§712-1249 Promoting a detrimental drug in the third degree. (1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses any marijuana or any Schedule V substance in any amount.
(2) Promoting a detrimental drug in the third degree is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(k); gen ch 1993]
SUPPLEMENTAL COMMENTARY ON §§712-1241 TO 712-1250
Act 231, Session Laws 2016, amended §§712-1241(1) and 712-1242(1) by placing possession and distribution of methamphetamine in the sections, giving the court the discretion to impose probation and drug treatment when appropriate. Act 231 removed possession and distribution of methamphetamine from the methamphetamine trafficking statutes [by amending §§712-1240.7 and 712-1240.9 and repealing §712-1240.8]. The amendments implemented recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015). The Penal Code Review Committee commented, on page 59 of its report, that "[w]hile the Committee recognizes these dangers and challenges, it is of the opinion that the current Methamphetamine Trafficking statutes are not properly addressing those challenges and should be changed based on the experience of the Committee regarding the application of these provisions in the criminal justice system in Hawaii." House Standing Committee Report No. 660-16.
Law Journals and Reviews
The Protection of Individual Rights Under Hawai‘i's Constitution. 14 UH L. Rev. 311 (1992).
Privacy Outside of the Penumbra: A Discussion of Hawai‘i's Right to Privacy After State v. Mallan. 21 UH L. Rev. 273 (1999).
Not unconstitutional. 56 H. 271, 535 P.2d 1394 (1975); 61 H. 71, 595 P.2d 287 (1979).
Defense of medical necessity. 61 H. 71, 595 P.2d 287 (1979).
Identification of seeds as marijuana seeds required expert testimony. 61 H. 505, 606 P.2d 913 (1980).
Purported right to possess and use marijuana not a fundamental right; where defendant failed to prove section lacked any rational basis, section constitutional. 86 H. 440, 950 P.2d 178 (1998).
Under the circumstances of the case, the free exercise clause of the First Amendment was not a viable defense to prosecution under this section; this section is a neutral law of general applicability to the extent it purports to prohibit, without exception, the possession of marijuana and any other substance defined as a "Schedule V substance" by chapter 329, it does not interfere with other constitutional rights, and it does not create a mechanism for governmental assessment of individual applicants for exemptions. 115 H. 396, 168 P.3d 526. (2007)
Section did not burden defendant's free exercise of religion. 5 H. App. 411, 695 P.2d 336 (1985).
Where insufficient evidence in record that defendant had the necessary intent to exercise control and dominion over the marijuana, no violation of section by "constructive possession". 92 H. 472 (App.), 992 P.2d 741 (1999).
Where a Hawaii county ordinance made the enforcement of marijuana laws the lowest enforcement priority in the county, the ordinance was preempted by state laws governing the investigation and prosecution of alleged violations of the Hawaii Penal Code concerning the adult personal use of cannabis. 132 H. 511 (App.), 323 P.3d 155 (2014).