CHAPTER 213

FORMERLY

HOUSE BILL NO. 171

AS AMENDED BY

HOUSE AMENDMENT NO. 1 AND

SENATE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE II, DELAWARE CODE, RELATING TO CRIMES AND CRIMINAL PROCEDURE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Title 11, Chapter 5, Subchapter VII, Subpart E of the Delaware Code by adding a new section, to read as follows:

"§ 1457. Possession of a Weapon in a Safe School and Recreation Zone: class D. E. or F

felony: classA_or Et_rnisdemcanor

(a) Any person who commits any of the offenses described in subsection (b) of this Section and does so while in or on a 'Safe School and Recreation Zone' shall be guilty of the crime of Possession of a Weapon in a Safe School and Recreation Zone.

(b) The underlying offenses in Title I I of the Delaware Code shall be:

(A) Section 1442. Carrying a concealed deadly weapon; class G felony; class E felony.

(B) Section 1444. Possessing a destructive weapon; class E felony.

(C) Section 1446. Unlawfully dealing with a switchblade knife;
unclassified misdemeanor.

(D) Section 1448. Possession and purchase of deadly weapons by persons prohibited; class F felony.

(E) Section 1452. Unlawfully dealing with knuckles-combination knife; class B misdemeanor.

(F) Section 1453. Unlawfully dealing with martial arts throwing star; class B misdemeanor.

(c) For the purpose of this Section, 'Safe School and Recreation Zone' shall mean:

(1) any building, structure, athletic field, sports stadium, or real property owned, operated, leased or rented by any public or private school including, but not limited to, any kindergarten, elementary, secondary, or vocational-technical school, or any college or university, within 1,000 feet thereof; or

(2) any motor vehicle owned, operated, leased or rented by any public or private school including, but not limited to, any kindergarten, elementary, secondary, or vocational-technical school or any college or university; or

(3) any building or structure owned, operated, leased or rented by any county or municipality, or by the State of Delaware, 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.

(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.

(0 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 legitimate 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) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, and that no person under the age of 18 was present in such private residence at any time during the commission of the offense. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.

(h) This section shall not apply to any law enforcement or police officer, or to any security officer as defined in Chapter 13 of Title 24 of the Delaware Code.

(i) For purposes of this section only, 'deadly weapon' shall include any object described in Section 222(6) or Section 222(10) of this Title or BB guns.

(j) The penalty for Possession of a Weapon in a Safe School and Recreation Zone shall be:

(A) if the underlying offense is a class 13 misdemeanor, the crime shall be a class A misdemeanor;

(B) if the underlying offense is an unclassified misdemeanor, the crime shall be a class B misdemeanor;

(C) if the underlying offense is a class E, F, or G felony, the crime shall be one grade higher than the underlying offense.

(A) In the event that the underlying offense is committed by an elementary or secondary school student, in addition to any other penalties contained in this section, the student shall be expelled by the local School Board for a period of not less than One Hundred Eighty (180) days unless otherwise provided for in Federal or State Law."

Approved July 12, 1995