Report Title:

Penal code

Description:

Creates the new offenses of terrorism, hindering apprehension or prosecution for terrorism, unlawful production or possession of a chemical, biological, or nuclear weapon, and making a false public alarm. Revises terroristic threatening and reckless endangering provisions to enhance the penalties for using a dangerous instrument or a widely dangerous means to threaten or endanger others, and penalizes the use of an imitation or hoax.

THE SENATE

S.B. NO.

2697

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE PENAL CODE.

 

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

SECTION 1. Chapter 707, Hawaii Revised Statutes, is amended by adding six new sections to be appropriately designated and to read as follows:

"§707- Terrorism. (1) A person is guilty of the crime of terrorism if the person, with intent to influence the policy or affect the conduct of government by terror, commits, attempts to commit, conspires to commit, or threatens to commit the crime of:

(a) Murder in the first or second degree;

(b) Manslaughter;

(c) Assault in the first degree;

(d) Kidnapping;

(e) Criminal property damage in the first degree; or

(f) Robbery in the first degree;

(2) Terrorism is a class A felony.

(3) Notwithstanding any law to the contrary, if a violation of this section in fact results in the death of another, the sentence shall be a term of life imprisonment without the possibility of parole.

(4) For the purposes of this section, "in fact" means that strict liability is imposed. It shall not be a defense that the death was not a foreseeable consequence of the defendant's acts or that the death was caused by the actions of another person or by circumstances beyond the control of the defendant.

(5) As used in this section:

"Government" means the United States, any state, county, municipality, or other political unit, or any department, agency or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government.

"Terror" means intense fear.

"Terrorize" means to cause terror by words or actions.

(6) A prosecution pursuant to this section may be brought by the attorney general or the attorney general’s designated deputy, or by a county prosecutor or a designated deputy prosecutor.

(7) Notwithstanding any law to the contrary, a conviction under this section shall not merge with a conviction of any other offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of this section and any other offense.

(8) Nothing contained in this section shall be deemed to preclude, if the evidence so warrants, a charge and conviction for murder in the first or second degree or a charge and conviction for any other crime.

§707- Making a false public alarm in the first degree. (1) A person is guilty of making a false public alarm in the first degree if:

(a) The person knowingly causes by word or action, a report to be transmitted to or within any official or volunteer organization responsible for dealing with emergencies involving danger to life or property;

(b) The report is a warning of an impending chemical hazard, biological hazard, nuclear hazard, fire, explosion, bombing, crime, catastrophe, or emergency;

(c) The person makes the report knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconveniences or alarm; and

(d) The person’s violation of this section in fact results in death.

(2) Making a false public alarm in the first degree is a class A felony.

(3) Notwithstanding any law to the contrary, a conviction under this section shall not merge with a conviction of any other offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of this section and any other offense.

(4) For the purposes of this section, "in fact" means that strict liability is imposed. It shall not be a defense that the death was not a foreseeable consequence of the defendant's acts or that the death was caused by the actions of another person or by circumstances beyond the control of the defendant.

§707- Making a false public alarm in the second degree. (1) A person is guilty of making a false public alarm in the second degree if:

(a) The person knowingly causes, by word or action, a report to be transmitted to or within any official or volunteer organization responsible for dealing with emergencies involving danger to life or property;

(b) The report is a warning of an impending chemical hazard, biological hazard, nuclear hazard, fire, explosion, bombing, crime, catastrophe, or emergency;

(c) The person makes the report knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm; and

(d) The person’s violation of this section:

(i) Includes placing or causing to be placed any false or facsimile bomb in a building, place of assembly, or facility of public transport or in a place likely to cause public inconvenience or alarm;

(ii) In fact results in serious bodily injury to another person; or

(iii) In fact occurs during a period that the governor has declared to be a civil defense emergency period pursuant to chapter 128.

(2) Making a false public alarm in the second degree is a class B felony.

(3) Notwithstanding any law to the contrary, a conviction under this section shall not merge with a conviction of any other offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of this section and any other offense.

(4) For the purposes of this section, "in fact" means that strict liability is imposed. It shall not be a defense that the serious bodily injury was not a foreseeable consequence of the defendant's acts or that the serious bodily injury was caused by the actions of another person or by circumstances beyond the control of the defendant. The actor shall be strictly liable upon proof that the crime occurred during a declared period of national, state, or county emergency. It shall not be a defense that the actor did not know that there was a declared period of emergency at the time the crime occurred.

§707- Making a false public alarm in the third degree. (1) A person is guilty of making a false public alarm in the third degree if:

(a) The person knowingly causes, by word or action, a report to be transmitted to or within any official or volunteer organization responsible for dealing with emergencies involving danger to life or property;

(b) The report is a warning of an impending chemical hazard, biological hazard, nuclear hazard, fire, explosion, bombing, crime, catastrophe, or emergency; and

(c) The person makes the report knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconveniences or alarm;

(2) Making a false public alarm in the third degree is a class C felony.

§707- Reckless endangering in the second degree. (1) A person commits the offense of reckless endangering in the second degree if the person recklessly causes an emergency response by public servants or emergency personnel by knowingly employing, placing, sending, distributing, delivering, or exposing another person or persons in any way, to a substance or an item that is an imitation dangerous instrument or an imitation widely dangerous means in a manner which, if real rather than imitation, the substance or item would recklessly place another person in danger of death or serious bodily injury.

(2) Reckless endangering in the second degree is a class C felony.

§707- Terroristic threatening in the first degree. (1) A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening as set forth in section 707-715(2) and does so with the use of a dangerous instrument or a widely dangerous means.

(2) Terroristic threatening in the first degree is a class B felony."

SECTION 2. Chapter 710, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§710- Hindering apprehension or prosecution for terrorism. (1) A person commits the offense of hindering apprehension or prosecution for terrorism if, with intent to hinder the detention, apprehension, investigation, prosecution, conviction, or punishment of another for the crime of terrorism, the person does any one of the following:

(a) Harbors or conceals such person;

(b) Provides or aids in providing such person with a weapon, money, transportation, disguise, or other means of avoiding discovery or apprehension or effecting escape;

(c) Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document, or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against such person;

(d) Warns such person of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring such person into compliance with law;

(e) Prevents or obstructs, by means of force, intimidation, or deception, anyone from performing an act that might aid in the discovery or apprehension of such person or in the lodging of a charge against such person;

(f) Aids such person to protect or expeditiously profit from an advantage derived from the crime of terrorism; or

(g) Gives false information to a law enforcement officer.

(2) Except as provided in subsection (3), hindering apprehension or prosecution for terrorism is a class A felony.

(3) In a prosecution for hindering apprehension or prosecution for terrorism, it is a defense that reduces the offense to a class B felony that no death or serious bodily injury of a person occurred as a result of the offense.

§710- Unlawful production or possession of a chemical, biological, or nuclear weapon. (1) A person commits the offense of unlawful production or possession of a chemical, biological, or nuclear weapon if the person intentionally or knowingly, for use as a weapon, unlawfully develops, produces, acquires, transfers, receives, stockpiles, retains, owns, possesses, or uses, any chemical weapon, biological weapon, nuclear weapon, toxin, vector, or delivery system.

(2) Unlawful production or possession of a chemical, biological, or nuclear weapon is a class A felony.

(3) Notwithstanding any law to the contrary, if a violation of this section involves the defendant's intentional use of a chemical, biological, or nuclear weapon for an unlawful purpose, and that use in fact results in the death of another, the sentence shall be a term of life imprisonment without the possibility of parole.

(4) For the purposes of this section, "in fact" means that strict liability is imposed. It shall not be a defense that the death was not a foreseeable consequence of the defendant's acts or that the death was caused by the actions of another person or by circumstances beyond the control of the defendant.

(5) Notwithstanding any law to the contrary, a conviction under this section shall not merge with a conviction of any other offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation of this section and any other offense.

(6) Nothing contained in this section shall be deemed to preclude, if the evidence so warrants, a charge and conviction for murder in the first or second degree or a charge and conviction for any other crime.

(7) As used in this section:

"Chemical weapon" means:

(a) A toxic chemical and its precursors, except where intended for a lawful purpose as long as the type and quantity is consistent with such a purpose. "Chemical weapon" shall include, but not be limited to:

(i) Nerve agents, including Tabun (GA), Sarin (GB), Soman (GD), GF, and VX;

(ii) Choking agents, including Phosgene (CG) and Diphosgene (DP);

(iii) Blood agents, including Hydrogen Cyanide (AC), Cyanogen Chloride (CK), and Arsine (SA); and

(iv) Blister agents, including mustards (H, HD {sulfur mustard}, HN-1, HN-2, HN-3 {nitrogen mustard}), arsenicals, such as Lewisite (L), urticants, including CX; and

(v) Incapacitating agents, including BZ ; or

(b) A munition or device, specifically designed to cause death or other harm through toxic properties of those toxic chemicals specified in paragraph (a) of this definition, which would be released as a result of the employment of such munition or device; or

(c) Any equipment specifically designed for use directly in connection with the employment of munitions or devices specified in paragraph (b) of this definition.

"Biological weapon" means any microorganism, virus, infectious substance or biological product that may be engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any such microorganism, virus, infectious substance or biological product, capable of causing:

(a) Death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism; or

(b) Deterioration of food, water, equipment, supplies, or material of any kind; or

(c) Deleterious alteration of the environment.

"Biological weapon" shall include, but not be limited to: Crimean-Congo hemorrhagic fever virus, eastern equine encephalitis virus, ebola viruses, equine morbilli virus, lassa fever virus, marburg virus, Rift Valley fever virus, South African hemorrhagic fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito), tick-borne encephalitis complex viruses, variola major virus (smallpox virus), Venezuelan equine encephalitis virus, viruses causing hantavirus pulmonary syndrome, and yellow fever virus, bacillus antracis (commonly known as anthrax), brucella bortus, brucella melitensis, brucella suis, burkholderia (pseudomonas) mallei, burkholderia (pseudomonas) pseudomallei, clostridium botulinum, francisella tularensis, yersinia pestis (commonly known as plague), rickettsiae, including coxiella burnetii, rickettsia prowazekii and rickettsia rickettsii, coccidioides immitis fungus and toxins including abrin, aflatoxins, botulinum toxins, clostridium perfringens epsilon toxin, conotoxins, diacetoxyscirpenol, ricin, saxitoxin, shigatoxin, staphyloccoccal enterotoxins, tetrodotoxin, and T-2 toxin.

"Toxin" means the toxic material of plants, animals, microorganisms, viruses, fungi, or infectious substances, or a recombinant molecule, whatever its origin or method of production, including:

(a) Any poisonous substance or biological product that may be engineered as a result of biotechnology or produced by a living organism; or

(b) Any poisonous isomer or biological product, homolog, or derivative of such a substance.

"Vector" means a living organism or molecule, including a recombinant molecule, or biological product that may be engineered as a result of biotechnology, capable of carrying a biological agent or toxin to a host.

"Nuclear weapon" includes any nuclear device which is an explosive device designed to cause a nuclear yield, a radiological dispersal device which is an explosive device used to spread radioactive material, or any other device used to release radiological material for use as a weapon.

"Delivery system" means any apparatus, equipment, device, or means of delivery specifically designed to deliver or disseminate a chemical weapon, biological weapon, a nuclear weapon, a toxin, or any vector.

"For use as a weapon" means all situations in which the defendant had any purpose other than a prophylactic, protective, or peaceful purpose.

(8) This section shall not apply to the development, production, acquisition, transfer, receipt, possession, or use of any toxic chemical, biological agent, toxin, or vector that is related to a lawful industrial, agricultural, research, medical, pharmaceutical, or other activity.

(7) This section shall not apply to individual self-defense devices, such as pepper spray, that cause no permanent harm to humans and possession of which is otherwise lawful."

SECTION 3. Section 701-108, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A prosecution for murder, murder in the first and second degrees, attempted murder, [and] attempted murder in the first and second degrees, criminal conspiracy to commit murder in any degree, [and] criminal solicitation to commit murder in any degree, and terrorism may be commenced at any time."

SECTION 4. Section 707-700, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:

""Widely dangerous means" shall have the same meaning as defined in section 708-800.

"Imitation dangerous instrument" means an instrument that is not a dangerous instrument, which by appearance (including color, shape, size, and markings), or by representations made, would lead a reasonable person to believe that the instrument is a dangerous instrument. In any case when the appearance alone is not reasonably sufficient to establish that the instrument is an "imitation dangerous instrument", the court or authority concerned shall consider, in addition to all other logically relevant factors, the following factors as related to representations made in determining whether the instrument is an imitation dangerous instrument:

(1) Statements made by an owner or by anyone else in control of the instrument concerning the nature of the instrument, or its use or effect;

(2) Whether the instrument is packaged in a manner normally used for a dangerous instrument;

(3) Evasive tactics or actions utilized by the owner or person in control of the instrument to avoid detection by law enforcement authorities;

(4) Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to use of a dangerous instrument or fraud; and

(5) The proximity of the instrument to dangerous instruments.

"Imitation widely dangerous means" means a substance or item that is not a widely dangerous means, which by appearance (including color, shape, size, and markings), or by representations made, would lead a reasonable person to believe that the substance or item is a widely dangerous means. In any case when the appearance of the substance or item is not reasonably sufficient to establish that the substance or item is an "imitation widely dangerous means" (for example in the case of a powder or liquid), the court or authority concerned shall consider, in addition to all other logically relevant factors, the following factors as related to representations made in determining whether the substance or item is an imitation widely dangerous means:

(1) Statements made by an owner or by anyone else in control of the substance or item concerning the nature of the substance or item, or its use or effect;

(2) Whether the substance or item is packaged in a manner normally used for a widely dangerous means;

(3) Evasive tactics or actions utilized by the owner or person in control of the substance or item to avoid detection by law enforcement authorities;

(4) Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to use of a widely dangerous means or fraud; and

(5) The proximity of the substance or item to a widely dangerous means."

SECTION 5. Section 707-713, Hawaii Revised Statutes, is amended to read as follows:

"§707-713 Reckless endangering in the first degree. (1) A person commits the offense of reckless endangering in the first degree if the person employs, places, sends, distributes, delivers, or exposes another person or persons, in any way to a dangerous instrument or a widely dangerous means in a manner which recklessly places another person in danger of death or serious bodily injury or intentionally fires a firearm in a manner which recklessly places another person in danger of death or serious bodily injury.

(2) Reckless endangering in the first degree in a class [C] B felony."

SECTION 6. Section 707-714, Hawaii Revised Statutes, is amended to read as follows:

"§707-714 Reckless endangering in the [second] third degree. (1) A person commits the offense of reckless endangering in the [second] third degree if the person engages in conduct which recklessly places another person in danger of death or serious bodily injury.

(2) For the purposes of this section and in ddition to other applications, a person engages in conduct which recklessly places another person in danger of death or serious bodily injury when that person intentionally discharges a firearm in a populated area, in a residential area or within the boundaries or in the direction of any road, street, or highway; provided that the provisions of this [paragraph] subsection shall not apply to any person who discharges a firearm upon a target range for the purpose of target shooting done in compliance with all laws and regulations applicable thereto.

(3) Reckless endangering in the [second] third degree in a misdemeanor."

SECTION 7. Section 707-716, Hawaii Revised Statutes, is amended to read as follows:

"§707-716 Terroristic threatening in the [first] second degree. (1) A person commits the offense of terroristic threatening in the [first] second degree if the person commits terroristic threatening:

(a) By threatening another person on more than one occasion for the same or a similar purpose; or

(b) By threats made in a common scheme against different persons; or

(c) Against a public servant, including but not limited to an educational worker, who for the purposes of this section shall mean an administrator, specialist, counselor, teacher, or other employee of the department of education, or a volunteer as defined by section 90-1, in a school program, activity, or function that is established, sanctioned, or approved by the department of education, or a person hired by the department of education on a contractual basis and engaged in carrying out an educational function; [or]

(d) With the use of [a dangerous instrument.] an imitation dangerous instrument or an imitation widely dangerous means; or

(e) As set forth in section 707-715(2).

(2) Terroristic threatening in the [first] second degree is a class C felony."

SECTION 8. Section 707-717, Hawaii Revised Statutes, is amended to read as follows:

"[[]§707-717[]] Terroristic threatening in the [second] third degree. (1) A person commits the offense of terroristic threatening in the [second] third degree if the person commits terroristic threatening other than [as provided in section 707-716.] terroristic threatening in the first or second degree.

(2) Terroristic threatening in the [second] third degree is a misdemeanor."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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