PART IV. OFFENSES RELATED TO DRUGS AND INTOXICATING

COMPOUNDS

 

Note

 

Industrial hemp remediation and biofuel crop research program (repealed July 1, 2016). L 2014, c 56.

 

Cross References

 

Drug demand reduction assessments; special fund, see 706-650.

Intermediate sanctions for selected offenders and defendants, see 353-10.5, 353-63.5, and 706-605.1.

Money laundering, see chapter 708A.

 

Law Journals and Reviews

 

Marijuana Prohibition in Hawaii. 13 HBJ, no. 3, at 9 (1977).

 

Case Notes

 

When a statute proscribes a substance as harmful, presumption of constitutionality applies although scientific views on harm are conflicting. This rule applies to marijuana cases. 56 H. 271, 535 P.2d 1394 (1975).

Defendants with prior felony convictions of drug offenses are disqualified from sentencing pursuant to 706-622.5, even if the convictions occurred in other jurisdictions and therefore not "under part IV of chapter 712", so long as the offenses would implicate this part if committed in Hawaii. 104 H. 71, 85 P.3d 178 (2004).

 

712-1240 Definitions of terms in this part. In this part, unless a different meaning plainly is required:

"Dangerous drugs" means any substance or immediate precursor defined or specified as a "Schedule I substance" or a "Schedule II substance" by chapter 329, or a substance specified in section 329-18(c)(14), except marijuana or marijuana concentrate.

"Detrimental drug" means any substance or immediate precursor defined or specified as a "Schedule V substance" by chapter 329, or any marijuana.

"Dosage unit" for purposes of section 712-1241 and section 712-1242 means an entity designed and intended for singular consumption or administration.

"Harmful drug" means any substance or immediate precursor defined or specified as a "Schedule III substance" or a "Schedule IV substance" by chapter 329, or any marijuana concentrate except marijuana and a substance specified in section 329-18(c)(14).

"Immediate precursor" means a substance which the department of health, State of Hawaii, has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture.

"Intoxicating compounds" means any compound, liquid or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance for the purpose of inducing a condition of intoxication, stupefaction, depression, giddiness, paralysis or irrational behavior, or in any manner changing, distorting or disturbing the auditory, visual or mental processes. For the purposes of this section, any such condition so induced shall be deemed to be an intoxicated condition.

"Intoxicating liquor" means any substance defined as "liquor" or "intoxicating liquor" by section 281-1.

"Manufacture" means to produce, prepare, compound, convert, or process a dangerous drug, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical conversion or synthesis.

"Marijuana" means any part of the plant (genus) cannabis, whether growing or not, including the seeds and the resin, and every alkaloid, salt, derivative, preparation, compound, or mixture of the plant, its seeds or resin, except that, as used herein, "marijuana" does not include hashish, tetrahydrocannabinol, and any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol.

"Marijuana concentrate" means hashish, tetrahydrocannabinol, or any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol.

"Minor" means a person who has not reached the age of majority.

"Ounce" means an avoirdupois ounce as applied to solids and semi-solids, and a fluid ounce as applied to liquids.

"Practitioner" means[:]

(1) A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, prescribe, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this State.

(2) A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, prescribe, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this State.

"To distribute" means to sell, transfer, prescribe, give, or deliver to another, or to leave, barter, or exchange with another, or to offer or agree to do the same.

"To sell" means to transfer to another for consideration. [L 1972, c 9, pt of 1; am L 1975, c 163, 6(a), (b); am L 1979, c 112, 2; am L 1984, c 122, 2; am L 1987, c 176, 6 and c 356, 1; am L 1997, c 319, 1; am L 2004, c 193, 4; am L 2012, c 34, 15]

 

COMMENTARY ON 712-1240

 

This section provides definitions of terms used throughout this part. The definitions are discussed, when an explanation is needed, in the commentary on the following sections.

The Code made several changes to the recommendations of the proposed draft for this section. It redefined "dangerous drug", and added definitions of such new terms as "harmful drug", "detrimental drug", "immediate precursor", "intoxicating compounds", "practitioner", and "to distribute". Concurrently, the Code eliminated the proposed draft's definitions of the terms "narcotic drug" and "to dispense". The Code also changed the draft's definition of the word "unlawfully". Instead of "narcotic drug and dangerous drug", the term concerned is "a Schedule I, II, III, IV, or V substance", as well as marijuana, marijuana concentrates, and intoxicating compounds.

Act 163, Session Laws 1975, amended this section in two respects. The word "unlawfully" was deleted from the list of definitions and from every other section in this part where it was made an element of an offense. The legislature found that the inclusion of this element required the prosecution to prove a negative without being able to compel the accused to testify. It was found that this was a practical impossibility and accordingly it has been eliminated as an element of every offense in this part. Senate Standing Committee Report No. 590.

The legislature also amended the definition of marijuana so as to indicate that the entire genus cannabis was to be included in the term and not merely cannabis sativa.

 

SUPPLEMENTAL COMMENTARY ON 712-1240

 

Act 112, Session Laws 1979, amended this section by adding the broadly defined term "dosage unit." The legislature found that drugs, while commonly sold in tablets, capsules, or other forms covered by existing drugs laws, are also distributed and sold in forms which are not covered. The legislature believed that these amendments would lessen the promotion of dangerous drugs within the State. Conference Committee Report No. 41.

Act 122, Session Laws 1984, added the definition of intoxicating liquor because of the inclusion of a new section prohibiting adults from promoting intoxicating liquor to a minor.

Act 356, Session Laws 1987, added "and section 712-1242" to the definition of "dosage unit," for the purpose of conformity between sections 712-1241 and 712-1242. House Standing Committee Report No. 480.

Act 319, Session Laws 1997, amended this section by defining "manufacture." The legislature found that the growing problem of manufacturing dangerous drugs in Hawaii posed a significant problem to law enforcement officials given the lack of powerful sanctions under current law. The legislature believed it was imperative to establish an aggressive policy for penalizing the manufacture, sale, and distribution of dangerous drugs. Senate Standing Committee Report No. 770, House Standing Committee Report No. 1651.

Act 193, Session Laws 2004, made medical gamma hydroxybutyric acid a schedule III depressant and made conforming amendments to the definitions of "dangerous drugs" and "harmful drug" in this section to make the nonmedical use of gamma hydroxybutyric acid an appropriately severe crime. House Standing Committee Report No. 701-04.

Act 34, Session Laws 2012, amended the definitions of "dangerous drugs" and "harmful drug" by changing the reference to "section 329-18(c)(13)" to "section 329-18(c)(14)" to correctly reference gamma hydroxybutyric acid.

 

Case Notes

 

One who acts as buyer's agent to purchase drug with buyer's funds does not commit offense of "selling" the drug. 60 H. 8, 586 P.2d 1022 (1978).

"To distribute" does not include "to buy" or "to offer to buy". 78 H. 317, 893 P.2d 168 (1995).

Although there was substantial evidence to conclude that defendant was a drug distributor in violation of 712-1242, defendant was entitled to a procuring agent defense instruction as (1) a jury instruction must be given on every defense if there is any support in the evidence "no matter how weak, inconclusive or unsatisfactory the evidence may be", (2) defendant's participation in drug transaction negotiation or touching the drugs or money involved did not foreclose a procuring agent defense, (3) determining whether defendant was an agent of buyer was for the fact finder, and (4) there was support in evidence for a procuring agent defense. 113 H. 385, 153 P.3d 456 (2007).

Charge of possession of "marijuana concentrate hashish" established by presence of THC and absence of marijuana plant; fact that commonly accepted connotation of "concentrate" is that of more powerful substance is irrelevant for purposes of section; section not unconstitutionally vague. 4 H. App. 79, 661 P.2d 1206 (1983).

 

 

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