THE SENATE

S.B. NO.

16

TWENTY-NINTH LEGISLATURE, 2017

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to Marijuana.

 

 

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

 


SECTION 1. 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) Notwithstanding any law to the contrary, possession of one ounce or less of marijuana shall not be subject to arrest, prosecution, or criminal liability; provided that possession of any marijuana in or on the real property comprising a school or open possession of marijuana in a school zone shall constitute a civil violation subject to a fine of not more than $250.

(b) For purposes of this section:

"Open possession of marijuana" means possession of marijuana that is carried in a non-opaque, unsealed bag or container or a non-opaque bag or container that is incapable of being securely closed.

"School" means any public or private preschool, kindergarten, elementary, intermediate, middle, secondary, or high school.

"School zone" shall have the same meaning as in section 291C-104."

SECTION 2. Section 302A-1002, Hawaii Revised Statutes, is amended to read as follows:

"[[]302A-1002[]] Reporting of crime-related incidents. The board shall adopt rules pursuant to chapter 91 to:

(1) Require a report to appropriate authorities from a teacher, official, or other employee of the department who knows or has reason to believe that an act has been committed or will be committed, which:

(A) Occurred or will occur on school property during school hours or during activities supervised by the school; and

(B) Involves crimes relating to arson, assault, burglary, disorderly conduct, dangerous weapons, dangerous drugs, harmful drugs, extortion, firearms, gambling, harassment, intoxicating drugs, [marijuana or] marijuana concentrate[,] or more than one ounce of marijuana, murder, attempted murder, sexual offenses, rendering a false alarm, criminal property damage, robbery, terroristic threatening, theft, or trespass;

(2) Establish procedures for disposing of any incident reported; and

(3) Impose, in addition to any other powers or authority the department may have to discipline school officials, appropriate disciplinary action for failure to report these incidents, including probation, suspension, demotion, and discharge of school officials."

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 authorized under this part as an affirmative defense to any prosecution, criminal or civil, involving marijuana under this part or part IV; section 329-  ; or part IV of chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part."

SECTION 4. Section 353-66, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

"(f) The Hawaii paroling authority may require a paroled prisoner to undergo and complete a substance abuse treatment program when the paroled prisoner has committed a violation of the terms and conditions of parole 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, more than one ounce of 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 paroled prisoner fails to complete the substance abuse treatment program or the Hawaii paroling authority determines that the paroled prisoner cannot benefit from any substance abuse treatment program, the paroled prisoner shall be subject to revocation of parole and return to incarceration. As a condition of parole, the Hawaii paroling authority may require the paroled prisoner to:

(1) 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;

(2) 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;

(3) Contribute to the cost of the substance abuse treatment program; and

(4) Comply with any other terms and conditions for parole.

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 having 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."

SECTION 5. Section 706-625, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:

"(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, more than one ounce of 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."

SECTION 6. Section 712-1209, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) For purposes of this section:

"School" has the same meaning as in section [712-1249.6(6).] 712-1249.6(7).

"Sexual conduct" has the same meaning as in section 712‑1200(2)."

SECTION 7. 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 under section 712-1251 or 712-1255."

SECTION 8. Section 712-1247, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a detrimental drug in the first degree if the person knowingly:

(a) Possesses four hundred or more capsules or tablets containing one or more of the Schedule V substances;

(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more, containing one or more of the Schedule V substances;

(c) Distributes fifty or more capsules or tablets containing one or more of the Schedule V substances;

(d) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one- eighth ounce or more, containing one or more of the Schedule V substances;

(e) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one pound or more, containing any marijuana;

(f) Distributes one or more preparations, compounds, mixtures, or substances [of an aggregate weight of one ounce or more,] containing [any] more than one ounce of marijuana;

(g) Possesses, cultivates, or has under the person's control twenty-five or more marijuana plants; or

(h) Sells or barters any marijuana or any Schedule V substance in any amount."

SECTION 9. Section 712-1248, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a detrimental drug in the second degree if the person knowingly:

(a) Possesses fifty or more capsules or tablets containing one or more of the Schedule V substances;

(b) Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one- eighth ounce or more, containing one or more of the Schedule V substances;

(c) Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one ounce or more, containing [any] more than one ounce of marijuana; or

(d) Distributes any marijuana or any Schedule V substance in any amount."

SECTION 10. Section 712-1249, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses [any] more than one ounce of marijuana or any Schedule V substance in any amount."

SECTION 11. Section 712-1249.6, Hawaii Revised Statutes, is amended to read as follows:

"712-1249.6 Promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes. (1) A person commits the offense of promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes if the person knowingly:

(a) Distributes or possesses with intent to distribute a controlled substance in any amount in or on the real property comprising a school, public park, or public housing project or complex;

(b) Distributes or possesses with intent to distribute a controlled substance in any amount within seven hundred and fifty feet of the real property comprising a school, public park, or public housing project or complex;

(c) Distributes or possesses with intent to distribute a controlled substance in any amount while on any school vehicle, or within ten feet of a parked school vehicle during the time that the vehicle is in service for or waiting to transport school children; or

(d) Manufactures methamphetamine or any of its salts, isomers, and salts of isomers, within seven hundred and fifty feet of the real property comprising a school, public park, or public housing project or complex.

(2) A person who violates subsection (1)(a), (b), or (c) is guilty of a class C felony. A person who violates subsection (1)(d) is guilty of a class A felony.

(3) Any person with prior conviction or convictions under subsection (1)(a), (b), or (c) is punishable by a term of imprisonment of not less than two years and not more than ten years.

(4) Any individual convicted under subsection (3) of this section shall not be eligible for parole until the individual has served the minimum sentence required by such subsection.

(5) For the purposes of this section, mere possession of marijuana in an amount of one ounce or less shall not constitute a possession with intent to distribute without other conduct indicating intent to distribute.

[(5)] (6) For the purposes of this section, "school vehicle" means every school vehicle as defined in section 286‑181 and any regulations adopted pursuant to that section.

[(6)] (7) For purposes of this section, "school" means any public or private preschool, kindergarten, elementary, intermediate, middle secondary, or high school.

[(7)] (8) For purposes of this section, "public housing project or complex" means a housing project directly controlled, owned, developed, or managed by the Hawaii public housing authority pursuant to the federal or state low-rent public housing program."

SECTION 12. Section 712-1255, Hawaii Revised Statutes, is amended to read as follows:

"712-1255 Conditional discharge. (1) Whenever any person who has not previously been convicted of any offense under this chapter or chapter 329, except for a civil violation under section 329-  , or under any statute of the United States or of any state relating to a dangerous drug, harmful drug, detrimental drug, or an intoxicating compound, pleads guilty to or is found guilty of promoting a dangerous drug, harmful drug, detrimental drug, or an intoxicating compound under section 712‑1243, 712-1245, 712-1246, 712-1248, 712-1249, or 712-1250, the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place the accused on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.

(2) Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person.

(3) Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.

(4) There may be only one discharge and dismissal under this section with respect to any person.

(5) After conviction, for any offense under this chapter or chapter 329, except for a conviction of a civil violation under section 329-  , but prior to sentencing, the court shall be advised by the prosecutor whether the conviction is the defendant's first or a subsequent offense. If it is not a first offense, the prosecutor shall file an information setting forth the prior convictions. The defendant shall have the opportunity in open court to affirm or deny that the defendant is identical with the person previously convicted. If the defendant denies the identity, sentence shall be postponed for such time as to permit the trial, before a jury if the defendant has a right to trial by jury and demands a jury, on the sole issue of the defendant's identity with the person previously convicted.

(6) For purposes of this section, a conviction for one or more civil violations under section 329-   shall not constitute a prior offense that would make a conditional discharge described in this section unavailable to the defendant."

SECTION 13. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Marijuana; Possession; Decriminalization; School Zones

 

Description:

Decriminalizes the possession of one ounce or less of marijuana. Creates a civil penalty for possession of marijuana on school property or in open possession in a school zone.

 

 

 

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