Bill Text: HI SB1460 | 2011 | Regular Session | Amended

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Bill Title: Marijuana; Civil Penalties for Possession of One Ounce or Less

Spectrum: Strong Partisan Bill (Democrat 19-1)

Status: (Engrossed - Dead) 2011-03-10 - (H) Referred to HLT/PBM, JUD, referral sheet 33 [SB1460 Detail]

Download: Hawaii-2011-SB1460-Amended.html

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THE SENATE	S.B. NO.	1460
TWENTY-SIXTH LEGISLATURE, 2011		S.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 certain state policies should be revised in response to our current economic climate.  One of these policies relates to criminal offenses that prohibit the possession of one ounce or less of marijuana.  Maine, Massachusetts, Nebraska, and New York, and cities in Michigan and Missouri have enacted laws or ordinances that make the possession of small amounts of marijuana subject to a civil violation.  Other states, counties, and cities have decriminalized marijuana possession in other ways or have made the prosecution of marijuana possession the lowest police priority.  The legislature finds that in Hawaii, as in these other areas, the benefits of establishing a civil violation for the possession of small amounts of marijuana far outweigh the benefits of the current criminal treatment of this offense.

     The legislature finds that the costs to enforce criminal marijuana possession statutes are substantial.  According to a report entitled The Budgetary Implications of Marijuana Decriminalization and Legalization for Hawai‘i, dated March 2007, (decriminalization study) by Lawrence W. Boyd, Ph.D, an economist from the University of Hawaii West Oahu, 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 each year to process marijuana possession cases.  The decriminalization study indicates that less than two per cent of all arrests in Hawaii between the years of 1997 and 2004 were for marijuana possession.  Furthermore, of the misdemeanor marijuana drug cases brought in district court, approximately sixty-five per cent are dismissed, stricken, or not prosecuted.  A relatively small proportion, approximately twenty-five per cent, result in convictions.  As the decriminalization study concludes:  "Few [of those arrested for marijuana possession] are actually prosecuted under the law, fewer convicted, and virtually none serve jail time.  Of those convicted, probation is the usual sentence for first time offenders."  Clearly, although the cost to enforce marijuana possession laws is substantial, the resulting conviction rate is low.

     The legislature finds that the low conviction and arrest rates do not act as a deterrent to marijuana users.  The decriminalization study compared the findings of a study surveying the number of households engaged in the regular use of marijuana with actual arrest rates.  The results of this comparison indicate that the risk of arrest is between 1.54 per cent and 2.16 per cent in any given year for members of households in which there is regular marijuana use.  According to the decriminalization study, the chance of a marijuana user being arrested and convicted is approximately 0.4 per cent.  It is clear that the arrest and conviction risks associated with marijuana use do not act as a deterrent to marijuana use, and few of those who use marijuana on a regular basis experience the consequences of these risks, notwithstanding the costs to enforce the criminal statutes prohibiting such conduct.

     Some form of marijuana possession decriminalization has been passed in eighteen other states, whether statewide or in cities or municipalities.  Studies evaluating the effects on states that have reduced the penalties imposed for marijuana possession have shown that those states have not suffered negative consequences.  According to a report prepared by the Connecticut Law Revision Commission for the Judiciary Committee of the Connecticut General Assembly, studies of states that have reduced penalties for possession of small amounts of marijuana have found that:

     (1)  Expenses for arrests and prosecution of marijuana possession offenses were significantly reduced;

     (2)  If marijuana use increased, it increased less in states with reduced penalties when compared to states that did not reduce their penalties, and "the largest proportionate increase occurred in those states with the most severe penalties"; and

     (3)  Reducing the penalties for marijuana possession has virtually no effect on either the choice or frequency of use of alcohol or illegal "harder" drugs such as cocaine.

     Additionally, studies discussed in a report prepared in 2003 by Jeffrey A. Miron, an economics professor at Boston University, suggest that "decriminalization has little impact on marijuana use[.]"  As noted by Professor Miron, if enforcement of marijuana laws already provides little disincentive to use, there is no reason to expect a substantial increase in marijuana use if decriminalization occurs.  Further, minor non-violent criminal offenses utilize scarce state and county resources and clog our overburdened court system.

     Clearly, the cost of enforcing laws criminalizing the possession of one ounce or less of marijuana greatly outweighs the benefits of doing so.  Recently, the federal Department of Justice released new guidelines addressing the enforcement of marijuana and medical marijuana laws.  The guidelines reverse federal policy by instructing federal officers not to go after marijuana users or suppliers who comply with their states' medical marijuana laws.  In Hawaii county, a voter initiative was passed in 2008 by a majority of 35,000 voters that directs county law enforcement officials to treat the "adult personal use" of marijuana 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 marijuana.  Eleven other cities in the United States have passed similar voter initiatives or ordinances instructing local law enforcement to make enforcement of marijuana prohibitions their lowest police priority.

     By making possession of one ounce or less of marijuana a civil violation, the legislature does not intend to imply that such possession is acceptable.  Possession of one ounce or less of marijuana is still prohibited conduct under this Act; it will simply be handled in a different, more appropriate manner.  Moreover, 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.

     SECTION 2.  Hawaii Revised Statutes, is amended by adding ten new sections to be appropriately designated and to read as follows:

     "§   -1  Definitions.  As used in this part, unless the context requires otherwise:

     "Court" means the district court.

     "Notice of violation" means a notice of violation of section 329-A.

     §   -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 total amount for the violation established pursuant to section 329-A, 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 the provisions of 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)  Provided that 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 public safety 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 to 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 monetary assessment pursuant to section 329-A.  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 sections    -1 through    -9, 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, 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 3.  Chapter 329, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§329-A  Possession of marijuana.  (a)  Intentional or knowing possession of one ounce or less of marijuana shall constitute a civil violation subject to a fine not to exceed $100.

     (b)  Civil fines and penalties for violations under this section shall be deposited into the general fund."

     SECTION 4.  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 the violation of section 329-A and to impose the penalties prescribed for a violation under 329-A.  Jurisdiction is in the district court of the circuit where the alleged violation occurred."

     SECTION 5.  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 6.  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-A, or chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part."

     SECTION 7.  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 in the first degree as provided in section [712-1240.6,] 712-1240.7 or in the second degree as provided in section 712-1240.8, 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 of Mental Disorders 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 8.  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 in the first degree as provided in section [712-1240.6,] 712-1240.7 or in the second degree as provided in section 712-1240.8, 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 of Mental Disorders 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 9.  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 sections 712-1251 or 712-1255."

     SECTION 10.  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; or

    (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] more than one ounce of marijuana; or

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

     SECTION 11.  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 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-A, 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-A, 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-A 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 on July 1, 2050.

 

 

 

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 a fine of not more than $100, and establishes an adjudicatory structure for its enforcement.  Deletes reporting requirements of board of education for students possessing one ounce or less of marijuana.  Clarifies that medical marijuana patients and primary caregiver may assert affirmative defense to prosecution, criminal or civil, involving possession of one ounce or less of marijuana.  Excludes possession of one ounce or less of marijuana from authority of Hawaii paroling authority to require paroled prisoner to undergo and complete substance abuse treatment.  Excludes possession of more than one ounce of marijuana from authority of courts to require a defendant to undergo and complete substance abuse treatment for probation violation.  Clarifies definition of detrimental drug to exclude one ounce or less of marijuana.  Excludes possession of one ounce or less of marijuana from offenses of promoting a detrimental drug in the second degree and third degree.  Clarifies a civil violation for possession of marijuana does not constitute a prior offense for purposes of the conditional discharge law.  Effective 7/1/2050.  (SD1)

 

 

 

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