HOUSE OF REPRESENTATIVES

H.B. NO.

1383

THIRTIETH LEGISLATURE, 2019

H.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO MARIJUANA.

 

 

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

 


SECTION 1. The legislature finds that Hawaii and thirty-two other states, the United States territories of Guam, Puerto Rico, and the Northern Mariana Islands, and the District of Columbia have legalized the use of marijuana for medicinal purposes. Twenty-two states and the District of Columbia have decriminalized offenses pertaining to certain amounts of marijuana, and ten states and the District of Columbia have legalized certain amounts of marijuana for non-medical use.

Accordingly, the purpose of this Act is to:

(1) Change statutory references from "marijuana" to "cannabis";

(2) Decriminalize certain offenses relating to cannabis and make them violations punishable by monetary fines;

(3) Establish an adjudicatory process for non-criminal cannabis violations;

(4) Provide for the dismissal of criminal charges, and expungement of criminal records, pertaining solely to cannabis; and

(5) Make conforming statutory amendments relating to cannabis and cannabis concentrates.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter    

Part i

adjudicatory process for cannabis violations

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

"Cannabis" means all parts of the plant (genus) Cannabis whether growing or not; the seeds thereof, the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

"Cannabis concentrate" means hashish, tetrahydrocannabinol, or any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol.

"Court" means the district court.

"Notice of violation" means a notice of violation of a section in part II of this chapter.

   -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 the refusal on the notice and issue the notice to the person. An individual to whom a notice of violation is issued under this section shall 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 and shall be uniform throughout the State.

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

(1) A statement of the specific violation for which the notice was issued;

(2) A brief statement of facts;

(3) A statement of the total amount for the violation established pursuant to section    -17, to be paid by the person;

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

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

(6) A statement that failure to answer the notice of violation within twenty-one days of the issuance shall result in an entry of judgment by default for the State and may result in the assessment of a late penalty and that failure 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 judgment shall subject the person to section 706-647;

(7) 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;

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

(9) The date, time, and place at which the person to whom the notice was issued shall 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) Unless the notice of violation requires an appearance in person at a hearing as set forth in section    ‑2(c)(9), 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 district court 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; and 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 district court specified on the notice. A denial may include the assertion of affirmative defenses, including the affirmative defense accorded to the medical use of cannabis 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 payment of 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 notice of the violation and default judgment shall 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 or fails to appear at the hearing, 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 notice of violation and 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 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 the court determines that good cause or excusable neglect exists, 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 the court determines that good cause and excusable neglect do not exist, 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 the 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 monetary assessment pursuant to section    -17. 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, interest, 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 or notice of entry of default judgment fails to pay the total amount specified in the notice, the amount may be collected in the same manner as a judgment in a civil action. The State may collect the amount, 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 shall run 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 in which the Hawaii rules of evidence, as specified under section    ‑9(b), and the rules of the district court shall apply; 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 allegedly 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    ‑5; and

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

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 allegedly 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:

(1) The rules governing privileged communications; and

(2) 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 pursuant to this chapter.

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

   -10 Applicability. Notwithstanding any other provision of law to the contrary, all cannabis violations, including cannabis violations committed by minors, shall be adjudicated pursuant to this chapter. No cannabis violation under this chapter shall be classified as a criminal offense.

part ii

CANNABIS VIOLATIONS

   -11 Promoting cannabis in the first degree. (a) A person violates this section by promoting cannabis in the first degree if the person knowingly:

(1) Possesses fifty or more capsules or tablets or dosage units containing one or more of the cannabis concentrates, or any combination thereof;

(2) 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 cannabis concentrates, or any combination thereof; or

(3) Distributes any cannabis concentrate in any amount.

(b) Promoting cannabis in the first degree is punishable as provided under section    -17.

   -12 Promoting cannabis in the second degree. (a) A person violates this section by promoting cannabis in the second degree if the person knowingly possesses twenty-five or more capsules or tablets or dosage units containing one or more of the cannabis concentrates, or any combination thereof.

(b) Promoting cannabis in the second degree is punishable as provided under section    -17.

   -13 Promoting cannabis in the third degree. (a) A person violates this section by promoting cannabis in the third degree if the person knowingly possesses cannabis concentrate in any amount.

(b) Promoting cannabis in the third degree is punishable as provided under section    -17.

   -14 Promoting cannabis detrimentally in the first degree. (a) A person violates this section by promoting cannabis detrimentally in the first degree if the person knowingly:

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

(2) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more containing any cannabis;

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

(4) Sells or barters any cannabis in any amount.

(b) Promoting cannabis detrimentally in the first degree is a punishable as provided under section    -17.

   -15 Promoting cannabis detrimentally in the second degree. (a) A person violates this section by promoting cannabis detrimentally in the second degree if the person knowingly:

(1) Possesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one ounce or more, containing any cannabis; or

(2) Distributes any cannabis in any amount.

(b) Promoting cannabis detrimentally in the second degree is punishable as provided under section    -17.

   -16 Promoting cannabis detrimentally in the third degree. (a) A person violates this section by promoting cannabis detrimentally in the third degree if the person knowingly possesses any cannabis in any amount.

(b) Promoting cannabis detrimentally in the third degree is punishable as provided under section    -17.

   -17 Penalties for violations of certain statutes relating to cannabis. Penalties for violations of the following statutes shall consist solely of monetary fines, as specified. The fine for a violation of:

(1) Section    -11, promoting cannabis in the first degree, shall be $750;

(2) Section    -12, promoting cannabis in the second degree, shall be $500;

(3) Section    -13, promoting cannabis in the third degree, shall be $350;

(4) Section    -14, promoting cannabis detrimentally in the first degree, shall be $500;

(5) Section    -15, promoting cannabis detrimentally in the second degree, shall be $350; and

(6) Section    -16, promoting cannabis detrimentally in the third degree, shall be $200.

   -18 Seizure of excess cannabis or cannabis concentrate; destruction. Any cannabis or cannabis concentrate seized as evidence of a violation of this part in excess of a specified aggregate weight constituting a violation may be destroyed after the excess amount has been photographed and the number of plants, amount of cannabis, number of units of cannabis concentrate, or the weight thereof has been recorded, as applicable. The required minimum amount of the cannabis or cannabis concentrate needed to constitute the elements of this violation shall remain in the custody of the police until the termination of any action brought as a result of the seizure of the cannabis or cannabis concentrate. Photographs duly identified as accurately representing the cannabis or cannabis concentrate shall be deemed competent evidence of the cannabis or cannabis concentrate involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the cannabis or cannabis concentrate itself; provided that nothing in this subsection shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence."

SECTION 3. Chapter 712, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"712-   Dismissal of pending cannabis charges. (a) Notwithstanding any other law to the contrary, a person charged prior to the effective date of this Act with any cannabis offense arising from a set of facts and circumstances that resulted in no criminal charge other than the cannabis offense may apply to the court where the charge is pending for an order dismissing the charge.

(b) A person shall not be eligible for an order dismissing a charge pursuant to this section unless the person pays a fine of:

(1) $750 for a charge of a cannabis offense under section 712-1245;

(2) $500 for a charge of a cannabis offense under section 712-1246 or 712-1247;

(3) $350 for a charge of a cannabis offense under section 712-1246.5 or 712-1248; or

(4) $200 for a charge of a cannabis offense under section 712-1249.

(c) The court shall grant an order dismissing the charge under subsection (a) upon a finding that the applicant is eligible for the order.

(d) In addition to the fines established under subsection (b), the court may establish a reasonable fee for an application under this section.

(e) As used in this section, "cannabis offense" means any criminal offense prohibiting the cultivation, possession, distribution, barter, sale, transportation, or use of cannabis or cannabis concentrate, regardless of whether previously referenced as marijuana or marijuana concentrate; provided that "cannabis offense" does not include sections 712-1244, 712-1249.4, or 712-1249.5.

712-   Expungement of records of criminal violations pertaining solely to cannabis. (a) Notwithstanding any other law to the contrary, a person convicted prior to the effective date of this Act of any cannabis offense arising from a set of facts and circumstances that resulted in no criminal charge other than the cannabis offense may apply to the court of conviction for an expungement order pertaining to the conviction for the cannabis offense.

(b) The court shall grant an expungement order under subsection (a) upon a finding that the applicant is eligible for the expungement.

(c) The court may establish a reasonable fee for an application under this section.

(d) As used in this section, "cannabis offense" means any criminal offense prohibiting the cultivation, possession, distribution, barter, sale, transportation, or use of cannabis or cannabis concentrate, regardless of whether previously referenced as marijuana or marijuana concentrate; provided that "cannabis offense" does not include sections 712-1244, 712-1249.4, or 712-1249.5."

SECTION 4. Section 325-21, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) Nothing in this section provides immunity from prosecution to any person who violates any law that prohibits or regulates the use, possession, dispensing, distribution, or promotion of controlled substances, dangerous drugs, detrimental drugs, [or] harmful drugs, cannabis, or cannabis concentrate, including but not limited to violation of section 329-41, 329-42, or 712-1241 to 712-1249.6."

SECTION 5. Section 325-114, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Nothing in this part provides immunity from prosecution to any person for violation of any law prohibiting or regulating the use, possession, dispensing, distribution, or promotion of controlled substances, dangerous drugs, detrimental drugs, [or] harmful drugs[.], cannabis, or cannabis concentrate. Nothing in this part provides immunity from prosecution to any person for violation of sections 329-41, 329-42, or 712-1241 through 712-1249.6."

SECTION 6. Section 329-125, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

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

SECTION 7. Section 350-1, Hawaii Revised Statutes, is amended by amending the definition of "child abuse or neglect" to read as follows:

""Child abuse or neglect" means:

(1) The acts or omissions of any person who, or legal entity which, is in any manner or degree related to the child, is residing with the child, or is otherwise responsible for the child's care, that have resulted in the physical or psychological health or welfare of the child, who is under the age of eighteen, to be harmed, or to be subject to any reasonably foreseeable, substantial risk of being harmed. The acts or omissions are indicated for the purposes of reports by circumstances that include but are not limited to:

(A) When the child exhibits evidence of:

(i) Substantial or multiple skin bruising or any other internal bleeding;

(ii) Any injury to skin causing substantial bleeding;

(iii) Malnutrition;

(iv) Failure to thrive;

(v) Burn or burns;

(vi) Poisoning;

(vii) Fracture of any bone;

(viii) Subdural hematoma;

(ix) Soft tissue swelling;

(x) Extreme pain;

(xi) Extreme mental distress;

(xii) Gross degradation; or

(xiii) Death; and

such injury is not justifiably explained, or when the history given concerning such condition or death is at variance with the degree or type of such condition or death, or circumstances indicate that such condition or death may not be the product of an accidental occurrence;

(B) When the child has been the victim of sexual contact or conduct, including but not limited to sexual assault as defined in the Penal Code, molestation, sexual fondling, incest, or prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation, including but not limited to acts that constitute an offense pursuant to section 712-1202(1)(b);

(C) When there exists injury to the psychological capacity of a child as is evidenced by an observable and substantial impairment in the child's ability to function;

(D) When the child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision;

(E) When the child is provided with dangerous, harmful, or detrimental drugs, cannabis, or cannabis concentrate as defined by section 712-1240; provided that this subparagraph shall not apply when such drugs are provided to the child pursuant to the direction or prescription of a practitioner, as defined in section 712-1240; or

(F) When the child has been the victim of labor trafficking under chapter 707; or

(2) The acts or omissions of any person that have resulted in sex trafficking or severe forms of trafficking in persons; provided that no finding by the department pursuant to this chapter shall be used as conclusive evidence that a person has committed an offense under part VIII of chapter 707 or section 712-1202."

SECTION 8. Section 587A-4, Hawaii Revised Statutes, is amended by amending the definition of "harm" to read as follows:

""Harm" means damage or injury to a child's physical or psychological health or welfare, where:

(1) The child exhibits evidence of injury, including, but not limited to:

(A) Substantial or multiple skin bruising;

(B) Substantial external or internal bleeding;

(C) Burn or burns;

(D) Malnutrition;

(E) Failure to thrive;

(F) Soft tissue swelling;

(G) Extreme pain;

(H) Extreme mental distress;

(I) Gross degradation;

(J) Poisoning;

(K) Fracture of any bone;

(L) Subdural hematoma; or

(M) Death;

and the injury is not justifiably explained, or the history given concerning the condition or death is not consistent with the degree or type of the condition or death, or there is evidence that the condition or death may not be the result of an accident;

(2) The child has been the victim of sexual contact or conduct, including sexual assault; sodomy; molestation; sexual fondling; incest; prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation, including but not limited to acts that constitute an offense pursuant to section 712‑1202(1)(b);

(3) The child's psychological well-being has been injured as evidenced by a substantial impairment in the child's ability to function;

(4) The child is not provided in a timely manner with adequate food; clothing; shelter; supervision; or psychological, physical, or medical care;

(5) The child is provided with dangerous, harmful, or detrimental drugs, cannabis, or cannabis concentrate as defined in section 712-1240, except when a child's family administers drugs to the child as directed or prescribed by a practitioner as defined in section 712-1240; or

(6) The child has been the victim of labor trafficking under chapter 707."

SECTION 9. Section 587D-1, Hawaii Revised Statutes, is amended by amending the definition of "unharmed condition" to read as follows:

""Unharmed condition" means no evidence of injury to a newborn child's physical or psychological health or welfare, as evidenced in any case where:

(1) The newborn child is alive and exhibits no:

(A) Substantial or multiple skin bruising or any other internal bleeding;

(B) Injury to skin causing substantial bleeding;

(C) Malnutrition;

(D) Failure to thrive;

(E) Burn or burns;

(F) Poisoning;

(G) Fracture of any bone;

(H) Subdural hematoma;

(I) Soft tissue swelling;

(J) Extreme pain;

(K) Extreme mental distress; or

(L) Gross degradation;

(2) The newborn child has not been the victim of:

(A) Sexual contact or conduct, including rape, sodomy, molestation, sexual fondling, or incest;

(B) Obscene or pornographic photographing, filming, or depiction; or

(C) Other similar forms of sexual exploitation;

(3) Injury does not exist to the psychological capacity of a child as evidenced by a substantial impairment in the child's ability to function;

(4) The child has been provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, and supervision; or

(5) The child has not been provided with dangerous, harmful, or detrimental drugs, cannabis, or cannabis concentrate, as defined by section 712‑1240; except in cases where a child's family provides the drugs to the child pursuant to the direction or prescription of a practitioner, as defined in section 712‑1240."

SECTION 10. Section 712-1240, Hawaii Revised Statutes, is amended as follows:

1. By amending the definition of "dangerous drugs" to read:

""Dangerous drugs" means any substance or immediate precursor defined or specified as a "Schedule I substance" or a "Schedule II substance" by chapter 329, or a substance specified in section 329-18(c)(14), except [marijuana] cannabis or [marijuana] cannabis concentrate."

2. By amending the definition of "detrimental drug" to read:

""Detrimental drug" means any substance or immediate precursor defined or specified as a "Schedule V substance" by chapter 329[, or any marijuana]."

3. By amending the definition of "harmful drug" to read:

""Harmful drug" means any substance or immediate precursor defined or specified as a "Schedule III substance" or a "Schedule IV substance" by chapter 329, [or any marijuana concentrate] except [marijuana and] a substance specified in section 329-18(c)(14).

4. By amending the definition of "marijuana" to read:

"["Marijuana"] "Cannabis" means any part of the plant (genus) cannabis[,] whether growing or not[, including]; the seeds [and] thereof, the resin[,] extracted from any part of the plant; and every alkaloid, salt, derivative, preparation, compound, [or] mixture, or preparation of the plant, its seeds or resin[, except that, as used herein, "marijuana"]. It does not include the mature stalks of the plant, fiber produced from the stalks, oil, or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination), hashish, tetrahydrocannabinol, and any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol."

5. By amending the definition of "marijuana concentrate" to read:

"["Marijuana] "Cannabis concentrate" means hashish, tetrahydrocannabinol, or any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol."

SECTION 11. Section 712-1240.1, Hawaii Revised Statutes, is amended to read as follows:

"712-1240.1 Defense to promoting. (1) It is a defense to prosecution for any offense defined in this part that the person who possessed or distributed the dangerous, harmful, or detrimental drug, cannabis, or cannabis concentrate did so under authority of law as a practitioner, as an ultimate user of the drug pursuant to a lawful prescription, or as a person otherwise authorized by law.

(2) It is an affirmative defense to prosecution for any [marijuana-related] cannabis- or cannabis concentrate-related offense defined in this part that the person who possessed or distributed the [marijuana] cannabis or cannabis concentrate was authorized to possess or distribute the [marijuana] cannabis or cannabis concentrate for medical purposes pursuant to part IX of chapter 329."

SECTION 12. Section 712-1244, Hawaii Revised Statutes, is amended to read as follows:

"712-1244 Promoting a harmful drug or cannabis concentrate in the first degree. (1) A person commits the offense of promoting a harmful drug or cannabis concentrate in the first degree if the person knowingly:

(a) Possesses one hundred or more capsules or tablets or dosage units containing one or more of the harmful drugs or one or more of the [marijuana] cannabis concentrates, or any combination thereof;

(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 harmful drugs or one or more of the [marijuana] cannabis concentrates, or any combination thereof;

(c) Distributes twenty-five or more capsules or tablets or dosage units containing one or more of the harmful drugs or one or more of the [marijuana] cannabis concentrates, or any combination thereof;

(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 harmful drugs or one or more of the [marijuana] cannabis concentrates, or any combination thereof; or

(e) Distributes any harmful drug or any [marijuana] cannabis concentrate in any amount to a minor.

(2) Promoting a harmful drug or cannabis concentrate in the first degree is a class A felony."

SECTION 13. Section 712-1245, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

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

(a) Possesses fifty or more capsules or tablets or dosage units containing one or more of the harmful drugs or [one or more of the marijuana concentrates, or] any combination thereof;

(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 harmful drugs [or one or more of the marijuana concentrates,] or any combination thereof; or

(c) Distributes any harmful drug [or any marijuana concentrate] in any amount."

SECTION 14. Section 712-1246, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a harmful drug in the third degree if the person knowingly possesses twenty-five or more capsules or tablets or dosage units containing one or more of the harmful drugs or [one or more of the marijuana concentrates, or] any combination thereof."

SECTION 15. Section 712-1247, Hawaii Revised Statutes, is amended to read as follows:

"712-1247 Promoting a detrimental drug in the first degree. (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; or

[(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 marijuana;

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

(h)] (e) Sells or barters any [marijuana or any] Schedule V substance in any amount.

(2) Promoting a detrimental drug in the first degree is a class C felony.

[(3) Any marijuana seized as evidence of a violation of this section in excess of one pound may be destroyed after it has been photographed and the weight thereof recorded. The remainder of the marijuana shall remain in the custody of the police department until the termination of any criminal action brought as a result of the seizure of the marijuana. Photographs duly identified as accurately representing the marijuana shall be deemed competent evidence of the marijuana involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the marijuana itself; provided that nothing in this subsection shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence.]"

SECTION 16. 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; or

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

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

SECTION 17. 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 [marijuana or any] Schedule V substance in any amount."

SECTION 18. Section 712-1251, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Except as provided in subsection (2), the presence of [a]:

(a) A dangerous drug, harmful drug, or detrimental drug[,]; or

(b) Cannabis or cannabis concentrate in an amount that violates section 712-1244, 712-1249.4, or 712-1249.5,

in a motor vehicle, other than a public omnibus, is prima facie evidence of knowing possession thereof by each and every person in the vehicle at the time the drug was found."

SECTION 19. Section 712-1252, Hawaii Revised Statutes, is amended to read as follows:

"712-1252 Knowledge of character, nature, or quantity of substance, or age of transferee; prima facie evidence. (1) The fact that a person engaged in the conduct specified by any section in this part is prima facie evidence that the person engaged in that conduct with knowledge of the character, nature, and quantity of the dangerous drug, harmful drug, detrimental drug, cannabis, cannabis concentrate, or intoxicating compounds possessed, distributed, or sold.

(2) The fact that the defendant distributed or sold a dangerous drug, harmful drug, detrimental drug, cannabis, cannabis concentrate, or intoxicating compound to a minor is prima facie evidence that the defendant knew the transferee to be a minor."

SECTION 20. Section 712A-4, Hawaii Revised Statutes, is amended to read as follows:

"712A-4 Covered offenses. Offenses for which property is subject to forfeiture under this chapter are:

(a) All offenses that specifically authorize forfeiture;

(b) Murder, kidnapping, labor trafficking, gambling, criminal property damage, robbery, bribery, extortion, theft, unauthorized entry into motor vehicle, burglary, money laundering, trademark counterfeiting, insurance fraud, promoting a dangerous, harmful, or detrimental drug, promoting cannabis concentrate, commercial promotion of [marijuana,] cannabis, methamphetamine trafficking, manufacturing of a controlled substance with a child present, promoting child abuse, promoting prostitution, sex trafficking, solicitation of a minor for prostitution, habitual solicitation of prostitution, or electronic enticement of a child that is chargeable as a felony offense under state law;

(c) The manufacture, sale, or distribution of a controlled substance in violation of chapter 329, promoting detrimental drugs or intoxicating compounds, promoting pornography, promoting pornography for minors, or solicitation of prostitution near schools or public parks, which is chargeable as a felony or misdemeanor offense, but not as a petty misdemeanor, under state law; and

(d) The attempt, conspiracy, solicitation, coercion, or intimidation of another to commit any offense for which property is subject to forfeiture."

SECTION 21. Section 803-44, Hawaii Revised Statutes, is amended to read as follows:

"803-44 Application for court order to intercept wire, oral, or electronic communications. The attorney general of this State, or a designated deputy attorney general in the attorney general's absence or incapacity, or the prosecuting attorney of each county, or a designated deputy prosecuting attorney in the prosecuting attorney's absence or incapacity, may make application to a designated judge or any other circuit court judge or district court judge, if a circuit court judge has not been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, in the county where the interception is to take place, for an order authorizing or approving the interception of wire, oral, or electronic communications, and the court may grant in conformity with section 803-46 an order authorizing or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, if the interception might provide or has provided evidence of:

(1) Murder;

(2) Kidnapping;

(3) Labor trafficking in the first degree;

(4) Labor trafficking in the second degree;

(5) Felony criminal property damage involving the danger of bodily injury as defined in section 707-700;

(6) Distribution of dangerous, harmful, or detrimental drugs[;], cannabis, or cannabis concentrates;

(7) Conspiracy to commit one or more of the above; or

(8) Involvement of organized crime and any of the following felony offenses:

(A) Extortion;

(B) Bribery of a juror, witness, or police officer;

(C) Receiving stolen property;

(D) Gambling;

(E) Money laundering; and

(F) Sex trafficking."

SECTION 22. Section 803-46, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Upon an application the designated judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the county in which the designated judge is sitting, if the designated judge determines on the basis of the facts submitted by the applicant that:

(1) There is probable cause to believe that an individual is committing, has committed, or is about to commit[[]:[]]

(A) Murder;

(B) Kidnapping;

(C) Felony criminal property damage involving the danger of bodily injury;

(D) Distribution of dangerous, harmful or detrimental drugs[;], cannabis, or cannabis concentrates; or

(E) Conspiracy to commit one or more of the above;

or that an individual is committing, has committed, or is about to commit one of the other offenses specified in section 803-44 and that organized crime is involved;

(2) There is probable cause to believe that particular communications concerning that offense will be obtained through the interception;

(3) Normal investigative procedures have been tried and have failed or reasonably appear to be either unlikely to succeed if tried or to be too dangerous; and

(4) Except as provided in subsection (j), there is probable cause to believe that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by that person.

If the order allows physical entry to accomplish the interception, the issuing judge shall state why physical entry is appropriate."

SECTION 23. Section 853-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) This chapter shall not apply when:

(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;

(2) The offense charged is:

(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or

(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;

(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;

(4) The offense charged is a class A felony;

(5) The offense charged is nonprobationable;

(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;

(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;

(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;

(9) A firearm was used in the commission of the offense charged;

(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug, cannabis, or cannabis concentrate to a minor;

(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired;

(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;

(13) The offense charged is:

(A) Escape in the first degree;

(B) Escape in the second degree;

(C) Promoting prison contraband in the first degree;

(D) Promoting prison contraband in the second degree;

(E) Bail jumping in the first degree;

(F) Bail jumping in the second degree;

(G) Bribery;

(H) Bribery of or by a witness;

(I) Intimidating a witness;

(J) Bribery of or by a juror;

(K) Intimidating a juror;

(L) Jury tampering;

(M) Promoting prostitution;

(N) Abuse of family or household member;

(O) Sexual assault in the second degree;

(P) Sexual assault in the third degree;

(Q) A violation of an order issued pursuant to chapter 586;

(R) Promoting child abuse in the second degree;

(S) Promoting child abuse in the third degree;

(T) Electronic enticement of a child in the first degree;

(U) Electronic enticement of a child in the second degree;

(V) Prostitution pursuant to section 712-1200(1)(b);

(W) Street solicitation of prostitution under section 712-1207(1)(b);

(X) Solicitation of prostitution near schools or public parks under section 712-1209;

(Y) Habitual solicitation of prostitution under section 712-1209.5; or

(Z) Solicitation of a minor for prostitution under section 712-1209.1;

(14) The defendant has been charged with:

(A) Knowingly or intentionally falsifying any report required under chapter 11, part XIII with the intent to circumvent the law or deceive the campaign spending commission; or

(B) Violating section 11-352 or 11-353; or

(15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle."

SECTION 24. All references to "marijuana" or "marijuana concentrate" and like terms, as the case may be, in chapter 712, and sections 141-36, 302A-1002, 328-15, 329-1, 329-121, 329-125.6, 353-66, 706-622.5, 706-625, and 710-1022, Hawaii Revised Statutes, shall be amended to "cannabis" or "cannabis concentrate" or like terms, as the case may be, as the context requires.

SECTION 25. By operation of law, the Hawaii administrative rules relating to marijuana or cannabis shall be construed as having been amended in conformance with this Act; provided that if and when an agency or department amends the Hawaii administrative rules, it shall conform the wording to this Act at the time of the amendment.

SECTION 26. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 27. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 28. This Act shall take effect on January 11, 2020.


 


 

Report Title:

Cannabis; Marijuana; Decriminalization; Dismissal of Charges; Expungement

 

Description:

Decriminalizes certain offenses relating to marijuana and establishes a schedule of monetary fines for violations. Establishes an adjudicatory process for non-criminal cannabis violations. Changes statutory references from "marijuana" to "cannabis." Provides for the dismissal of charges and expungement of criminal records based solely on cannabis offenses. Makes conforming statutory amendments relating to cannabis and cannabis concentrates. (HB1383 HD1)

 

 

 

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