706-625 Revocation, modification of probation conditions. (1) The court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke probation except as provided in subsection (7), reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627.

(2) The prosecuting attorney, the defendant's probation officer, and the defendant shall be notified by the movant in writing of the time, place, and date of any such hearing, and of the grounds upon which action under this section is proposed. The prosecuting attorney, the defendant's probation officer, and the defendant may appear in the hearing to oppose or support the application, and may submit evidence for the court's consideration. The defendant shall have the right to be represented by counsel. For purposes of this section the court shall not be bound by the Hawaii rules of evidence, except for the rules pertaining to privileges.

(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.

(4) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.

(5) When the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which the defendant was convicted.

(6) As used in this section, "conviction" means that a judgment has been pronounced upon the verdict.

(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, 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. [L 1972, c 9, pt of 1; am L 1985, c 192, 1; am L 1986, c 314, 27; am L 1989, c 45, 1; gen ch 1993; am L 1994, c 5, 6; am L 2002, c 161, 5; am L 2004, c 44, 12]

 

Note

 

Section 712-1240.6 referred to in text is repealed.

 

COMMENTARY ON 706-625

 

This section restates prior law[1] and allows the court to increase or relax the conditions of probation. Such power is essential if the disposition is to remain flexible. However, if an increase in the severity of the conditions is proposed, the court must accord the defendant the procedural rights stated in 706-627.

 

SUPPLEMENTAL COMMENTARY ON 706-625

 

Act 192, Session Laws 1985, amended this section and consolidated it with the law governing the revocation of probation or suspension of sentence, formerly contained in 706-628 and part of 706-627. As a result, 706-628 is repealed.

Act 45, Session Laws 1989, defined the word "conviction" as applied in the revocation or modification of probation conditions. Senate Standing Committee Report No. 1282, House Standing Committee Report No. 844.

Act 5, Session Laws 1994, amended this section by changing the subsection designations from letters to numbers for the purpose of consistency in the Hawaii Penal Code. Subsection references throughout the Penal Code are designated by numbers rather than letters. House Standing Committee Report No. 329-94, Senate Standing Committee Report No. 2638.

Act 161, Session Laws 2002, amended this section to require the court not to revoke probation for the first violation of a nonviolent drug-related probation condition, and to require that the probation violators be sentenced to undergo and complete drug treatment instead of incarceration. The legislature found that the link between substance abuse and crime is well-established. The legislature did not wish to diminish the seriousness of crime, but looked to approaching crime as being the result of addiction that is treatable. The treatment route was expected to produce a reduction in crime and recidivism. The legislature intended to promote treatment of nonviolent substance abuse offenders, rather than incarceration, as being in the best interests of the individual and the community at large. Conference Committee Report No. 96-02.

 

Case Notes

 

Criteria for modification. 55 H. 632, 525 P.2d 1119 (1974).

Mandated revocation of probation under certain circumstances is a means to compel a court to review defendant's original sentence in light of new facts. Court may reimpose the same sentence. 69 H. 424, 744 P.2d 1208 (1987).

Defendant was prejudiced because of inability to independently test urine samples. 70 H. 194, 767 P.2d 243 (1989).

Court had discretion to consider factors other than defendant's wilfulness in determining whether failure to comply with probation condition was inexcusable under section. 73 H. 81, 829 P.2d 1325 (1992).

Statutory language of subsection (e) (1992) must be harmonized with 706-671(2), mandating credit for time served in imprisonment. 78 H. 343, 893 P.2d 194 (1995).

Court abused discretion in revoking defendant's probation where defendant made the monthly payments as condition of probation and there was no other justifiable cause for revocation. 79 H. 511, 904 P.2d 525 (1995).

Subsection (5), which permits a trial court on revocation of probation to impose any sentence that might have originally been imposed at the time of conviction, does not apply to the sentencing procedure attendant to revocation of a deferred acceptance of guilty plea, which is already specifically governed by 853-3. 93 H. 362, 3 P.3d 1239 (2000).

Where petitioner lacked "written notice" that probation revocation was sought because petitioner was a high risk to commit another offense, and petitioner was not notified of the "evidence" of other sexual assaults that was used "against" petitioner in seeking revocation, petitioner's due process rights were violated. 125 H. 114, 254 P.3d 425 (2011).

Consistent with subsection (1), because petitioner, who was sentenced to probation under 706-622.5(1), had completed petitioner's probation term and was subsequently discharged and thus "satisfied the disposition of the court", as provided by 706-630, petitioner had, in effect, complied with the terms and conditions of probation for purposes of expungement under 706-622.5(4). 129 H. 363, 300 P.3d 1022 (2013).

For purposes of determining whether a defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of a probation order, courts should consider (1) whether the defendant's actions were intentional; and (2) whether the defendant's actions, if intentional, were a deliberate attempt to circumvent the court's probation order, considering the goals of sentencing the defendant to probation. 132 H. 209, 320 P.3d 874 (2014).

In probation modification or revocation hearings, courts should apply a "good cause" standard for determining whether a continuance should be granted; family court abused its discretion in denying defendant's request for a continuance, where defendant had "good cause" for requesting a continuance and the court's error in failing to grant a continuance was not harmless. 132 H. 209, 320 P.3d 874 (2014).

Court cannot revoke probation and impose new probation term. 6 H. App. 253, 718 P.2d 1117 (1986).

Where defendant made conscious and wilful decision to fail to comply with a substantial requirement imposed as a condition of probation under subsection (3), court did not abuse discretion in revoking probation and imposing sentence which may have been originally imposed. 82 H. 441 (App.), 922 P.2d 1054 (1996).

Circuit court properly concluded that it was required to revoke defendant's probation pursuant to subsection (c) because of subsequent felony conviction. 83 H. 102 (App.), 924 P.2d 596 (1996).

When defendant refused to admit having committed the sex crimes and failed to pass the lie detector tests, defendant did not "inexcusably" fail to comply with a substantial requirement imposed as a condition of the probation order under subsection (3) as the trial court could not order defendant to admit defendant's sex crimes and defendant did not personally expressly and explicitly agree to admit defendant's sex crimes and to accept probation on that basis. 93 H. 321 (App.), 2 P.3d 725 (2000).

Upon revocation of probation pursuant to subsection (3), in light of the record, 706-660 and 706-621, trial court did not abuse its discretion in sentencing defendant to imprisonment "for a term of not more than ten years with credit for time served". 97 H. 135 (App.), 34 P.3d 1034 (2001).

Where defendant failed to submit to drug/alcohol assessments, failed to report to defendant's probation officer, failed to notify probation officer of a change in address, and failed to pay the crime victim compensation and probation service fees, these violations of defendant's terms and conditions of probation did not involve the possession or use of drugs as meant under subsection (7); thus, trial court erred in its interpretation and application of this subsection. 112 H. 208 (App.), 145 P.3d 751 (2006).

Criminal contempt of court under 710-1077 is not available as a sanction for a violation of a condition of probation as there is no provision in this chapter that authorizes the use of criminal contempt as a sanction for violation of a condition of probation; the exclusive sanctions for a violation of a condition of probation in this chapter are set forth in this section. 120 H. 312 (App.), 205 P.3d 577 (2009).

 

 

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706-625 Commentary:

 

1. H.R.S. 711-77.

 

 

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