712-1247 Promoting a detrimental drug in the first degree. (1) A person commits the offense of promoting a detrimental drug in the first degree if the person knowingly:

(a) Possesses four hundred or more capsules or tablets containing one or more of the Schedule V substances;

(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more, containing one or more of the Schedule V substances;

(c) Distributes fifty or more capsules or tablets containing one or more of the Schedule V substances;

(d) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one- eighth ounce or more, containing one or more of the Schedule V substances;

(e) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one pound or more, containing any marijuana;

(f) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more, containing any marijuana;

(g) Possesses, cultivates, or has under the person's control twenty-five or more marijuana plants; or

(h) Sells or barters any marijuana or any Schedule V substance in any amount.

(2) Promoting a detrimental drug in the first degree is a class C felony.

(3) Any marijuana seized as evidence of a violation of this section in excess of one pound may be destroyed after it has been photographed and the weight thereof recorded. The remainder of the marijuana shall remain in the custody of the police department until the termination of any criminal action brought as a result of the seizure of the marijuana. Photographs duly identified as accurately representing the marijuana shall be deemed competent evidence of the marijuana involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the marijuana itself; provided that nothing in this subsection shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence. [L 1972, c 9, pt of 1; am L 1975, c 163, 6(i); am L 1981, c 31, 3 and c 123, 1; am L 1986, c 314, 75; am L 1989, c 384, 2]

 

Revision Note

 

In subsection (1)(a) to (f), "or" deleted pursuant to 23G-15.

 

Case Notes

 

Criminalization of marijuana is constitutional. 56 H. 501, 542 P.2d 366 (1975).

Where a bill of particulars, under a charge of distributing marijuana, states that defendant "offered or agreed to sell" marijuana, State is limited to proving the particulars specified in the bill, notwithstanding the definition of "distribute" contained in 712-1240(1). 60 H. 8, 586 P.2d 1022 (1978).

Where violation of misdemeanor offense under 712-1247(1)(d) also constituted violation of felony offense under subsection (1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights. 86 H. 48, 947 P.2d 360 (1997).

Procuring agent for the buyer defense was available against a charge of bartering a drug and was available to a defendant who was buyer's accomplice. 78 H. 488 (App.), 896 P.2d 944 (1995).

Since to sell and to barter do not include to prescribe, 712-1248(1)(d) is not a lesser included offense of 712-1247(1)(h). 78 H. 488 (App.), 896 P.2d 944 (1995).

 

 

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