THE SENATE

S.B. NO.

1460

TWENTY-SIXTH LEGISLATURE, 2011

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO MARIJUANA.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that certain state policies should be revised in response to our current economic climate.  One such policy that should be revised relates to criminal offenses that prohibit the possession of one ounce or less of marijuana.  Maine, Massachusetts, Nebraska, and New York, and cities in Michigan and Missouri have enacted laws and ordinances that make the possession of small amounts of marijuana subject to a civil violation.  Other states, counties, and cities have decriminalized marijuana possession in other ways or have made the prosecution of marijuana possession the lowest police priority.  The legislature finds that in Hawaii, as in these other areas, the benefits of establishing a civil violation for the possession of small amounts of marijuana far outweigh the benefits of the current criminal treatment of this offense.

     The legislature finds that the costs to enforce criminal marijuana possession statutes are substantial.  According to a report entitled The Budgetary Implications of Marijuana Decriminalization and Legalization for Hawaii, dated March 2007, (decriminalization study) by Lawrence W. Boyd, Ph.D, an economist from the University of Hawaii West Oahu, state and county law enforcement agencies spend $4,100,000 per year to enforce marijuana possession laws, and an additional $2,100,000 is spent by the courts each year to process marijuana possession cases.  The decriminalization study indicates that less than two per cent of all arrests in Hawaii between the years of 1997 and 2004 were for marijuana possession.  Furthermore, of the misdemeanor marijuana drug cases brought in district court, approximately sixty-five per cent are dismissed, stricken, or not prosecuted.  A relatively small proportion, approximately twenty-five per cent, result in convictions.  As the decriminalization study concludes:  "Few [of those arrested for marijuana possession] are actually prosecuted under the law, fewer convicted, and virtually none serve jail time.  Of those convicted, probation is the usual sentence for first time offenders."  Clearly, although the cost to enforce marijuana possession laws is substantial, the resulting conviction rate is low.

     The legislature finds that the low conviction and arrest rates do not act as a deterrent to marijuana users.  The decriminalization study compared the findings of a study surveying the number of households engaged in the regular use of marijuana with actual arrest rates.  The results of this comparison indicate that the risk of arrest is between 1.54 per cent and 2.16 per cent in any given year for members of households in which there is regular marijuana use.  According to the decriminalization study, the chance of a marijuana user being arrested and convicted is approximately 0.4 per cent.  It is clear that the arrest and conviction risks associated with marijuana use do not act as a deterrent to marijuana use and few of those who use marijuana on a regular basis experience the consequences of these risks, notwithstanding the costs to enforce the criminal statutes prohibiting such conduct.

     Some form of marijuana possession decriminalization has been passed in eighteen other states, whether statewide or in cities or municipalities.  Studies evaluating the effects on states that have reduced the penalties imposed for marijuana possession have shown that those states have not suffered negative consequences.  According to a report prepared by the Connecticut law revision commission for the judiciary committee of the Connecticut general assembly, studies of states that have reduced penalties for possession of small amounts of marijuana have found that:

     (1)  Expenses for arrests and prosecution of marijuana possession offenses were significantly reduced;

     (2)  If marijuana use increased, it increased less in states with reduced penalties when compared to states that did not reduce their penalties, and "the largest proportionate increase occurred in those states with the most severe penalties"; and

     (3)  Reducing the penalties for marijuana possession has virtually no effect on either the choice or frequency of use of alcohol or illegal "harder" drugs such as cocaine.

     Additionally, studies discussed in a report prepared in 2003 by Jeffrey A. Miron, an economics professor at Boston University, suggest that "decriminalization has little impact on marijuana use[.]"  As noted by Professor Miron, if enforcement of marijuana laws already provides little disincentive to use, there is no reason to expect a substantial increase in marijuana use if decriminalization occurs.  Further, minor non-violent criminal offenses utilize scarce state and county resources and clog our overburdened court system.

     Clearly, the cost of enforcing laws criminalizing the possession of one ounce or less of marijuana greatly outweigh the benefits of doing so.  Recently, the federal Department of Justice released new guidelines addressing the enforcement of marijuana laws and medical marijuana.  The guidelines reverse federal policy by instructing federal officers not to go after marijuana users or suppliers who comply with their states' medical marijuana laws.  In Hawaii county, a voter initiative was passed in 2008 by a majority of 35,000 voters that directs county law enforcement officials to treat the "adult personal use" of marijuana as its lowest law enforcement priority and prohibits the county from accepting or expending funds for the marijuana eradication program and for enforcing potential offenses for the adult personal use of marijuana.  Eleven other cities in the United States have passed similar voter initiatives or ordinances instructing local law enforcement to make enforcement of marijuana prohibitions their lowest police priority.

     This Act does not amend laws regarding driving under the influence of marijuana or other criminal infractions committed under the influence or infractions pertaining to sales or manufacturing.  This Act also does no77t amend laws regarding the use of marijuana for medical purposes.

     SECTION 2.  Chapter 329, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§329-A  Possession of marijuana.  (a)  Intentional or knowing possession of one ounce or less of marijuana shall constitute a civil violation subject to a fine not to exceed $100.

     (b)  Civil fines and penalties for violations under this section shall be deposited into the general fund."

     SECTION 3.  Section 302A-1002, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§302A-1002[]]  Reporting of crime-related incidents.  The board shall adopt rules pursuant to chapter 91 to:

     (1)  Require a report to appropriate authorities from a teacher, official, or other employee of the department who knows or has reason to believe that an act has been committed or will be committed, which:

         (A)  Occurred or will occur on school property during school hours or during activities supervised by the school; and

         (B)  Involves crimes relating to arson, assault, burglary, disorderly conduct, dangerous weapons, dangerous drugs, harmful drugs, extortion, firearms, gambling, harassment, intoxicating drugs, [marijuana or] marijuana concentrate[,] or more than one ounce of marijuana, murder, attempted murder, sexual offenses, rendering a false alarm, criminal property damage, robbery, terroristic threatening, theft, or trespass;

     (2)  Establish procedures for disposing of any incident reported; and

     (3)  Impose, in addition to any other powers or authority the department may have to discipline school officials, appropriate disciplinary action for failure to report these incidents, including probation, suspension, demotion, and discharge of school officials."

     SECTION 4.  Section 329-125, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  A qualifying patient or the primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution, criminal or civil, involving marijuana under this [[]part[]], section 329-A, or chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part."

     SECTION 5.  Section 353-66, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

     "(f)  The Hawaii paroling authority may require a paroled prisoner to undergo and complete a substance abuse treatment program when the paroled prisoner has committed a violation of the terms and conditions of parole involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, more than one ounce of marijuana, or marijuana concentrate, as defined in section 712-1240, unlawful methamphetamine trafficking as provided in section 712-1240.6, or involving possession or use of drug paraphernalia under section 329-43.5.  If the paroled prisoner fails to complete the substance abuse treatment program or the Hawaii paroling authority determines that the paroled prisoner cannot benefit from any substance abuse treatment program, the paroled prisoner shall be subject to revocation of parole and return to incarceration.  As a condition of parole, the Hawaii paroling authority may require the paroled prisoner to:

     (1)  Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;

     (2)  Present 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;

     (3)  Contribute to the cost of the substance abuse treatment program; and

     (4)  Comply with any other terms and conditions for parole.

     As used in this subsection, "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.

     Nothing in this subsection shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider."

     SECTION 6.  Section 706-625, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:

     "(7)  The court may require a defendant to undergo and complete a substance abuse treatment program when the defendant has committed a violation of the terms and conditions of probation involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, more than one ounce of marijuana, or marijuana concentrate, as defined in section 712-1240, unlawful methamphetamine trafficking as provided in section 712-1240.6, or involving possession or use of drug paraphernalia under section 329-43.5.  If the defendant fails to complete the substance abuse treatment program or the court determines that the defendant cannot benefit from any other suitable substance abuse treatment program, the defendant shall be subject to revocation of probation and incarceration.  The court may require the defendant to:

    (a)   Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;

    (b)   Present 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;

    (c)   Contribute to the cost of the substance abuse treatment program; and

    (d)   Comply with any other terms and conditions of probation.

     As used in this subsection, "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 substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.

     Nothing in this subsection shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider."

     SECTION 7.  Section 712-1240, Hawaii Revised Statutes, is amended by amending the definition of "detrimental drug" to read as follows:

     ""Detrimental drug" means any substance or immediate precursor defined or specified as a "Schedule V substance" by chapter 329, or any marijuana[.]; provided that one ounce or less of marijuana shall not be deemed a detrimental drug under sections 712-1251 or 712-1255."

     SECTION 8.  Section 712-1248, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  A person commits the offense of promoting a detrimental drug in the second degree if the person knowingly:

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

    (b)   Possesses 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; or

    (c)   Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one ounce or more, containing [any] more than one ounce of marijuana; or

    (d)   Distributes any marijuana or any Schedule V substance in any amount."

     SECTION 9.  Section 712-1249, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses [any] more than one ounce of marijuana or any Schedule V substance in any amount."

     SECTION 10.  Section 712-1249.6, Hawaii Revised Statutes, is amended to read as follows:

     "§712-1249.6  Promoting a controlled substance in, on, or near schools, school vehicles, or public parks.  (1)  A person commits the offense of promoting a controlled substance in, on, or near schools, school vehicles, or public parks if the person knowingly:

    (a)   Distributes or possesses with intent to distribute a controlled substance in any amount in or on the real property comprising a school or public park;

    (b)   Distributes or possesses with intent to distribute a controlled substance in any amount within seven hundred and fifty feet of the real property comprising a school or public park;

    (c)   Distributes or possesses with intent to distribute a controlled substance in any amount while on any school vehicle, or within ten feet of a parked school vehicle during the time that the vehicle is in service for or waiting to transport school children; or

    (d)   Manufactures methamphetamine or any of its salts, isomers, and salts of isomers, within seven hundred and fifty feet of the real property comprising a school or public park.

     (2)  A person who violates subsection (1)(a), (b), or (c) is guilty of a class C felony.  A person who violates subsection (1)(d) is guilty of a class A felony.

     (3)  Any person with prior conviction or convictions under subsection (1)(a), (b), or (c) is punishable by a term of imprisonment of not less than two years and not more than ten years.

     (4)  Any individual convicted under subsection (3) of this section shall not be eligible for parole until the individual has served the minimum sentence required by such subsection.

     (5)  For purposes of this section, mere possession of marijuana in an amount of one ounce or less shall not constitute a possession with intent to distribute without other conduct indicating intent to distribute.

     [(5)] (6)  For the purposes of this section, "school vehicle" means every school vehicle as defined in section 286‑181 and any regulations adopted pursuant to that section.

     [(6)] (7)  For purposes of this section, "school" means any public or private preschool, kindergarten, elementary, intermediate, middle secondary, or high school."

     SECTION 11.  Section 712-1255, Hawaii Revised Statutes, is amended to read as follows:

     "§712-1255  Conditional discharge.  (1)  Whenever any person who has not previously been convicted of any offense under this chapter or chapter 329, except for a civil violation under section 329-A, or under any statute of the United States or of any state relating to a dangerous drug, harmful drug, detrimental drug, or an intoxicating compound, pleads guilty to or is found guilty of promoting a dangerous drug, harmful drug, detrimental drug, or an intoxicating compound under section 712‑1243, 712-1245, 712-1246, 712-1248, 712-1249, or 712-1250, the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place the accused on probation upon terms and conditions.  Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.

     (2)  Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person.

     (3)  Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.

     (4)  There may be only one discharge and dismissal under this section with respect to any person.

     (5)  After conviction[,] for any offense under this chapter or chapter 329, except for a conviction of a civil violation under section 329-A, but prior to sentencing, the court shall be advised by the prosecutor whether the conviction is the defendant's first or a subsequent offense.  If it is not a first offense, the prosecutor shall file an information setting forth the prior convictions.  The defendant shall have the opportunity in open court to affirm or deny that the defendant is identical with the person previously convicted.  If the defendant denies the identity, sentence shall be postponed for such time as to permit the trial, before a jury if the defendant has a right to trial by jury and demands a jury, on the sole issue of the defendant's identity with the person previously convicted.

     (6)  For purposes of this section, a conviction for one or more civil violations under section 329-A shall not constitute a prior offense that would make a conditional discharge described in this section unavailable to the defendant."

     SECTION 12.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 13.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 14.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Marijuana; Civil Penalties for Possession of One Ounce or Less

 

Description:

Establishes a civil violation for possession of one ounce or less of marijuana that is subject to a fine of not more than $100.  Deletes reporting requirements of board of education for students possessing one ounce or less of marijuana.  Clarifies that medical marijuana patients and primary caregiver may assert affirmative defense to prosecution, criminal or civil, involving possession of one ounce or less of marijuana.  Excludes possession of more than one ounce of marijuana from authority of Hawaii paroling authority to require paroled prisoner to undergo and complete substance abuse treatment.  Excludes possession of more than one ounce of marijuana from authority of courts to require a defendant to undergo and complete substance abuse treatment for probation violation.  Clarifies definition of detrimental drug to exclude one ounce or less of marijuana.  Excludes possession of one ounce or less of marijuana from offenses of promoting a detrimental drug in the second degree and third degree.  Clarifies that possession of one ounce or less of marijuana does not constitute a possession with intent to distribute without other conduct indicating an intent to distribute for purposes of promoting controlled substance in or near schools, school vehicles, or public parks.  Clarifies a civil violation for possession of marijuana does not constitute a prior offense for purposes of the conditional discharge law.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.