§712-1241  Promoting a dangerous drug in the first degree.  (1)  A person commits the offense of promoting a dangerous drug in the first degree if the person knowingly:

     (a)  Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:

          (i)  One ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

         (ii)  One and one-half ounce or more, containing one or more of any of the other dangerous drugs;

     (b)  Distributes:

          (i)  Twenty-five or more capsules, tablets, ampules, dosage units, or syrettes containing one or more dangerous drugs; or

         (ii)  One or more preparations, compounds, mixtures, or substances of an aggregate weight of:

               (A)  One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

               (B)  Three-eighths ounce or more, containing any other dangerous drug;

     (c)  Distributes any dangerous drug in any amount to a minor except for methamphetamine; or

     (d)  Manufactures a dangerous drug in any amount, except for methamphetamine; provided that this subsection shall not apply to any person registered under section 329-32.

     (2)  Promoting a dangerous drug in the first degree is a class A felony. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(c); am L 1979, c 112, §1; am L 1981, c 31, §1; am L 1982, c 9, §1; am L 1988, c 146, §1; am L 1989, c 163, §1; gen ch 1992; am L 1996, c 308, §2; am L 1997, c 319, §2; am L 2002, c 161, §6; am L 2004, c 44, §5; am L 2006, c 230, §49; am L 2016, c 231, §54]

 

Note

 

  L 2016, c 231, §70 provides:

   "SECTION 70.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date [July 1, 2016]; provided that sections 54 [amending §712-1241(1)], 55 [amending §712-1242(1)], and 56 [repealing §712-1240.8] shall apply to offenses committed before the effective date of this Act [July 1, 2016]:

(1)  But not yet charged as of its effective date [July 1, 2016];

(2)  Originally charged as a violation of section 712-1240.7 or 712-1240.8, Hawaii Revised Statutes, where the defendant:

(a)  Has not yet been placed in jeopardy or convicted on a plea or verdict; and

(b)  Waives any claim of denial of speedy trial rights for the period elapsing between the date of filing of the original charge and the date of filing of the new charge under this Act;

(3)  Originally charged as a violation of section 712-1240.7 or 712-1240.8, Hawaii Revised Statutes, for which the defendant has been convicted on a plea or verdict, but not yet sentenced, in which case the defendant shall be sentenced pursuant to this Act; and

(4)  Originally charged as a violation of section 712-1240.7 or 712-1240.8, Hawaii Revised Statutes, for which the defendant has been convicted on a plea or verdict and sentenced but for which no final judgment on appeal has been entered, in which case the appellate court shall either:

(a)  Remand the case for sentencing pursuant to this Act if the judgment is affirmed on appeal or if the sentence is vacated; or

(b)  Remand the case for further proceedings pursuant to this Act if the judgment is reversed and remanded for further proceedings."

 

Revision Note

 

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

 

Cross References

 

  Sale of sterile syringes for prevention of diseases, see §325-21.

 

Case Notes

 

  Proscription of distribution of lysergic acid diethylamine cannot be extended by analogy to distribution of lysergic acid diethylamide.  61 H. 74, 595 P.2d 288 (1979).

  Crime of promoting dangerous drug by distributing same is complete upon offer to sell the contraband; actual delivery or chemical analysis not required.  63 H. 77, 621 P.2d 364 (1980).

  Nothing in subsection (1)(b)(ii)(A) required that defendant "[possess] at any one time" one-eighth ounce or more of a cocaine-containing substance or that the substance be delivered all at once in a "single container"; undercover police officer’s testimony constituted substantial evidence supporting jury’s verdict finding defendant guilty.  77 H. 72, 881 P.2d 1218 (1994).

  Conviction vacated where proof that defendant possessed an aggregate weight of one ounce or more of cocaine not supported by substantial and admissible evidence.  80 H. 382, 910 P.2d 695 (1996).

  Notwithstanding the use of the terms "mixture" and "weight" in subsection (1)(b)(ii)(B), dangerous drugs distributed in liquid form must be measured in fluid ounces.  90 H. 255, 978 P.2d 693 (1999).

  Disregarding the erroneously admitted testimony of the police criminalist as to the weight of the substances, the record was devoid of any evidence of the requisite weight of the methamphetamine, a material element of the offenses charged; because those material elements of the offenses were not supported by substantial and admissible evidence, prosecution failed to adduce sufficient evidence to prove every element of the offenses beyond a reasonable doubt.  115 H. 343, 167 P.3d 336 (2007).

  Defendants did not prove entrapment under §702-237(1)(b) by preponderance of evidence as required by §701-115(2)(b); officer's conduct merely provided defendants with opportunity to commit offense of promoting a dangerous drug in the first degree.  82 H. 499 (App.), 923 P.2d 916 (1996).

  There was insufficient evidence that defendant took a substantial step toward the distribution of at least one-eighth ounce of methamphetamine in defendant's possession where there was no evidence that defendant had engaged in negotiations, offered, or agreed to distribute any of the methamphetamine found in defendant's possession.  107 H. 144 (App.), 111 P.3d 39 (2005).

  The legislature did not intend to authorize the imposition of multiple punishments for both possession and attempted distribution under this section, where the convictions are based on a defendant's possession of the same drugs at the same moment in time.  115 H. 364 (App.), 167 P.3d 739 (2007).

  Cited:  700 F. Supp. 2d 1252 (2010).

  Mentioned:  74 H. 161, 840 P.2d 358 (1992).

 

 

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