Report Title:

Marijuana; Decriminalize Possession of Less than One Ounce



Decriminalizes possession of less than 1 ounce of marijuana and makes the possession a civil violation subject to a fine of not more than $100.



H.B. NO.














relating to marijuana.





SECTION 1. The legislature finds that scarce resources are currently being expended inefficiently by county and state law enforcement entities, including judicial and detention facilities, for enforcing marijuana possession laws. A recent study of the economics of enforcement of marijuana laws in Hawaii reveals that "State and county law enforcement agencies spend $4,100,000 per year to enforce marijuana possession laws; and an additional $2,100,000 is spent by the courts." Notwithstanding this expenditure, "between 1994 and 2003, the price of one ounce of high quality marijuana dropped by twelve per cent." As the author of the study, a Hawaii-based economist, concluded, "the price decline reveals that law enforcement efforts to restrict supply have not been effective."

The study also revealed that amending the State's marijuana laws to make possession of less than one ounce of marijuana a civil violation in Hawaii could save state and county governments up to $5,000,000 per year. This would permit law enforcement to focus their resources on more serious drug issues such as combating the ongoing crystal methamphetamine epidemic or the recently reported sharp increase in cocaine use. At the same time, because of current low prosecution levels and small penalties, the study's author concluded that decriminalizing the possession of less than one ounce of marijuana by reducing the violation to a civil penalty would not have much effect on marijuana use. This finding is consistent with the experience of other jurisdictions. This reduction, however, would not be a significant change from the legislature's previous classification of simple possession of small amounts of marijuana as a petty misdemeanor due to the relatively harmless nature of this substance, compared to other commonly used illegal substances.

A civil fine could serve as a more certain penalty and therefore a more effective deterrent, especially for young people. In addition, imposing the fine would be as easy as writing a traffic ticket and would require expending much less time and effort on the part of law enforcement officers and court officials.

The legislature further finds that existing Hawaii law provides for a sentence of not more than thirty days for first time possession of less than an ounce of marijuana. Even a petty misdemeanor, however, is a crime. A violator's criminal record would seriously affect the violator's future by affecting eligibility for federal college loans, certain types of employment, and military service.

On the other hand, twelve other states have recognized the advantages of downgrading the possession of small amounts of marijuana to a civil violation instead of a crime. These states ‑‑ California, Colorado, Maine, Massachusetts, Minnesota, Mississippi, Nebraska, Nevada, New York, North Carolina, Ohio, and Oregon, comprising some thirty per cent of the nation's population ‑‑ have not experienced disproportionate spikes in marijuana use since those states have enacted laws reducing the severity of the violation. According to a 1999 report by the National Academy of Sciences, Institute of Medicine, entitled Marijuana and Medicine: Assessing the Science Base: "In sum, there is little evidence that decriminalization of marijuana use necessarily leads to a substantial increase in marijuana use."

Because the vast majority of possession charges under the criminal code are dealt with by fines, treating possession of less than an ounce of marijuana as a violation, punishable by a civil fine, will continue to deter marijuana use and demonstrate the State's disapproval of the use of the drug. The legislature finds that a civil penalty will be perceived as more commensurate to the offense. The State will reduce the cynicism and disrespect for the law felt by those who see criminalization with possible imprisonment for possession of small amounts of marijuana as inconsistent with the more lenient laws governing possession of more dangerous substances such as cigarettes and alcohol.

There is increasing public support for the decriminalization of marijuana possession. In November 2008, fifty-eight per cent of voters of Hawaii county voted on a ballot initiative to make marijuana possession the "lowest law enforcement priority." The new county ordinance directs law enforcement officials of the county of Hawaii to treat the "adult personal use" of cannabis as its lowest law enforcement priority and prohibits the county from accepting or expending funds for the marijuana eradication program and for enforcing potential offenses for the adult personal use of cannabis. The ordinance also directs the Hawaii county clerk to send a letter to state legislators requesting that state laws pertaining to private and personal use of cannabis be repealed.

In November 2008, sixty-five per cent of voters in Massachusetts approved a decriminalization initiative, effective in January 2009, that makes possession of up to an ounce of marijuana a civil violation punishable by a $100 fine. Massachusetts became the twelfth state to decriminalize marijuana possession.

The legislature also finds that on December 1, 2008, the U.S. Supreme Court declined to review the November 28, 2007 decision of the California appellate court, which ruled that ‑‑ with regard to California's medical marijuana law ‑‑ it is not the job of local police to enforce federal drug laws. In vetoing House Bill No. 2675, H.D. 2, which proposed the establishment of a medical marijuana task force, the governor objected to the bill as an exercise by the State to circumvent federal law. The U.S. Supreme Court's decision not to review California's medical marijuana law appears to support the view that local law enforcement may not stipulate federal law to avoid implementing a conflicting state law, at least as far as medical marijuana is concerned.

This Act does not amend laws regarding driving under the influence of marijuana or other criminal infractions committed under the influence, or infractions pertaining to sales or manufacturing. This Act also does not amend laws regarding the use of marijuana for medical purposes. The purpose of this Act is to provide a civil penalty for possession of less than one ounce of marijuana.

SECTION 2. Chapter 329, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"329‑     Possession of marijuana. Intentional or knowing possession of less than one ounce of marijuana shall constitute a violation subject to a fine not to exceed $100."

SECTION 3. Section 329-125, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:"

"(a) A qualifying patient or the primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution, criminal or civil, involving marijuana under this [[]part[]] or chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part."

SECTION 4. Section 712-1240, Hawaii Revised Statutes, is amended by amending the definition of "detrimental drug" to read as follows:

""Detrimental drug" means any substance or immediate precursor defined or specified as a "Schedule V substance" by chapter 329, or any marijuana[.] except that, for purposes of section 329‑   , less than one ounce of marijuana shall not be deemed a detrimental drug."

SECTION 5. Section 712-1249, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) [A] Except for possession of less than one ounce of marijuana deemed a violation under section 329- , 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."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.