HOUSE OF REPRESENTATIVES

H.B. NO.

372

TWENTY-EIGHTH LEGISLATURE, 2015

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to marijuana.

 

 

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

 


PART I

SECTION 1. The legislature finds that decriminalizing the possession of small amounts of marijuana meant for personal use has the potential to reduce social and economic costs associated with the criminal justice system.

The legislature also finds that societal attitudes toward marijuana have changed and that public support for the decriminalization of marijuana possession and personal use is increasing. For example, voters in the county of Hawaii approved in 2008 an initiative to make the personal use of marijuana by adults on private property the county's lowest law enforcement priority. Four years later, Colorado voters approved an initiative amending that state's constitution to allow adults to possess and use small amounts of marijuana.

The legislature further finds that Hawaii must adjust its law enforcement and incarceration priorities to better reflect the changing and more tolerant values of our communities and to help carefully manage the State's overcrowded prison system.

Accordingly, the purpose of this Act is to decriminalize the intentional or knowing possession of one ounce or less of marijuana.

PART II

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.  (a)  Intentional or knowing possession of one ounce or less of marijuana shall constitute a civil violation.  Chapter     shall apply for the adjudication of violations under this section.

(b)  Violations of this section shall be punishable by a civil fine as follows:

(1) For a first violation, a fine of $100;

(2) For a second violation, a fine of $250; and

(3) For a third or subsequent violation, a fine of $500.

(c)  The fine shall be deposited by the director of finance to the credit of the state general fund."

SECTION 3.  Chapter 604, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"604-     Enforcement of civil violations for marijuana possession.  Jurisdiction is conferred upon the district courts to try all cases arising from a violation of section 329‑    and to impose the penalties prescribed for a violation under 329‑   .  Jurisdiction is in the district court of the circuit where the alleged violation occurred."

PART III

SECTION 4.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

MARIJUANA INFRACTIONS

   -1  Definitions.  As used in this chapter, unless the context requires otherwise:

"Court" means the district court.

"Notice of violation" means a notice of violation of section 329‑   .

   -2  Notice; form; determination final unless contested.  (a)  A notice of violation shall include the summons for the purposes of this section.  Whenever a notice of violation is issued to a person, the person's signature and current address shall be noted on the notice.  If the person refuses to sign the notice of violation, the officer shall record this refusal on the notice and issue the notice to the person.  Individuals to whom a notice of violation is issued under this section need not be arraigned before the court, unless required by rule of the supreme court.

(b)  The form for the notice of violation shall be prescribed by rules of the district court, which shall be uniform throughout the State.

(c)  The notice of violation shall include the following:

(1) A statement of the maximum amount for the civil fine established pursuant to section 329‑   , to be paid by the person;

(2) A statement of the options provided in section    ‑3(b) for answering the notice and the procedures necessary to exercise the options;

(3) A statement that the person to whom the notice is issued must answer, choosing one of the options specified in section    -3(b), within twenty-one days of issuance of the notice;

(4) A statement that failure to answer the notice of violation within twenty-one days of issuance shall result in the entry of judgment by default for the State and may result in the assessment of a late penalty and that if the person to whom the notice was issued fails to pay the total amount specified in the default judgment within an additional thirty days or to otherwise take action to set aside the default, the person shall be subject to section 706-647;

(5) A statement that, at a hearing conducted pursuant to section    -5 to contest the notice of violation, no officer shall be present unless the person timely requests the court to have the officer present, and that the standard of proof to be applied by the court is whether a preponderance of the evidence proves that the specified violation was committed;

(6) A space in which the signature of the person to whom the notice was issued may be affixed; and

(7) The date, time, and place at which the person to whom the notice was issued must appear in court, if the person is required by the notice to appear in person at the hearing.

   -3  Answer required.  (a)  A person who receives a notice of violation shall answer the notice within twenty-one days of the date of issuance of the notice.  There shall be included with the notice of violation a preaddressed envelope directed to the clerk of the applicable district court.

(b)  If the notice of violation does not require an appearance in person at a hearing as set forth in section    ‑2(c)(7), in answering a notice of violation, a person shall have the following options:

(1) Admit the commission of the violation in one of the following ways:

(A) By mail or in person, by completing the appropriate portion of the notice of violation or preaddressed envelope and submitting it to the authority specified on the notice together with payment of the total amount stated on the notice of violation; provided that payment by mail shall be in the form of a check, money order, or by an approved credit or debit card; provided further that payment in person shall be in the form of United States currency, check, money order, or by an approved credit or debit card; or

(B) Via the Internet or by telephone, by submitting payment of the total amount stated on the notice of violation; provided that payment via the Internet or by telephone shall be by an approved credit or debit card; or

(2) Deny the commission of the violation and request a hearing to contest the violation by completing the appropriate portion of the notice of violation or preaddressed envelope and submitting it, either by mail or in person, to the authority specified on the notice.  A denial may include assertion of affirmative defenses, including that the person is duly registered with the department of health pursuant to section 329‑123 and asserts the medical use of marijuana as an affirmative defense pursuant to section 329-125.  In lieu of appearing in person at a hearing, the person may submit a written statement of grounds on which the person contests the notice of violation, which shall be considered by the court as a statement given in court pursuant to section    -5(a).

(c)  When answering the notice of violation, the person shall affix the person's signature to the answer and shall state the address at which the person will accept future mailings from the court.  No other response shall constitute an answer for purposes of this chapter.

   -4  Court action after answer or failure to answer.  (a)  When an admitting answer is received, the court shall enter judgment in favor of the State in the total amount specified in the notice of violation.  If the total amount is not submitted with the answer, the court may take action as provided in section    -6.

(b)  When a denying answer is received, the court shall notify the person in writing of the date, time, and place of hearing to contest the notice of violation.  The notice of hearing shall be mailed to the address stated in the denying answer, or if none is given, to the address stated on the notice of violation.  The notification also shall advise the person that, if the person fails to appear at the hearing, the court shall enter judgment by default in favor of the State, as of the date of the scheduled hearing, that the total amount specified in the default judgment must be paid within thirty days of entry of default judgment, and if it is not paid, that the court shall take action as provided in section    -6.

(c)  If the person fails to answer within twenty-one days of issuance of the notice of violation, the court shall take action as provided in subsection (d).

(d)  Whenever judgment by default in favor of the State is entered, the court shall mail a notice of entry of default judgment to the address provided by the person when the notice of violation was issued.  The notice of entry of default judgment shall advise the person that the total amount specified in the default judgment shall be paid within thirty days of entry of default judgment and shall explain the procedure for setting aside a default judgment.  The notice of entry of default judgment shall also inform the person that if the total amount is not paid within thirty days, the court shall take action as provided in section    -6.

Judgment by default for the State entered pursuant to this section may be set aside pending final disposition of the violation upon written application of the person and posting of an appearance bond equal to the amount of the total amount specified in the default judgment.  The application shall show good cause or excusable neglect for the person's failure to take action necessary to prevent entry of judgment by default.

Upon receipt of the application and required appearance bond, the court shall take action pursuant to section    -6.  Thereafter, the court shall determine whether good cause or excusable neglect exists for the person's failure to take action necessary to prevent entry of judgment by default.  If so, the application to set aside default judgment shall be granted, the default judgment shall be set aside, and the notice of violation shall be disposed of pursuant to this chapter.  If not, the application to set aside default judgment shall be denied, the appearance bond shall be forfeited and applied to satisfy amounts due under the default judgment, and the notice of violation shall be finally disposed.  In either case, the court shall determine the existence of good cause or excusable neglect and notify the person of its decision on the application in writing.

   -5  Hearings.  (a)  In proceedings to contest a notice of violation where the person to whom the notice was issued has timely requested a hearing and appears at such hearing:

(1) In lieu of the personal appearance by the officer who issued the notice of violation, the court shall consider the notice of violation and any other written report made by the officer, if provided to the court by the officer, together with any oral or written statement by the person to whom the notice of violation was issued;

(2) The court may compel by subpoena the attendance of the officer who issued the notice of violation and other witnesses from whom it may wish to hear;

(3) The standard of proof to be applied by the court shall be whether, by a preponderance of the evidence, the court finds that the violation was committed; and

(4) After due consideration of the evidence and arguments, if any, the court shall determine whether commission of the violation has been established.  Where the commission of the violation has not been established, judgment in favor of the defendant, dismissing the notice of violation or any count therein with prejudice, shall be entered in the record.  Where it has been established that the violation was committed, the court shall enter judgment in favor of the State and shall assess a civil fine pursuant to section 329‑   .  The court also shall inform the person of the right to request a trial pursuant to section    ‑8.  If the person requests a trial at the time of the hearing, the court shall provide the person with a trial date as soon as practicable.

(b)  If a person for whom a hearing has been scheduled to contest the notice of violation or to assert affirmative defenses fails to appear at the hearing, the court shall enter judgment by default for the State and take action as provided in section    -4(d).  If the total amount of the monetary assessment, fees, surcharges, or costs is not paid within thirty days of entry of default judgment, the court shall take action as provided in section    -6.

   -6  Failure to pay fine.  When the person issued a notice of violation fails to pay the total amount of the fine, the fine may be collected in the same manner as a judgment in a civil action.  The State may collect the fee or fine, including costs, interest, and attorney's fees pursuant to section 706‑647.

   -7  Time computation.  In computing any period of time prescribed or allowed by this chapter, the day of the act, event, or default from which the period of time begins to run shall not be included.  The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday.  Intermediate Saturdays, Sundays, and legal holidays shall be included.  Whenever an act required to be performed under this chapter may be accomplished by mail, the act shall be deemed to have been performed on the date of the postmark on the mailed article.

   -8  Trial and concurrent trial.  (a)  There shall be no right to trial unless the defendant contests the notice of violation pursuant to section    -5.  If, after proceedings to contest the notice of violation, a determination is made that the defendant committed the violation, judgment shall enter in favor of the State.  The defendant may request a trial pursuant to the Hawaii rules of evidence and the rules of the district court; provided that any request for trial shall be made within thirty days of entry of judgment.  If, after appearing in person at a hearing to contest the notice of violation, the person requests a trial at the conclusion of the hearing, the court shall provide the person with a trial date as soon as practicable.

(b)  At the time of trial, the State shall be represented by a prosecuting attorney of the county in which the violation occurred.  The prosecuting attorney shall orally recite the charged civil violation in court prior to commencement of the trial.  Proof of the defendant's commission of the violation shall be by a preponderance of the evidence.

(c)  If trial on the violation is held prior to trial on any related criminal offense, the following shall be inadmissible in the subsequent prosecution or trial of the related criminal offense:

(1) Any written or oral statement made by the defendant in proceedings conducted pursuant to section    -4(b); and

(2) Any testimony given by the defendant in the violation trial.

The statement or testimony, or both, shall not be deemed a waiver of the defendant's privilege against self-incrimination in connection with any related criminal offense.

(d)  In any concurrent trial, the State shall be represented by a prosecuting attorney of the county in which the violation and related crime occurred.  Proof of the defendant's commission of the violation shall be by a preponderance of the evidence, and proof of the related criminal offense shall be by proof beyond a reasonable doubt.  The concurrent trial shall be conducted pursuant to the rules of the appropriate court, the Hawaii rules of evidence, and the Hawaii rules of penal procedure.

   -9  Rules.  (a)  The supreme court may adopt rules of procedure for the conduct of all proceedings pursuant to this chapter.

(b)  Chapter 626 shall not apply in proceedings conducted pursuant to this chapter, except for the rules governing privileged communications and proceedings conducted under section    -8.

(c)  Notwithstanding section 604-17 to the contrary, while the court is sitting in any matter pursuant to this chapter, the court shall not be required to preserve the testimony or proceedings, except proceedings conducted pursuant to section    -8 and proceedings in which the violation is heard on the same date and time as any related criminal offense.

(d)  The prosecuting attorney shall not participate in violation proceedings conducted pursuant to this chapter, except proceedings pursuant to section    -8 and proceedings in which a related criminal offense is scheduled for arraignment, hearing, or concurrent trial.

(e)  Chapter 91 shall not apply in proceedings before the court.

(f)  Chapter 571 and the Hawaii family court rules shall not apply in any proceedings conducted pursuant to this chapter."

SECTION 5.  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[]], section 329-   , or chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part."

SECTION 6.  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[.]; provided that one ounce or less of marijuana shall not be deemed a detrimental drug for purposes of sections 712-1247, 712-1248, 712-1249, 712-1251, and 712-1255."

PART IV

SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

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:

_____________________________

 

 


 


 

Report Title:

Marijuana; Civil Penalties for Possession of One Ounce or Less

 

Description:

Establishes a civil violation for possession of one ounce or less of marijuana that is subject to the following fines:  $100 for the first violation; $250 for the second violation; and $500 for the third or subsequent violation.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.