706-622.5 Sentencing for drug offenders; expungement. (1) Notwithstanding section 706-620(3), a person convicted for the first or second time for any offense under section 329-43.5 involving the possession or use of drug paraphernalia or any felony offense under part IV of chapter 712 involving the possession or use of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712‑1240, but not including any offense under part IV of chapter 712 involving the distribution or manufacture of any such drugs or substances and not including any methamphetamine trafficking offenses under sections 712‑1240.7 and 712‑1240.8, is eligible to be sentenced to probation under subsection (2) if the person meets the following criteria:

(a) The court has determined that the person is nonviolent after reviewing the person's criminal history, the factual circumstances of the offense for which the person is being sentenced, and any other relevant information;

(b) The person has been assessed by a certified substance abuse counselor to be in need of substance abuse treatment due to dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index; and

(c) Except for those persons directed to substance abuse treatment under the supervision of the drug court, the person presents a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program.

(2) A person eligible under subsection (1) may be sentenced to probation to undergo and complete a substance abuse treatment program if the court determines that the person can benefit from substance abuse treatment and, notwithstanding that the person would be subject to sentencing as a repeat offender under section 706-606.5, the person should not be incarcerated to protect the public. If the person fails to complete the substance abuse treatment program and the court determines that the person cannot benefit from any other suitable substance abuse treatment program, the person shall be subject to sentencing under the applicable section under this part. As a condition of probation under this subsection, the court may direct the person to undergo and complete substance abuse treatment under the supervision of the drug court if the person has a history of relapse in treatment programs. The court may require other terms and conditions of probation, including requiring that the person contribute to the cost of the substance abuse treatment program, comply with deadlines for entering into the substance abuse treatment program, and reside in a secure drug treatment facility.

(3) For the purposes of this section, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.

(4) The court, upon written application from a person sentenced under this part, shall issue a court order to expunge the record of conviction for that particular offense; provided that a person has successfully completed the substance abuse treatment program and complied with other terms and conditions of probation. A person sentenced to probation under this section who has not previously been sentenced under this section shall be eligible for one time only for expungement under this subsection.

(5) Nothing in this section shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider. [L 2002, c 161, 3; am L 2004, c 44, 11; am L 2006, c 230, 18; am L Sp 2009, c 4, 3; am L 2012, c 140, 2]

 

COMMENTARY ON 706-622.5

 

Act 161, Session Laws 2002, added this section to require, among other things, that first-time nonviolent drug offenders be sentenced to undergo and complete drug treatment instead of incarceration. The legislature found that the link between substance abuse and crime is well-established. The legislature did not wish to diminish the seriousness of crime, but looked to approaching crime as being the result of addiction that is treatable. The treatment route was expected to produce a reduction in crime and recidivism. The legislature intended to promote treatment of nonviolent substance abuse offenders, rather than incarceration, as being in the best interests of the individual and the community at large. Conference Committee Report No. 96-02.

Act 230, Session Laws 2006, amended subsection (1) to exclude the offenses of methamphetamine trafficking in the first and second degrees from the offenses for which first-time drug offenders may be eligible to be sentenced to probation.

Act 4, Special Session Laws 2009, amended subsection (2) authorizing the placement of certain drug offenders in secure drug treatment facilities, to promote the rehabilitation of convicted drug offenders through alternatives to incarceration. The legislature found that providing convicted drug offenders with drug rehabilitation programs in a secure drug treatment facility would reduce the offenders' rate of recidivism upon release and help the offenders develop an important and meaningful role in society. Senate Standing Committee Report No. 1285, Conference Committee Report No. 25.

Act 140, Session Laws 2012, amended this section by: (1) allowing for the sentence of probation for certain second time drug offenses; and (2) clarifying that a person sentenced to probation as a first time drug offender who has not been previously sentenced to probation as a drug offender shall be eligible for expungement only once. The legislature found that the rates of crime, victimization, and arrests and felony convictions for violent and property crimes had declined, while the number of persons incarcerated or under probation supervision, in some cases, had increased. The legislature also found that existing law required the courts to impose a prison sentence for an offender who had a second felony conviction for drug possession. Act 140 amended the law to allow for second time drug offenders to be eligible for probation. Senate Standing Committee Report No. 3352, Conference Committee Report No. 130-12.

 

Case Notes

 

Inasmuch as the plain and unambiguous language of 706-606.5 requires application of the repeat offender statute over "any other law to the contrary", the circuit court did not err in sentencing defendant as a repeat offender pursuant to 706-606.5; in all cases in which 706-606.5 is applicable, including those in which a defendant would otherwise be eligible for probation under this section, the circuit courts must sentence defendants pursuant to the provisions of 706-606.5. 103 H. 228, 81 P.3d 408 (2003).

Defendants with prior felony convictions of drug offenses are disqualified from sentencing pursuant to this section, even if the convictions occurred in other jurisdictions and therefore not "under part IV of chapter 712", so long as the offenses would implicate part IV of chapter 712 if committed in Hawaii. 104 H. 71, 85 P.3d 178 (2004).

By its plain language, Act 44, L 2004, prospectively permitted greater discretion to sentencing courts confronted with conflicts between this section and 706-606.5 than they previously possessed; thus, based on the legislative intent reflected in Act 44, the Act 161, L 2002 version of this section, under which defendant was sentenced, did not trump the repeat offender statute. 106 H. 1, 100 P.3d 595 (2004).

As section is ameliorative in its intent and effect and its application would neither be detrimental nor materially disadvantageous to the defendant, retrospective application of this section as established by Act 161, L 2002, was not prohibited; where defendant did not qualify as a first-time drug offender, the trial court did not err in sentencing defendant pursuant to 712-1243(3) (2002). 107 H. 215, 112 P.3d 69 (2005).

Consistent with 706-625(1), because petitioner, who was sentenced to probation under subsection (1), had completed petitioner's probation term and was subsequently discharged and thus "satisfied the disposition of the court", as provided by 706-630, petitioner had, in effect, complied with the terms and conditions of probation for purposes of expungement under subsection (4). 129 H. 363, 300 P.3d 1022 (2013).

 

 

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