Report Title:

Drugs

Description:

Repeals portions of Act 161, Session Laws of Hawaii 2003 that are inconsistent with the Judiciary's Drug Court program; reduces amount of drugs that a person needs to possess in order to be found guilty of promoting a dangerous drug.

HOUSE OF REPRESENTATIVES

H.B. NO.

2827

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to drug sentencing.

 

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

SECTION 1. The legislature finds that Act 161, Session Laws of Hawaii 2003, has created unanticipated consequences in the fight against illicit drugs. Recent newspaper articles document the confusion judges have in interpreting the law due to the apparent conflict in policy directions offered by the legislature mandatory sentencing for repeat offenders, probation for first and multiple time offenders, drug treatment, and incarceration. The aftermath of Act 161, Session Laws of Hawaii 2003, appears to be a situation where the Judiciary is left out as a viable partner and resource in a comprehensive approach to combating the pervasive problem of "ice".

The purpose of this Act is to repeal parts of Act 161, Session Laws of Hawaii 2003, so that proposals meant to combat the problem of "ice" dovetail and compliment, as opposed to conflict, with the Judiciary's Drug Court program, which is universally recognized as an important and successful tool in combating the drug problem in our State. This Act also serves to lower the amount of "ice" a person possesses in order to be charged with a class A felony as the current amounts in statute are much higher than a person could ever use by themselves.

SECTION 2. Section 706-625, Hawaii Revised Statutes, is amended to read as follows:

"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) Probation shall not be revoked for a first 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, or involving possession or use of drug paraphernalia under section 329-43.5; provided that the person shall be required to undergo and complete a drug treatment program as a condition of continued probation. If the person fails to complete the drug treatment program and if no other suitable treatment is amenable to the offender, the person shall be subject to revocation of probation and return to incarceration. The court may require the person to contribute to the cost of the drug treatment program.

As used in this subsection, "drug treatment program" means drug or substance abuse services provided outside a correctional facility, but the services do not require the expenditure of state moneys beyond the limits of available appropriations.

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

SECTION 3. Section 712-1241, Hawaii Revised Statutes, is amended to read as follows:

"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] Twelve grams 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] Eighteen grams or more, containing one or more of any of the other dangerous drugs; or

(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] Three grams or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

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

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

(d) Manufactures a dangerous drug in any amount; 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.

(3) Notwithstanding any law to the contrary, [except for first-time offenders sentenced under section 706-622.5,] if the commission of the offense of promoting a dangerous drug in the first degree under this section involved the possession, distribution, or manufacture of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment, the length of which shall be not less than one year and not greater than ten years, at the discretion of the sentencing court for a conviction under subsection (1)(a), (1)(b), or (1)(c) and not less than ten years for a conviction under subsection (1)(d). The person convicted shall not be eligible for parole during the mandatory term of imprisonment."

SECTION 4. Section 712-1242, Hawaii Revised Statutes, is amended to read as follows:

"712-1242 Promoting a dangerous drug in the second degree. (1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly:

(a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs; or

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

(i) [One-eighth ounce] Three grams or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

(ii) [One-fourth ounce] Six grams or more, containing any dangerous drug; or

(c) Distributes any dangerous drug in any amount.

(2) Promoting a dangerous drug in the second degree is a class B felony.

(3) Notwithstanding any law to the contrary, [except for first-time offenders sentenced under section 706-622.5,] if the commission of the offense of promoting a dangerous drug in the second degree under this section involved the possession or distribution of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of ten years with a mandatory minimum term of imprisonment, the length of which shall be not less than six months and not greater than five years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment."

SECTION 5. Section 712-1243, Hawaii Revised Statutes, is amended to read as follows:

"712-1243 Promoting a dangerous drug in the third degree. (1) A person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount.

(2) Promoting a dangerous drug in the third degree is a class C felony.

(3) Notwithstanding any law to the contrary, [except for first-time offenders sentenced under section 706-622.5,] if the commission of the offense of promoting a dangerous drug in the third degree under this section involved the possession or distribution of methamphetamine, the person convicted shall be sentenced to an indeterminate term of imprisonment of five years with a mandatory minimum term of imprisonment, the length of which shall be not less than thirty days and not greater than two-and-a-half years, at the discretion of the sentencing court. The person convicted shall not be eligible for parole during the mandatory period of imprisonment."

SECTION 6. Section 9 of Act 161, Session Laws of Hawaii 2003, is repealed.

SECTION 7. Section 706-622.5, Hawaii Revised Statutes, is repealed.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

 

 

INTRODUCED BY:

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