiction. (8) Any person who, knowing that he or she is the defendant or co-defendant in any criminal case in which that person is alleged to have committed any felony under the laws of this State, the United States or any other state or territory of the United States, becomes a fugitive from justice by failing to appear for any scheduled court proceeding pertaining to such felony for which proper notice was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding. (9) 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 of Title 16. (10) Except for “antique firearms”, any validly seized deadly weapons or ammunition from a person prohibited as a result of a felony conviction under Delaware law, federal law or the laws of any other state, or as otherwise prohibited under this subsection (a) of this section may be disposed of by the law enforcement agency holding the weapon or ammunition, pursuant to § 2311 of this title. a. “Antique firearm” means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily restored to a firing condition. b. A person prohibited under this section has the burden of proving that the subject firearm is an antique firearm as defined in paragraph (a)(10)a. of this section subject to an exemption under this section and § 2311 of this title. (11) Any person who is subject to a lethal violence protection order, issued under § 7704 of Title 10, but only for so long as that order remains in effect or is not vacated or otherwise terminated under Chapter 77 of Title 10. (12) Any person who knows that the person is the subject of an outstanding arrest warrant, or post-arrest charges or an active indictment or information, for any felony under the laws of this State, the United States, or any other state or territory of the United States, or for a misdemeanor crime of domestic violence under paragraph (a)(7) of this section, is prohibited from purchasing a firearm. (b) Any prohibited person as set forth in subsection (a) of this section who knowingly possesses, purchases, owns or controls a deadly weapon or ammunition for a firearm while so prohibited shall be guilty of possession of a deadly weapon or ammunition for a firearm by a person prohibited. (c) Possession of a deadly weapon by a person prohibited is a class F felony, unless said deadly weapon is a firearm or ammunition for a firearm, and the violation is one of paragraphs (a)(1)-(8) of this section, in which case it is a class D felony, or unless the person is eligible for sentencing pursuant to subsection (e) of this section, in which case it is a class C felony. As used herein, the word “ammunition” shall mean 1 or more rounds of fixed ammunition designed for use in and capable of being fired from a pistol, revolver, shotgun or rifle but shall not mean inert rounds or expended shells, hulls or casings. (d) Any person who is a prohibited person solely as the result of a conviction for an offense which is not a felony shall not be prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm if 5 years have elapsed from the date of conviction. (e) (1) Notwithstanding any provision of this section or Code to the contrary, any person who is a prohibited person as described in this section and who knowingly possesses, purchases, owns or controls a firearm or destructive weapon while so prohibited shall receive a minimum sentence of: a. Three years at Level V, if the person has previously been convicted of a violent felony; b. Five years at Level V, if the person does so within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony. (2) Any person who is a prohibited person as described in this section because of a conviction for a violent felony and who, while in possession or control of a firearm in violation of this section, negligently causes serious physical injury to or the death of another person through the use of such firearm, shall be guilty of a class B felony and shall receive a minimum sentence of: a. Four years at Level V; or b. Six years at Level V, if the person causes such injury or death within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony. Page 149 Title 11 - Crimes and Criminal Procedure d. Nothing in this paragraph shall be deemed to be a related or included offense of any other provision of this Code. Nothing in this paragraph shall be deemed to preclude prosecution or sentencing under any other provision of this Code nor shall this paragraph be deemed to repeal any other provision of this Code. (3) Any sentence imposed pursuant to this subsection shall not be subject to the provisions of § 4215 of this title. For the purposes of this subsection, “violent felony” means any felony so designated by § 4201(c) of this title, or any offense set forth under the laws of the United States, any other state or any territory of the United States which is the same as or equivalent to any of the offenses designated as a violent felony by § 4201(c) of this title. (4) Any sentence imposed for a violation of this subsection shall not be subject to suspension and no person convicted for a violation of this subsection shall be eligible for good time, parole or probation during the period of the sentence imposed. (f) (1) Upon conviction, any person who is a prohibited person as described in paragraph (a)(5) of this section and who is 15 years of age or older, but not yet 18 years of age, is declared a child in need of mandated institutional treatment and shall, for a first offense, receive a minimum sentence of 6 months of Level V incarceration or institutional confinement, and shall receive a minimum sentence of 1 year of Level V incarceration or institutional confinement for a second and each subsequent offense, which shall not be subject to suspension. Any sentence imposed pursuant to this subsection shall not be subject to §§ 4205(b) and 4215 of this title. (2) The penalties prescribed by this subsection and subsection (g) of this section shall be imposed regardless of whether or not the juvenile is determined to be amenable to the rehabilitative process of the Family Court pursuant to § 1010(c) of Title 10 or any successor statute. (g) In addition to the penalties set forth in subsection (f) of this section, a person who is a prohibited person as described in paragraph (a)(5) of this section and who is 14 years of age or older, but not yet 18 years of age, shall, upon conviction of a first offense, be required to view a film or slide presentation depicting the damage and destruction inflicted upon the human body by a projectile fired from a gun, and shall be required to meet with, separately or as part of a group, a victim of a violent crime, or with the family of a deceased victim of a violent crime. The Division of Youth Rehabilitative Service, with the cooperation of the Division of Forensic Science and the Victims’ Compensation Assistance Program, shall be responsible for the implementation of this subsection. (11 Del. C. 1953, § 1448; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 422, § 1; 69 Del. Laws, c. 313, §§ 1, 2; 69 Del. Laws, c. 441, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 230, §§ 1-5; 71 Del. Laws, c. 358, §§ 1, 2; 72 Del. Laws, c. 61, §§ 1, 2; 74 Del. Laws, c. 106, § 7; 75 Del. Laws, c. 78, § 1; 76 Del. Laws, c. 99, § 1; 76 Del. Laws, c. 101, §§ 1-5; 78 Del. Laws, c. 13, §§ 5, 6; 78 Del. Laws, c. 135, §§ 6-8; 78 Del. Laws, c. 137, § 5; 78 Del. Laws, c. 168, § 6; 79 Del. Laws, c. 124, §§ 1, 2; 79 Del. Laws, c. 188, § 1; 79 Del. Laws, c. 265, § 10; 80 Del. Laws, c. 190, § 2; 81 Del. Laws, c. 232, § 1; 81 Del. Laws, c. 253, § 2; 81 Del. Laws, c. 274, § 3; 83 Del. Laws, c. 245, § 1; 83 Del. Laws, c. 329, § 1; 84 Del. Laws, c. 24, § 9; 84 Del. Laws, c. 42, § 1.) § 1448. Possession and purchase of deadly weapons by persons prohibited; penalties [Effective Dec. 20, 2023; Effective until June 30, 2025]. (a) Except as otherwise provided in this section, the following persons are prohibited from purchasing, owning, possessing, or controlling a deadly weapon or ammunition for a firearm within the State: (1) Any person who has been convicted in this State or other jurisdiction of a felony or a crime of violence involving physical injury to another person, whether or not armed with or while possessing any weapon during the commission of the felony or crime of violence. (2) Any person who meets any of the following: a. Has been involuntarily committed for a mental condition under Chapter 50 of Title 16, unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A(l) of this title. b. For a crime of violence, has been found not guilty by reason of insanity or guilty but mentally ill, including any juvenile who has been found not guilty by reason of insanity or guilty but mentally ill, unless such person can demonstrate that such person is no longer prohibited from possessing a firearm under § 1448A(l) of this title. c. For a crime of violence, has been found mentally incompetent to stand trial, including any juvenile who has been found mentally incompetent to stand trial, unless there has been a subsequent finding that the person has become competent, or unless such person can demonstrate that such person is no longer prohibited from possessing a firearm under § 1448A(l) of this title. d. Is the subject of an order of relinquishment issued under § 1448C of this title. (3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16. (4) Any person who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, until that person reaches the age of 25. (5) Any person under the age of 21. a. This paragraph (a)(5) shall not apply to the purchase, owning, possession, or control of the following deadly weapons: 1. A shotgun as defined in § 1444(c) of this title or ammunition for a shotgun. 2. A muzzle-loading rifle as defined in § 704(f) of Title 7. Page 150 Title 11 - Crimes and Criminal Procedure 3. Deadly weapons other than firearms if the person is 18 years of age or older. b. This paragraph (a)(5) shall not apply to any of the following persons 18 years of age or older: 1. An active member of the Armed Forces of the United States or the National Guard. 2. A qualified law-enforcement officer as defined in § 1441A of this title. 3. A person who has license to carry a concealed deadly weapon pursuant to § 1441 of this title. c. This paragraph (a)(5) shall not apply to any person under the age of 21 who does any of the following: 1. Possesses or controls a firearm for the purpose of engaging in lawful hunting, instruction, sporting, or recreational activity while under the direct supervision of a person 21 years of age or older. 2. Possesses or controls a firearm for the purpose of engaging in lawful hunting and is in compliance with § 704(g) of Title 7. 3. Possesses or controls a firearm for the purpose of transporting the firearm to the location of a lawful hunting, instruction, sporting, or recreational activity, for which the person is authorized to possess or control the firearm under paragraph (a)(5)c.1. of this section. d. It is not a violation of this paragraph (a)(5) if a person under the age of 21 possesses or uses a firearm during the use of force upon or towards another person if such use of force is justifiable pursuant to § 464, § 465, § 466, or § 469 of this title. e. This paragraph (a)(5) does not apply to the possession or control of a firearm by a person 18 years of age or older. (6) Any person who knows that the person is subject to a Family Court protection from abuse order, but only for so long as the order remains in effect, except that this paragraph shall not apply to a contested order issued solely upon § 1041(1)d., e., or i. of Title 10, or any combination thereof. (7) Any person who has been convicted in any court of any misdemeanor crime of domestic violence. For purposes of this paragraph, the term “misdemeanor crime of domestic violence” means any misdemeanor offense that: a. Was committed by a member of the victim’s family, as “family” is defined in § 901 of Title 10 (regardless, however, of the state of residence of the parties); by a former spouse of the victim; by a person who cohabited with the victim at the time of or within 3 years prior to the offense; by a person with a child in common with the victim; or by a person with whom the victim had a substantive dating relationship, as defined in § 1041 of Title 10, at the time of or within 3 years prior to the offense, b. Is an offense as defined under § 601, § 602, § 603, § 611, § 614, § 621, § 625, § 628A, § 763, § 765, § 766, § 767, § 781, § 785 or § 791 of this title, or any similar offense when committed or prosecuted in another jurisdiction. (8) Any person who, knowing that such person is the defendant or co-defendant in any criminal case in which that person is alleged to have committed any felony under the laws of this State, the United States or any other state or territory of the United States, becomes a fugitive from justice by failing to appear for any scheduled court proceeding pertaining to such felony for which proper notice was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding. (9) 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 of Title 16. (10) Except for “antique firearms”, any validly seized deadly weapons or ammunition from a person prohibited as a result of a felony conviction under Delaware law, federal law or the laws of any other state, or as otherwise prohibited under this subsection (a) of this section may be disposed of by the law enforcement agency holding the weapon or ammunition, pursuant to § 2311 of this title. a. “Antique firearm” means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily restored to a firing condition. b. A person prohibited under this section has the burden of proving that the subject firearm is an antique firearm as defined in paragraph (a)(10)a. of this section subject to an exemption under this section and § 2311 of this title. (11) Any person who is subject to a lethal violence protection order, issued under § 7704 of Title 10, but only for so long as that order remains in effect or is not vacated or otherwise terminated under Chapter 77 of Title 10. (12) Any person who knows that the person is the subject of an outstanding arrest warrant, or post-arrest charges or an active indictment or information, for any felony under the laws of this State, the United States, or any other state or territory of the United States, or for a misdemeanor crime of domestic violence under paragraph (a)(7) of this section, is prohibited from purchasing a firearm. (b) Any prohibited person as set forth in subsection (a) of this section who knowingly possesses, purchases, owns or controls a deadly weapon or ammunition for a firearm while so prohibited shall be guilty of possession of a deadly weapon or ammunition for a firearm by a person prohibited. (c) Possession of a deadly weapon by a person prohibited is a class F felony, unless said deadly weapon is a firearm or ammunition for a firearm, and the violation is one of paragraphs (a)(1)-(8) of this section, in which case it is a class D felony, or unless the person is eligible for sentencing pursuant to subsection (e) of this section, in which case it is a class C felony. As used herein, the word “ammunition” shall mean 1 or more rounds of fixed ammunition designed for use in and capable of being fired from a pistol, revolver, shotgun or rifle but shall not mean inert rounds or expended shells, hulls or casings. Page 151 Title 11 - Crimes and Criminal Procedure (d) Any person who is a prohibited person solely as the result of a conviction for an offense which is not a felony shall not be prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm if 5 years have elapsed from the date of conviction. (e) (1) Notwithstanding any provision of this section or Code to the contrary, any person who is a prohibited person as described in this section and who knowingly possesses, purchases, owns or controls a firearm or destructive weapon while so prohibited shall receive a minimum sentence of: a. Three years at Level V, if the person has previously been convicted of a violent felony; b. Five years at Level V, if the person does so within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony. (2) Any person who is a prohibited person as described in this section because of a conviction for a violent felony and who, while in possession or control of a firearm in violation of this section, negligently causes serious physical injury to or the death of another person through the use of such firearm, shall be guilty of a class B felony and shall receive a minimum sentence of: a. Four years at Level V; or b. Six years at Level V, if the person causes such injury or death within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony. d. Nothing in this paragraph shall be deemed to be a related or included offense of any other provision of this Code. Nothing in this paragraph shall be deemed to preclude prosecution or sentencing under any other provision of this Code nor shall this paragraph be deemed to repeal any other provision of this Code. (3) Any sentence imposed pursuant to this subsection shall not be subject to the provisions of § 4215 of this title. For the purposes of this subsection, “violent felony” means any felony so designated by § 4201(c) of this title, or any offense set forth under the laws of the United States, any other state or any territory of the United States which is the same as or equivalent to any of the offenses designated as a violent felony by § 4201(c) of this title. (4) Any sentence imposed for a violation of this subsection shall not be subject to suspension and no person convicted for a violation of this subsection shall be eligible for good time, parole or probation during the period of the sentence imposed. (f) (1) Upon conviction, any person who is a prohibited person as described in paragraph (a)(5) of this section and who is 15 years of age or older, but not yet 18 years of age, is declared a child in need of mandated institutional treatment and shall, for a first offense, receive a minimum sentence of 6 months of Level V incarceration or institutional confinement, and shall receive a minimum sentence of 1 year of Level V incarceration or institutional confinement for a second and each subsequent offense, which shall not be subject to suspension. Any sentence imposed pursuant to this subsection shall not be subject to §§ 4205(b) and 4215 of this title. (2) The penalties prescribed by this subsection and subsection (g) of this section shall be imposed regardless of whether or not the juvenile is determined to be amenable to the rehabilitative process of the Family Court pursuant to § 1010(c) of Title 10 or any successor statute. (g) In addition to the penalties set forth in subsection (f) of this section, a person who is a prohibited person as described in paragraph (a)(5) of this section and who is 14 years of age or older, but not yet 18 years of age, shall, upon conviction of a first offense, be required to view a film or slide presentation depicting the damage and destruction inflicted upon the human body by a projectile fired from a gun, and shall be required to meet with, separately or as part of a group, a victim of a violent crime, or with the family of a deceased victim of a violent crime. The Division of Youth Rehabilitative Service, with the cooperation of the Division of Forensic Science and the Victims’ Compensation Assistance Program, shall be responsible for the implementation of this subsection. (11 Del. C. 1953, § 1448; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 422, § 1; 69 Del. Laws, c. 313, §§ 1, 2; 69 Del. Laws, c. 441, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 230, §§ 1-5; 71 Del. Laws, c. 358, §§ 1, 2; 72 Del. Laws, c. 61, §§ 1, 2; 74 Del. Laws, c. 106, § 7; 75 Del. Laws, c. 78, § 1; 76 Del. Laws, c. 99, § 1; 76 Del. Laws, c. 101, §§ 1-5; 78 Del. Laws, c. 13, §§ 5, 6; 78 Del. Laws, c. 135, §§ 6-8; 78 Del. Laws, c. 137, § 5; 78 Del. Laws, c. 168, § 6; 79 Del. Laws, c. 124, §§ 1, 2; 79 Del. Laws, c. 188, § 1; 79 Del. Laws, c. 265, § 10; 80 Del. Laws, c. 190, § 2; 81 Del. Laws, c. 232, § 1; 81 Del. Laws, c. 253, § 2; 81 Del. Laws, c. 274, § 3; 83 Del. Laws, c. 245, § 1; 83 Del. Laws, c. 329, § 1; 84 Del. Laws, c. 24, § 9; 84 Del. Laws, c. 42, § 1; 84 Del. Laws, c. 216, § 1.) § 1448. Possession and purchase of deadly weapons by persons prohibited; penalties [Effective June 30, 2025]. (a) Except as otherwise provided in this section, the following persons are prohibited from purchasing, owning, possessing, or controlling a deadly weapon or ammunition for a firearm within the State: (1) Any person who has been convicted in this State or other jurisdiction of a felony or a crime of violence involving physical injury to another person, whether or not armed with or while possessing any weapon during the commission of the felony or crime of violence. (2) Any person who meets any of the following: Page 152 Title 11 - Crimes and Criminal Procedure a. Has been involuntarily committed for a mental condition under Chapter 50 of Title 16, unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A(l) of this title. b. For a crime of violence, has been found not guilty by reason of insanity or guilty but mentally ill, including any juvenile who has been found not guilty by reason of insanity or guilty but mentally ill, unless such person can demonstrate that such person is no longer prohibited from possessing a firearm under § 1448A(l) of this title. c. For a crime of violence, has been found mentally incompetent to stand trial, including any juvenile who has been found mentally incompetent to stand trial, unless there has been a subsequent finding that the person has become competent, or unless such person can demonstrate that such person is no longer prohibited from possessing a firearm under § 1448A(l) of this title. d. Is the subject of an order of relinquishment issued under § 1448C of this title. (3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16. (4) Any person who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, until that person reaches the age of 25. (5) Any person under the age of 21. a. This paragraph (a)(5) shall not apply to the purchase, owning, possession, or control of the following deadly weapons: 1. A shotgun as defined in § 1444(c) of this title or ammunition for a shotgun. 2. A muzzle-loading rifle as defined in § 704(f) of Title 7. 3. Deadly weapons other than firearms if the person is 18 years of age or older. b. This paragraph (a)(5) shall not apply to any of the following persons 18 years of age or older: 1. An active member of the Armed Forces of the United States or the National Guard. 2. A qualified law-enforcement officer as defined in § 1441A of this title. 3. A person who has license to carry a concealed deadly weapon pursuant to § 1441 of this title. c. This paragraph (a)(5) shall not apply to any person under the age of 21 who does any of the following: 1. Possesses or controls a firearm for the purpose of engaging in lawful hunting, instruction, sporting, or recreational activity while under the direct supervision of a person 21 years of age or older. 2. Possesses or controls a firearm for the purpose of engaging in lawful hunting and is in compliance with § 704(g) of Title 7. 3. Possesses or controls a firearm for the purpose of transporting the firearm to the location of a lawful hunting, instruction, sporting, or recreational activity, for which the person is authorized to possess or control the firearm under paragraph (a)(5)c.1. of this section. d. It is not a violation of this paragraph (a)(5) if a person under the age of 21 possesses or uses a firearm during the use of force upon or towards another person if such use of force is justifiable pursuant to § 464, § 465, § 466, or § 469 of this title. e. [Repealed.] (6) Any person who knows that the person is subject to a Family Court protection from abuse order, but only for so long as the order remains in effect, except that this paragraph shall not apply to a contested order issued solely upon § 1041(1)d., e., or i. of Title 10, or any combination thereof. (7) Any person who has been convicted in any court of any misdemeanor crime of domestic violence. For purposes of this paragraph, the term “misdemeanor crime of domestic violence” means any misdemeanor offense that: a. Was committed by a member of the victim’s family, as “family” is defined in § 901 of Title 10 (regardless, however, of the state of residence of the parties); by a former spouse of the victim; by a person who cohabited with the victim at the time of or within 3 years prior to the offense; by a person with a child in common with the victim; or by a person with whom the victim had a substantive dating relationship, as defined in § 1041 of Title 10, at the time of or within 3 years prior to the offense, b. Is an offense as defined under § 601, § 602, § 603, § 611, § 614, § 621, § 625, § 628A, § 763, § 765, § 766, § 767, § 781, § 785 or § 791 of this title, or any similar offense when committed or prosecuted in another jurisdiction. (8) Any person who, knowing that such person is the defendant or co-defendant in any criminal case in which that person is alleged to have committed any felony under the laws of this State, the United States or any other state or territory of the United States, becomes a fugitive from justice by failing to appear for any scheduled court proceeding pertaining to such felony for which proper notice was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding. (9) 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 of Title 16. (10) Except for “antique firearms”, any validly seized deadly weapons or ammunition from a person prohibited as a result of a felony conviction under Delaware law, federal law or the laws of any other state, or as otherwise prohibited under this subsection (a) of this section may be disposed of by the law enforcement agency holding the weapon or ammunition, pursuant to § 2311 of this title. Page 153 Title 11 - Crimes and Criminal Procedure a. “Antique firearm” means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily restored to a firing condition. b. A person prohibited under this section has the burden of proving that the subject firearm is an antique firearm as defined in paragraph (a)(10)a. of this section subject to an exemption under this section and § 2311 of this title. (11) Any person who is subject to a lethal violence protection order, issued under § 7704 of Title 10, but only for so long as that order remains in effect or is not vacated or otherwise terminated under Chapter 77 of Title 10. (12) Any person who knows that the person is the subject of an outstanding arrest warrant, or post-arrest charges or an active indictment or information, for any felony under the laws of this State, the United States, or any other state or territory of the United States, or for a misdemeanor crime of domestic violence under paragraph (a)(7) of this section, is prohibited from purchasing a firearm. (b) Any prohibited person as set forth in subsection (a) of this section who knowingly possesses, purchases, owns or controls a deadly weapon or ammunition for a firearm while so prohibited shall be guilty of possession of a deadly weapon or ammunition for a firearm by a person prohibited. (c) Possession of a deadly weapon by a person prohibited is a class F felony, unless said deadly weapon is a firearm or ammunition for a firearm, and the violation is one of paragraphs (a)(1)-(8) of this section, in which case it is a class D felony, or unless the person is eligible for sentencing pursuant to subsection (e) of this section, in which case it is a class C felony. As used herein, the word “ammunition” shall mean 1 or more rounds of fixed ammunition designed for use in and capable of being fired from a pistol, revolver, shotgun or rifle but shall not mean inert rounds or expended shells, hulls or casings. (d) Any person who is a prohibited person solely as the result of a conviction for an offense which is not a felony shall not be prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm if 5 years have elapsed from the date of conviction. (e) (1) Notwithstanding any provision of this section or Code to the contrary, any person who is a prohibited person as described in this section and who knowingly possesses, purchases, owns or controls a firearm or destructive weapon while so prohibited shall receive a minimum sentence of: a. Three years at Level V, if the person has previously been convicted of a violent felony; b. Five years at Level V, if the person does so within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony. (2) Any person who is a prohibited person as described in this section because of a conviction for a violent felony and who, while in possession or control of a firearm in violation of this section, negligently causes serious physical injury to or the death of another person through the use of such firearm, shall be guilty of a class B felony and shall receive a minimum sentence of: a. Four years at Level V; or b. Six years at Level V, if the person causes such injury or death within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony. d. Nothing in this paragraph shall be deemed to be a related or included offense of any other provision of this Code. Nothing in this paragraph shall be deemed to preclude prosecution or sentencing under any other provision of this Code nor shall this paragraph be deemed to repeal any other provision of this Code. (3) Any sentence imposed pursuant to this subsection shall not be subject to the provisions of § 4215 of this title. For the purposes of this subsection, “violent felony” means any felony so designated by § 4201(c) of this title, or any offense set forth under the laws of the United States, any other state or any territory of the United States which is the same as or equivalent to any of the offenses designated as a violent felony by § 4201(c) of this title. (4) Any sentence imposed for a violation of this subsection shall not be subject to suspension and no person convicted for a violation of this subsection shall be eligible for good time, parole or probation during the period of the sentence imposed. (f) (1) Upon conviction, any person who is a prohibited person as described in paragraph (a)(5) of this section and who is 15 years of age or older, but not yet 18 years of age, is declared a child in need of mandated institutional treatment and shall, for a first offense, receive a minimum sentence of 6 months of Level V incarceration or institutional confinement, and shall receive a minimum sentence of 1 year of Level V incarceration or institutional confinement for a second and each subsequent offense, which shall not be subject to suspension. Any sentence imposed pursuant to this subsection shall not be subject to §§ 4205(b) and 4215 of this title. (2) The penalties prescribed by this subsection and subsection (g) of this section shall be imposed regardless of whether or not the juvenile is determined to be amenable to the rehabilitative process of the Family Court pursuant to § 1010(c) of Title 10 or any successor statute. (g) In addition to the penalties set forth in subsection (f) of this section, a person who is a prohibited person as described in paragraph (a)(5) of this section and who is 14 years of age or older, but not yet 18 years of age, shall, upon conviction of a first offense, be required Page 154 Title 11 - Crimes and Criminal Procedure to view a film or slide presentation depicting the damage and destruction inflicted upon the human body by a projectile fired from a gun, and shall be required to meet with, separately or as part of a group, a victim of a violent crime, or with the family of a deceased victim of a violent crime. The Division of Youth Rehabilitative Service, with the cooperation of the Division of Forensic Science and the Victims’ Compensation Assistance Program, shall be responsible for the implementation of this subsection. (11 Del. C. 1953, § 1448; 58 Del. Laws, c. 497, § 1; 67 Del. Laws, c. 130, § 8; 68 Del. Laws, c. 422, § 1; 69 Del. Laws, c. 313, §§ 1, 2; 69 Del. Laws, c. 441, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 230, §§ 1-5; 71 Del. Laws, c. 358, §§ 1, 2; 72 Del. Laws, c. 61, §§ 1, 2; 74 Del. Laws, c. 106, § 7; 75 Del. Laws, c. 78, § 1; 76 Del. Laws, c. 99, § 1; 76 Del. Laws, c. 101, §§ 1-5; 78 Del. Laws, c. 13, §§ 5, 6; 78 Del. Laws, c. 135, §§ 6-8; 78 Del. Laws, c. 137, § 5; 78 Del. Laws, c. 168, § 6; 79 Del. Laws, c. 124, §§ 1, 2; 79 Del. Laws, c. 188, § 1; 79 Del. Laws, c. 265, § 10; 80 Del. Laws, c. 190, § 2; 81 Del. Laws, c. 232, § 1; 81 Del. Laws, c. 253, § 2; 81 Del. Laws, c. 274, § 3; 83 Del. Laws, c. 245, § 1; 83 Del. Laws, c. 329, § 1; 84 Del. Laws, c. 24, § 9; 84 Del. Laws, c. 42, § 1; 83 Del. Laws, c. 329, § 3; 84 Del. Laws, c. 216, § 1.) § 1448A. Background checks for sales of firearms. (a) A licensed importer, licensed manufacturer, or licensed dealer may not sell, transfer, or deliver from inventory any firearm, as defined in § 8571 of this title, to any other person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, without conducting a background check by the State Bureau of Identification, through the Firearm Transaction Approval Program under subchapter VI of Chapter 85 of this title, to determine whether the transfer of a firearm to any person who is not licensed under 18 U.S.C. § 923 would be in violation of federal or state law. (b) A licensed importer, licensed manufacturer, or licensed dealer may not sell, transfer, or deliver from inventory any firearm, as defined in § 8571 of this title, to any other person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, unless and until being informed that it may “proceed” with the sale, transfer, or delivery from inventory of a firearm by the State Bureau of Identification, through the Firearm Transaction Approval Program under subchapter VI of Chapter 85 of this title, following a request for a background check under subsection (a) of this section or 25 days have elapsed from the date of the request for a background check and a denial has not occurred. (c), (d) [Repealed.] (e) This section does not apply to any of the following: (1) Any firearm, including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system manufactured in or before 1898. (2) Any replica of any firearm described in paragraph (e)(1) of this section if the replica meets 1 of the following: a. Is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition. b. Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade. (3) Any shotgun, which is defined as a firearm designed or intended to be fired from the shoulder and designed or made to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger. (4) The return, by a licensed pawnbroker, of a firearm to the person from whom it was received. (5) Transactions in which the potential buyer or transferee holds a valid concealed deadly weapons license under §§ 1441, 1441A, and 1441B of this title. (6) Transactions involving a “law-enforcement officer” as defined by § 222 of this title. (f) Any licensed dealer, licensed manufacturer, licensed importer, or employee thereof who wilfully and intentionally requests a background check from the State Bureau of Identification, through the Firearm Transaction Approval Program under subchapter VI of Chapter 85 of this title, for any purpose other than compliance with subsection (a) of this section, or § 1441(a)(1) or § 1448B(a) of this title, or wilfully and intentionally disseminates any information from the background check to any person other than the subject of such information or discloses to any person the unique identification number is guilty of a class A misdemeanor. The Superior Court has exclusive jurisdiction for all offenses under this subsection. (g) Any person who, in connection with the purchase, transfer, or attempted purchase or transfer of a firearm pursuant to subsection (a) of this section or § 1448B(a) of this title, wilfully and intentionally makes any materially false oral or written statement or wilfully and intentionally furnishes or exhibits any false identification intended or likely to deceive the licensee is guilty of a class G felony. (h) Any licensed dealer, licensed manufacturer, licensed importer or employee thereof who wilfully and intentionally sells or delivers a firearm in violation of this section is guilty of a class A misdemeanor. A second or subsequent offense by an individual is a class G felony. The Superior Court has exclusive jurisdiction for all offenses under this subsection. (i) The SBI shall provide to the judiciary committees of the Senate and House of Representatives an annual report including the number of inquiries made under this section and § 1448B of this title for the prior calendar year. The report must include the number of inquiries received from licensees, the number of inquiries resulting in a determination that the potential buyer or transferee was prohibited from receipt or possession of a firearm under § 1448 of this title or federal law, and the estimated costs of administering the Firearm Transaction Approval Program under subchapter VI of Chapter 85 of this title. Page 155 Title 11 - Crimes and Criminal Procedure (j) Notwithstanding Chapter 89 of this title, Chapter 10 of Title 29, and other laws of this State, the SBI shall release records and data required by this section and by § 1448B of this title. The SBI may not release or disclose criminal records or data except as specified in this section and in § 1448B of this title. (k) Records, data, information, or reports containing the name, address, date of birth, or other identifying data of either the transferor or transferee or which contain the make, model, caliber, serial number, or other identifying data of any firearm which are required, authorized, or maintained under this section, § 1448B of this title, or by Chapter 9 of Title 24, are not subject to disclosure or release under the Freedom of Information Act, Chapter 100 of Title 29. (l) Relief from Disabilities Program. — A person who is subject to the disabilities of 18 U.S.C. § 922(d)(4) and (g)(4) or of § 1448(a)(2) of this title, except a person subject to an order for relinquishment under § 1448C(d)(1) of this title, because of an adjudication or commitment under the laws of this State may petition for relief from a firearms prohibition from the Relief from Disabilities Board. The Relief from Disabilities Board shall be comprised of 3 members, with the chairperson appointed by and serving at the pleasure of the Secretary of Safety and Homeland Security, and 2 members appointed by and serving at the pleasure of the Secretary of the Department of Health and Social Services, 1 of whom shall be a licensed psychiatrist. (1) The Board shall consider the petition for relief in accordance with all of the following: a. The Board shall give the petitioner the opportunity to present evidence to the Board in a closed and confidential hearing on the record. b. The Board shall maintain a record of the hearing for purposes of appellate review. (2) In determining whether to grant relief, the Board shall consider evidence regarding all of the following: a. The circumstances regarding the firearms disabilities pursuant to § 1448(a)(2) of this title and 18 U.S.C. § 922(d)(4) and (g)(4). b. The petitioner’s record, which must include, at a minimum, the petitioner’s mental health record, including a certificate of a medical doctor or psychiatrist licensed in this State that the person is no longer suffering from a mental disorder which interferes or handicaps the person from handling deadly weapons. c. Criminal history records. d. The petitioner’s reputation as evidenced through character witness statements, testimony, or other character evidence. (3) The Board shall have the authority to require that the petitioner undergo a clinical evaluation and risk assessment, which it may also consider as evidence in determining whether to approve or deny the petition for relief. (4) After a hearing on the record, the Board shall grant relief if it finds, by a preponderance of the evidence, all of the following apply: a. The petitioner will not be likely to act in a manner dangerous to public safety. b. Granting the relief will not be contrary to the public interest. (5) The Board shall issue its decision in writing explaining the reasons for a denial or grant of relief. (6) Any person whose petition for relief has been denied by the Relief from Disabilities Board has a right to a de novo judicial review in the Superior Court. The Superior Court shall consider the record of the Board hearing on the petition for relief, the decision of the Board, and, at the Court’s discretion, any additional evidence it deems necessary to conduct its review. (7) On notice that a petition for relief has been granted, the Department of Safety and Homeland Security shall, as soon as practicable, do both of the following: a. Cause the petitioner’s record to be updated, corrected, modified, or removed from any database maintained and made available to NICS and SBI to reflect that the petitioner is no longer subject to a firearms prohibition as it relates to § 1448(a)(2) of this title and 18 U.S.C. § 922(d)(4) and (g)(4). b. Notify the Attorney General of the United States and the Attorney General of this State that the petitioner is no longer subject to a firearms prohibition under § 1448(a)(2) of this title and 18 U.S.C. § 922(d)(4) and (g)(4). (m) The SBI shall adopt regulations, consistent with federal law, relating to compliance with NICS, including issues relating to the transmission of data, the transfer of existing data in the existing state criminal background check database, and the relief from disabilities process under subsection (l) of this section. In preparing such regulations, the SBI shall consult with the Department of Health and Social Services, the courts, the Department of Children, Youth and Their Families, the Department of State, and such other entities as may be necessary or advisable. Regulations adopted under this section must include provisions to ensure the identity, confidentiality, and security of all records and data provided under this section. (67 Del. Laws, c. 414, § 1; 69 Del. Laws, c. 224, § 3; 69 Del. Laws, c. 293, §§ 1-5; 70 Del. Laws, c. 20, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 104, § 1; 78 Del. Laws, c. 137, §§ 6-13; 79 Del. Laws, c. 20, §§ 2-7; 80 Del. Laws, c. 273, § 1; 81 Del. Laws, c. 232, § 3; 83 Del. Laws, c. 283, § 11; 83 Del. Laws, c. 330, § 2; 83 Del. Laws, c. 332, § 2.) § 1448B. Background checks for sales of firearms — Unlicensed persons. (a) An unlicensed person may not sell or transfer any firearm to any other unlicensed person without having conducted a background check through a licensed firearms dealer in accordance with § 1448A of this title and § 904A of Title 24 to determine whether the sale or transfer would be in violation of federal or state law, and until the licensed firearms dealer has been informed that the sale or transfer of Page 156 Title 11 - Crimes and Criminal Procedure the firearm may “proceed” by the State Bureau of Identification, through the Firearm Transaction Approval Program under subchapter VI of Chapter 85 of this title or 25 days have elapsed from the date of the request for a background check and a denial has not occurred. (b) For purposes of this section: (1) “Licensed dealer” means any person licensed as a deadly weapons dealer under Chapter 9 of Title 24 and 18 U.S.C. § 921 et seq. (2) “Firearm” means as defined under § 8571 of Title 11. (3) “Prospective buyer” includes a prospective transferee. (4) “Prospective seller” includes a prospective transferor. (5) “Transfer” means assigning, pledging, leasing, loaning, giving away, or otherwise disposing of, but does not include any of the following: a. The loan of a firearm for any lawful purpose, for a period of 14 days or less, by the owner of the firearm to a person known personally to the owner. b. A temporary transfer for any lawful purpose that occurs while in the continuous presence of the owner of the firearm, if the temporary transfer does not exceed 24 hours in duration. c. The transfer of a firearm for repair, service, or modification to a licensed gunsmith or other person lawfully engaged in such activities as a regular course of trade or business. d. A transfer that occurs by operation of law or because of the death of a person for whom the prospective transferor is an executor or administrator of an estate or a trustee of a trust created in a will. (6) “Unlicensed person” means any person who is not a licensed importer, licensed manufacturer or licensed dealer. (c) This section does not apply to any of the following: (1) Transactions in which the prospective buyer is a parent, mother-in-law, father-in-law, stepparent, legal guardian, grandparent, child, daughter-in-law, son-in-law, stepchild, grandchild, sibling, sister-in-law, brother-in-law, spouse, or civil union partner of the seller or transferor. (2) Any firearm, including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system, manufactured in or before 1898. (3) Any replica of any firearm described in paragraph (c)(2) of this section if the replica meets 1 of the following: a. Is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition. b. Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade. (4) Any muzzle-loading firearm designed for hunting or competitive shooting not requiring a criminal background check under federal law. (5) Transactions in which the prospective buyer is a qualified law-enforcement officer, as defined in § 1441A of this title, or a qualified retired law-enforcement officer, as defined in § 1441B of this title. (6) Transactions in which the prospective buyer holds a current and valid concealed carry permit issued by the Superior Court under § 1441 of this title. (7) Transactions in which the prospective buyer is a bona fide member or adherent of an organized church or religious group, the tenets of which prohibit photographic identification. Notwithstanding this paragraph (c)(7), an unlicensed person may not sell or transfer any firearm to the prospective buyer without having a background check conducted under subsection (f) of this section to determine whether the sale or transfer would be in violation of federal or state law. (8) Transactions involving the sale or transfer of a curio or relic to a licensed collector, as such terms are defined in 27 C.F.R. § 478.11. (9) Transactions involving the sale or transfer of a firearm to an authorized representative of the State or any subdivision thereof as part of an authorized voluntary gun buyback program. (d) Notwithstanding anything to the contrary in this section, a fee for a background check may not be charged for the return of a firearm to its owner that has been repaired, serviced, or modified by a licensed gunsmith or other person lawfully engaged in such activities as a regular course of trade or business. (e) Any person who knowingly sells or transfers a firearm in violation of this section is guilty of a class A misdemeanor. Any subsequent offense is a class G felony. The Superior Court has exclusive jurisdiction for all offenses under this section. (f) The State Bureau of Identification (the “Bureau” ) shall facilitate the sale or transfer of any firearm in which the prospective buyer is a bona fide member or adherent of an organized church or religious group, the tenets of which prohibit photographic identification, under the following procedure: (1) The prospective buyer and prospective seller shall jointly appear at the Bureau during regular hours of business, and shall inform the Bureau of their desire to avail themselves of this section. The actual cost of the background check must be paid by either the prospective buyer or prospective seller. (2) The prospective buyer shall submit fingerprints and other necessary information to complete a background check under the Firearm Transaction Approval Program under subchapter VI of Chapter 85 of this title. In addition, the prospective buyer shall submit Page 157 Title 11 - Crimes and Criminal Procedure to the Bureau a signed affidavit stating that photographic identification conflicts with the tenets of an organized church or religious group of which the prospective buyer is a bona fide member. (3) If the background check under paragraph (f)(2) of this section reveals that the prospective buyer is prohibited from possessing, purchasing, or owning a firearm, the Bureau shall inform the prospective buyer and prospective seller of that fact and the transfer may not take place. (4) The Bureau shall maintain a record of all background checks conducted under this section to the same extent as is required of licensed dealers under Chapter 9 of Title 24. (5) The Bureau may promulgate such reasonable forms and regulations consistent with federal law, as may be necessary or desirable to administer and enforce this subsection. (79 Del. Laws, c. 20, § 1; 70 Del. Laws, c. 186, § 1; 80 Del. Laws, c. 273, § 2; 81 Del. Laws, c. 79, § 14; 83 Del. Laws, c. 330, § 3.) § 1448C. Civil procedures to relinquish firearms or ammunition. (a) For the purposes of this section: (1) “Ammunition” means as defined in § 1448(c) of this title. (2) “Dangerous to others” means that by reason of mental condition there is a substantial likelihood that the person will inflict serious bodily harm upon another person within the reasonably foreseeable future. This determination must take into account a person’s history, recent behavior, and any recent act or threat. (3) “Dangerous to others or self” means as “dangerous to others” and “dangerous to self” are defined in this subsection. (4) “Dangerous to self” means that by reason of mental condition there is a substantial likelihood that the person will sustain serious bodily harm to oneself within the reasonably foreseeable future. This determination must take into account a person’s history, recent behavior, and any recent act or threat. (5) “Law-enforcement agency” means an agency established by this State, or by any county or municipality within this State, to enforce criminal laws or investigate suspected criminal activity. (b) If, after October 30, 2018, a law-enforcement agency receives a written report about an individual under § 5402 or § 5403 of Title 16, the law-enforcement agency shall determine if there is probable cause that the individual is dangerous to others or self and in possession of firearms or ammunition. (1) a. If the law-enforcement agency determines that there is probable cause that the individual is dangerous to others or self and in possession of firearms or ammunition, the law-enforcement agency shall do both of the following: 1. Immediately seek an order from the Justice of the Peace Court that the individual relinquish any firearms or ammunition owned, possessed, or controlled by the individual. 2. Immediately refer the report under § 5402 or § 5403 of Title 16 and its investigative findings to the Department of Justice. b. In making the probable cause determination under paragraph (b)(1)a. of this section, a law-enforcement agency must determine if the individual is subject to involuntary commitment under § 5009, § 5011, or § 5013 of Title 16. If the individual is subject of involuntary commitment, the law-enforcement agency may not seek an order under this paragraph (b)(1). (2) The Department of Justice may, upon review of the report and the law-enforcement agency’s investigative findings, petition the Superior Court for an order that the individual relinquish any firearms or ammunition owned, possessed, or controlled by the individual. The Department of Justice must file 1 of the following with the Superior Court within 30 days after the entry of the Justice of the Peace Court’s order under paragraph (d)(1) of this section: a. A petition under this paragraph (b)(2). b. A petition requesting additional time to file a petition under this paragraph (b)(2) for good cause shown. 1. If the Superior Court denies the Department of Justice’s request for additional time to file a petition under this paragraph (b) (2)b., the Department of Justice has either the remainder of the 30 days provided by this paragraph (b)(2) or 7 days from the date of the Superior Court’s denial, whichever is longer, to file a petition with Superior Court under this paragraph (b)(2). 2. If the Superior Court approves the Department of Justice’s request for additional time to file a petition under this paragraph (b)(2)b., the Court may not grant the Department more than 15 days to file the petition from the date of the Court’s approval. (3) If the Department of Justice does not file a petition with Superior Court under paragraph (b)(2) of this section within the timeframes under paragraph (b)(2) of this section, the Justice of the Peace Court’s order is void and a law-enforcement agency holding the firearms or ammunition of the individual subject to the order must return the firearms or ammunition to the individual. (c) (1) The following procedures govern a proceeding under paragraph (b)(1)a. of this section: a. The Justice of the Peace Court shall immediately hear a request for an order under paragraph (b)(1)a. of this section. b. The law enforcement agency has the burden of demonstrating that proof by a preponderance of the evidence exists to believe that the individual subject to a report under § 5402 or § 5403 of Title 16 is dangerous to others or self and in possession of firearms or ammunition. c. The individual does not have the right to be heard or to notice that the law-enforcement agency has sought an order under paragraph (b)(1)a. of this section. Page 158 Title 11 - Crimes and Criminal Procedure (2) The following procedures govern a proceeding under paragraph (b)(2) of this section: a. The individual has the right to be heard. b. If a hearing is requested, it must be held within 15 days of the Department of Justice’s filing of the petition under paragraph (b)(2) of this section, unless extended by the Court for good cause shown. c. If a hearing is held, the individual has the right to notice of the hearing, to present evidence, and to cross examine adverse witnesses. d. If a hearing is held, the hearing must be closed to the public and testimony and evidence must be kept confidential, unless the individual requests the hearing be public. e. If a hearing is held, the hearing must be on the record to allow for appellate review. f. The Department of Justice has the burden of proving by clear and convincing evidence that the individual is dangerous to others or self. (3) a. The Justice of the Peace Court may adopt additional rules governing proceedings under paragraph (b)(1)a. of this section. b. The Superior Court may adopt additional rules governing proceedings under paragraph (b)(2) of this section. (d) (1) If the Justice of the Peace Court finds, by a preponderance of the evidence, that an individual is dangerous to others or self, the Court shall order the individual to relinquish any firearms or ammunition owned, possessed, or controlled by the individual. The Court may do any of the following through its order: a. Require the individual to relinquish to a law-enforcement agency receiving the Court’s order any firearms or ammunition owned, possessed, or controlled by the individual. b. Prohibit the individual from residing with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair or limit the rights, under the Second Amendment to the United States Constitution or article I, § 20 of the Delaware Constitution, of an individual who is not the subject of the Court’s order of relinquishment. c. Direct a law-enforcement agency having jurisdiction where the individual resides or the firearms or ammunition are located to immediately search for and seize any firearms or ammunition owned, possessed, or controlled by the individual. (2) If the Superior Court finds by clear and convincing evidence that an individual is dangerous to others or self, the Court shall order the individual to relinquish any firearms or ammunition owned, possessed, or controlled by the individual. The Court may do any of the following through its order: a. Require the individual to relinquish to a law-enforcement agency receiving the Court’s order any firearms or ammunition owned, possessed, or controlled by the individual. b. Allow the individual to voluntarily relinquish to a law-enforcement agency receiving the Court’s order any firearms or ammunition owned, possessed, or controlled by the individual. c. Allow the individual to relinquish firearms or ammunition owned, possessed, or controlled by the individual to a designee of the individual. A designee of the individual must not reside with the individual and must not be a person prohibited under § 1448 of this title. The Court must find that the designee of the individual will keep firearms or ammunition owned, possessed, or controlled by the individual out of the possession of the individual. d. Prohibit the individual from residing with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair or limit the rights, under the Second Amendment to the United States Constitution or article I, § 20 of the Delaware Constitution, of an individual who is not the subject of the Court’s order of relinquishment. e. Direct a law-enforcement agency having jurisdiction where the individual resides or the firearms or ammunition are located to immediately search for and seize firearms or ammunition of the individual if the Department of Justice shows that the individual has ownership, possession, or control of a firearm or ammunition. (e) (1) An individual subject to the Superior Court’s order of relinquishment may petition the Relief from Disabilities Board for an order to return firearms or ammunition under § 1448A(l) of this title. (2) If the basis for relinquishment under this section is removed by the Relief from Disabilities Board established by § 1448A(l) of this title, any firearms or ammunition taken from the individual must be restored in a timely manner without the additional requirement of petitioning under § 1448A(l) of this title. (f) Any party in interest aggrieved by a decision of the Superior Court’s order of relinquishment under this section may appeal the decision to the Supreme Court. (g) (1) The State Police and the Department of Justice shall work with county and municipal law-enforcement agencies and the Department of Health and Social Services, and its Division of Substance Abuse and Mental Health, to develop appropriate internal policies and regulations to ensure that personnel who act under this section are trained on appropriate mental health risk assessment procedures and to look for histories of violence. (2) The Supreme Court, Superior Court, Justice of the Peace Court, Department of Justice, State Police, State Bureau of Identification, Delaware Criminal Justice Information System Board of Managers, and the Department of Health and Social Services may promulgate rules and regulations to carry out the purposes of this section, § 1448(a)(2) of this title, and §§ 5402 and 5403 of Title 16. (81 Del. Laws, c. 232, § 2; 82 Del. Laws, c. 122, § 1.) Page 159 Title 11 - Crimes and Criminal Procedure § 1449. Wearing body armor during commission of felony; class B felony. (a) A person who wears body armor during the commission of a felony is guilty of wearing body armor during the commission of a felony. (b) Notwithstanding § 4205 of this title, the minimum sentence for violation of this section shall be not less than 3 years which minimum sentence shall not be subject to suspension and no person convicted for a violation of this section shall be eligible for parole or probation during such 3 years. (c) Any sentence imposed upon conviction for wearing body armor during the commission of a felony shall not run concurrently with any other sentence. In any instance where a person is convicted of a felony, together with the conviction for wearing body armor during the commission of a felony, such person shall serve the sentence for the felony itself before beginning the sentence imposed for wearing body armor during the commission of such felony. (d) Every person charged under this section over the age of 16 years may be tried as an adult pursuant to §§ 1010 and 1011 of Title 10, notwithstanding any contrary provision of statutes governing the Family Court or any other state law. (e) As used in this section, the term “body armor” means any material designed to provide bullet penetration resistance. (f) A person may be found guilty of violating this section notwithstanding that the felony for which the person is convicted and during which the person wore body armor is a lesser included felony of the one originally charged. (g) Wearing body armor during the commission of a felony is a class B felony. (63 Del. Laws, c. 368, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 199, § 5.) § 1450. Receiving a stolen firearm; class F felony. A person is guilty of receiving a stolen firearm if the person intentionally receives, retains or disposes of a firearm of another person with intent to deprive the owner of it or to appropriate it, knowing that it has been acquired under circumstances amounting to theft, or believing that it has been so acquired. Receiving a stolen firearm is a class F felony. Knowledge that a firearm has been acquired under circumstances amounting to theft may be presumed in the case of a person who acquires it for a consideration which the person knows is substantially below its reasonable value. (64 Del. Laws, c. 38, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1451. Theft of a firearm; class F felony. (a) A person is guilty of theft of a firearm when the person takes, exercises control over or obtains a firearm of another person intending to deprive the other person of it or appropriate it. (b) Theft of a firearm is a class F felony. (64 Del. Laws, c. 37, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1452. Unlawfully dealing with knuckles-combination knife; class B misdemeanor. A person is guilty of unlawfully dealing with a knuckles-combination knife when the person sells, offers for sale or has in possession a knife, the blade of which is supported by a knuckle ring grip handle. Unlawfully dealing with a knuckles-combination knife is a class B misdemeanor. (65 Del. Laws, c. 465, § 1; 67 Del. Laws, c. 130, § 8; 70 Del. Laws, c. 186, § 1.) § 1453. Unlawfully dealing with martial arts throwing star; class B misdemeanor. A person is guilty of unlawfully dealing with a martial arts throwing star when the person sells, offers for sale or has in possession a sharp metal throwing star. Unlawfully dealing with a martial arts throwing star is a class B misdemeanor. (65 Del. Laws, c. 465, § 1; 67 Del. Laws, c. 130, § 8.) § 1454. Giving a firearm to person prohibited; class F felony. A person is guilty of giving a firearm to certain persons prohibited when the person sells, transfers, gives, lends or otherwise furnishes a firearm to a person knowing that said person is a person prohibited as is defined in § 1448 of this title. Giving a firearm to certain persons prohibited is a class F felony. (68 Del. Laws, c. 47, § 1; 70 Del. Laws, c. 186, § 1.) § 1455. Engaging in a firearms transaction on behalf of another; class E felony; class C felony. (a) A person is guilty of engaging in a firearms transaction on behalf of another when the person purchases or obtains a firearm on behalf of a person not qualified to legally purchase, own or possess a firearm in this State or for the purpose of selling, giving or otherwise transferring a firearm to a person not legally qualified to purchase, own or possess a firearm in this State. Page 160 Title 11 - Crimes and Criminal Procedure (b) Engaging in a firearms transaction on behalf of another is a class E felony for the first offense, and a class C felony for each subsequent like offense. (c) (1) A federal firearms licensee who suspects a person engaged in a firearms transaction may be violating this section may alert SBI through the same hotline established under § 8572 of this title for background checks. (2) Upon receiving notice of a possible transaction in violation of this section, SBI shall forward information relating to the transaction to the appropriate law-enforcement agency for further investigation. (69 Del. Laws, c. 220, § 1; 70 Del. Laws, c. 186, § 1; 81 Del. Laws, c. 228, § 1; 83 Del. Laws, c. 330, § 4.) § 1456. Unsafe storage of a firearm; class A or B misdemeanor. (a) (1) A person is guilty of unsafe storage of a firearm when the person intentionally or recklessly stores or leaves a loaded firearm within the reach or easy access of an unauthorized person, the unauthorized person obtains the firearm, and all of the following do apply: a. The firearm was not stored in a locked box or container. b. The firearm was not disabled with a tamper-resistant trigger lock which was properly engaged so as to render the firearm inoperable by a person other than the owner or other lawfully-authorized user. c. The firearm was not stored in a location that a reasonable person would have believed to be secure from access by an unauthorized person. d. The unauthorized person did not obtain the firearm as the result of an unlawful entry by any person. (2) For the purposes of this section: a. “Stores or leaves” does not mean when the firearm is carried by or under the control of the owner or other lawfully-authorized user. b. “Unauthorized person” means a child or person prohibited by state or federal law from owning or possessing a firearm. (b) [Repealed.] (c) (1) Unsafe storage of a firearm is a class B misdemeanor if paragraphs (c)(2)a., b., or c. of this section do not apply. (2) Unsafe storage of a firearm is a class A misdemeanor if the unauthorized person does any of the following: a. Commits or attempts to commit a crime with the firearm. b. Uses the firearm to inflict serious physical injury or death upon any person, including the unauthorized person. c. Transfers or attempts to transfer the firearm to another unauthorized person. (d) The Superior Court has jurisdiction over an offense under this section. (e) It is not an offense under this section if the firearm was manufactured in or before the year 1899 or is a replica of such firearm if the replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition. (69 Del. Laws, c. 360, § 1; 70 Del. Laws, c. 186, § 1; 82 Del. Laws, c. 35, § 1.) § 1457. Possession of a firearm in a Safe Recreation Zone; class D, E, or F felony; class A or B misdemeanor. (a) Any person who commits any of the offenses described in subsection (b) of this section, or any juvenile who possesses a firearm and does so while in or on a “Safe Recreation Zone” shall be guilty of the crime of possession of a firearm in a Safe Recreation Zone. (b) The underlying offenses in Title 11 shall be: (1) Section 1442. — Carrying a concealed deadly weapon; class G felony; class D felony. (2) Section 1444. — Possessing a destructive weapon; class E felony. (3) Section 1446. — Unlawfully dealing with a switchblade knife; unclassified misdemeanor. (4) Section 1448. — Possession and purchase of deadly weapons by persons prohibited; class F felony. (5) Section 1452. — Unlawfully dealing with knuckles-combination knife; class B misdemeanor. (6) Section 1453. — Unlawfully dealing with martial arts throwing star; class B misdemeanor. (7) Section 1466. — Manufacture, sale, transport, transfer, purchase, receipt, and possession of assault weapons; class E or F felony. (c) For the purpose of this section: (1) “Constable” means an individual who licensed under Chapter 56 of Title 24. (2) “Firearm” means as defined in § 222 of this title and includes a destructive weapon as defined in § 1444(a) and (c) of this title and includes BB guns. (3) “Police officer” means as defined in § 8401 of this title. (4) “Safe Recreation Zone” means any building or structure owned, operated, leased or rented by any county or municipality, or by the State, or by any board, agency, commission, department, corporation or other entity thereof, or by any private organization, which is utilized as a recreation center, athletic field or sports stadium. Page 161 Title 11 - Crimes and Criminal Procedure (d) Nothing in this section shall be construed to preclude or otherwise limit a prosecution of or conviction for a violation of this chapter or any other provision of law. A person may be convicted both of the crime of possession of a weapon in a Safe School and Recreation Zone and of the underlying offense as defined elsewhere by the laws of the State. (e) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place on or in a Safe School and Recreation Zone. (f) It shall be an affirmative defense to a prosecution for a violation of this section that the weapon was possessed pursuant to an authorized course of school instruction, or for the purpose of engaging in any school-authorized sporting or recreational activity. The affirmative defense established in this section shall be proved by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for any offense defined in any other section of this chapter. (g) [Repealed.] (h) This section does not apply to any of the following: (1) A police officer. (2) A constable employed by a recreation zone who is acting in that capacity within a Safe Recreation Zone. (i) [Repealed.] (j) The penalty for possession of a weapon in a Safe Recreation Zone shall be: (1) If the underlying offense is a class B misdemeanor, the crime shall be a class A misdemeanor; (2) If the underlying offense is an unclassified misdemeanor, the crime shall be a class B misdemeanor; (3) If the underlying offense is a class E, F, or G felony, the crime shall be one grade higher than the underlying offense. (4) If the underlying offense is a class D felony, the crime shall also be a class D felony. (5), (6) [Repealed.] (70 Del. Laws, c. 213, § 1; 74 Del. Laws, c. 131, §§ 1-4; 76 Del. Laws, c. 326, § 1; 77 Del. Laws, c. 64, §§ 1, 2; 77 Del. Laws, c. 313, §§ 4, 5; 81 Del. Laws, c. 99, § 1; 81 Del. Laws, c. 194, § 1; 81 Del. Laws, c. 425, § 5; 83 Del. Laws, c. 246, § 1; 83 Del. Laws, c. 328, § 2; 84 Del. Laws, c. 175, § 1.) § 1457A. Possession of a firearm in a Safe School Zone; class E felony. (a) As used in this section: (1) “Constable” means as licensed under Chapter 56 of Title 24. (2) “Firearm” means as defined in § 222 of this title and includes a destructive weapon as defined in § 1444(a) and (c) of this title and includes BB guns. (3) “Police officer” means as defined in § 8401 of this title. (4) “Safe School Zone” means all of the following: a. Any building, structure, athletic field, sports stadium or real property owned, operated, leased or rented by any public or private school including any kindergarten elementary, secondary, or vocational-technical school. b. Any motor vehicle owned, operated, leased, or rented by any public or private school including any kindergarten, elementary, secondary, or vocational-technical school. (b) Any person who knowingly possesses a firearm while in or on a Safe School Zone shall be guilty of the crime of possession of a firearm in a Safe School Zone. (c) Subsection (b) of this section shall not apply to any of the following: (1) A police officer. (2) A constable employed by a school district who is acting in an official capacity within a Safe School Zone. (3) An active-duty member of the United States Armed Forces or Delaware National Guard who is acting in an official capacity within a Safe School Zone. (4) A holder of a valid license to carry concealed deadly weapons under § 1441 but only if the firearm is in a vehicle. (5) Employees of the Department of Services for Children, Youth, and Their Families who are authorized by the Secretary of the Department to carry a firearm while acting in the employee’s official capacity. (6) Probation and parole officers acting within the officer’s official capacity. (d) Subsection (b) of this section does not apply to the possession of a firearm in any of the following circumstances: (1) On private property not part of school grounds. (2) A firearm in a locked container or locked firearms rack that is in or on a motor vehicle. (3) When engaged in lawful hunting, firearm instruction, or firearm-related sports on public lands, other than those belonging to a public or private school. (e) A person who violates this section is guilty of a class E felony. Page 162 Title 11 - Crimes and Criminal Procedure (f) In the event that an elementary or secondary school student possesses a firearm in a Safe School Zone, in addition to any other penalties contained in this section, the student shall be expelled by the local school board or charter school board of directors for a period of not less than 180 days unless otherwise provided for in federal or state law. The local school board or charter school board of directors may, on a case-by-case basis, modify the terms of the expulsion to less than 180 days. (84 Del. Laws, c. 175, § 1.) § 1457B. Possession of a firearm at a polling place; class A misdemeanor. (a) As used in this section: (1) a. “Election day” means a day on which in-person voting is offered at a polling place, and includes early voting under Chapter 54 of Title 15, for any of the following elections: 1. Primary, general, or special election. 2. School election conducted by the Department of Elections pursuant to Title 14 or Title 15. 3. Municipal election conducted in accordance with the municipality’s charter, ordinance, or code. b. “Election day” includes 2 hours before the polls open until 2 hours after the polls close. (2) “Firearm” means as defined in § 222 of this title. (3) a. “Polling place” means 1 of the following locations in the State: 1. Designated by the Department of Elections for in-person voting under §§ 4512 and 5402 of Title 15. 2. Designated in accordance with a municipality’s charter, ordinance, or code for in-person voting on an election day. 3. Designated by the Department of Elections for the tabulation and counting of votes. 4. Department of Elections office locations where sealed absentee ballot envelopes may be returned under the provisions of § 5507 of Title 15. b. “Polling place” shall not mean an area outside of the actual polling place, such as parking areas or adjoining structures that are not part of the polling place. (b) Except as otherwise provided under subsection (c) of this section, a person who knowingly possesses a firearm at a polling place on election day is guilty of possession of a firearm at a polling place. (c) Subsection (b) of this section does not apply if at the time of an alleged violation the person is any of the following: (1) Legally in possession of a firearm within a private residence located at a polling place. (2) Engaged in lawful hunting, firearm instruction, or firearm-related sports on public lands that are designated for such activity, other than those being used as a polling place on election day. (3) Employed as any of the following: a. A “law-enforcement officer,” as defined in § 222 of this title. b. A “commissioned security guard,” as defined under § 1302 of Title 24, who is acting in an official capacity at a polling place on election day. c. A constable, as licensed under Chapter 56 of Title 24, who is acting in an official capacity at a polling place on election day. d. An active-duty member of the United States Armed Forces or Delaware National Guard, who is acting in an official capacity at a polling place on election day. (d) It is an affirmative defense that a person was legally in possession of a firearm and was only traveling through the polling place to reach private property located therein or to leave private property therein to reach a location outside the polling place. This defense is not available to any person who committed any of the following acts or conspired to commit any of the following acts: (1) Intimidation of voters (2) Interference with the election. (3) Traveling through the polling place with a firearm for any purpose other than reaching a permitted destination. (e) It is not a defense if the person was unaware that the person possessed a firearm at polling place on election day. (f) Possession of a firearm at a polling place is a class A misdemeanor. (g) The Superior Court has exclusive jurisdiction over offenses under this section. (h) The Department of Elections shall post signs at the entrance of each polling place on election day to notify the public that firearms are not permitted at the polling place. (84 Del. Laws, c. 176, § 1.) § 1458. Removing a firearm from the possession of a law-enforcement officer; class C felony. (a) A person shall not knowingly or recklessly remove or attempt to remove a firearm, disabling chemical spray, baton or other deadly weapon from the possession of another person or deprive the other person of its use if: Page 163 Title 11 - Crimes and Criminal Procedure (1) The person has knowledge or reason to know that the other person is employed as: a. A law-enforcement officer including, but not limited to, all those defined as “police officer” in § 1911(a) of this title, who is authorized by law to make arrests; b. A sheriff, deputy sheriff, constable, judicial assistant, court bailiff or other court security officer or court bailiff; c. An employee of the Department of Correction, the Division of Parole and Probation or the Department of Youth Rehabilitative Services; d. A special investigator or state detective with the Delaware Department of Justice, Office of the Attorney General; or e. An armored car guard licensed pursuant to § 1317 or § 1320 of Title 24; and (2) The other person is lawfully acting within the course and scope of that other person’s employment. (b) A person who violates this section is guilty of a class C felony. (71 Del. Laws, c. 62, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 374, § 7.) § 1459. Possession of a weapon with a removed, obliterated or altered serial number. (a) No person shall knowingly transport, ship, possess or receive any firearm or firearm frame or receiver with the knowledge that the importer’s or manufacturer’s serial number has been removed, obliterated or altered in a manner that has disguised or concealed the identity or origin of the firearm. (b) This section shall not apply to a firearm manufactured prior to 1973. (c) Possessing, transporting, shipping or receiving a firearm with a removed, obliterated or altered serial number pursuant to this section is a class D felony. (71 Del. Laws, c. 251, § 1; 83 Del. Laws, c. 246, § 2.) § 1459A. Possession of an unfinished firearm frame or receiver with no serial number. (a) No person shall knowingly transport, ship, transfer, or sell an unfinished firearm frame or receiver unless all of the following apply: (1) The person is a federally-licensed gun dealer or manufacturer. (2) The name of the manufacturer and an individual serial number are conspicuously placed on the unfinished firearm frame or receiver in accordance with the procedures for the serialization of a firearm in 18 U.S.C. § 923(i). (3) The person maintains records for the unfinished firearm frame or receiver in accordance with the requirements for maintenance of records in 18 U.S.C. § 923(g). (b) No person shall knowingly possess an unfinished firearm frame or receiver that does not have the name of the manufacturer and individual serial number conspicuously placed on it or on a major component of the firearm into which the unfinished firearm frame or receiver will be housed. (c) Subsection (b) of this section does not apply to a federally-licensed gun manufacturer during the manufacturing process of a firearm frame or receiver. (d) Possession of an unfinished firearm frame or receiver with no serial number is a class D felony. (83 Del. Laws, c. 246, § 2.) § 1460. Possession of firearm while under the influence. (a) A person is guilty of possession of a firearm while under the influence of alcohol or drugs when the person possesses a firearm in a public place while under the influence of alcohol or drugs. It shall be an affirmative defense to prosecution under this section that, the firearm was not readily operable, or that the person was not in possession of ammunition for the firearm. The Superior Court shall have original and exclusive jurisdiction over a violation of this section. (b) For purposes of this section, the following definitions shall apply: (1) “Not readily operable” means that the firearm is disassembled, broken down, or stored in a manner to prevent its immediate use. (2) “Possess,” “possession” or “possesses” means that the person has the item under his or her dominion and authority, and that said item is at the relevant time physically available and accessible to the person. (3) “Public place” means a place to which the public or a substantial group of persons has access and includes highways, transportation facilities, schools, places of amusement, parks, playgrounds, restaurants, bars, taverns, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. (4) “Under the influence of alcohol or drugs” means: a. Having an amount of alcohol in a sample of the person’s blood equivalent to .08 or more grams of alcohol per hundred milliliters of blood, or an amount of alcohol in a sample of breath equivalent to .08 or more grams per 210 liters of breath. A person shall be guilty, without regard to the person’s alcohol concentration at the time of possession of a firearm in violation thereof, if such person’s alcohol concentration is .08 or more within 4 hours after the person was found to be in possession of a firearm, and that alcohol Page 164 Title 11 - Crimes and Criminal Procedure concentration is the result of an amount of alcohol present in, or consumed by such person when that person was in possession of a firearm; or b. Being manifestly under the influence of alcohol or any illicit or recreational drug, as defined in § 4177(c) of Title 21, or any other drug not administered or prescribed to be taken by a physician, to the degree that the person may be in danger or endanger other persons or property, or annoy persons in the vicinity, provided that no person shall be “under the influence of alcohol or drugs” for purposes of this section when the person has not used or consumed an illicit or recreational drug prior to or during an alleged violation, but has only used or consumed such drug after the person has allegedly violated this section and only such use or consumption after such alleged violation caused the person’s blood to contain an amount of alcohol or drug or an amount of a substance or compound that is the result of the use or consumption of the drug within 4 hours after the time of the alleged violation thereof. (c) A law-enforcement officer who has probable cause to believe that a person has violated this section may, with or without the consent of the person, take reasonable steps to conduct chemical testing to determine the person’s alcohol concentration or the presence of illicit or recreational drugs. A person’s refusal to submit to chemical testing shall be admissible in any trial arising from a violation of this section. (d) (1) Except as provided in paragraph (d)(2) of this section, possession of a firearm while under the influence is a class A misdemeanor. (2) Possession of a firearm while under the influence is a class G felony if the conviction is for an offense that was committed after a previous conviction for possession of a firearm while under the influence. (78 Del. Laws, c. 136, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 396, § 2.) § 1461. Report of loss, theft of firearm. (a) Any owner of a firearm, defined in § 222 of this title, shall report the loss or theft of the firearm within 7 days after the discovery of the loss or theft to either: (1) The law-enforcement agency having jurisdiction over the location where the loss or theft of the firearm occurred; or (2) Any State Police troop. (b) Whoever is convicted of a violation of this section shall: (1) For the first offense, be guilty of a violation and be subject to a civil penalty of not less than $75 nor more than $100. (2) For a second offense committed at any time after the sentencing or adjudication of a first offense, be guilty of a violation and be subject to a civil penalty of not less than $100 nor more than $250. (3) For a third or subsequent offense committed at any time after the sentencing or adjudication of a second offense, be guilty of a class G felony. (79 Del. Laws, c. 41, § 1.) § 1462. Covert or undetectable firearms; class E or D felony. (a) A person is guilty of possession of a covert or undetectable firearm when the person knowingly possesses a covert or undetectable firearm. (b) A person is guilty of manufacturing a covert or undetectable firearm when the person manufactures, causes to be manufactured, transports, or sells a covert or undetectable firearm. (c) Possession of a covert or undetectable firearm is a class E felony. (d) Manufacturing a covert or undetectable firearm is a class D felony. (83 Del. Laws, c. 246, § 2.) § 1463. Untraceable firearms; class E or D felony. (a) A person is guilty of possessing an untraceable firearm when then person knowingly possesses an untraceable firearm. (b) A person is guilty of manufacturing an untraceable firearm when the person knowingly manufactures, assembles, causes to be manufactured or assembled, sells, or transfers an untraceable firearm. (c) A person is guilty of manufacturing or distributing a firearm using a 3-dimensional printer when the person does any 1 of the following: (1) Uses a 3-dimensional printer or similar device to manufacture or produce a firearm, firearm receiver, or major firearm component when not licensed as a manufacturer. (2) Distributes by any means, including the internet, to a person who is not licensed as a manufacturer, instructions in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a 3-dimensional printer to manufacture or produce a firearm, firearm receiver or major component of a firearm. (d) Possession of an untraceable firearm is a class E felony. (e) Manufacturing an untraceable firearm or manufacturing or distributing a firearm using a 3-dimensional printer is a class D felony. (83 Del. Laws, c. 246, § 2.) Page 165 Title 11 - Crimes and Criminal Procedure § 1464. Legislative findings. The General Assembly hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this State. The General Assembly has restricted the assault weapons specified in § 1465 of this title based upon finding that each firearm has such a high rate of fire and capacity for firepower that its potential function as a sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the General Assembly in enacting this chapter to place restrictions on the possession and use of assault weapons. It is not, however, the intent of the General Assembly by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities. (83 Del. Laws, c. 328, § 1.) § 1465. Definitions related to assault weapons. For purposes of this section and § 1466 and § 1467 of this title: (1) “Ammunition feeding device” means any magazine, belt, drum, feed strip, or similar device that holds ammunition for a firearm. (2) “Assault long gun” means any of the following or a copy, regardless of the producer or manufacturer: a. American Arms Spectre da Semiautomatic carbine. b. Avtomat Kalashnikov semiautomatic rifle in any format, including the AK-47 in all forms. c. Algimec AGM-1 type semi-auto. d. AR 100 type semi-auto. e. AR 180 type semi-auto. f. Argentine L.S.R. semi-auto. g. Australian Automatic Arms SAR type semi-auto. h. Auto-Ordnance Thompson M1 and 1927 semi-automatics. i. Barrett light .50 cal. semi-auto. j. Beretta AR70 type semi-auto. k. Bushmaster semi-auto rifle. l. Calico models M-100 and M-900. m. CIS SR 88 type semi-auto. n. Claridge HI TEC C-9 carbines. o. Colt AR-15, CAR-15, and all imitations except Colt AR-15 Sporter H-BAR rifle. p. Daewoo MAX 1 and MAX 2, aka AR 100, 110C, K-1, and K-2. q. Dragunov Chinese made semi-auto. r. Famas semi-auto (.223 caliber). s. Feather AT-9 semi-auto. t. FN LAR and FN FAL assault rifle. u. FNC semi-auto type carbine. v. F.I.E./Franchi LAW 12 and SPAS 12 assault shotgun. w. Steyr-AUG-SA semi-auto. x. Galil models AR and ARM semi-auto. y. Heckler and Koch HK-91 A3, HK-93 A2, HK-94 A2 and A3. z. Holmes model 88 shotgun. aa. Manchester Arms “Commando” MK-45, MK-9. bb. Mandell TAC-1 semi-auto carbine. cc. Mossberg model 500 Bullpup assault shotgun. dd. Sterling Mark 6. ee. P.A.W.S. carbine. ff. Ruger mini-14 folding stock model (.223 caliber). gg. SIG 550/551 assault rifle (.223 caliber). hh. SKS with detachable magazine. ii. AP-74 Commando type semi-auto. jj. Springfield Armory BM-59, SAR-48, G3, SAR-3, M-21 sniper rifle, and M1A, excluding the M1 Garand. kk. Street sweeper assault type shotgun. Page 166 Title 11 - Crimes and Criminal Procedure ll. Striker 12 assault shotgun in all formats. mm. Unique F11 semi-auto type. nn. Daewoo USAS 12 semi-auto shotgun. oo. UZI 9mm carbine or rifle. pp. Valmet M-76 and M-78 semi-auto. qq. Weaver Arms “Nighthawk” semi-auto carbine. rr. Wilkinson Arms 9mm semi-auto “Terry”. (3) “Assault pistol” means any of the following or a copy, regardless of the producer or manufacturer: a. AA Arms AP-9 pistol. b. Beretta 93R pistol. c. Bushmaster pistol. d. Claridge HI-TEC pistol. e. D Max Industries pistol. f. EKO Cobra pistol. g. Encom MK-IV, MP-9, or MP-45 pistol. h. Heckler and Koch MP5K, MP7, SP-89, or VP70 pistol. i. Holmes MP-83 pistol. j. Ingram MAC 10/11 pistol and variations, including the Partisan Avenger and the SWD Cobray. k. Intratec TEC-9/DC-9 pistol in any centerfire variation. l. P.A.W.S. type pistol. m. Skorpion pistol. n. Spectre double action pistol (Sile, F.I.E., Mitchell). o. Stechkin automatic pistol. p. Steyer tactical pistol. q. UZI pistol. r. Weaver Arms Nighthawk pistol. s. Wilkinson “Linda” pistol. (4) “Assault weapon” means any of the following: a. An assault long gun. b. An assault pistol. c. A copycat weapon. (5) “Completed a purchase” means that the purchaser completed an application, passed a background check, and has a receipt or purchase order for the assault weapon, without regard to whether the purchaser has actual physical possession of the assault weapon. If receipt of the assault weapon will not occur until July 1, 2023, it is not a completed purchase. (6) “Copycat weapon” means any of the following: a. A semiautomatic, centerfire rifle that can accept a detachable magazine and has at least 1 of the following: 1. A folding or telescoping stock. 2. Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing. 3. A forward pistol grip. 4. A flash suppressor. 5. A grenade launcher or flare launcher. b. A semiautomatic, centerfire rifle that has an overall length of less than 30 inches. c. A semiautomatic pistol that can accept a detachable magazine and has at least 1 of the following: 1. An ability to accept a detachable ammunition magazine that attaches at some location outside of the pistol grip. 2. A threaded barrel capable of accepting a flash suppressor, forward pistol grip or silencer. 3. A shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to fire the firearm without being burned, except a slide that encloses the barrel. 4. A second hand grip. Page 167 Title 11 - Crimes and Criminal Procedure d. A semiautomatic shotgun that has both of the following: 1. A folding or telescoping stock. 2. Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing. e. A semiautomatic shotgun that has the ability to accept a detachable magazine. f. A shotgun with a revolving cylinder. g. A semiautomatic pistol with a fixed magazine that can accept more than 17 rounds. h. A semiautomatic, centerfire rifle that has a fixed magazine that can accept more than 17 rounds. (7) “Detachable magazine” means an ammunition feeding device that can be removed readily from a firearm without requiring disassembly of the firearm action or without the use of a tool, including a bullet or cartridge. (8) “Family” means as defined in § 901 of Title 10. (9) “Flash suppressor” means a device that functions, or is intended to function, to perceptibly reduce or redirect muzzle flash from the shooter’s field of vision. (10) “Grenade launcher” means a device designed to fire, launch, or propel a grenade. (11) “Qualified retired law-enforcement officer” means as defined in § 1441B(c) of this title. (12) “Secure storage” means a firearm that is stored in a locked container or equipped with a tamper-resistant mechanical lock or other safety device that is properly engaged so as to render the firearm inoperable by a person other than the owner or other lawfullyauthorized user. (13) “Shooting range” means any land or structure used and operated in accordance with all applicable laws and ordinances for the shooting of targets for training, education, practice, recreation, or competition. (83 Del. Laws, c. 328, § 1.) § 1466. Manufacture, sale, transport, transfer, purchase, receipt, and possession of assault weapons; class E or F felony. (a) Prohibitions. — Except as provided in subsection (b) or (c) of this section, it is unlawful for a person to do any of the following: (1) Transport an assault weapon into this State. (2) Manufacture, sell, offer to sell, transfer, purchase, receive, or possess an assault weapon. (b) Applicability. — This section does not apply to any of the following: (1) The following individuals, if acting within the scope of official business: a. Personnel of the United States government or a unit of that government. b. Members of the armed forces of the United States or of the National Guard. c. A law-enforcement officer. (2) An assault weapon modified to render it permanently inoperative. (3) Possession, importation, manufacture, receipt for manufacture, shipment for manufacture, storage, purchases, sales, and transport to or by a licensed firearms dealer or manufacturer who does any of the following: a. Provides or services an assault weapon for a law-enforcement agency of this State or for personnel exempted under paragraph (b)(1) of this section. b. Acts to sell or transfer an assault weapon to a licensed firearm dealer in another state or to an individual purchaser in another state through a licensed firearms dealer. c. Acts to return to a customer in another state an assault weapon transferred to the licensed firearms dealer or manufacturer under the terms of a warranty or for repair. (4) Organizations that are required or authorized by federal law governing their specific business or activity to maintain assault weapons. (5) The receipt of an assault weapon by inheritance, and possession of the inherited assault weapon, if the decedent lawfully possessed the assault weapon and the person inheriting the assault weapon is not otherwise a person prohibited under § 1448 of this title. (6) The receipt of an assault weapon by a personal representative of an estate for purposes of exercising the powers and duties of a personal representative of an estate, including transferring the assault weapon according to will or probate proceedings. (7) Possession by a qualified retired law-enforcement officer who is not otherwise prohibited from receiving an assault weapon if either of the following applies: Page 168 Title 11 - Crimes and Criminal Procedure a. The assault weapon is sold or transferred to the qualified retired law-enforcement officer by the law-enforcement agency on retirement. b. The assault weapon was purchased or obtained by the qualified retired law-enforcement officer for official use with the lawenforcement agency before retirement. (8) Possession or transport by an “armored car guard,” as defined in § 1302 of Title 24, if the armored car agency is acting within the scope of employment with an “armored car agency,” as defined under § 1302 of Title 24, and is licensed under Chapter 13 of Title 24. (9) Possession, receipt, and testing by, or shipping to or from any of the following: a. An ISO 17025 accredited, National Institute of Justice-approved ballistics testing laboratory. b. A facility or entity that manufactures or provides research and development testing, analysis, or engineering for personal protective equipment or vehicle protection systems. (c) Exceptions. — (1) A licensed firearms dealer may continue to do all of the following with an assault weapon that the licensed firearms dealer lawfully possessed on or before June 30, 2022: a. Possess the assault weapon. b. Sell the assault weapon or offer the assault weapon for sale. But, the licensed firearms dealer may only sell the assault weapon or offer the assault weapon for sale as permitted under paragraph (b)(3)b. of this section. c. Transfer the assault weapon. But, the licensed firearms dealer may only transfer the assault weapon as permitted by paragraph (b)(3)b. or (b)(3)c. of this section. (2) a. A licensed firearms dealer may take possession of an assault weapon from a person who lawfully possessed the assault weapon before June 30, 2022, for the purposes of servicing or repairing the assault weapon. b. A licensed firearms dealer may transfer possession of an assault weapon received under paragraph (c)(2)a. of this section for purposes of accomplishing service or repair of the assault weapon. (3) A person who lawfully possessed, or completed a purchase of an assault weapon prior to June 30, 2022, may possess and transport the assault weapon on or after June 30, 2022, only under the following circumstances: a. At that person’s residence, place of business, or other property owned by that person, or on property owned by another person with the owner’s express permission. b. While on the premises of a shooting range. c. While attending any exhibition, display, or educational project that is about firearms and that is sponsored by, conducted under the auspices of, or approved by a law-enforcement agency or a nationally or state-recognized entity that fosters proficiency in, or promotes education about, firearms. d. While transporting the assault weapon between any of the places set forth in this this paragraph (c)(3) of this section, or to any licensed firearms dealer for servicing or repair under paragraph (c)(2) of this section, if the person places the assault weapon in secure storage. (4) A person may transport an assault weapon to or from any of the following if the person places the assault weapon in secure storage: a. An ISO 17025 accredited, National Institute of Justice-approved ballistics testing laboratory. b. A facility or entity that manufactures or provides research and development testing, analysis, or engineering for personal protective equipment or vehicle protection systems. (5) Ownership of an assault weapon may be transferred from the person owning the assault weapon to a member of that person’s family, and it is lawful for the family member to possess the transferred assault weapon under paragraph (c)(3) of this section, if the transferor lawfully possessed the assault weapon and the family member to whom the assault weapon is transferred is otherwise lawfully permitted to possess it. (d) Penalty. — A violation of this section is a class D felony. (e) Disposal. — A law-enforcement agency in possession of a person’s assault weapon as a result of an arrest under this section shall dispose of the assault weapon under the process established for deadly weapons and ammunition under § 2311 of this title following the person’s adjudication of delinquency or conviction under this section or by the person’s agreement to forfeit the assault weapon under an agreement to plead delinquent or guilty to another offense. (83 Del. Laws, c. 328, § 1.) § 1467. Voluntary certificate of possession. (a) A person who is exempt from § 1466(a) of this title under § 1466(c)(3) of this title may, no later than June 30, 2023, apply to the Secretary of the Department of Safety and Homeland Security for a certificate of possession. Page 169 Title 11 - Crimes and Criminal Procedure (b) In a prosecution under § 1466 of this title, it is an affirmative defense that the defendant was lawfully in possession or had completed a purchase of the assault weapon prior to June 30, 2022. A certificate of possession is conclusive evidence that a person lawfully possessed or had completed a purchase of an assault weapon before June 30, 2022, and is entitled to continue to possess and transport the assault weapon on or after June 30, 2022, under § 1466(c)(3) of this title. (c) The Secretary of the Department of Safety and Homeland Security shall establish procedures with respect to the application for and issuance of certificates of possession for assault weapons that are lawfully owned and possessed before June 30, 2022. Rules and procedures under this subsection must include all of the following: (1) That the application contain proof that the person lawfully possessed or had completed a purchase of an assault weapon before June 30, 2022. (2) That the certificate of possession must contain a description of the assault weapon, including the make, model, and serial number. For an assault weapon manufactured before 1968, identifying marks may be substituted for the serial number. (3) That the certificate of possession must contain the full name, address, date of birth, and thumbprint of the person who owns the assault weapon, and any other information the Secretary deems appropriate. (4) That the Department will not retain copies of the certificate or other identifying information relating to any individual who applies for a voluntary certificate of possession. (d) A person who inherits or receives a weapon from a family member that is lawfully possessed under § 1466(c)(3) of this title and lawfully transferred may apply for a certificate of possession within 60 days of taking possession of the weapon. To receive a certificate, the person must show that the transferor was lawfully in possession and that he or she is the lawful recipient of the transfer. (83 Del. Laws, c. 328, § 1; 70 Del. Laws, c. 186, § 1.) § 1468. Definitions related to large-capacity magazines. For purposes of this section and §§ 1469 and 1469A of this title: (1) “Ammunition feeding device” means any magazine, belt, drum, feed strip, or similar device that holds ammunition for a firearm. (2) a. “Large-capacity magazine” means any ammunition feeding device capable of accepting, or that can readily be converted to hold, more than 17 rounds of ammunition. b. “Large-capacity magazine” does not include an attached tubular device designed to accept, and only capable of operating with, .22 caliber rimfire ammunition. c. For purposes of this subsection, the presence of a removable floor plate in an ammunition feeding device that is not capable of accepting more than 17 rounds of ammunition shall not, without more, be sufficient evidence that the ammunition feeding device can readily be converted to hold more than 17 rounds of ammunition. (3) “Licensed firearms dealer” means a person licensed under Chapter 9 of Title 24 or 18 U.S.C. § 921 et seq. (4) “Qualified retired law-enforcement officer” means as defined under § 1441B(c) of this title. (83 Del. Laws, c. 331, § 1.) § 1469. Large-capacity magazines prohibited; class E felony; class B misdemeanor; or civil violation [Effective until Jan. 1, 2024]. (a) Except as otherwise provided in subsections (c) through (e) of this section, it is unlawful for a person to manufacture, sell, offer for sale, purchase, receive, transfer, or possess a large-capacity magazine. (b) (1) A violation of this section which is a first offense which only involves possession of a large capacity magazine is a civil penalty of $100. (2) A second violation of this section which only involves possession of a large capacity magazine is a class B misdemeanor. (3) All other violations of this section, including a subsequent offense involving only possession of a large capacity magazine are a class E felony. (4) A large-capacity magazine is subject to forfeiture for a violation of this section. (5) The Superior Court has exclusive jurisdiction over violations under subsections (b)(2) and (b)(3) of this section. (c) This section does not apply to any of the following: (1) Personnel of the United States government or a unit of that government who are acting within the scope of official business. (2) Members of the armed forces of the United States or of the National Guard who are acting within the scope of official business. (3) A law-enforcement officer. (4) A qualified retired law-enforcement officer. (5) An individual who holds a valid concealed carry permit issued by the Superior Court under § 1441 of this title. (6) A licensed firearms dealer that sells a large-capacity magazine to another licensed firearms dealer or to an individual exempt under paragraphs (c)(1) through (5) of this section. Page 170 Title 11 - Crimes and Criminal Procedure (7) A large-capacity magazine that a person has rendered permanently inoperable or has permanently modified to accept 17 rounds of ammunition or less. (d) (1) The Secretary of the Department of Safety and Homeland Security (“Secretary”) shall establish and administer a compensation program for residents of this State to allow a resident in possession of a large-capacity magazine on August 29, 2022, to relinquish the large-capacity magazine to the Department of Safety and Homeland Security (“Department”) or a participating local law-enforcement agency in exchange for a monetary payment established under this subsection. (2) The Secretary shall adopt rules to implement the compensation program, including the following: a. That the compensation program be implemented between August 29, 2022, and June 30, 2023, at locations throughout this State. The Department shall coordinate with local law-enforcement agencies in implementing the program. b. That the compensation program allows a resident to relinquish a large-capacity magazine to the Department, or a local lawenforcement agency participating in the program, in exchange for a compensation in the amount of the market rate for each largecapacity magazine. c. That establishes the method for providing the monetary payment and reimbursing a participating law-enforcement agency for payments made to residents under the compensation program. d. That the compensation program is subject to the availability of funds appropriated for this specific purpose by the General Assembly. This subsection does not create a right or entitlement in a resident to receive a monetary payment under the compensation program. (3) The Secretary shall submit a report to the General Assembly by December 29, 2023, providing the results of the compensation program, including the number of large-capacity magazines relinquished to law-enforcement agencies, by county, and the total amount expended under the program. (e) This section does not apply to any of the following: (1) A person who manufactures a large-capacity magazine, if the person manufactures the large-capacity magazine with the intent to sell the large-capacity magazine, or offer the large-capacity magazine for sale, to a person outside of this State. (2) A person who ships or transports a large-capacity magazine for a person under paragraph (e)(1) of this section. (83 Del. Laws, c. 331, § 1; 83 Del. Laws, c. 348, § 1.) § 1469. Large-capacity magazines prohibited; class E felony; class B misdemeanor; or civil violation [Effective Jan. 1, 2024]. (a) Except as otherwise provided in subsections (c) through (e) of this section, it is unlawful for a person to manufacture, sell, offer for sale, purchase, receive, transfer, or possess a large-capacity magazine. (b) (1) A violation of this section which is a first offense which only involves possession of a large capacity magazine is a civil penalty of $100. (2) A second violation of this section which only involves possession of a large capacity magazine is a class B misdemeanor. (3) All other violations of this section, including a subsequent offense involving only possession of a large capacity magazine are a class E felony. (4) A large-capacity magazine is subject to forfeiture for a violation of this section. (5) The Superior Court has exclusive jurisdiction over violations under subsections (b)(2) and (b)(3) of this section. (c) This section does not apply to any of the following: (1) Personnel of the United States government or a unit of that government who are acting within the scope of official business. (2) Members of the armed forces of the United States or of the National Guard who are acting within the scope of official business. (3) A law-enforcement officer. (4) A qualified retired law-enforcement officer. (5) An individual who holds a valid concealed carry permit issued by the Superior Court under § 1441 of this title. (6) A licensed firearms dealer that sells a large-capacity magazine to another licensed firearms dealer or to an individual exempt under paragraphs (c)(1) through (5) of this section. (7) A large-capacity magazine that a person has rendered permanently inoperable or has permanently modified to accept 17 rounds of ammunition or less. (d) [Repealed.] (e) This section does not apply to any of the following: (1) A person who manufactures a large-capacity magazine, if the person manufactures the large-capacity magazine with the intent to sell the large-capacity magazine, or offer the large-capacity magazine for sale, to a person outside of this State. (2) A person who ships or transports a large-capacity magazine for a person under paragraph (e)(1) of this section. (83 Del. Laws, c. 331, § 1; 83 Del. Laws, c. 348, § 1; 83 Del. Laws, c. 331, § 6.) Page 171 Title 11 - Crimes and Criminal Procedure § 1469A. Possession of a large-capacity magazine during the commission of a felony; class B felony. (a) It is unlawful for a person to possess a large-capacity magazine during the commission of a felony. (b) Possession of a large-capacity magazine during the commission of a felony is a class B felony. (c) A person may be found guilty of violating this section notwithstanding that the felony for which the person is convicted and during which the person possessed the large-capacity magazine is a lesser included felony of the 1 originally charged. (83 Del. Laws, c. 331, § 1.) F Offenses Involving Video Lottery Machines § 1470. Definitions. (a) “Cheat” means to alter the element of chance, method of selection, or criteria which determines: (1) The result of the game; (2) The amount or frequency of payment in a game, including intentionally taking advantage of a malfunctioning machine; (3) The value of a wagering instrument; or (4) The value of a wagering credit. (b) “Cheating device” means any physical, mechanical, electromechanical, electronic, photographic, or computerized device used in such a manner as to cheat, deceive or defraud a video lottery machine or a table game. This includes, but is not limited to, slugs, plastic, tape, string or dental floss which is placed inside a coin or bill acceptor or any other opening in a video lottery machine in a manner to simulate coin or currency acceptance, and is thereafter withdrawn, or forged or stolen keys used to gain access to a machine to remove its contents, or game cards or dice that have been marked, loaded or tampered with. (c) “Paraphernalia for the manufacturing of cheating devices” means the equipment, products or materials that are intended for use or designed for use in manufacturing, producing, fabricating, preparing, testing, analyzing, packaging, storing or concealing a counterfeit facsimile of the chips, tokens, debit instruments or other wagering devices approved by the State Lottery Office or lawful coin or currency of the United States of America. This term includes, but is not limited to, lead or lead alloy molds, forms, or similar equipment capable of producing a likeness of a gaming token or United States coin or currency; melting pots or other receptacles; torches; tongs, trimming tools or other similar equipment; and equipment that can be used to manufacture facsimiles of debit instruments or wagering instruments approved by the State Lottery Office. (d) “Table game” shall mean any game played with cards, dice or any mechanical, electromechanical or electronic device or machine (excluding video lottery machines) for money, credit or any representative of value, including, but not limited to, baccarat, blackjack, twenty-one, poker, craps, roulette, keno, bingo, wheel of fortune or any variation of these games, whether or not similar in design or operation. (e) “Video lottery machine” shall mean any machine in which bills, coins or tokens are deposited in order to play in a game of chance in which the results, including options to the player, are randomly and immediately determined by the machine. A machine may use spinning reels or video displays or both, and may or may not dispense coins or tokens directly to winning players. A machine shall be considered a video lottery machine notwithstanding the use of an electronic credit system making the deposit of bills, coins or tokens unnecessary. (73 Del. Laws, c. 232, § 1; 77 Del. Laws, c. 221, §§ 1, 2.) § 1471. Prohibited acts. (a) It shall be unlawful for any person to use a cheating device in a video lottery machine or at a table game or to have possession of such a device in a video lottery facility, including its parking areas and/or adjacent facilities. (b) It shall be unlawful for any person to possess, use or have paraphernalia for manufacturing cheating devices. (c) It shall be unlawful for any person to cheat in order to collect or take or attempt to cheat in order to collect or take money or anything of value, for themselves or for another, in or from a video lottery machine or a table game in a video lottery facility, including its parking areas and/or adjacent facilities. (d) It shall be unlawful for any person to manipulate or alter, with the intent to cheat, any physical, mechanical, electromechanical, electronic, or computerized component of a video lottery machine or of a table game, contrary to the designed and normal operational purpose for the component, including, but not limited to, varying the pull of the handle of a video lottery machine, knowing that the manipulation can or could affect the outcome of the game. (e) It shall be unlawful for any person to use, sell or possess counterfeit slugs, counterfeit tokens, counterfeit gaming chips, counterfeit debit instruments or other counterfeit wagering instruments or any other counterfeit device resembling tokens, gaming chips, debit or other wagering instruments approved by the State Lottery Office for use in a video lottery machine or at a table game in a video lottery facility, including its parking areas and/or adjacent facilities. (f) It shall be unlawful for any person to place, increase or decrease a wager or to determine the course of play after acquiring knowledge, not available to all players, of the outcome of a table game or any event that affects the outcome of the game or which is the subject of the wager or to aid anyone in acquiring such knowledge for the purpose of placing, increasing or decreasing a wager or determining the course of play contingent upon that event or outcome. Page 172 Title 11 - Crimes and Criminal Procedure (g) It shall be unlawful for any person to claim, collect or take, or attempt to claim, collect or take, money or anything of value in or from a video lottery machine or a table game, with intent to defraud, without having made a wager contingent thereon, or to claim, collect or take an amount greater than the amount won. (h) It shall be unlawful for any employee or agent of a video lottery facility to knowingly fail to collect a losing wager or pay an amount greater on any wager than required under the rules of a table game. (i) It shall be unlawful for any person to place or increase a wager or attempt to place or increase a wager after acquiring knowledge of the outcome of the table game or other event which is the subject of the wager. (j) It shall be unlawful for any person to reduce the amount wagered or remove or cancel the wager or to attempt to reduce the amount wagered or remove or cancel the wager after acquiring knowledge of the outcome of the table game or other event which is the subject of the wager. (k) It shall be unlawful for any person to directly or indirectly offer, confer or agree to confer to another, or solicit, accept or agree to accept from another, anything of value to anyone, for the purpose of influencing the outcome of a race, sporting event, contest or table game upon which a wager may be made, or to place, increase or decrease a wager after acquiring knowledge, not available to the general public, that anyone has been offered, promised or given anything of value for the purpose of influencing the outcome of the race, sporting event, contest or game upon which the wager is placed, increased or decreased. (l) It shall be unlawful for any person at a video lottery facility, including its parking areas and/or adjacent facilities, without the written consent of the Delaware Lottery Director to use, or possess with the intent to use, any electronic, electrical or mechanical device that is designed, constructed or programmed to assist the user or another person: (1) In projecting the outcome of a table game or video lottery machine; (2) In keeping track of the cards played; (3) In analyzing the probability of the occurrence of an event relating to the game; or (4) In analyzing the strategy for playing or wagering to be used in the game. (73 Del. Laws, c. 232, § 1; 77 Del. Laws, c. 221, § 3.) § 1472. Penalties. (a) Any person convicted of conduct constituting a violation of § 1471(a), (b), (d), (e) or (l) of this title shall be guilty of a class A misdemeanor for a first offense and a class G felony for a second or subsequent conviction in this State or a state with a comparable criminal code section within 3 years of a first offense. (b) Any person convicted of conduct constituting a violation of § 1471(c), (f), (g), (h), (i), or (j) of this title shall be guilty of: (1) A class A misdemeanor if the amount involved is less than $1,500 or; (2) A class G felony if the amount involved is $1,500 or more but not greater than $50,000; (3) A class E felony if the amount involved is more than $50,000 but less than $100,000; (4) A class C felony if the amount involved is $100,000 or more. (c) Any person convicted of conduct constituting a violation of § 1471(k) of this title shall be guilty of a class G felony. (d) Amounts involved pursuant to 1 scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the crime. (e) Upon conviction, the sentencing judge shall require full restitution to the victim for any monetary losses suffered and shall consider the imposition of community service and/or an appropriate curfew for a minor. (f) Any cheating devices, slugs, paraphernalia for the manufacturing of cheating devices or related materials used by the person shall be forfeited to the Delaware State Police, including vehicles used to store such devices or paraphernalia. The Courts of the Justices of the Peace shall have concurrent jurisdiction with the Court of Common Pleas for misdemeanor offenses under this subpart and the Superior Court shall have exclusive jurisdiction for felony offenses under this subchapter. (73 Del. Laws, c. 232, § 1; 77 Del. Laws, c. 221, § 4.) § 1473. Preclusions. Nothing in this subchapter shall be construed as to prohibit the prosecution for an offense in this subchapter and any other provision of Delaware law. (73 Del. Laws, c. 232, § 1.) § 1474. Detention and questioning of person suspected of violating § 1471 of this title; limitations on liability; posting of notice. (a) Any video lottery agent, licensee, or that video lottery agent’s or licensee’s officers, employees or agents may question any person at the video lottery agent’s or licensee’s video lottery facility suspected of violating any of the provisions of § 1471 of this title. No video lottery agent or any of that video lottery agent’s officers, employees or agents is criminally or civilly liable: Page 173 Title 11 - Crimes and Criminal Procedure (1) On account of any such questioning; or (2) For reporting to the Delaware Lottery, Division of Gaming Enforcement or appropriate law-enforcement authorities the person suspected of the violation. (b) Any video lottery agent or any of its officers, employees or agents who has probable cause for believing that there has been a violation of § 1471 of this title in a video lottery facility, including its parking areas and/or adjacent facilities, by any person may take that person into custody and detain that person in the video lottery facility in a reasonable manner and for a reasonable length of time while awaiting the arrival of law-enforcement officials, who shall be summoned without delay. Such a taking into custody and detention does not render the video lottery agent or that video lottery agent’s officers, employees or agents criminally or civilly liable unless it is established by clear and convincing evidence that the taking into custody and detention are unreasonable under all the circumstances. (c) No video lottery agent or its officers, employees or agents is entitled to the immunity from liability provided for in subsection (b) of this section unless there is displayed in a conspicuous place in the video lottery facility a notice in boldface type clearly legible and in substantially this form: “Any video lottery agent, or any of that video lottery agent’s officers, employees or agents who has probable cause for believing that any person has violated any provision of § 1471 of Title 11 may detain that person in this facility.” (77 Del. Laws, c. 221, § 5; 70 Del. Laws, c. 186, § 1.) Page 174 Title 11 - Crimes and Criminal Procedure Part I Delaware Criminal Code Chapter 15 Organized Crime and Racketeering § 1501. Statement of purpose. The purpose of this chapter is to guard against and prevent the infiltration and illegal acquisition of legitimate economic enterprises by racketeering practices, and the use and exploitation of both legal and illegal enterprises to further criminal activities. This chapter is intended to apply to conduct beyond what is traditionally regarded as “organized crime” or “racketeering.” (65 Del. Laws, c. 493, § 1.) § 1502. Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: (1) a. “Beneficial interest” shall include any of the following: 1. The interests of a person as a beneficiary under any trust arrangement under which a trustee holds legal or record title to personal or real property; or 2. The interests of a person, under any other form of express fiduciary arrangement, pursuant to which any other person holds legal or record title to personal or real property for the benefit of such person. b. The term “beneficial interest” shall not include the interest of a stockholder in a corporation, or the interest of a partner in either a general partnership or a limited partnership. (2) “Documentary materials” shall mean any book, paper, document, writing, drawing, graph, chart, photograph, phonorecord, magnetic tape, computer printout, and any data compilation from which information can be obtained or from which information can be translated into useable form, or other tangible item. (3) “Enterprise” shall include any individual, sole proprietorship, partnership, corporation, trust or other legal entity; and any union, association or group of persons associated in fact, although not a legal entity. The word “enterprise” shall include illicit as well as licit enterprises, and governmental as well as other entities. (4) “Foreign corporation” shall have the same definition as is set forth in § 371 of Title 8. (5) “Pattern of racketeering activity” shall mean 2 or more incidents of conduct: a. That: 1. Constitute racketeering activity; 2. Are related to the affairs of the enterprise; 3. Are not so closely related to each other and connected in point of time and place that they constitute a single event; and b. Where: 1. At least 1 of the incidents of conduct occurred after July 9, 1986; 2. The last incident of conduct occurred within 10 years after a prior occasion of conduct; and 3. As to criminal charges, but not as to civil proceedings, at least 1 of the incidents of conduct constituted a felony under the Delaware Criminal Code, or if committed subject to the jurisdiction of the United States or any state of the United States, would constitute a felony under the Delaware Criminal Code if committed in the State. (6) “Pecuniary value” shall mean: a. Anything of value in the form of money, a negotiable instrument, a commercial interest or anything else which constitutes an economic advantage; or b. Any other property or service that has a value in excess of $100. (7) “Personal property” shall include any personal property or any interest in such personal property, or any right, including bank accounts, debts, corporate stocks, patents or copyrights. An item of personal property or a beneficial interest in personal property shall be deemed to be located where the trustee is, where the personal property is or where the instrument evidencing the right is. (8) “Principal” shall mean a person who engages in conduct constituting a violation, or one who is legally accountable for the unlawful conduct of another person or entity. (9) “Racketeering” shall mean to engage in, to attempt to engage in, to conspire to engage in or to solicit, coerce or intimidate another person to engage in any of the following: a. Any activity defined as “racketeering activity” under 18 U.S.C. § 1961(1)(A), (1)(B), (1)(C) or (1)(D). b. Any activity constituting any felony which is chargeable under the Delaware Code or any activity constituting a misdemeanor under any of the following provisions of the Delaware Code: 1. Chapter 53 of Title 30 relating to evasion of payment of cigarette taxes. Page 175 Title 11 - Crimes and Criminal Procedure 2. Chapter 73 of Title 6 relating to the sale of securities. 3. Chapter 5 of Title 11 relating to prostitution. 4. Chapter 5 of Title 11 and Title 6 relating to forgery and counterfeiting. 5. Chapter 5 of Title 11 relating to perjury. 6. Chapter 5 of Title 11 and Title 28 relating to bribery and misuse of public office and improper influence. 7. Chapter 5 of Title 11 relating to obscenity. 8. Chapter 5 of Title 11 and Title 28 relating to gambling. 9. Title 11 and Title 16 relating to drug abuse, prevention and control. 10. Chapter 5 of Title 11 relating to tampering with jurors, evidence and witnesses. 11. Chapter 51 of Title 30 relating to motor fuel tax offenses. 12. Chapter 5 of Title 11 relating to human trafficking. 13. Chapter 5 of Title 11 relating to animal fighting and baiting. 14. Chapter 5 of Title 11 relating to hate crimes or civil rights. 15. Chapter 5 of Title 11 relating to obstruction of justice. (10) “Real property” shall mean any real property situated in this State or any interest in such real property, including, but not limited to, any lease of or mortgage upon such real property. (11) a. “Trustee” shall include: 1. Any person acting as trustee under a trust in which the trustee holds legal or record title to personal or real property; or 2. Any person who holds legal or record title to personal or real property, for which any other person has a beneficial interest; or 3. Any successor trustee. b. The term “trustee” shall not include an assignee or trustee for an insolvent debtor, nor an executor, administrator, administrator with will annexed, testamentary trustee, conservator, guardian or committee appointed by, under the control of, or accountable to, a court. (12) “Unlawful debt” shall mean a debt incurred or contracted in an illegal gambling activity or business; or a debt which is unenforceable under state law, in whole or in part, as to either principal or interest. (65 Del. Laws, c. 493, § 1; 79 Del. Laws, c. 276, § 8; 80 Del. Laws, c. 263, § 1; 83 Del. Laws, c. 502, § 2; 84 Del. Laws, c. 228, § 2.) § 1503. Violations. (a) It shall be unlawful for any person employed by, or associated with, any enterprise to conduct or participate in the conduct of the affairs of the enterprise through a pattern of racketeering activity or collection of an unlawful debt. (b) It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property or personal property, of any nature, including money. (c) It is unlawful for any person who has received any proceeds derived, directly or indirectly, from a pattern of racketeering activity in which such person has participated, to use or invest, directly or indirectly, any part of such proceeds or any proceeds derived from the investment or use thereof, in the acquisition of any interest in, or the establishment or operation of, any enterprise or real property. (d) It is unlawful for any person to conspire or attempt to violate any of the provisions of subsection (a), (b) or (c) of this section. (65 Del. Laws, c. 493, § 1.) § 1504. Criminal penalties. (a) Any person convicted of conduct constituting a violation of any of the provisions of this chapter shall be guilty of a class B felony, and shall be punished by imprisonment and pay a fine of not less than $25,000. (b) Any person convicted of conduct constituting a violation of any of the provisions of § 1503 of this title shall criminally to forfeit, to the State any real or personal property used in the course of, intended for use in the course of, derived from, or realized through conduct in violation of § 1503 of this title including any property constituting an interest in or means of control or influence over the enterprise involved in the conduct in violation of § 1503 of this title or any property constituting proceeds derived from the conduct in violation of § 1503 of this title including: (1) Any position, office, appointment, tenure, commission or employment contract of any kind that the person acquired or maintained in violation of § 1503 of this title or through which the person conducted or participated in the conduct of the affairs of any enterprise in violation of § 1503 of this title or that afforded the person a source of influence or control over the affairs of an enterprise that the person exercised in violation of § 1503 of this title; (2) Any compensation, right or benefit derived from a position, office, appointment, tenure, commission or employment contract described in § 1503 of this title that accrued to the person during the period of conduct in violation of § 1503 of this title; (3) Any interest in, security of, claim against, or property or contractual right affording the person a source or influence or control over the affairs of an enterprise that the person exercised in violation of § 1503 of this title; or Page 176 Title 11 - Crimes and Criminal Procedure (4) Any amount payable or paid under any contract for goods or services that was awarded or performed in violation of § 1503 of this title. (c) In lieu of any fine otherwise authorized by law, any person convicted of engaging in racketeering, or any other conduct in violation of § 1503 of this title, through which such person derived pecuniary value, or by which the person caused personal injury or property damage or other loss, may be sentenced to pay a fine that does not exceed 3 times the gross value gained, or 3 times the gross loss caused, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred. (d) Upon conviction of a person under this chapter, the Superior Court shall authorize the Attorney General to seize all property or other interests declared forfeited under this chapter upon such terms and conditions as the Court shall deem proper. The State shall dispose of all property or other interests seized under this chapter as soon as feasible, making due provision for the rights of innocent persons. If a property right or other interest is not exercisable or transferable for value by the State, it shall expire and shall not revert to the convicted person. (65 Del. Laws, c. 493, § 1; 67 Del. Laws, c. 130, § 8; 67 Del. Laws, c. 350, § 13; 70 Del. Laws, c. 186, § 1.) § 1505. Civil remedies. (a) The Superior Court of this State shall have jurisdiction to prevent and restrain violations of this chapter by issuing appropriate orders, including but not limited to: Ordering any person to divest any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in; or ordering the dissolution or reorganization of any enterprise, making due provision of the rights of innocent persons. (b) The Attorney General may institute proceedings under § 1503 of this title and in addition for damages, civil forfeiture and a civil penalty of up to $100,000 for each incident of activity constituting a violation of this chapter. In any action brought by the State under § 1503 of this title, the Court shall proceed as soon as practicable to hold a hearing and reach a final determination in the matter. Pending final determination thereof, the Court may at any time enter such restraining orders or prohibitions, or take such other actions, including the acceptance of any satisfactory performance bond, as it shall deem proper. (c) Any person directly or indirectly injured by reason of any conduct constituting a violation of this chapter may sue therefor in any appropriate court, and if successful shall recover 3 times the actual damages sustained and, when appropriate, punitive damages. Damages under this subsection are not limited to competitive or distinct injury. Plaintiffs who substantially prevail shall also recover attorneys’ fees in the trial and appellate courts, together with the costs of investigation and litigation, reasonably incurred; provided, however, no action may be had under § 1503 of this title except against a defendant who has been criminally convicted of a racketeering activity which was the source of the injury alleged, and no action may be brought under this provision except within 1 year of such conviction. (d) Any person who is injured by reason of any violation of this chapter shall have a right or claim to property forfeited under § 1504 of this title, or to the proceeds derived therefrom, which right or claim shall be superior to that of the State (other than for costs) in the same property or proceeds. To enforce such right or claim, the injured person must intervene. (e) Upon the filing of a civil proceeding or action, the plaintiff shall immediately notify the Attorney General of the filing. The Attorney General may intervene upon certification that in the opinion of the Attorney General the action is of general public interest. (f) Notwithstanding any other provision of law providing a shorter period of limitations, a civil proceeding or action under this paragraph may be commenced within 5 years after the conduct made unlawful under § 1504 of this title or when the cause of action otherwise accrues or within an longer statutory period that shall be applicable. If a criminal proceeding or civil action or other proceeding is brought or intervened in by the Attorney General to punish, prevent or restrain any activity made unlawful under § 1504 of this title, the running of the period of limitations prescribed by this subsection with respect to any other cause of action of an aggrieved person based in whole or part upon any matter complained of in any such prosecution, action or proceeding, shall be suspended during the pendency of such prosecution, action or proceeding and for 2 years following its termination. (65 Del. Laws, c. 493, § 1; 70 Del. Laws, c. 186, § 1.) § 1506. Forfeiture proceedings. (a) The Attorney General is authorized to institute and conduct any proceedings under this chapter for the forfeiture of real or personal property to the State. All property of every kind used or intended for use in the course of, derived from, or realized through a pattern of racketeering conduct is subject to forfeiture to the State. Forfeiture shall be by means of a procedure which may be known and referred to as a “R.I.C.O. forfeiture proceeding.” (b) A R.I.C.O. forfeiture proceeding under this chapter may be commenced before or after seizure of the property. If the complaint is filed before seizure, it shall state what property is sought to be forfeited; that the property is within the jurisdiction of the Court; the grounds for forfeiture; and the name of each person known to have or claim an interest in the property. (c) To the extent that property which has been forfeited under this chapter cannot be located; has been transferred, sold or deposited with third parties; or has been placed beyond the jurisdiction of the State, the Attorney General may institute and conduct any proceedings to retrieve such property as are necessary and appropriate, including forfeiture of any other property of the defendant up to the value of the property that is unreachable. Page 177 Title 11 - Crimes and Criminal Procedure (d) No person convicted under this chapter nor any person acting in concert with or on behalf of the person shall be eligible to purchase forfeited property from the State. The interests of an innocent party in the property shall not be subject to forfeiture. (e) The Court may, upon such terms and conditions as it deems appropriate, order that the property be sold by an innocent party who holds a lien on, or security interest in, the property at any time during the proceedings. Any proceeds from such sale, over and upon the amount necessary to satisfy the lien or security interest, shall be paid into the court pending final judgment in the forfeiture proceeding. No such sale shall be ordered, however, unless the obligation upon which the lien or security interest is based is in default. (f) The proceeds of any sale or other disposition of forfeited property imposed under this chapter, whether by final judgment, settlement or otherwise, shall be applied in the following order: (1) To the fees and costs of the forfeiture and sale, including expenses of seizure, maintenance and custody of the property pending its disposition, advertising and court costs; (2) If any funds remain, then to all costs and expenses of investigation and prosecution, including costs of resources and personnel incurred in investigation and prosecution; (3) If any funds remain, then the remainder or $1,000, whichever is less, to the Crime Victim Compensation Fund; (4) If any funds remain, to the Special Law Enforcement Assistance Fund, or its successor; or if no such fund is in existence, to the fund which is dedicated entirely to law enforcement. (65 Del. Laws, c. 493, § 1; 70 Del. Laws, c. 186, § 1.) § 1507. Racketeering lien notice; lis pendens; construction of section. (a) Upon the institution of any criminal or civil proceeding under this chapter, the State, then or at any time during the pendency of the proceedings, may file in the official records of any 1 or more counties of this State, a racketeering (or “R.I.C.O.”) lien notice. Such notice shall create, and be equivalent to, a lien. No filing fee or other charge shall be required as a condition for filing such lien notice, and the Prothonotary shall, upon the presentation of the lien notice, immediately record it in the official records. (b) The racketeering (R.I.C.O.) lien notice shall be signed by the Attorney General, the Chief Deputy Attorney General or the State Prosecutor. The notice shall be in such form as the Attorney General shall prescribe and shall set forth the following information: (1) The name of the person against whom the civil proceeding has been brought. The notice may, but is not required to, list any other aliases, names or fictitious titles under which the person may be known. In its discretion the State may also list any corporation, partnership or other entity which is owned or controlled by such person; (2) If known to the Attorney General, the present residence and business address of the person named in the racketeering lien notice, and addresses for other names set forth in such lien notice; (3) A reference to the criminal or civil proceeding, stating that a proceeding under this chapter has been brought against the person named in the racketeering lien notice, and including the name of the county or counties where the proceeding has been initiated; (4) A statement that the notice is being filed pursuant to this chapter; (5) The name and address of the agency within the State Department of Justice that can answer any further questions; and (6) Such other information as the Attorney General shall deem appropriate. (c) The Attorney General or a Deputy Attorney General may amend any lien filed under this section at any time, by filing an amended racketeering lien in the same manner as a R.I.C.O. lien. An amended racketeering lien shall identify, with reasonable certainty, the lien which is being amended. (d) The Attorney General or a Deputy Attorney General shall, as soon as practicable after filing the racketeering lien notice, furnish to any person named in the lien a notice of the filing of such lien. The notice may be mailed by certified mail, return receipt requested. Failure to notify the person named in the lien in accordance with this subsection shall not invalidate nor otherwise affect any racketeering lien notice filed in accordance with this section. (e) A racketeering lien is perfected against interests in personal property by filing the lien notice with the Secretary of State, except that in the case of a titled motor vehicle it shall be filed with the Division of Motor Vehicles. A racketeering lien is perfected against interests in real property by filing the lien notice with the Prothonotary in the county in which the real property is located. The State may give such additional notice of the lien as it deems appropriate. (f) The filing of a notice of lien in accordance with this section creates a lien in favor of the State in: (1) Any interest of the defendant in real property situated in the county in which the lien notice is filed, then maintained or thereafter acquired in the name of the defendant identified in the notice; (2) Any interest of the defendant in personal property situated in this State, then maintained or thereafter acquired in the name of the defendant identified in the lien notice; and (3) Any property identified in the lien notice to the extent of the defendant’s interest therein. (g) The filing of a racketeering lien notice under this section is notice to all persons dealing with the person or property identified in the lien of the State’s claim. The lien created in favor of the State in accordance with this section is superior to and prior to the claims and interests of any other person, except a person possessing: Page 178 Title 11 - Crimes and Criminal Procedure (1) A valid lien perfected prior to the filing of the racketeering lien notice; (2) In the case of real property, an interest acquired and recorded prior to the filing of the racketeering lien notice; or (3) In the case of personal property, an interest acquired prior to the filing of the racketeering lien notice. (h) Where a trustee conveys title to real property against which a R.I.C.O. lien notice has been filed; and the lien notice has been filed in the county in which the property is located and names a person who, to the actual knowledge of the trustee, holds a beneficial interest in the trust, the trustee shall be liable to the State for the greater of: (1) The amount of proceeds received directly by the person named in the R.I.C.O. lien notice, as a result of the conveyance; (2) The amount of proceeds received by the trustee as a result of the conveyance, and distributed to any person named in the lien notice; or (3) The fair market value of the interest of the person named in the lien notice in the real property so conveyed; provided, however, that if the trustee conveys the real property, and holds proceeds that would otherwise be paid or distributed to the beneficiary (or at the direction of the beneficiary or the beneficiary’s designee), the trustee’s liability shall not exceed the amount of the proceeds so held for so long as the proceeds are held by the trustee. (i) Upon entry of judgment in favor of the State, the State may proceed to execute thereon as in the case of any other judgment, except that in order to preserve the State’s lien priority, as provided in this section, the State shall (in addition to such other notice as is required by law) give at least 30 days’ notice of such execution to any person, possessing at the time such notice is given, an interest recorded subsequent to the date the State’s lien was perfected. (j) Upon the entry of a final judgment in favor of the State, or an order providing for forfeiture of property to the State, the title of the State to the property: (1) In the case of real property, or a beneficial interest in real property, relates back to the date of filing the racketeering lien notice; or if no racketeering lien notice was filed, then to the date of recording of the final judgment, or an abstract thereof, in the county where the real property is located. (2) In the case of personal property or a beneficial interest in personal property, relates back to the date the personal property was seized by the State, or the date of filing of a racketeering lien notice in accordance with this section, whichever is earlier; but if the property was not seized, and no racketeering lien was filed, then to the date the final judgment was filed with the Secretary of State, or in the case of a titled motor vehicle, with the Division of Motor Vehicles. (k) This section shall not limit any right of the State to obtain any order or injunction, receivership, writ, attachment, garnishment or other remedy; nor limit any right of action which is appropriate to protect the interests of the State, or which is available under other applicable law. (l) In the event the Attorney General determines that the provisions of this section are unclear or insufficient the Attorney General may petition the Superior Court for the promulgation of rules to further clarify, or more effectively accomplish, the intent of this chapter and of this section. Where any rule promulgated by the Court conflicts with any provision of this section, this section shall be paramount. (65 Del. Laws, c. 493, § 1; 70 Del. Laws, c. 186, § 1.) § 1508. Term of lien notice. (a) The term of a racketeering lien notice shall be for a period of 6 years from the date of filing, unless a renewal lien notice has been filed; and, in such case, the term of the renewal lien notice shall be for a period of 6 years from the date of its filing. The State shall be entitled to only 1 renewal of a specific racketeering lien notice. (b) The Attorney General may release, in whole or in part, any racketeering lien notice or may release any specific real property or beneficial interest from a lien notice upon such terms and conditions as the Attorney General, or the Court, may determine. Any release of a racketeering lien notice executed by the Attorney General may be filed in the official records of any county. No charge or fee shall be imposed for the filing of any release of a racketeering lien notice. (c) If no civil proceeding has been instituted by the Attorney General, seeking a forfeiture of any property owned by the person named in the racketeering lien notice, the acquittal in the criminal proceeding of such person named in the lien notice or the dismissal of the criminal proceeding, shall terminate the lien notice; and, in such case, the filing of the racketeering lien notice shall have no effect. Where a civil proceeding has been instituted, and the criminal proceeding has been dismissed, or the person named in the racketeering lien notice has been acquitted in the criminal proceeding, the lien notice shall continue for the duration of the civil proceeding. (d) If no civil proceeding is then pending against the person named in a R.I.C.O. lien notice, any person named in the lien notice may institute a civil action against the State, seeking a release or extinguishment of the State’s lien. Notice of such civil action shall be filed in the county where the lien notice was filed. (65 Del. Laws, c. 493, § 1; 70 Del. Laws, c. 186, § 1.) § 1509. Investigative powers of Attorney General. (a) Whenever the Attorney General has reasonable cause to believe that any person or enterprise may have knowledge of, has been engaged in or is engaging in any conduct in violation of this chapter, the Attorney General may, in the Attorney General’s discretion, Page 179 Title 11 - Crimes and Criminal Procedure conduct an investigation of such conduct. The Attorney General is authorized before the commencement of any civil or criminal proceeding under this chapter to subpoena witnesses. The Attorney General may issue in writing and cause to be served on any person an investigative demand to compel the attendance of witnesses, examine witnesses under oath, require the production of evidence or documentary materials, and require answers to written interrogatories to be furnished under oath. (b) The production of documentary material in response to an investigative demand served under this section shall be made pursuant to a sworn certificate, in such form as the demand designates, by the person, if a natural person, to whom the demand is directed or, if not a natural person, by an individual having knowledge of the facts and circumstances relating to the production of materials, which certificate shall affirm that all of the documentary material required by the investigative demand and in the possession, custody or control of the person to whom the demand is directed has been produced and made available to the custodian. (c) The Attorney General may, in the Attorney General’s discretion, require the production under this section of documentary materials prior to the taking of any testimony of the person subpoenaed. The required documentary materials shall be made available for inspection or copying during normal business hours at the principal place of business of the person served, or at such other time and place as may be agreed upon between the person served and the Attorney General. (d) The examination of all persons pursuant to this section shall be conducted by the Attorney General or by a person designated in writing to be the Attorney General’s representative, before an officer chosen by the Attorney General who is authorized to administer oaths in this State. The statements made shall be taken down stenographically, or by a sound-recording device, and shall be transcribed. (e) No person shall, with intent to avoid, evade, prevent or obstruct compliance in whole or in part by any person with any duly served investigative demand of the Attorney General under this section, knowingly remove to any place, conceal, withhold, destroy, mutilate, alter or by any other means falsify any documentary material or materials that are the subject of the demand. A violation of this subsection is a class E felony. The Attorney General shall investigate suspected violations of this section. (f) In the event a witness subpoenaed under this section fails or refuses to appear, or to produce documentary materials as provided herein, or to give testimony relevant or material to an investigation, the Attorney General may petition the Superior Court in the county where the witness resides for an order requiring the witness to attend and testify, or to produce the documentary materials. Any failure or refusal by the witness to obey an order of the Court may be punishable by the Court as contempt. (65 Del. Laws, c. 493, § 1; 70 Del. Laws, c. 186, § 1.) § 1510. Registration of foreign corporations. (a) Each foreign corporation desiring to acquire of record any real property shall have, prior to acquisition, and shall continuously maintain in this State during any year thereafter in which such real property is owned by the corporation: (1) A registered office; and (2) A registered agent, which agent may be either: a. An individual resident in this State, whose business office is identical with such registered office; or b. Another corporation authorized to transact business in this State, having a business office identical with such registered office. A foreign corporation that, prior to acquisition of any real property in this State, complies with the requirements of § 371 of Title 8 and thereafter continuously maintains a registered agent in this State for the purposes of that section shall be deemed to have complied with the requirements of this subsection. (b) Each foreign corporation shall file with the Secretary of State on or before June 30 of each year, a sworn report on such forms as the Secretary of State shall prescribe, setting forth: (1) The name of such corporation; (2) The street address and the principal office of such corporation; (3) The name and street address of the registered agent and registered office of such corporation; and (4) The signature of the corporate president, vice-president, secretary, assistant secretary or treasurer attesting to the accuracy of the report as of the date immediately preceding filing of the report. A foreign corporation that complies with § 374 of Title 8 by filing the annual report as required by that section shall be deemed to have complied with this subsection. (c) Each foreign corporation which fails to comply with subsections (a) and (b) of this section shall not be entitled to sue or to defend in the courts of the State, until such corporation has a registered agent and registered office pursuant to subsection (a) of this section (or until such corporation registers with the Secretary of State pursuant to § 371 of Title 8) and complies with subsection (b) of this section by filing a report pursuant to such subsection (or pursuant to § 374 of Title 8). (d) The filing of a report by a corporation as required by this section shall be solely for the purposes of this chapter and, notwithstanding any other act, shall not be used as a determination of whether the corporation is doing business in this State; provided, however, that this subsection shall not apply to a foreign corporation which satisfies the requirements of subsection (b) of this section by filing an annual report under § 374 of Title 8. (e) This section shall not apply to any foreign financial, banking, insurance or lending organization whose lending activities are regulated by any other state or the United States of America. Page 180 Title 11 - Crimes and Criminal Procedure (f) The Secretary of State may establish fees for any filings required by this section, which fees shall not exceed those prescribed for similar filings as stated in § 391 of Title 8. (65 Del. Laws, c. 493, § 1; 71 Del. Laws, c. 171, § 2.) § 1511. Use of property and funds for law-enforcement purposes. (a) All cash, bonds and other funds forfeited to the State in accordance with this chapter which remain after distribution pursuant to § 1506(f) of this title shall be deposited into the Special Law Enforcement Assistance Fund [§ 4110 et seq. of this title]. (b) Personalty forfeited to the State which is not cash or currency shall not be sold or otherwise converted until the Attorney General determines, in writing, that such personalty cannot be used for law-enforcement related purposes. If the Attorney General determines that there is a law-enforcement use for such personalty, the personalty shall become state property and the Department of Justice shall have the right of first refusal. (65 Del. Laws, c. 493, § 1; 73 Del. Laws, c. 94, § 21.) Page 181 Title 11 - Crimes and Criminal Procedure Part II Criminal Procedure Generally Chapter 17 General Provisions § 1701. Benefit of clergy. The benefit of clergy shall not exist within this State. (Code 1852, § 2956; Code 1915, § 4824; Code 1935, § 5313; 11 Del. C. 1953, § 1701.) § 1702. Information against organization; process. Whenever an organization is informed against in a criminal proceeding, process shall be issued against such organization in the usual form and shall be served upon such organization in the same manner as process is served upon organizations in civil cases. An organization so served with process shall appear by an attorney in the court out of which such process has been issued by the time of the return of such writ, or upon motion of the Attorney General, final judgment shall be given against it upon the information. (Code 1915, § 4818A; 28 Del. Laws, c. 247; Code 1935, § 5319; 11 Del. C. 1953, § 1702; 74 Del. Laws, c. 71, §§ 1, 2.) Page 182 Title 11 - Crimes and Criminal Procedure Part II Criminal Procedure Generally Chapter 19 Arrest and Commitment; Fresh Pursuit Subchapter I Arrest and Commitment § 1901. Definitions. As used in this subchapter: (1) “Arrest” is the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime. (2) “Peace officer” is any public officer authorized by law to make arrests in a criminal case. Sheriffs and sheriff deputies are not authorized by law to make arrests in criminal cases. (Code 1935, § 5343-A; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1901; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 266, § 2.) § 1902. Questioning and detaining suspects. (a) A peace officer may stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person’s name, address, business abroad and destination. (b) Any person so questioned who fails to give identification or explain the person’s actions to the satisfaction of the officer may be detained and further questioned and investigated. (c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime. (Code 1935, § 5343-B; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1902; 56 Del. Laws, c. 152, § 1; 70 Del. Laws, c. 186, § 1.) § 1903. Searching questioned person for weapon. A peace officer may search for a dangerous weapon any person whom the officer has stopped or detained to question as provided in § 1902 of this title, whenever the officer has reasonable ground to believe that the officer is in danger if the person possesses a dangerous weapon. If the officer finds a weapon, the officer may take and keep it until the completion of the questioning, when the officer shall either return it or arrest the person. The arrest may be for the illegal possession of the weapon. (Code 1935, § 5343C; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1903; 70 Del. Laws, c. 186, § 1.) § 1904. Arrest without warrant. (a) An arrest by a peace officer without a warrant for a misdemeanor is lawful whenever the officer has reasonable ground to believe that the person to be arrested has committed a misdemeanor: (1) In the officer’s presence; (2) Out of the officer’s presence and without the State, and if law-enforcement officers of the state where the misdemeanor was committed request an arrest and the accused will not be apprehended unless immediately arrested; (3) Out of the officer’s presence and within the State for the crime of shoplifting and the arrest is based upon personal investigation at the scene of arrest and where a store employee is present who has observed the activity of the person to be arrested and that person is still present; (4) Out of the officer’s presence and within the State for any misdemeanor involving physical injury or the threat thereof or any misdemeanor involving illegal sexual contact or attempted sexual contact; (5) Out of the officer’s presence and within the State for a violation of a protective order issued by: Family Court; a court of any state, territory, or Indian nation in the United States; or a court of Canada; (6) Out of the officer’s presence and within the State for any misdemeanor occurring on school property; or (7) Out of the officer’s presence and within the State for the crime of underage gambling, § 4810(a) of Title 29, and all of the following apply: a. The arrest is based upon the officer’s personal investigation at the scene of arrest. b. A gaming employee, as defined in § 4803 of Title 29, is present who has observed the activity of the person to be arrested. c. The person to be arrested is still present. (b) An arrest by a peace officer without a warrant for a felony, whether committed within or without the State, is lawful whenever: (1) The officer has reasonable ground to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed; or Page 183 Title 11 - Crimes and Criminal Procedure (2) A felony has been committed by the person to be arrested although before making the arrest the officer had no reasonable ground to believe the person committed it. (c) Notwithstanding any other provision of law to the contrary, an arrest by a peace officer without a warrant for violation of probation is lawful whenever the peace officer has a reasonable ground to believe that the person to be arrested has committed a new offense within or without the State during a period of probation and has thereby violated a condition of said probation imposed upon the person by a court of this State. A reasonable ground to believe that a person has committed a new offense may be based upon, but is not limited to, a finding of probable cause to issue a warrant for the new offense made by a neutral magistrate, an indictment returned by a grand jury for the new offense or an information for the new offense filed in any court. Any person arrested pursuant to the provisions of this subsection shall be processed in accordance with the provisions of § 1909 of this title, at which time bail shall be set on both the new offense and the violation of probation. (Code 1935, § 5343-F; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1906; 58 Del. Laws, c. 448; 64 Del. Laws, c. 362, § 1; 69 Del. Laws, c. 160, § 5; 70 Del. Laws, c. 58, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 437, § 1; 72 Del. Laws, c. 63, § 2; 80 Del. Laws, c. 373, § 3; 81 Del. Laws, c. 250, § 4.) § 1905. Validity of arrest on improper grounds. If a lawful cause of arrest exists, the arrest is lawful even though the officer charges the wrong offense or gives a reason that does not justify the arrest. (Code 1935, § 5343-G; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1907.) § 1906. Possession and display of warrant. An arrest by a peace officer acting under a warrant is lawful even though the officer does not have the warrant in possession at the time of the arrest, but, if the person arrested so requests, the warrant shall be shown to the person as soon as practicable. (Code 1935, § 5343-H; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1908; 70 Del. Laws, c. 186, § 1.) § 1907. Summons instead of arrest; form; penalty for nonappearance. (a) In any case in which it is lawful for a peace officer to arrest without a warrant a person for a misdemeanor, the officer may, but need not, give the person a written summons in substantially the following form: Violator’s Last Name No. and Street Owner’s Name First City First Middle State Middle O.C.P. No. Color W B O Birth Date Occupation State Tag No. Sex M F Sec. No. DateTime M. Exact Location Acc.Yes No Address Specific Offense Hundred Magistrate County S K NC Route No. Arresting Officer Troop Date of Trial Time Address You are hereby directed to appear at the time and place designated above to stand trial for the offense indicated. A failure to obey this summons may result in fine or imprisonment, or both. Final Disposition of Upper Court Remarks TRAFFIC ARREST REPORT DELAWARE STATE POLICE (b) If the person fails to appear in answer to the summons, or if there is reasonable cause to believe that the person will not appear, a warrant for the person’s arrest may issue. (c) Whoever wilfully fails to appear in answer to the summons may be fined not more than $100 or imprisoned for not more than 30 days, or both. (Code 1935, § 5343-I; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1909; 70 Del. Laws, c. 186, § 1.) § 1908. Release of person arrested without warrant. (a) Any officer in charge of a police department or any officer delegated by the officer may release, instead of taking before a magistrate, any person who has been arrested without a warrant by an officer of that department whenever: (1) The officer is satisfied either that there is no ground for making a criminal complaint against the person and no further proceedings are desirable; or (2) The person was arrested for a misdemeanor and has signed an agreement to appear in court at a time designated, if the officer is satisfied that the person is a resident of the State and will appear in court at the time designated. Page 184 Title 11 - Crimes and Criminal Procedure (b) A person released as provided in this section shall have no right to sue on the ground that the person was released without being brought before a magistrate. (Code 1935, § 5343-J; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1910; 57 Del. Laws, c. 694, § 2; 70 Del. Laws, c. 186, § 1.) § 1909. Hearing without delay; permissible delay. (a) If not otherwise released, every person arrested shall be brought before a magistrate without unreasonable delay, and in any event the person shall, subject to the limitations contained in subsection (b) of this section below, be so brought within 24 hours of arrest, unless the court, for good cause shown, orders that person be held for a further period not to exceed 48 hours. (b) Persons unable to knowingly and intelligently participate in the presentment proceedings because of incapacitation as a result of the consumption of alcohol or the use of drugs may, until such time as they are able to meaningfully participate in those proceedings, be held in police custody or be temporarily committed with bail and conditions of release to the custody of the Department of Correction on order of and following a determination of incapacitation by a magistrate. This temporary holding or commitment should not exceed 12 hours from the time of commitment until presentment, unless the court, for good cause shown, orders that person be held for a further period not to exceed 24 additional hours. (Code 1935, § 5343-K; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1911; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 257, § 1.) § 1910. Identification of witness. Whenever a peace officer has reasonable ground to believe that a crime has been committed, the officer may stop any person who the officer has reasonable ground to believe was present thereat and may demand the person’s name and address. If the person fails to give identification to the satisfaction of the officer, the officer may take the person forthwith before a magistrate. If the person fails to give identification to the satisfaction of the magistrate, the latter may require the person to furnish bond or may commit the person to jail until the person so gives identification. (Code 1935, § 5343-L; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1912; 70 Del. Laws, c. 186, § 1.) § 1911. Police officers; statewide authority. (a) For purposes of this section “police officer” means any police officer holding current certification by the Police Officer Standards and Training Commission as provided by Chapter 84 of this title and who is: (1) A member of the Delaware State Police; (2) A member of the New Castle County Police; (3) A member of the police department, bureau or force of any incorporated city or town; (4) A member of the Delaware River and Bay Authority Police; (5) A member of the Capitol Police; (6) A member of the University of Delaware Police; (7) A law-enforcement officer of the Department of Natural Resources and Environmental Control; (8) An agent of the State Division of Alcohol and Tobacco Enforcement; (9) An officer or agent of the State Police Drug Diversion Unit; (10) A state detective or special investigator of the Department of Justice; (11) Delaware State University Police; or (12) A member of the Office of the State Fire Marshal. (b) A police officer may arrest without a warrant at any location within the State any person the officer has reasonable grounds to believe is committing or attempting to commit a felony in the officer’s presence. (c) An on-duty police officer may arrest upon view and without a warrant at any location within the State any person when probable cause exists to believe that the person is committing or attempting to commit any crime which creates a substantial risk of death or serious physical injury to another person or which constitutes a violation of § 4177 of Title 21. (d) An “on-duty” police officer may arrest at any location in the State any person for any offense committed within the jurisdiction of the officer’s employing agency and for whose arrest a warrant has been issued. The “on-duty” police officer shall, where acting outside of the officer’s jurisdiction, take reasonable measures to notify the primary jurisdictional police agency of the intended time and place of the execution of the arrest warrant. (e) A police officer may render assistance to another police officer at any location within the State when the officer reasonably believes that the police officer to be assisted is lawfully performing that officer’s duty and that death or injury will occur to that police officer if assistance is not provided. (f) When police officers who are certified by the Police Officer Standards and Training Commission are dispatched by a Public Safety Answering Point outside of their respective jurisdiction as conservators of the peace, those officers shall be considered to be acting as officers of the dispatching agency and have the powers of arrest thereof. Page 185 Title 11 - Crimes and Criminal Procedure (g) A police officer acting under the authority of this section shall be considered to be acting within the scope of employment. (h) This section shall not serve to limit the authority of members of the Delaware State Police or other police officers as provided for elsewhere in this title or by other authority. (i) “Police officer” as used in this code shall not include sheriffs and sheriff deputies. (64 Del. Laws, c. 101, § 1; 65 Del. Laws, c. 207, § 1; 66 Del. Laws, c. 305, § 1; 67 Del. Laws, c. 220, § 1; 68 Del. Laws, c. 313, § 1; 70 Del. Laws, c. 105, § 13; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 465, § 1; 72 Del. Laws, c. 379, § 2; 73 Del. Laws, c. 195, § 1; 74 Del. Laws, c. 250, § 2; 76 Del. Laws, c. 43, § 1; 76 Del. Laws, c. 160, § 1; 76 Del. Laws, c. 332, § 1; 78 Del. Laws, c. 155, § 3; 78 Del. Laws, c. 266, § 3; 78 Del. Laws, c. 377, § 1; 84 Del. Laws, c. 149, § 5.) § 1912. Federal law-enforcement officers; authority; immunity. A sworn federal law-enforcement officer, who in an official capacity is authorized by law to make arrests, shall have the same legal status and immunity from suit in this State as a member of the Delaware State Police when making an arrest in this State concerning a nonfederal crime, only if: (1) The federal officer reasonably believes that the person arrested has committed or is committing a felony in the officer’s presence; or (2) The federal officer is rendering assistance to a peace officer of this State in an emergency or at the request of the peace officer. (64 Del. Laws, c. 354, § 1; 70 Del. Laws, c. 186, § 1.) § 1913. Release and publication of the name and photograph of a juvenile. (a) As used in this section: (1) “Juvenile” means a child 17 years of age or younger. (2) “Law-enforcement officer” means as defined in § 222 of this title. (3) “Law-enforcement agency” means any agency employing law-enforcement officers. (4) “Mugshot” means a photograph of a suspect’s face or profile. (5) “Name of juvenile” means the name of a juvenile who has been arrested or suspected of committing a crime. (6) “Photograph of a juvenile” means any image depicting a juvenile who has been arrested or suspected of committing a crime. “Photograph of a juvenile” includes a mugshot. (7) “Publish” means to disseminate to the public or produce or release for distribution. “Publish” includes to display on any publiclymaintained social media page or website. (8) “Release” means to make available or accessible to the public. (9) “Violent felony” means as defined in § 4201 of this title. (b) No law-enforcement agency shall release or publish or cause to be released or published the name of a juvenile or a photograph of a juvenile unless all of the following apply: (1) The juvenile is charged with a violent felony. (2) Release or publication of the photograph or name of the juvenile is necessary to protect the public’s safety. (83 Del. Laws, c. 262, § 1.) Subchapter II Fresh Pursuit § 1931. Definitions. As used in this subchapter: “Fresh pursuit” includes fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or a misdemeanor or a violation of the Motor Vehicle Code of this State or who is reasonably suspected of having committed a felony or a misdemeanor or a violation of the Motor Vehicle Code of this State, and also includes the pursuit of a person suspected of having committed a supposed felony or misdemeanor or violation of the Motor Vehicle Code of the State though no violation of the law has actually been committed, if there is reasonable grounds for believing that a violation of the law has been committed; however, fresh pursuit as used in this subchapter does not necessarily imply instant pursuit, but pursuit without unreasonable delay. (41 Del. Laws, c. 216, § 5; 11 Del. C. 1953, § 1931; 56 Del. Laws, c. 154, § 1.) § 1932. Arrest by out-of-state police. (a) Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this State in fresh pursuit, and continues within this State in such fresh pursuit, of a person in order to arrest the person on the ground that the person is believed to have committed a felony, a misdemeanor or a violation of the motor vehicle code in such other state, shall have the same Page 186 Title 11 - Crimes and Criminal Procedure authority to arrest and hold such person in custody, as has any member of any duly organized state, county or municipal peace unit of this State, to arrest and hold in custody a person on the ground that the person is believed to have committed a felony, a misdemeanor or a violation of the Motor Vehicle Code in this State. (b) This section shall not be construed so as to make unlawful any arrest in this State which would otherwise be lawful. (41 Del. Laws, c. 216, §§ 1, 3; 11 Del. C. 1953, § 1932; 56 Del. Laws, c. 154, § 2; 70 Del. Laws, c. 186, § 1.) § 1933. Hearing before justice of the peace; waiver of extradition. If an arrest is made in this State by an officer of another state in accordance with § 1932 of this title, the officer shall without unnecessary delay take the person arrested before a justice of the peace of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the justice of the peace determines that the arrest was lawful the justice of the peace shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor of this State, or admit the person to bail for such purpose. If the justice of the peace determines that the arrest was unlawful the justice of the peace shall discharge the person arrested. If the person so arrested waives extradition in the manner provided by law, upon the filing of the waiver at the central office or headquarters of any local, county or state police, or at the local office of the Attorney General, the officer having the arrested person in charge may forthwith take the person from this State to the state where the arrested person is wanted for having committed the felony. (41 Del. Laws, c. 216, § 2; 11 Del. C. 1953, § 1933; 70 Del. Laws, c. 186, § 1.) § 1934. Short title. This subchapter may be cited as the “Uniform Law on Fresh Pursuit.” (41 Del. Laws, c. 216, § 8; 11 Del. C. 1953, § 1934.) § 1935. Fresh pursuit by county, municipal, town and other peace units. Any peace officer of a duly organized county, municipal, town, interstate bridge or university peace unit or a law-enforcement officer of the Department of Natural Resources and Environmental Control, but not county sheriffs or their deputies, may carry out fresh pursuit of any person anywhere within this State, regardless of the original territorial jurisdiction of such officer, in order to arrest such person pursued, when there is reasonable grounds to suspect that a felony, misdemeanor, or violation of the Motor Vehicle Code has been committed in this State by such person. (11 Del. C. 1953, § 1935; 56 Del. Laws, c. 154, § 3; 66 Del. Laws, c. 304, § 1; 70 Del. Laws, c. 105, § 14; 78 Del. Laws, c. 266, § 4.) Subchapter III Police Mutual Aid Agreements § 1941. Short title. This subchapter may be cited as the “Police Mutual Assistance Act.” (11 Del. C. 1953, § 1941; 57 Del. Laws, c. 433; 75 Del. Laws, c. 36, § 1.) § 1942. Definitions. As used in this subchapter: (1) “Emergency” means any such circumstance which, in the judgment of the principal law-enforcement officer of the requesting jurisdiction, requires additional police assistance, and shall include such planned or anticipated or scheduled events that, in the judgment of the principal law-enforcement officer of the requesting jurisdiction, will require additional police resources beyond the reasonable capacity of the requesting jurisdiction. The governing body of a jurisdiction may determine the circumstances under which police officers of its jurisdiction, together with all necessary equipment, may lawfully go or be sent beyond the territorial limits of its jurisdiction to any point within or without the State. (2) “Jurisdiction” means a recognized geographic area such as a county, incorporated municipality or the legislatively defined area of responsibility of the Delaware River and Bay Authority or the Department of Safety and Homeland Security or the Department of Natural Resources and Environmental Control and/or the University of Delaware and/or Delaware State University in which the governing body and its police have the authority, capacity, power and right to enforce laws. (3) “Mutual assistance” means the provisions under this subchapter enabling the police of one jurisdiction to enter into another jurisdiction for purpose of rendering assistance upon the request of the other jurisdiction. (4) “Police” includes all authorized law-enforcement personnel of a jurisdiction. (11 Del. C. 1953, § 1942; 57 Del. Laws, c. 433; 66 Del. Laws, c. 110, § 1; 66 Del. Laws, c. 306, §§ 1, 2; 70 Del. Laws, c. 105, §§ 15, 16; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 138, §§ 2, 3; 72 Del. Laws, c. 367, § 1; 74 Del. Laws, c. 110, § 138; 75 Del. Laws, c. 36, § 1.) Page 187 Title 11 - Crimes and Criminal Procedure § 1943. Use of police from other jurisdictions in emergencies. Whenever the necessity arises during an emergency, upon request, the police of one jurisdiction may, pursuant to this subchapter, lawfully enter into another jurisdiction for the purpose of assisting in meeting such emergency. (11 Del. C. 1953, § 1943; 57 Del. Laws, c. 433; 75 Del. Laws, c. 36, § 1.) § 1944. Mutual assistance. (a) The police agency of a jurisdiction may in its discretion enter into agreements to provide mutual assistance for such periods as it deems advisable with any other jurisdiction within or without the State, including the District of Columbia. Such agreements must set forth the rights and obligations of the parties with respect to the mutual assistance contemplated under the agreement. (b) [Repealed.] (11 Del. C. 1953, § 1944; 57 Del. Laws, c. 433; 66 Del. Laws, c. 110, § 2; 72 Del. Laws, c. 130, § 1; 75 Del. Laws, c. 36, § 1; 82 Del. Laws, c. 207, § 1.) § 1945. Liability insurance. The governing body of any jurisdiction in this State is authorized to procure or extend the necessary public liability insurance to cover claims arising out of mutual assistance to other jurisdictions. (11 Del. C. 1953, § 1945; 57 Del. Laws, c. 433; 66 Del. Laws, c. 110, § 3; 75 Del. Laws, c. 36, § 1.) § 1946. Direction and authorization of activities. (a) The principal law-enforcement officer on duty of a jurisdiction shall be responsible for directing the activities of all police coming into that officer’s jurisdiction pursuant to this subchapter. (b) The principal law-enforcement officer shall be empowered to authorize all police from a foreign jurisdiction to the same extent as if they were duly authorized law-enforcement officers of the jurisdiction. (11 Del. C. 1953, § 1946; 57 Del. Laws, c. 433; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 36, § 1.) § 1947. Immunities; benefits. Police, when acting outside their respective jurisdictions pursuant to mutual assistance, shall have all the immunities from liability and exemptions from law, ordinances and regulations and shall have all the pension, relief, disability workers’ compensation and other benefits enjoyed by them while performing their respective duties within their own jurisdiction. Nothing in this subchapter shall be construed as in any way limiting the provisions of § 1911 of this title. (11 Del. C. 1953, § 1947; 57 Del. Laws, c. 433; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 36, § 1.) Page 188 Title 11 - Crimes and Criminal Procedure Part II Criminal Procedure Generally Chapter 20 Custodial Interrogations (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) Subchapter I Uniform Electronic Recordation of Custodial Interrogations Act (83 Del. Laws, c. 447, § 1.) § 2001. Short title. This subchapter may be cited as the “Uniform Electronic Recordation of Custodial Interrogations Act.” (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2002. Definitions. For purposes of this subchapter: (1) “Body-worn camera” means an electronic device that is worn by a law-enforcement officer and records audio and video data on the device itself or transmits audio and video data to another location for recording. (2) “Crime” means defined as § 233 of this title. (3) “Custodial interrogation” means questioning or other conduct by a law-enforcement officer which is reasonably likely to elicit an incriminating response from an individual and occurs when reasonable individuals in the same circumstances would consider themselves in custody. (4) “Delinquent act” means an act committed by a child that, if committed by an adult, would constitute a crime. (5) “Electronic recording” means an audio recording or an audio and video recording that accurately records a custodial interrogation. “Record electronically” and “recorded electronically” have a corresponding meaning. (6) “Law-enforcement agency” means a governmental entity or individual authorized by a governmental entity or state law to enforce criminal laws or investigate suspected criminal activity. “Law-enforcement agency” does not include a law-enforcement officer. (7) “Law-enforcement officer” means either of the following: a. An individual employed by a law-enforcement agency whose responsibilities include enforcing criminal laws or investigating suspected criminal activity. b. An individual acting at the request or direction of an individual described in paragraph (7)a. of this section. (8) a. “Place of detention” means a fixed location under the control of a law-enforcement agency where individuals are questioned about alleged crimes or delinquent acts. b. “Place of detention” includes a jail, police station, holding cell, correctional or detention facility, police vehicle, and, for a child, school. (9) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (10) “Statement” means communication whether oral, written, electronic, or nonverbal. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2003. Electronic recording requirement. (a) Except as otherwise provided by §§ 2005 through 2009 of this title, a custodial interrogation at a place of detention, including the giving of any required warning, advice of the rights of the individual being questioned, and the waiver of any rights by the individual, must be recorded electronically in its entirety if the interrogation relates to a crime or delinquent act. A custodial interrogation must be recorded as follows: (1) If the custodial detention occurs at a jail, police station, or holding cell by audio and video means. (2) If the custodial detention occurs in a police vehicle, at a school for a child, in a correctional or detention facility, or at any other place of detention other than a place of detention under paragraph (a)(1) of this section, by audio means or by the use of a body-worn camera at a minimum. (b) If a law-enforcement officer conducts a custodial interrogation to which subsection (a) of this section applies without electronically recording it in its entirety, the officer shall prepare a written or electronic report explaining the reason for not complying with this section and summarizing the custodial interrogation process and the individual’s statements. (c) A law-enforcement officer shall prepare the report required by subsection (b) of this section as soon as practicable after completing the interrogation. Page 189 Title 11 - Crimes and Criminal Procedure (d) As soon as practicable, a law-enforcement officer conducting a custodial interrogation outside a place of detention shall prepare a written or electronic report explaining the decision to interrogate outside a place of detention and summarizing the custodial interrogation process and the individual’s statements outside a place of detention. (e) This section does not apply to a spontaneous statement made outside the course of a custodial interrogation or a statement made in response to a question asked routinely during the processing of the arrest of an individual. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2004. Notice and consent not required. Notwithstanding Chapter 24 of this title, a law-enforcement officer conducting a custodial interrogation is not required to obtain consent to electronic recording from the individual being interrogated or to inform the individual that an electronic recording is being made of the interrogation. This subchapter does not permit a law-enforcement officer or a law-enforcement agency to record a private communication between an individual and the individual’s lawyer or a child and the child’s parent or guardian. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2005. Exception for exigent circumstances. A custodial interrogation to which § 2003 of this title otherwise applies need not be recorded electronically if recording is not feasible because of exigent circumstances. The law-enforcement officer conducting the interrogation shall record electronically an explanation of the exigent circumstances before conducting the interrogation, if feasible, or as soon as practicable after the interrogation is completed. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2006. Exception for individual’s refusal to be recorded electronically. (a) A custodial interrogation to which § 2003 of this title otherwise applies need not be recorded electronically if the individual to be interrogated indicates that the individual will not participate in the interrogation if it is recorded electronically. The individual’s agreement to participate without recording must be recorded in a written document that is signed by the individual. (b) If, during a custodial interrogation to which § 2003 of this title otherwise applies, the individual being interrogated indicates that the individual will not participate in further interrogation unless electronic recording ceases, the remainder of the custodial interrogation need not be recorded electronically. The individual’s agreement to participate without recording must be recorded electronically. (c) A law-enforcement officer, with intent to avoid the requirement of electronic recording in § 2003 of this title, may not encourage an individual to request that a recording not be made. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2007. Exception for interrogation conducted by other jurisdiction. If a custodial interrogation occurs in another state in compliance with that state’s law or is conducted by a federal law-enforcement agency in compliance with federal law, the interrogation need not be recorded electronically unless the interrogation is conducted with intent to avoid the requirement of electronic recording in § 2003 of this title. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2008. Exception for safety of individual or protection of identity. A custodial interrogation to which § 2003 of this title otherwise applies need not be recorded electronically if a law-enforcement officer conducting the interrogation or the officer’s superior reasonably believes that electronic recording would disclose the identity of a confidential informant or jeopardize the safety of an officer, the individual being interrogated, or another individual. If feasible and consistent with the safety of a confidential informant, an explanation of the basis for the belief that electronic recording would disclose the informant’s identity must be in writing at the time of the interrogation. If contemporaneous memorialization of the basis for the belief is not feasible, the memorialization must be made as soon as practicable after the interrogation is completed. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2009. Exception for equipment malfunction. (a) All or part of a custodial interrogation to which § 2003 of this title otherwise applies need not be recorded electronically to the extent that recording is not feasible because the available electronic recording equipment fails, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible. (b) If both audio and video recording of a custodial interrogation are otherwise required by § 2003 of this title, recording may be by audio alone or by the use of a body-worn camera if a technical problem in the video recording equipment prevents video recording, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible. (c) If both audio and video recording of a custodial interrogation are otherwise required by § 2003 of this title, recording may be by video alone or by the use of a body-worn camera if a technical problem in the audio recording equipment prevents audio recording, despite reasonable maintenance of the equipment, and timely repair or replacement is not feasible. Page 190 Title 11 - Crimes and Criminal Procedure (d) If a law-enforcement officer conducts a custodial interrogation under this section, the law-enforcement officer shall prepare a written or electronic report explaining the reasoning for the malfunction, to the best of the officer’s knowledge, and summarizing the custodial interrogation process and the individual’s statements. The law-enforcement officer shall prepare the report as soon as practicable after completing the interrogation. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2010. Burden of persuasion. If the prosecution relies on an exception in §§ 2005 through 2009 of this title to justify a failure to record electronically a custodial interrogation, the prosecution must prove by a preponderance of the evidence that the exception applies. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2011. Notice of intent to introduce unrecorded statement. If the prosecution intends to introduce in its case in chief a statement made by an individual during a custodial interrogation to which § 2003 of this title applies which was not recorded electronically, the prosecution shall serve the individual with written notice of that intent and of any exception on which the prosecution intends to rely. The prosecution must serve the notice no later than when the statement is provided to the individual as part of discovery. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2012. Procedural remedies. (a) Unless the court finds that an exception in §§ 2005 through 2009 of this title applies, the court shall consider the failure to record electronically all or part of a custodial interrogation to which § 2003 of this title applies in determining whether a statement made during the interrogation is admissible, including whether it was voluntarily made. (b) If the court admits into evidence a statement made by an individual during a custodial interrogation that was not recorded electronically in compliance with § 2003 of this title, the court shall afford the individual the opportunity to present to the jury the fact that the statement was not recorded electronically in compliance with § 2003 of this title. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2013. Handling and preserving an electronic recording. Each law-enforcement agency in this State shall establish and enforce procedures to ensure that the electronic recording of all or part of a custodial interrogation and a report or other document required to be prepared under this subchapter is identified, accessible, and preserved consistent with the law of this State governing the preservation of evidence in criminal and delinquency cases. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2014. Rules relating to electronic recording. (a) The Police Officer Standards and Training Commission shall adopt rules to implement this subchapter, which each law-enforcement agency that is a governmental entity of this State shall enforce. (b) The rules adopted under subsection (a) of this section must address all of the following topics: (1) How an electronic recording of a custodial interrogation must be made. (2) The collection and review of electronic recordings, or the absence thereof, by supervisors in each law-enforcement agency. (3) The assignment of supervisory responsibilities and a chain of command to promote internal accountability. (4) A process for explaining noncompliance with procedures and imposing administrative sanctions for a failure to comply that is not justified. (5) A supervisory system expressly imposing on individuals in specific positions a duty to ensure adequate staffing, education, training, and material resources to implement this subchapter. (6) A process for monitoring the chain of custody of an electronic recording. (c) The rules adopted under paragraph (b)(1) of this section for video recording must contain standards for the angle, focus, and field of vision of a recording device, other than a body-worn camera, which reasonably promote accurate recording of a custodial interrogation at a place of detention and reliable assessment of its accuracy and completeness. In a place of detention, the recording device must be simultaneously focused on both the law-enforcement officer and the individual subject to the custodial interrogation. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1; 84 Del. Laws, c. 149, § 13.) § 2015. Limitation of liability. (a) A law-enforcement agency that is a governmental entity in this State which has implemented procedures to enforce the rules adopted under § 2014 of this title and ensure compliance with this subchapter is not subject to civil liability for damages arising from a violation of this subchapter. Page 191 Title 11 - Crimes and Criminal Procedure (b) This subchapter does not create a right of action against a law-enforcement officer. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2016. No right to electronic recording or transcript. (a) This subchapter does not create a right of an individual to require a custodial interrogation to be recorded electronically. (b) This subchapter does not require preparation of a transcript of an electronic recording of a custodial interrogation. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) § 2017. Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. (83 Del. Laws, c. 260, § 1; 83 Del. Laws, c. 447, § 1.) Subchapter II Deceptive Tactics in Interrogations of Persons Under 18 Years of Age (83 Del. Laws, c. 447, § 1.) § 2021. Definitions. As used in this subchapter: (1) “Custodial interrogation” means as defined in § 2002 of this title. (2) “Deceptive tactics” means stating evidence presently exists, knowing that it does not, or communicating promises of leniency in sentencing, charging, or pretrial release in order to induce a confession or other incriminating evidence. (3) “Law-enforcement officer” means as defined in § 2002 of this title. (83 Del. Laws, c. 447, § 1.) § 2022. Deceptive tactics prohibited. (a) Deceptive tactics in a custodial interrogation of a person under 18 years of age are prohibited. (b) (1) Except as provided in paragraphs (b)(2) and (b)(3) of this section, a statement of a person, who at the time of the interrogation was under 18 years of age, is inadmissible in any criminal or delinquency court proceeding if it was made during a custodial interrogation in which deceptive tactics were used. An inadmissible statement under this subsection shall have no effect on the admissibility of evidence obtained as a result of the statement if the evidence would have been discovered through independent lawful means or if knowledge of the evidence was acquired through an independent source. (2) A statement that is otherwise inadmissible under paragraph (b)(1) of this section may be admitted if the State proves by a preponderance of the evidence that the statement is reliable and was not induced by the use of deceptive tactics. (3) A statement that is otherwise inadmissible under this section may be admitted to impeach the defendant, if the State proves by a preponderance of the evidence that the statement is reliable and not induced by the use of deceptive tactics. (83 Del. Laws, c. 447, § 1.) Page 192 Title 11 - Crimes and Criminal Procedure Part II Criminal Procedure Generally Chapter 21 Release of Persons Accused of Crimes § 2101. Purposes of this chapter. It is the purpose of this chapter to reform the system governing the release of defendants pending a final determination of guilt of such persons. The various courts of this State are empowered and encouraged to make individualized decisions about terms and conditions of pretrial release. Each court shall utilize a system of pretrial release imposing reasonable nonmonetary conditions of release when those conditions adequately provide a reasonable assurance of the appearance of the defendant at court proceedings, the protection of the community, victims, witnesses and any other person, and to maintain the integrity of the judicial process. (11 Del. C. 1953, § 2101; 56 Del. Laws, c. 231, § 1; 81 Del. Laws, c. 200, § 1.) § 2102. Definitions. For purposes of this chapter the following definitions shall apply: (1) “Attorney General” includes any Deputy Attorney General or any other prosecutor of the State, county or municipality. (2) “Bail” means the pretrial release of a defendant from custody upon the terms and conditions specified by an order of the court with jurisdiction. Bail may be any of the following: a. A conditions of release bond. b. A conditions of release bond not guaranteed by financial terms. c. A conditions of release bond guaranteed by financial terms. d. A conditions of release bond guaranteed by financial terms secured by cash only. (3) “Bailable offense” is any offense not punishable by death. (4) “Capital crime” means any crime for which the punishment shall be death. (5) “Conditions of release bond” means a commitment by the defendant promising appearance in court and compliance with all conditions ordered by the court and mandated by statute. (6) “Conditions of release bond guaranteed by financial terms” means a commitment by the defendant promising appearance in court and compliance with all conditions ordered by the court and mandated by statute guaranteed by a surety, property, cash or other assets. (7) “Conditions of release bond guaranteed by financial terms secured by cash” means a commitment by the defendant promising appearance in court and compliance with all conditions ordered by the court and mandated by statute guaranteed by cash only. (8) “Conditions of release bond not guaranteed by financial terms” means a commitment by the defendant promising appearance in court and compliance with all conditions ordered by the court and mandated by statute, whereupon failure to appear or comply with conditions, the defendant may be liable for the amount of the bond, but the bond is not guaranteed by any surety or specific pledge of property or other assets. (9) “Court” means Superior Court, Court of Common Pleas, Family Court, and Justice of the Peace Court. (10) “Crime” means any offense which is punishable by a fine or imprisonment. (11) “Pretrial success” means a defendant’s compliance with orders to appear in court as directed and not commit any new criminal offense between the initial arrest and adjudication of the pending criminal charges. (12) “Record finding” is a memorandum, notation, opinion, order or other writing in the file of the case of the accused reflecting the decision made by the court. (13) “Violent felonies” or “violent felony” shall consist of all felonies designated as violent felonies in § 4201(c) of this title. (11 Del. C. 1953, § 2102; 56 Del. Laws, c. 231, § 1; 66 Del. Laws, c. 300, § 3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 176, § 14; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1.) § 2103. Persons charged with a capital crime. (a) A capital crime shall not be bailable, and a person so charged shall be held in custody without bail until the charge be withdrawn, reduced or dismissed or until the court shall otherwise order after a trial which results in less than a conviction of a capital crime or except as provided in subsection (b) of this section. (b) The Superior Court may admit to bail a person charged with a capital crime if, after full inquiry, the Superior Court shall determine that there is good ground to doubt the truth of the accusation, and the burden of demonstrating such doubt shall be on the accused. (11 Del. C. 1953, § 2103; 56 Del. Laws, c. 231, § 1.) § 2103A. Detention of youth charged with Superior Court offenses [Repealed]. (69 Del. Laws, c. 354, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 597, § 2; 71 Del. Laws, c. 5, § 1; 72 Del. Laws, c. 149, § 1; repealed by 81 Del. Laws, c. 307, § 1, effective July 11, 2018.) Page 193 Title 11 - Crimes and Criminal Procedure § 2104. Release of defendants charged with any other crime. (a) Any person who is arrested and charged with any crime other than a capital crime shall be released upon execution of 1 of the following: (1) A conditions of release bond. (2) A conditions of release bond not guaranteed by financial terms in an amount specified by the court. (3) A conditions of release bond guaranteed by financial terms, the amount of the bond and the nature of the surety to be determined by the court. (4) A conditions of release bond guaranteed by financial terms secured by cash only, the amount of the bond to be determined by the court. (b) The court shall impose the following conditions of release for any defendant released on bail: (1) Require the defendant to return to the court at any time upon notice and submit to the orders and processes of the court. (2) Prohibit the defendant from committing any criminal offense. (c) The court may also impose 1 or more of the conditions of release set forth in § 2108 of this title when such conditions are necessary to provide a reasonable assurance of the appearance of the defendant at court proceedings, the protection of the community, victims, witnesses, or any other person, and to maintain the integrity of the judicial process. (d) The court shall memorialize pretrial release decisions by written order specifying conditions of release and informing the defendant of the possible consequences for violating the conditions of release. (e) (1) The determination of whether the defendant shall be released under paragraph (a)(1), (a)(2), (a)(3), or (a)(4) of this section and the conditions (other than the mandatory conditions in paragraph (b) of this section above) of the release shall be in the discretion of the court subject to this chapter. When making a release determination, or imposing conditions set forth in § 2108 of this title, the court shall use an empirically developed risk assessment instrument, if available, designed to improve pretrial release decisions by assessing defendant’s likelihood of pretrial success. In circumstances involving suspected domestic or intimate partner violence, the judicial officer shall also consider the results, if available, of an instrument designed to assess the likelihood or predicted severity of future violence against the alleged victim. Any such risk assessment tools are not binding on the court. They are factors to be considered in the totality of the circumstances in determining the conditions of release imposed upon the defendant. The judicial officer may consider any other facts and circumstances regarding a defendant’s likelihood of pretrial success and the protection of the victim, witnesses, and any other person. (2) The Statistical Analysis Center shall provide the court with a report of rates of re-arrest and failure to appear as required by defendants released by the court. (f) Any defendant released from custody pursuant to this chapter who later: (1) Tenders to the Superior Court a plea of guilty or nolo contendere to any felony for which a mandatory, minimum, minimum mandatory or mandatory minimum period of incarceration is required; or (2) Is convicted upon a verdict of guilty of any felony for which a mandatory, minimum, minimum mandatory or mandatory minimum period of incarceration is required, shall immediately be remanded to the custody of the Department of Correction, and shall be incarcerated until the sentence for that felony is imposed. The provisions of this subsection shall not apply to pleas or convictions for any felony set forth in Title 21. (11 Del. C. 1953, § 2104; 56 Del. Laws, c. 231, § 1; 66 Del. Laws, c. 300, § 4; 69 Del. Laws, c. 252, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 98, §§ 2-4; 78 Del. Laws, c. 392, § 1; 79 Del. Laws, c. 36, § 1; 79 Del. Laws, c. 244, § 2; 81 Del. Laws, c. 200, § 1.) § 2105. Release pursuant to a conditions of release bond or conditions of release bond not guaranteed by financial terms. (a) The court shall release a defendant accused of a bailable crime on a conditions of release bond or a conditions of release bond not guaranteed by financial terms in an amount to be determined by the court when the court is satisfied from all the circumstances and the criteria set forth in subsection (b) of this section that it is reasonably likely that the defendant will appear as required before or after conviction of the crime charged and that there is no substantial risk to the safety of the community in permitting such unsecured release. (b) In determining whether the defendant is likely to appear as required and that there will be no substantial risk to the safety of the community the court shall, on the basis of available information, take into consideration the nature and circumstances of the crime charged, whether a firearm was used or possessed, the possibility of statutory mandatory imprisonment, whether the crime was committed against a victim with intent to hinder prosecution, the family ties of the defendant, the defendant’s employment, financial resources, character and mental condition, the length of residence in the community, record of convictions, habitual offender eligibility, custody status at time of offense, history of amenability to lesser sanctions, history of breach of release, record of appearances at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. (c) If the court has determined that the defendant shall not be released in accordance with this section, it shall make a record finding of the reason or reasons for such action and shall permit the release of the defendant upon the furnishing of surety satisfactory to the court in an amount to be determined by the court. (11 Del. C. 1953, §§ 2105, 2106; 56 Del. Laws, c. 231, § 1; 63 Del. Laws, c. 215, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1.) Page 194 Title 11 - Crimes and Criminal Procedure § 2106. Posting of operator’s license as security for court appearance [Repealed]. (63 Del. Laws, c. 215, § 2; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 110, § 4; repealed by 79 Del. Laws, c. 36, § 1, eff. June 4, 2013.) § 2107. Determining the amount of bail [Effective upon fulfillment of the contingency in 83 Del. Laws, c. 72, § 3]. (a) In determining the amount of bail to be required to be posted as surety under § 2105 of this title or to be required for a conditions of release bond not guaranteed by financial terms, the court shall not require oppressive bail but shall require such bail as reasonably will assure the reappearance of the defendant, compliance with the conditions set forth in the bond, and the safety of the community. In fixing the amount, the court shall also take into consideration the criteria set forth in § 2105(b) of this title. (b) In any event, if a defendant is charged with an offense punishable by fine only, the amount of the bail shall not exceed double the amount of the maximum fine for each charge. When a defendant has been convicted of an offense and only a fine has been imposed as the sentence of the court, the amount of bail shall not exceed double the amount of the fine. (c) Notwithstanding any provision of this title to the contrary, for a defendant charged with committing a violent felony involving a firearm or with committing a violent felony while on probation or pretrial release, the presumption is that a conditions of release bond guaranteed by financial terms secured by cash only will be set. (d)-(g) [Repealed.] (11 Del. C. 1953, § 2107; 56 Del. Laws, c. 231, § 1; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1; 83 Del. Laws, c. 72, § 1; 84 Del. Laws, c. 126, § 8; 84 Del. Laws, c. 215, § 1; 83 Del. Laws, c. 72, § 3.) § 2107. Determining the amount of bail [Effective until fulfillment of the contingency in 83 Del. Laws, c. 72, § 3]. (a) In determining the amount of bail to be required to be posted as surety under § 2105 of this title or to be required for a conditions of release bond not guaranteed by financial terms, the court shall not require oppressive bail but shall require such bail as reasonably will assure the reappearance of the defendant, compliance with the conditions set forth in the bond, and the safety of the community. In fixing the amount, the court shall also take into consideration the criteria set forth in § 2105(b) of this title. (b) In any event, if a defendant is charged with an offense punishable by fine only, the amount of the bail shall not exceed double the amount of the maximum fine for each charge. When a defendant has been convicted of an offense and only a fine has been imposed as the sentence of the court, the amount of bail shall not exceed double the amount of the fine. (c) Notwithstanding any provision of this title to the contrary, for a defendant charged with committing: (1) Any Title 11 class A felony. (2) Abuse of a pregnant female in the first degree, in violation of § 606 of this title. (3) Strangulation, in violation of § 607 of this title. (4) Assault in the second degree, in violation of § 612 of this title. (5) Assault in the first degree, in violation of § 613 of this title. (6) Manslaughter, in violation of § 632 of this title. (7) Murder of a child by abuse or neglect in the second degree, in violation of § 633 of this title. (8) Rape in the fourth degree, in violation of § 770(a)(1) or (a)(3) of this title. (9) Rape in the third degree, in violation of § 771 of this title. (10) Rape in the second degree, in violation of § 772 of this title. (11) Continuous sexual abuse of a child, in violation of § 776 of this title. (12) Sex offender unlawful sexual conduct against a child, in violation of § 777A of this title. (13) Sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree, in violation of § 778 of this title. (14) Kidnapping in the first degree, in violation of § 783A of this title. (15) Trafficking an individual; forced labor; sexual servitude, in violation of § 787(b)(1)–(3) of this title. (16) Sexual servitude (victim is a minor), in violation of § 787(b)(3) of this title. (17) Arson in the first degree, in violation of § 803 of this title. (18) Burglary first degree, in violation of § 826 of this title. (19) Robbery in the first degree, in violation of § 832 of this title. (20) Child abuse in the second degree, in violation of § 1103B of this title. (21) Child torture, in violation of § 1103D of this title. (22) Sexual exploitation of a child, in violation of § 1108 of this title. Page 195 Title 11 - Crimes and Criminal Procedure (23) Unlawful dealing in child pornography, in violation of § 1109 of this title. (24) Sexual solicitation of a child, in violation of § 1112A(h) of this title. (25) Promoting sexual solicitation of a child, in violation of § 1112B(g) of this title. (26) Escape after conviction in violation of § 1253 of this title. (27) Stalking, in violation of § 1312 of this title. (28) Possession of a deadly weapon during commission of a felony, in violation of § 1447 of this title. (29) Possession of a firearm during commission of a felony, in violation of § 1447A of this title. (30) Possession of a firearm by persons prohibited, in violation of § 1448(a)(1), (a)(4), (a)(6), or (a)(7) of this title. (31) Racketeering, in violation of § 1503 of this title. (32) Aggravated act of intimidation, in violation of § 3533 of this title. (33) Any violent felony as defined by § 4201(c) of this title, allegedly committed while defendant is pending adjudication on a previously charged violent felony. (34) Any violent felony as defined by § 4201(c) of this title, allegedly committed against a petitioner with an active protection from abuse order against the defendant. (35) Any violent felony as defined by § 4201(c) of this title, allegedly committed against a victim while the defendant is pending adjudication on a previously charged domestic violence offense as defined by § 1041(2) of Title 10, allegedly committed against the same victim. (36) Any domestic violence offense as defined by § 1041(2) of Title 10, allegedly committed while defendant is pending adjudication on a previously charged violent felony as defined by § 4201(c) of this title, allegedly committed against the same victim. (37) Felony noncompliance with bond, in violation of § 2109(c)(1) or 2113(c)(1) of this title and involving a violent felony offense as defined by § 4201(c) of this title. (38) Felony domestic violence offenses as defined by § 1041(2) of Title 10 and causing physical injury as defined by § 222 of this title or serious physical injury as defined by § 222 of this title. (39) Drug dealing (Tier 3), in violation of § 4752 of Title 16. the presumption is that the court will set conditions of release bond guaranteed by financial terms in an amount within or above the guidelines published by the Delaware Sentencing Accountability Commission (SENTAC) for that offense and secured by cash only. (d) In any case where a court sets bail pursuant to the presumption within subsection (c) of this section, a court of competent jurisdiction may, consistent with Chapter 21 of this title and court rules, review bail to consider whether bail in a different amount or with a different security is appropriate to reasonably ensure the reappearance of the defendant, compliance with the conditions set forth in the bond, and the safety of the community. The court may modify the defendant’s bail in accordance with its findings and determinations at the hearing. (e) The court shall document the reason(s) for setting bail at a particular amount and level, whether cash, secured, or unsecured, or for modifying bail under subsection (d) of this section. (f) In any case where a court sets bail for an offense listed in subsection (c) of this section, the court shall require the defendant to relinquish any firearms in their possession. (g) In addition to the information required in the annual report established in § 2114(i) of this title, the Criminal Justice Council shall include information of the following in the aggregate and disaggregated by race, gender, and zip code of: (1) Rates of defendants’ eligibility under subsection (c) of this section. (2) Rates of initial detention. (3) Rates of detention throughout the pretrial period. (4) Average length of stay from arrest to adjudication. (11 Del. C. 1953, § 2107; 56 Del. Laws, c. 231, § 1; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1; 83 Del. Laws, c. 72, § 1; 84 Del. Laws, c. 126, § 8; 84 Del. Laws, c. 215, § 1.) § 2108. Conditions for release. (a) In addition to the mandatory conditions set forth in § 2104(b) of this title, in connection with any form of bail for a defendant the court may also impose 1 or more of the following conditions: (1) Place the defendant in the custody of a designated person or organization agreeing to supervise the defendant; (2) Place the defendant under the supervision of a presentence or probation officer; (3) Place restrictions on the travel, associations, activities, consumption of alcoholic beverages, drugs or barbiturates, or place of abode of the defendant during the period of release; (4) Require the defendant to have no contact or restricted contact with the victim, the victim’s family, victim’s residence, place of employment, school or location of offense; (5) Require periodic reports from the defendant to an appropriate agent or officer of the court including the attorney for the defendant; Page 196 Title 11 - Crimes and Criminal Procedure (6) Require psychiatric or medical treatment of the defendant; (7) Require the defendant to provide suitable support for the defendant’s family under supervision of an officer of the court or the Family Court, with the consent of the Family Court; (8) Require a defendant who has been convicted to duly prosecute any post-conviction remedies or appeals; and if the case is affirmed or reversed and remanded, such defendant shall forthwith surrender to the Court; (9) Impose any other condition deemed reasonably necessary to assure appearance as required and to carry out the purpose of this chapter. (b) In connection with any form of bail for a defendant charged with any crime involving child sexual abuse or exploitation, the court shall also impose a condition that the defendant have no contact with children, except upon good cause shown, and as otherwise provided by the court, and that such condition remain in full force and effect until a nolle prosequi is filed, the case is dismissed or an adjudication of not guilty is returned, whichever shall first occur, or if the defendant is adjudicated guilty by way of a plea of guilty or a conviction by court or jury, at the time of sentencing, unless further made a condition of probation by the sentencing judge. (c) In connection with any form of bail for a defendant charged with a violation of § 4177 of Title 21 which is alleged to be punishable as a felony pursuant to that section, the court shall impose a condition that the defendant not drive a vehicle, as defined by that section, until a nolle prosequi is filed, the case is dismissed or an adjudication of not guilty is returned, whichever shall first occur, or if the defendant is adjudicated guilty by way of plea of guilty or a conviction by court or jury, at the time of sentencing, unless further made a condition of probation by the sentencing judge. (11 Del. C. 1953, § 2108; 56 Del. Laws, c. 231, § 1; 66 Del. Laws, c. 300, §§ 5, 6; 68 Del. Laws, c. 367, §§ 1, 2; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 152, § 1; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1.) § 2109. Failure to provide a conditions of release bond, whether guaranteed by financial terms or not, or consent to conditions; contact with victim or victim’s family. (a) If the defendant does not provide the form of conditions of release bond required by the court, or if the defendant does not agree to meet the conditions for release, the defendant shall be held in the custody of the Department of Correction until the defendant cures such failure or until the court otherwise orders. (b) If the defendant is committed in lieu of bail, the court may require such defendant, while in custody, to have no contact with the victim or the victim’s family. (c) If the defendant is committed in lieu of bail, and knowingly breaches any conditions imposed in connection with that bail, each such failure or breach shall be a separate crime, and upon conviction thereof shall be punished as follows: (1) If the defendant was held in connection with 1 or more charges of a felony prior to trial, or while awaiting sentence or pending appeal or certiorari after conviction of 1 or more felonies or misdemeanors, the defendant shall be guilty of a felony and punished by imprisonment not to exceed 5 years, or a fine of $5,000, or both; (2) If the defendant was held in connection with 1 or more charges of misdemeanor prior to trial, the defendant shall be fined not more than $500, or imprisoned not more than 1 year, or both. (11 Del. C. 1953, § 2109; 56 Del. Laws, c. 231, § 1; 66 Del. Laws, c. 300, § 7; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 143; 80 Del. Laws, c. 51, § 1; 81 Del. Laws, c. 200, § 1.) § 2110. Modification of bail, security or conditions of release and sanctions for violation. (a) Unless reviewed earlier, a court with jurisdiction over the defendant shall review conditions of pretrial release for a defendant who remains detained after 72 hours from the defendant’s initial presentment as a result of the inability to meet conditions of pretrial release. This review shall occur within 10 days from the date of detention. Each court shall establish its procedure for timely review. (b) A defendant, regardless of custody status, or the Attorney General, the Attorney General’s designee, a third-party private or commercial surety, the Department of Correction, or any person or nongovernmental organization to whom a defendant has been released for supervision may apply to the court for modification of any condition of pretrial release. The courts shall establish rules governing the procedure for motions to modify conditions of pretrial release. Motions to modify conditions of pretrial release shall be filed in and decided by the court that has jurisdiction over the defendant at the time the motion is made. The defendant, the Attorney General, or the Attorney General’s designee may make an oral application at any proceeding at which the parties are both present. Once a movant’s application is ruled upon, the movant may initiate subsequent review of conditions of pretrial release only upon a material change in circumstance. (c) Following a hearing alleging pretrial noncompliance and upon a finding that the defendant violated 1 or more material conditions of pretrial release, the court with jurisdiction over the defendant, may continue the current conditions, remove or impose different or additional conditions upon the defendant’s release, or revoke the defendant’s bail and reset pretrial conditions of release, including any financial conditions. Upon a finding that defendant violated a condition of appearance in court, any amount of surety posted to meet a financial term of release may be forfeited. (d) The court may impose different or additional conditions of pretrial release or may remove conditions of pretrial release only when the facts of the individual case or the defendant’s circumstances demonstrate that modification of conditions is necessary to reasonably Page 197 Title 11 - Crimes and Criminal Procedure ensure the defendant’s appearance at court proceedings, to protect the community, victims, witnesses, or any other person, and to maintain the integrity of the judicial process. (e) Upon disposition of the request to modify conditions of pretrial release, the court shall set forth on the record the reasons for amendment of or continuation of the conditions imposed. (f) If the court modifies conditions of release, the court may impose any conditions as are set forth in § 2108 of this title, when such conditions are necessary to provide a reasonable assurance of the appearance of the defendant at court proceedings, the protection of the community, victims, or any other person, and to maintain the integrity of the judicial process. The court shall review the modified conditions with the defendant. (11 Del. C. 1953, § 2110; 56 Del. Laws, c. 231, § 1; 66 Del. Laws, c. 300, § 8; 81 Del. Laws, c. 200, § 1.) § 2111. Procedure for pretrial release or implementing this chapter. Except as provided herein, the procedure for pretrial release or implementing this chapter shall be as provided by the Rules of the Superior Court. (11 Del. C. 1953, § 2111; 56 Del. Laws, c. 231, § 1; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1.) § 2112. Bail after transfer to another court or after conviction. Once bail has been given and a charge is pending or is thereafter filed in or transferred to a court of competent jurisdiction, the latter court may continue the original bail in that court. After conviction, the court may order that the original bail stand as bail pending appeal or deny, increase or reduce bail, or modify the conditions of release. (11 Del. C. 1953, § 2112; 56 Del. Laws, c. 231, § 1; 81 Del. Laws, c. 200, § 1.) § 2113. Penalties for noncompliance with conditions of release bond. (a) If the defendant shall fail to appear as required by the defendant’s bail or shall commit any material breach of the conditions set forth in § 2104(b) or § 2108 of this title, the court shall issue a warrant and cause the arrest of such defendant and the cancellation of any bail and the return to the court for a redetermination of the disposition of the defendant. (b) Upon the return of the defendant before the court pursuant to subsection (a) of this section or if the defendant shall not be found, the court shall act with respect to the forfeiture of any form of guaranteed or not guaranteed conditions of release bond pursuant to the Rules of the Superior Court and shall redetermine the type and amount of bail, and conditions of the further release of the defendant. Notwithstanding any law to the contrary, no property, cash, surety or other assets shall be forfeited except upon failure of the accused to appear as required by any court. (c) If the defendant knowingly fails to appear as required or knowingly breaches any condition of release, each such failure or breach shall be a separate crime, and upon conviction thereof shall be punished as follows: (1) If the defendant was released in connection with 1 or more charges of a felony prior to trial, or while awaiting sentence or pending appeal or certiorari after conviction of 1 or more felonies or misdemeanors, the defendant shall be guilty of a felony and punished by imprisonment not to exceed 5 years, or a fine of $5,000, or both; (2) If the defendant was released in connection with 1 or more charges of misdemeanor prior to trial, the defendant shall be fined not more than $500, or imprisoned not more than 1 year, or both. (d) The Justice of the Peace Court shall have jurisdiction over violations of this section if punishable as misdemeanors and if the jurisdiction over the underlying offense remains with the Justice of the Peace Court. (e) Any defendant released pursuant to this chapter shall notify the court, before which the case is pending, of any changes of address or residence within 5 days of such change. Failure to make such notification will result in constructive receipt of any subpoena issued to the defendant by or on behalf of the court to the last address or residence given to the court by that defendant. (f) Nothing in this chapter shall interfere with or prevent the exercise by any court of its power to punish for contempt. (11 Del. C. 1953, § 2113; 56 Del. Laws, c. 231, § 1; 69 Del. Laws, c. 198, § 1; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 172, § 1; 74 Del. Laws, c. 322, § 1; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1.) § 2114. Administration of this chapter. (a) The Department of Correction shall administer the provisions of this chapter that are not exclusively within the jurisdiction of the judiciary. (b) The Commissioner of the Department of Correction may employ such staff as may be necessary to implement this chapter. (c) The Department of Correction may investigate the release of persons charged with criminal offenses and otherwise advise and assist the courts in carrying out the purposes of this chapter. The Department of Correction shall provide pretrial supervision to released defendants when ordered by the court and shall report such defendants’ compliance or noncompliance with conditions of pretrial release when necessary to carry out the purposes of this chapter. The Department of Correction may request modification of conditions of pretrial release. Each court shall establish rules and procedures for timely disposition of reports of noncompliance with conditions of pretrial release and requests for modification of conditions of pretrial release. Page 198 Title 11 - Crimes and Criminal Procedure (d) The Department of Correction shall have the power necessary to carry out the purposes of this chapter, including the following: (1) The Department of Correction may adopt standard conditions for the supervision of defendants ordered to pretrial supervision and may modify conditions of supervision as necessary to address technical or minor violations of conditions of pretrial release. The imposition of standard or modified conditions shall be limited to those conditions necessary to provide a reasonable assurance of the appearance of the defendant at court proceedings, the protection of the community, victims, witnesses or any other person, and to maintain the integrity of the judicial process. These conditions shall apply when not contrary to any other specific conditions imposed by the court. (2) The Department of Correction may adopt standards concerning pretrial supervision through home confinement. The Department of Correction is authorized to supervise defendants released pretrial on home confinement without the use of any specific electronic equipment, so long as sufficient and reasonable methods for ensuring compliance with the terms of house arrest are employed. (3) The Department of Correction is authorized to use electronic monitoring systems and any new or emerging monitoring technology that will assist in the supervision of defendants released pretrial. (e) The court, when notified by the Department of Correction of a violation of pretrial release, may issue a summons or a warrant for the arrest of a defendant for violating any condition of pretrial release. (f) The Commissioner of the Department of Correction or any probation officer, acting in performance of his or her duties, under exigent circumstances may arrest a supervised defendant without a warrant when in the judgment of the Commissioner or probation officer the supervised defendant has violated any material condition of pretrial release. The Commissioner or probation officer may deputize any other officer with power of arrest to do so by giving that officer a written statement setting forth in what manner the supervised defendant has in the judgment of the Commissioner or the probation officer violated a material condition of pretrial release. When an arrest is made by a probation officer or the Commissioner, the officer shall present to the detaining authority a written statement of the circumstances of violation. (g) Upon arrest and detention, the Commissioner or probation officer shall notify the court of jurisdiction forthwith and shall submit to the court a written report showing in what manner the defendant has violated the conditions of pretrial release. (h) When the Commissioner or probation officer alleges noncompliance with material conditions of pretrial release, pursuant to subsection (f) of this section, a probation officer shall take the defendant directly before the court of jurisdiction if that court is in session or take the defendant before a magistrate. The hearing may be summary in nature. (i) The Criminal Justice Council shall submit a report to the General Assembly on an annual basis, beginning January 30, 2019, regarding the modernization of the pretrial system, including a report of data related to pretrial success rates. (11 Del. C. 1953, § 2114; 56 Del. Laws, c. 231, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1.) § 2115. Forfeiture and default of bail bonds. (a) If the defendant shall fail to appear as required or be found in breach of a material condition of release imposed by any court, except the House Sergeant of the Wilmington City Police, while under a bond, and the court pursuant to this chapter or court rule finds the defendant in default and forfeits the bond, the proceeds shall be forwarded to the State Treasurer and deposited in the General Fund. (b) All funds held by the State in any depository derived from forfeiture or default of bonds from any court, except the House Sergeant of the Wilmington City Police, shall immediately be forwarded to the State Treasurer and deposited in the General Fund. (c) The proceeds of any bond forfeited for the defendant’s failure to appear in any child support proceeding shall be paid over to the payee of the child support order and applied to the child support account. (59 Del. Laws, c. 360, § 1; 70 Del. Laws, c. 449, § 3; 71 Del. Laws, c. 176, § 15; 79 Del. Laws, c. 36, § 1; 81 Del. Laws, c. 200, § 1.) § 2116. Revocation of bail upon subsequent arrest. (a) For the purposes of this section: (1) “Original offense” means any violent felony which is alleged to have been committed by a defendant who is thereafter released from custody upon execution of any form of conditions of release bond. (2) “Subsequent offense” means any violent felony or any similar offense set forth under the laws of another state, the United States or any territory of the United States which is alleged to have been committed by a defendant during the period of that defendant’s bail in connection with an original offense. (b) In connection with any form of bail for a defendant charged with any violent felony, if after release the defendant is charged by arrest, warrant, indictment or information with the commission of a subsequent offense, that defendant shall be brought before the Superior Court. If after a hearing, the Superior Court finds proof positive or presumption great that the defendant has committed a subsequent offense during such period of release, notwithstanding any provision of this chapter or any statute or court rule to the contrary, the Court shall revoke the bail to which the defendant was admitted in connection with the original offense. (c) Notwithstanding any provision of this chapter or any other statute or court rule to the contrary, whenever the defendant is charged with a subsequent offense, any form of bail relating to the original offense shall be temporarily revoked by any court, including the Justice Page 199 Title 11 - Crimes and Criminal Procedure of the Peace Court, Court of Common Pleas, or Superior Court, before whom the defendant is then appearing, and the defendant shall be held in lieu of bail for the original offense until such time as the Superior Court holds a hearing to determine whether there is proof positive or presumption great that the defendant committed a subsequent offense during the period of release. (d) Notwithstanding any provision of this chapter or any statute or court rule to the contrary, any defendant whose bail is revoked by the Superior Court pursuant to this section shall be subject to bail on the original offense in an amount at least twice the amount of bail originally set. If the bail on the original offense was not already secured by cash, the amount of bail may be posted only in the form of a conditions of release bond guaranteed by financial terms secured by cash only. (73 Del. Laws, c. 372, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 36, § 1; 79 Del. Laws, c. 244, § 1; 81 Del. Laws, c. 200, § 1; 83 Del. Laws, c. 283, § 12.) Page 200 Title 11 - Crimes and Criminal Procedure Part II Criminal Procedure Generally Chapter 23 Search and Seizure Subchapter I General Provisions § 2301. Search to accord with statute or Constitution. No person shall search any person, house, building, conveyance, place or other thing without the consent of the owner (or occupant, if any) unless such search is authorized by and made pursuant to statute or the Constitution of the United States. (Code 1935, § 5343-AA; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2301; 53 Del. Laws, c. 359, § 1; 56 Del. Laws, c. 422, § 1.) § 2302. Search without warrant in hot pursuit. A search of a person, house, building, conveyance, place or other thing may be made without a warrant if the search is made for a person hotly pursued provided the pursuer has probable cause to believe that such person has committed a felony or a misdemeanor. (Code 1935, § 5343-BB; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2302; 56 Del. Laws, c. 422, § 2.) § 2303. Search without warrant incident to arrest. A search of a person, house, building, conveyance, place or other thing may be made without a warrant if: (1) The search is made incidental to and contemporaneous with a lawful arrest; (2) The search is made in order to find and seize: a. The fruits of a crime; b. The means by which the crime was committed; c. Weapons and other things to effect an escape from arrest or custody; and d. Evidentiary matter pertaining to the commission of a crime. (Code 1935, § 5343-CC; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2303; 56 Del. Laws, c. 422, § 3.) § 2304. Persons authorized to issue search warrants. Any Judge of the Superior Court, the Court of Common Pleas, or any justice of the peace, or any magistrate authorized to issue warrants in criminal cases may, within the limits of their respective territorial jurisdictions, issue a warrant to search any person, house, building, conveyance, place or other thing for each or any of the items specified in § 2305 of this title. (Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2304; 49 Del. Laws, c. 220, § 9; 53 Del. Laws, c. 359, § 1; 56 Del. Laws, c. 422, § 4; 71 Del. Laws, c. 176, § 16.) § 2305. Objects of search warrant. A warrant may authorize the search of any person, house, building, conveyance, place or other things for any of the following: (1) Papers, articles or things of any kind which were instruments of or were used in a criminal offense, the escape therefrom or the concealment of said offense or offenses; (2) Property obtained in the commission of a crime, whether the crime was committed by the owner or occupant of the house, building, place or conveyance to be searched or by another; (3) Papers, articles, or things designed to be used for the commission of a crime and not reasonably calculated to be used for any other purpose; (4) Papers, articles or things the possession of which is unlawful; (5) Papers, articles or things which are of an evidentiary nature pertaining to the commission of a crime or crimes; (6) Persons for whom a warrant of arrest has been issued. (Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2305; 53 Del. Laws, c. 359, § 1; 56 Del. Laws, c. 442, § 5.) § 2306. Application or complaint for search warrant. The application or complaint for a search warrant shall be in writing, signed by the complainant and verified by oath or affirmation. It shall designate the house, place, conveyance or person to be searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as may be, and shall substantially allege the cause for which the search is made or the offense committed by or in relation to the persons or things searched for, and shall state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is founded. (Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2306; 53 Del. Laws, c. 359, § 1; 70 Del. Laws, c. 186, § 1.) Page 201 Title 11 - Crimes and Criminal Procedure § 2307. Issuance; contents; execution and return of search warrants. (a) Issuance of search warrants; contents. — If the judge, justice of the peace or other magistrate finds that the facts recited in the complaint constitute probable cause for the search, that person may direct a warrant to any proper officer or to any other person by name for service. The warrant shall designate the house, place, conveyance or person to be searched, and shall describe the things or persons sought as particularly as possible. (b) Execution and return with inventory. — The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made forthwith and shall be accompanied by a written inventory of any property taken. The inventory shall be made and signed by the officer executing the warrant in the presence of the person from whose possession or premises the property was taken, if they are present, or if they are not present, in the presence of at least 1 witness. The judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. (Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2307; 49 Del. Laws, c. 220, § 9; 53 Del. Laws, c. 359, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 314, §§ 1, 2, 3, 4.) § 2308. Search at nighttime. A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given in the warrant. For purposes of this section the term “nighttime” shall mean the period of time between 10:00 p.m. and 6:00 a.m. (Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2308; 49 Del. Laws, c. 220, § 9; 63 Del. Laws, c. 308, § 1.) § 2309. Grounds for seizure of subject matter of search. (a) Any papers, articles or things which are the subject matter of a search warrant may be seized: (1) By any peace officer without a search warrant where such paper, article or thing is in plain view without the necessity of a search. (2) Where such paper, article or thing is discovered pursuant to a valid search, with or without a search warrant, whether or not such paper, article or thing is an object of the search or is described in the search warrant. (b) The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made forthwith and shall be accompanied by a written inventory of any property taken. The inventory shall be made and signed by the officer executing the warrant in the presence of the person from whose possession or premises the property was taken, if they are present, or, if they are not present, in the presence of at least 1 witness. The judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. (Code 1935, § 5343-EE; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2309; 73 Del. Laws, c. 314, § 5.) § 2309A. Objects subject to search and seizure. (a) When used in this subchapter, the terms “property” and “papers, articles or things” shall, in addition to their ordinary meanings, include any funds placed in a bank or other monetary account. (b) Any papers, articles, things or other property which represent or is traceable to the fruits of a crime or which represent or is traceable to the proceeds obtained, directly or indirectly, as a result of the commission of a crime, shall be subject to search and seizure pursuant to this subchapter. (75 Del. Laws, c. 106, § 1.) § 2310. Short form of affidavit, application and search warrant. (a) The following shall be sufficient form of affidavit and application for search warrant: IN THE (NAME OF COURT) STATE OF DELAWARE IN THE MATTER OF: AFFI AND AP(NAME PLICATION FOR Page 202 OF PERSONS, HOUSE, Title 11 - Crimes and Criminal Procedure PLACE OR THING TO BE SEARCH SEARCHED) STATE OF DELAWARE .................................... COUNTY SS. Be it remembered that on this .................. day of ..................., A.D. 20 ........., before me (name of judge or justice of peace and designation of court), personally appeared (name and rank of affiant and designation of police department of which affiant is a member), who being by me duly sworn (or affirmed) deposes (or depose) and says (or say): That the affiant (or affiants) has (or have) reason to believe and does (or do) believe that in the (house, place, conveyance or person known as .................. designate and describe briefly,) the owner(s) (or occupant(s)) is (are) (name and owner or owners, occupant or occupants) there has been and/or there is now located and/or concealed certain property in said house, place, conveyance and/or on the person or persons of the occupants thereof, consisting of property, papers, articles or things which are the instruments of a criminal offense, and/or obtained in the commission of a crime, and/or designated to be used in the commission of a crime, and not reasonably calculated to be used for any other purpose and/or the possession of which is unlawful and, in particular, (describe the property or person expected to be found) which said property, papers, articles or things were, are, or will be possessed and/or used in violation of Title 11, Chapter .................., Section .................., Delaware Code, in that (designate offense by name and brief statement of its commission). And that the facts tending to establish probable cause for believing that the foregoing grounds for the application exist are as follows: (State briefly only. Also, if authority is sought to search a dwelling house in the nighttime, set forth briefly the facts which show that the nighttime search is necessary to prevent the escape or removal of the person or thing to be searched for.) (State briefly only. Also, if authority is sought to search a dwelling house in the nighttime, set forth briefly the facts which show that the nighttime search is necessary to prevent the escape or removal of the person or thing to be searched for.) WHEREFORE, this (these) affiant(s) prays (or pray) that a search warrant may be issued authorizing a search of the aforesaid (house, place, conveyance, person or persons, or occupant or occupants) in the manner provided by law. .................................... Affiant .................................... Affiant SWORN to (or affirmed) and subscribed before me this .................. day of .................., A.D. 20......... ........................................................................ (Judge or Justice of Peace Designate name, title and court) (b) The following shall be a sufficient form of search warrant where search of a dwelling house in the nighttime is not authorized: IN THE (NAME OF COURT) STATE OF DELAWARE IN THE MATTER OF: (NAME OF PERSON, HOUSE, SEARCH WARRANT PLACE OR THING TO BE SEARCHED) THE STATE OF DELAWARE TO: (Name and rank of person or persons directed to make search and designation of police department of which such persons are members) with the assistance of any police officer or constable or any other necessary or proper person or persons or assistance. GREETINGS: Upon the annexed affidavit and application or complaint for a search warrant, as I am satisfied that there is probable cause to believe that certain property, namely (describe the property) used or intended to be used for ......................................................................................................................................................................................................................... , is being concealed on the (premises) (person) described in the annexed affidavit and application or complaint; NOW THEREFORE, YOU ARE HEREBY COMMANDED within 10 days of the date hereof to search the above-named person, persons, house, conveyance or place for the property specified in the annexed affidavit and application, and to search any occupant or occupants found in the house, place, or conveyance above named for such property, serving this warrant and making the search in the daytime, or in the nighttime if the property to be searched is not a dwelling house, and, if the property, papers, articles or things, or Page 203 Title 11 - Crimes and Criminal Procedure any part thereof, be found there, to seize it, giving to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or leaving the copy and receipt at the place from which the property was taken, and to prepare a signed inventory of the goods seized in the presence of the person from whose possession or premises the property was taken, if they are present, or, if they are not present, in the presence of at least 1 witness, and to return this warrant, accompanied by the written inventory, to me forthwith. DATED the .................. day of .................., A.D. 20......... ........................................................................ (Judge or Justice of Peace Designate name, title and court) (c) The following shall be sufficient form of search warrant where search of a dwelling house in the nighttime is authorized: IN THE (NAME OF COURT) STATE OF DELAWARE IN THE MATTER OF: (NAME OF PERSON, HOUSE, SEARCH WARRANT PLACE OR THING TO BE SEARCHED) THE STATE OF DELAWARE TO: (Name and rank of person or persons directed to make search and designation of police department of which such persons are members) with the assistance of any police officer or constable or any other necessary or proper person or persons or assistance. GREETINGS: Upon the annexed affidavit and application or complaint for a search warrant, as I am satisfied that there is probable cause to believe that certain property, namely (describe the property) used or intended to be used for ......................................................................................................................................................................................................................... ......................................................................................................................................................................................................................... , is being concealed on the (premises) (person) described in the annexed affidavit and application or complaint; and that search of the premises in the nighttime is necessary in order to prevent the escape or removal of the person or thing to be searched for; NOW THEREFORE, YOU ARE HEREBY COMMANDED within 3 days of the date hereof to search the above-named person, persons, house, place or conveyance for the property specified in the annexed affidavit and application, and to search any occupant or occupants found in the house, place or conveyance above named for such property serving this warrant and making the search in the daytime, or in the nighttime and, if the property, papers, articles or things, or any part thereof, be found there, to seize it, giving to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or leaving the copy and receipt at the place from which the property was taken, and to prepare a signed inventory of the goods seized in the presence of the person from whose possession or premises the property was taken, if they are present, or, if they are not present, in the presence of at least 1 witness, and to return this warrant, accompanied by the written inventory, to me forthwith. DATED the .................. day of .................., A.D. 20......... ........................................................................ (Judge or Justice of Peace Designate name, title and court) (11 Del. C. 1953, § 2310; 53 Del. Laws, c. 359, § 2; 57 Del. Laws, c. 428; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 314, §§ 6, 7.) § 2311. Disposition of property validly seized. (a) The following disposition shall be made of any papers, articles or things validly seized: (1) If the papers, articles or things were obtained as the result of the commission of a crime, they shall be returned to their lawful owners; (2) If the papers, articles or things were property which represents or is traceable to the fruits of a crime or which represents or is traceable to the proceeds obtained, directly or indirectly, as a result of the commission of a crime and the person from whom they are seized is duly convicted of the alleged crime, the court may order that the property be disposed of or dispersed in a manner consistent with § 4106 of this title or otherwise disposed of as the court directs; Page 204 Title 11 - Crimes and Criminal Procedure (3) If the papers, articles or things were allegedly used in the commission of a crime, they shall be returned to the person from whom seized if such person is not thereafter duly convicted of the alleged crime; but if such person is duly convicted of the alleged crime, the papers, articles and things shall be disposed of as the court directs; (4) If possession of the papers, articles or things seized is unlawful, they shall, upon petition, be disposed of as any Judge of the Superior Court directs. (b) Any papers, articles or things validly seized may be retained by the police for a reasonable length of time for the purpose of apprehending the offender or using the papers, articles or things so seized as evidence in any criminal trial, or both. (c) A deadly weapon or ammunition which was validly seized from a person who is prohibited from purchasing, owning, possessing or controlling a deadly weapon as a result of a felony conviction under Delaware law, federal law or the law of any other state, or who is otherwise prohibited under § 1448 of this title may be disposed of by the law-enforcement agency holding the weapon or ammunition, after the exhaustion of any right of direct appeal, and after proper notice of the intent to dispose of such deadly weapon or ammunition 6 months from the date of the notice, unless such deadly weapon or ammunition has been claimed by the owner or a third party. If the deadly weapon or ammunition shall remain unclaimed after 6 months from the date of notice, then no party shall thereafter have the right to assert ownership thereof, and the law-enforcement agency may dispose of such deadly weapon or ammunition following the expiration of the period set forth in subsection (d) of this section. For purposes of this section, “disposition” may include the sale or transfer of the firearms to a federal licensed dealer, defined as a person licensed as a firearms collector, dealer, importer, or manufacturer under the provisions of 18 U.S.C. § 922 et seq., or destruction of the firearms and ammunition. (1) Any person requesting the return of any deadly weapon or ammunition hereunder shall have the burden to prove that he or she is the owner thereof and is not otherwise prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition. (2) Any third party requesting the return of any deadly weapon or ammunition hereunder shall also have the burden to prove ownership by devise, gift, sale or other legally-recognized process for conveying ownership. (d) Any law-enforcement agency denying an owner or a third party the possession of any deadly weapon or ammunition pursuant to this section shall not dispose of such deadly weapon or ammunition until the expiration of 60 calendar days from the date of denial. (e) Notwithstanding anything in this section to the contrary, any law-enforcement agency holding a deadly weapon or ammunition validly seized from a person who is subject to a Family Court protection from abuse order pursuant to § 1448(a)(6) of this title may dispose of such deadly weapon or ammunition after the expiration or termination of such order and after proper notice is provided to the owner in accordance with subsections (c) and (d) of this section. (f) For purposes of this section: (1) “Last-known address” shall mean the last known address of the owner of any deadly weapon or ammunition hereunder as determined through the Delaware Criminal Justice Information System (DELJIS), the Family Court of the State or the address noted on the owner’s most recent driver’s license, vehicle registration or Division of Motor Vehicle identification card. In accordance with this section, the Family Court is authorized to provide to law-enforcement the most recent address of an owner who was, or is, a party to any Family Court proceeding. (2) “Proper notice” shall mean notice of a law-enforcement agency’s intention to dispose of a deadly weapon or ammunition in accordance with this section by written notice, via certified letter, return receipt requested, to the owner’s last known address and by publication in a local or statewide newspaper at least once a week for 2 consecutive weeks. Such notice shall state that the local lawenforcement agency may not dispose of said deadly weapon or ammunition until the expiration of the notice period set forth in this section. (3) “Third party” shall mean any person requesting the return of any deadly weapon or ammunition hereunder who is not the party to whom notice was sent in accordance with subsection (c) of this section. (g) If a law-enforcement agency denies any request for the return of a deadly weapon or ammunition hereunder, the person or third party so denied shall have the right to file a petition in any court of competent jurisdiction for the return of the deadly weapon or ammunition, in addition to any other rights such person may have. A law-enforcement agency shall not dispose of a deadly weapon or ammunition subject to such a petition until a final adjudication and the expiration of any appeal period. The petition filed pursuant to this subsection shall include the following: (1) A complete description of the property including all identification and registration numbers if applicable; (2) The name and last known address of the owner or owners of the property; (3) The names and addresses of any persons who claim to or have an interest or lien in the subject property; (4) A statement of the value of the subject property; and (5) A statement by the petitioner that he or she requested the return of a deadly weapon or ammunition from a law-enforcement agency, and that such request was denied. (h) Upon receipt of a petition which is made pursuant to subsection (g) of this section, the court shall send a notice and a copy of the petition to the law-enforcement agency holding the deadly weapon or ammunition and to all other owners and/or lienholders of said property identified in the petition. Such notice shall include: Page 205 Title 11 - Crimes and Criminal Procedure (1) A statement that a petition has been made with the court; (2) A statement that the owner or other person has a legal right to a hearing in the courts and that if a hearing is desired then the owner or other person shall file with the court an answer to the petition; (3) A statement that if an answer is filed a hearing will be promptly scheduled and the owners or other interested persons may appear to contest the claim; (4) A statement that the court will enter a judgment in favor of the petitioner unless an answer is filed within 20 days after the date on which the notice was mailed; (5) A statement that the person may be liable for costs if a judgment is entered in favor of the petitioner. (i) If the court receives an answer described in paragraph (h)(3) of this section, the court shall notify the petitioner and all parties of the hearing date to determine ownership of the deadly weapon or ammunition. If no answer is filed pursuant to paragraph (h)(3) of this section, then the court shall issue an order declaring that the petitioner has full right, title and interest to the said deadly weapon or ammunition. (Code 1935, § 5343-GG; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2311; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 106, § 2; 76 Del. Laws, c. 99, § 2; 78 Del. Laws, c. 135, §§ 1-5, 10.) Subchapter II Vehicles § 2321. Definitions. As used in this subchapter: “Vehicle” includes all motor-propelled vehicles, wagons, carts, carriages, bicycles, vessels and aircraft. (42 Del. Laws, c. 144, § 1; 11 Del. C. 1953, § 2321; 58 Del. Laws, c. 424, § 3.) § 2322. Grounds for seizure. Whenever any vehicle, as defined in this subchapter, has been used in, or in connection with, the commission of any felony or in connection with the flight or escape of any person who has committed any felony or in the transporting of cigarettes in violation of Chapter 53 of Title 30, or in a violation of § 1343 of this title, or in a violation of § 4172 of Title 21 in a manner meeting the criteria set forth in § 4172(g) of Title 21, it shall forthwith be seized and taken into custody by the peace officer or officers having knowledge of the facts of such use. (42 Del. Laws, c. 144, § 2; 11 Del. C. 1953, § 2322; 55 Del. Laws, c. 277, § 5; 58 Del. Laws, c. 424, § 4; 69 Del. Laws, c. 23, § 3; 83 Del. Laws, c. 294, § 4.) § 2323. Transportation of controlled substances as grounds for seizure. Whenever any vehicle, as defined in this subchapter, is used or intended for use to transport or in any manner to facilitate the transportation of any controlled substance in violation of subchapter IV of Chapter 47 of Title 16, it shall forthwith be seized and taken into custody by the peace officer or officers having knowledge of the facts of such use, but: (1) 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 it appears that the owner or other person in charge of the vehicle is a consenting party or privy to a violation of the Controlled Substances Act; (2) 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; (3) A