Temple University of the Commonwealth System of Higher Education

Beasley School of Law


Impact of Criminal Law on the Safe Disposal of Used Syringes


Memorandum




Date:              February 7, 2002, Revised August 15, 2006


Subject:         Criminal Law and Syringe Disposal in Delaware


 

INTRODUCTION


            Disposal of contaminated medical waste has become an important issue in public health policy. Waste generated in the health case system is highly regulated at the state and federal level. Footnote Special handling, documentation and chain of custody procedures are required by health facilities to meet these regulations, which impact on their ability to retain their licenses for operation. With the advent of AIDS, hospitals and other health facilities instituted significant safeguards to protect health care workers, housekeeping staff, sanitation workers and waste haulers from needle sticks due to the risk of contracting HIV/AIDS, hepatitis B & C and other blood borne infections. Hospitals implemented strict standard precautions for handling blood-contaminated needles that included destruction and disposal methods and systems.


            Over 3 billion syringes are used each year outside health care facilities and deposited in the general waste stream in the United States. Footnote While they pose little risk to the general public, they are a source of injury and anxiety to workers in trash disposal, recycling and related activities. Most of these syringe come from people administering medications for conditions such as diabetes, but some are attributable to injection drug users (IDUs). Footnote IDUs have been estimated to perform as many as one billion injections of illicit drugs each year in the United States. IDUs are thus an important part of the syringe disposal picture, and may become more important as efforts proceed to promote the health goal of a new sterile syringe for every drug injection. Footnote Unfortunately, IDUs have tended to be simultaneously given too much blame for the problem of improperly discarded syringes and neglected by community sharps disposal programs. There are only a few systems, most notably syringe exchange programs, that provide for safe disposal of syringes from IDUs, and fear of arrest may be a substantial barrier to IDU participation in safe disposal systems.


            A recent qualitative study of IDU and community attitudes toward syringe disposal elicited these comments from IDUs:

 

“They’d [the police] catch you with a dirty syringe and you’d go to jail for possession, so people ain’t hardly gonna keep ‘em laying around, keep ‘em in a container or whatever.”

“They know they can stop you, and if you come and dispose of them, they got a case there.”

“Chance of going to jail, I’m not going to risk that. That’s me. I got a probation, so I can’t take the chance at all. I’m so scared now. Then I’d have to go back and do all that time.” Footnote


            This Memorandum assesses how Delaware’s criminal laws relating to drug possession and syringe access could influence the syringe disposal behavior of IDUs. It is part of a larger analysis of community syringe disposal law being conducted by the Academy for Educational Development.

 

We conclude that the possibility of being arrested or convicted for the possession of drug paraphernalia or trace amounts of drug left in used syringes could deter IDUs from optimally participating in effective community syringe disposal programs.


            The conclusions are based purely on the law as written. Ethnographic research among IDUs has repeatedly found that fear of arrest is a factor in the syringe possession behavior of IDUs. Footnote However, an analysis of law “on the books” cannot fully address how law is actually enforced by police and prosecutors, or the perceptions of what the law is among IDUs. Our conclusions about a possible effect are therefore based on the assumption that law is enforced in a way that is consistent with its terms, and that IDUs are aware of the law.



I. The Regulatory Scheme


            This Memorandum addresses four domains of law that could influence the syringe disposal behavior of IDUs: drug paraphernalia laws, syringe prescription or other syringe-specific laws or regulations, laws and regulations governing syringe exchange programs and drug possession laws.


            A. Drug Paraphernalia Law

 

            The Controlled Substances Act also includes a subchapter titled "Drug Paraphernalia,” Del. Code Ann. tit. 16, 4771 et seq., based in part on the Justice Department’s model act, reprinted in Annotation, Validity, under Federal Constitution, of So-called "Head Shop" Ordinances or Statutes, Prohibiting Manufacture and Sale of Drug Use Related Paraphernalia, 69 A.L.R. Fed. 15 (1984 & Supp. 1998). See generally Delaware Accessories Trade Assoc. v. Gebelein, 497 F.Supp 289 (D.Del. 1980). The paraphernalia law makes it unlawful "for any person to use, or to possess with intent to use, drug paraphernalia to ... inject, ... or otherwise introduce into the human body a controlled substance in violation of this chapter.” Del. Code Ann. tit. 16, §4771. Any person who violates this section is guilty of a class A misdemeanor, id. tit. 16, §4771, and faces up to a year in a Level V incarceration facility and a fine up to $2,300. Id.


            The controlled substances act includes this definition:

 

"Drug paraphernalia" shall mean all equipment, products and materials of any kind which are used, intended for use or designed for use, in ... injecting, ... or otherwise introducing into the human body, a controlled substance the manufacture, delivery, possession or use of which is in violation of this chapter. The term "drug paraphernalia" includes, but is not limited to:

 

...

k. Hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injecting controlled substances, the use, manufacture, delivery or possession of which is in violation of this chapter;


Del. Code Ann. tit. 16, §4701 (16).



            B. Syringe Prescription Law


            The Controlled Substances Act includes a specific provision requiring a prescription for the delivery or possession of a syringe.

 

(a) No person shall deliver at retail or furnish to any person other than a practitioner an instrument commonly known as a hypodermic syringe or an instrument commonly known as a hypodermic needle or any instrument adapted for the use of narcotic drugs by parenteral injection without a written order of a practitioner or oral order of a practitioner immediately reduced to writing by such person.

 

(b) Every person who disposes of or delivers at retail, or gives away to any person the instruments described in subsection (a) of this section, upon the written order of a practitioner or oral order of a practitioner immediately reduced to writing by such person, shall, before delivering the same:

 

(1) Enter into a book kept for that purpose the day of the delivery, the name, age and address of the purchaser and a description of the instrument sold, disposed of, furnished or given away; or

 

(2) Retain on file the original written order or oral order reduced to writing, noting on such orders any refills.

 

(c) No person except a practitioner or regular dealer in medical or surgical supplies or their authorized agents or employees shall possess an instrument described in subsection (a) of this section, without having in the person's possession a certificate from a physician certifying that the possession of such instrument is necessary for the treatment of an injury, deformity or disease then suffered by the person possessing the same. Any person convicted of unlawfully possessing an instrument described in subsection (a) of this section shall be guilty of an unclassified misdemeanor, and upon conviction shall be fined not more than $100, be imprisoned not more than 30 days, or both. Every person who lawfully possesses an instrument described in subsection (a) of this section shall, before disposal, destroy such instrument in such a manner as to render it unfit for reuse in any manner.

 

(d) Any person who delivers, disposes of or gives away any instrument commonly known as a hypodermic syringe or an instrument commonly known as a hypodermic needle or any instrument adapted for the use of narcotic drugs by parenteral injection except in the manner prescribed in this section, shall be guilty of a class G felony.

 

(e) Nothing in this section shall prohibit the delivery, furnishing, sale, purchase or possession of an instrument commonly known as a hypodermic syringe or an instrument commonly known as a hypodermic needle used or to be used solely and exclusively for treating poultry or livestock and such delivery, furnishing, sale, purchase, possession or use shall be governed by rules and regulations to be prescribed by the Department of Agriculture.

 

(f) This section does not apply to:

 

(1) The sale at wholesale by pharmacies, drug jobbers, drug wholesalers and drug manufacturers or manufacturers and dealers in surgical instruments to practitioners; and

 

(2) The furnishing or obtaining of hypodermic syringes or hypodermic needles for uses which the Secretary determines are industrial. Notwithstanding the other provisions of this section, a person may obtain such instruments, without a written order or oral order reduced to writing, for such industrial uses.


Del. Code Ann. tit. 16, §4757. See generally Dyton v. State, 250 A.2d 383 (1969).


            C. Syringe Exchange Legislation


            In 2006, the Delaware legislature authorized a five-year pilot SEP in Wilmington. Del. Code Ann. Tit. 29, §§ 7993, 7997. The enabling legislation provides:


(a) Exchanges under the sterile needle and syringe exchange program shall be exempt from the provisions of Title 16, Sections 4757, 4771, and 4772, for the participant or for the employees of the Division or designated program staff, whenever the possession or distribution of the controlled paraphernalia or hypodermic syringe or needle is a direct result of the employee’s or participant’s activities in connection with the work of the program.

 

(b) Notwithstanding the provision of subsection (a) of this Section, a program staff member or program participant is not immune from criminal prosecution for 1) the redistribution of hypodermic needles or syringes in any form; 2) any activities not authorized or approved by the program; or 3) violation of laws prohibiting or regulating the use, dispensing, distribution, or promotion of controlled substances.

 

Del. Code Ann. Tit. 29, § 7992.


            D. Drug Possession Laws

 

            The Delaware Controlled Substances Act, Del. Code Ann. Tit. 16, § 4753, states:

It is unlawful for any person knowingly or intentionally to possess, use or consume a controlled substance or a counterfeit substance which is a narcotic drug unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice or except as otherwise authorized by this chapter. Any person who violates this section shall be guilty of a class A misdemeanor


            Delaware law does not specify a minimum amount of controlled substance required to convict someone of drug possession and there have been no published court decision addressing the question of whether a trace amount of drug, detectable by chemical analysis, would be sufficient to constitute the crime of possession. The majority of states with similar laws interpret them to cover any identifiable amount, which includes traced amounts which are not usable of salable. See, e.g., State v. Rhode, 133 Idaho 459, 988 P.2d 685 (1999).


            The Delaware Uniform Controlled Substances Act, Del. Code Ann. Tit. 16, § 4764, provides for the offenses and penalties for first offenders; it creates a diversion system that includes three years of probation, loss of driving privileges, community service and drug treatment. There is a limit to one discharge of and dismissal under this section regarding any person.



II. Analysis


            The possession of syringes without a prescription is clearly illegal in Delaware. There is some question about the proper relation and use of the syringe prescription and drug paraphernalia statutes. Both prohibit possession without a prescription, but the paraphernalia law has stiffer penalties. Under the paraphernalia act, the illegal delivery of a syringe would lead to a prison sentence up to one year and a fine of no more than $2,300 while under the syringe specific law a violator only faces imprisonment of up to 30 days and a fine of no more than $100. One view would be that the more specific syringe prescription law applies. See, e.g., Turnbull v. Fink, 668 A.2d 1370, 1377 (1995); Artesian Water Co. v. State, 330 A.2d 432, 439 (Del. Super. Ct. 1974). A court could also conclude, however, that the syringe law covers any possession of a syringe in violation of the syringe law, regardless of whether illegal drug use is involved, while the paraphernalia law deals with the more serious offense of possession for purposes of drug use. In either case, Delaware syringe law could strongly influence the willingness of an IDU to retain a used syringe for proper disposal.


            The 2006 SEP legislation provides limited protection to program participants, within the area specified for the program. However, this protection does not extend to possession of syringes for all purposes, but depends on what the possessor is doing or intends to do with the syringe. For example, a program participant would not be immune from criminal prosecution for redistributing syringes. Even those participants lawfully possessing syringes pursuant to the activities of the SEP may not be protected from criminal liability if, as has been reported by several needle exchanges, police disregard or destroy needle exchange ID cards. Whether the SEP legislation will increase the likelihood of IDUs to retain syringes for proper disposal will depend on their knowledge of the syringe exchange program, and to what extent they believe they will actually be protected from criminal liability.


            Drug possession law does not specify the minimum amount of drug required to constitute possession. Given the interpretation of possession laws in other states, an IDU could reasonably assume that the possession of residue of drug in the barrel of a used syringe may is a crime. In that case, fear of arrest for drug possession could deter IDUs from retaining syringes for proper disposal.



III. How Might Delaware Law Be Changed or Clarified to Remove Disincentives for Proper Syringe Disposal by IDUs?


            The syringe prescription, paraphernalia, and drug possession laws provide disincentives for the proper disposal of syringes by IDUs. Syringe exchange laws may counteract this effect, providing an effective method of safe disposal, but only if the legislature removes barriers preventing IDUs from participating in safe disposal programs. The legislature or law enforcement officials in Delaware may wish to take steps to ensure that IDUs are not subject to arrest or prosecution for possession of syringes or for the possession of the residue of drugs left in the barrel of a used syringe. This could be accomplished in a number of ways, including

 

          amending the paraphernalia and prescription laws to allow possession of syringes by IDUs

          amending the controlled drug act to require a minimum specified quantity to ground a possession conviction

          amending the controlled drug act to exclude trace amounts found in syringes

          developing standard operating procedures within law enforcement that avoid stops, arrests or prosecutions based on drug residues in syringes

          educating IDUs and law enforcement to appreciate the importance of appropriate syringe disposal and the legality of possessing syringes in the course of disposal activities.


            

            Research among IDUs and law enforcement personnel on their knowledge of and attitudes towards the syringe possession rules will be helpful in implementing effective disposal policies.