Haw. Rev. Stat. § 702-231 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-231
Duress.
Status: in_force

(1) It is a defense to a penal charge that the defendant engaged in the conduct or caused the result alleged because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

(2) The defense provided by this section is unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish the requisite state of mind for the offense charged.

(3) It is not a defense that a person acted on the command of his or her spouse, unless he or she acted under such coercion as would establish a defense under this section.

(4) When the conduct of the defendant would otherwise be justifiable under section 703-302, this section does not preclude the defense of justification.

(5) In prosecutions for any offense described in this Code, the defense asserted under this section shall constitute an affirmative defense. The defendant shall have the burden of going forward with the evidence to prove the facts constituting such defense, unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, and of proving such facts by a preponderance of the evidence pursuant to section 701-115. [L 1972, c 9, pt of §1; am L 1979, c 183, §1]

COMMENTARY ON §702-231

A narrow defense is provided in this section for the defendant who claims that the defendant's conduct resulted not from the defendant's own culpability but rather from coercion exercised upon the defendant by a third party. It cannot be said that the defendant's conduct is not "voluntary" as that term is used in the penal law, because the defendant's conduct does result from the defendant's conscious determination. Rather, the basis for permitting the defense is the rationale that the penal law ought not to condemn that which most persons would do in similar circumstances.

The defendant is afforded by this section an affirmative defense if the defendant engaged in the conduct or caused the result alleged because of the use or threatened use of unlawful force against the defendant or another and a person of reasonable firmness would have been unable to resist such duress. Although the "reasonable man" standard is employed in a limited manner, the Code has not invoked a negligence standard for penal liability in all cases of duress. The conscious decision to yield in a duress situation is distinguishable from the inadvertent disregard of unknown risks in the case of negligence.

Subsection (2) makes the defense unavailable if the defendant was culpable in placing the defendant in the position where the defendant would be subject to duress.

Subsection (3) abolishes the common-law presumption of coercion when a woman commits an offense under the direction of her husband. The defense is still available to the wife provided she can raise and prove the issue by evidence.

The prior law on this subject, H.R.S. §703-5 (as compiled prior to this Code), provided that a defendant will not be regarded as responsible for an act "to the doing of which he is compelled by force which he cannot resist, or from which he cannot escape" if the threatened or imminent danger is greater than that inflicted by the defendant. (Emphasis added.)

SUPPLEMENTAL COMMENTARY ON §702-231

Act 183, Session Laws 1979, added subsection (5) which expressly categorizes duress as an affirmative defense. Senate Standing Committee Report No. 883 states:

If any class of defenses deserves the title of "affirmative," it is those defenses that admit the commission of the act charged with the necessary mental element, but seek to interpose the existence of facts that, if true, would provide a complete exculpation. The traditional defenses of duress, necessity and self-defense are common examples. Unless one is willing to draw the concepts of volitional act and mental element quite broadly, these defenses do not negate either concept. In that respect they are analogous to the common law of confession and avoidance; they admit the truth of the facts pleaded but offer an excuse. 36 Ohio State Law Journal 828 at 840-41.
Haw. Rev. Stat. § 706-606.7 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-606.7
[ §706-606.
Status: in_force

[ §706-606.7] Discretion when sentencing a defendant for an offense committed while a minor. (1) If a person is convicted as an adult for an offense that the person committed when the person was a minor, in addition to any other factor that the court is required to consider before sentencing the person, the court shall consider the following factors:

(a) The person's exposure to an adverse childhood experience or early childhood trauma, including involvement in the child welfare or foster care systems;

(b) The person's status as a victim of human trafficking or abuse at the time of the offense;

(c) The differences between minor and adult offenders, including but not limited to the diminished culpability of minors as compared to that of adults and the typical characteristics of youth;

(d) The level of participation in the offense and the impact of peer or familial pressure;

(e) The person's intellectual capacity and any underlying mental health conditions; and

(f) Any other factors the court deems relevant.

(2) Notwithstanding any other provision of law, after considering the factors set forth in subsection (1), the court may, in its discretion, reduce any mandatory minimum period of incarceration or depart from any mandatory sentencing enhancement that the person is required to serve if the court determines that the reduction or departure is warranted given the person's age, trauma history, and prospects for rehabilitation.

(3) For the purposes of this section, "minor" means any person under the age of eighteen years. [L 2025, c 122, §2]

COMMENTARY ON §706-606.7

Act 122, Session Laws 2025, added this section to allow courts to depart from mandatory minimum and sentencing enhancements when sentencing minor defendants if the court believes the reduction is warranted given certain factors. The legislature found that children differ from adults in cognitive development, decision-making, and susceptibility to external influences, which must be considered when sentencing minors convicted of adult crimes. For example, children are more vulnerable to negative influences and outside pressures, including from their family and peers, and they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings. Research showed that many minors in the criminal justice system experienced significant trauma, abuse, or adverse childhood experiences, impacting their behavior and rehabilitation potential. Accordingly, Act 122 would allow the courts to account for the unique psychological and developmental differences between children and adults when sentencing minors for adult crimes and to depart from mandatory minimums and sentencing enhancements if the reduction is warranted based on specific factors, recognizing the impact of childhood trauma and circumstances on juvenile offenders. House Standing Committee Report No. 1723, Senate Standing Committee Report No. 879.
Haw. Rev. Stat. § 703-300 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-300
Definitions relating to justification.
Status: in_force

In this chapter, unless a different meaning is plainly required:

"Believes" means reasonably believes.

"Deadly force" means force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm. Intentionally firing a firearm in the direction of another person or in the direction which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's intent is limited to creating an apprehension that the actor will use deadly force if necessary, does not constitute deadly force.

"Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a home or place of lodging.

"Force" means any bodily impact, restraint, or confinement, or the threat thereof.

"Unlawful force" means force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or would constitute an offense except for a defense not amounting to a justification to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious or substantial bodily injury. [L 1972, c 9, pt of §1; am L 1986, c 314, §5; gen ch 1993]

Revision Note
Haw. Rev. Stat. § 708-816 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-816
Defense to trespass.
Status: in_force

It is a defense to prosecution for trespass as a violation of sections 708-814 and 708-815 that the defendant entered upon and passed along or over established and well-defined roadways, pathways, or trails leading to public beaches over government lands, whether or not under lease to private persons, or for the purposes of and in compliance with section 708-804.

COMMENTARY ON §708-816

This is a new section inserted by the legislature in 1972. It was not contained in the Proposed Draft. This addition provides that traveling to or from the beach over government land does not constitute trespass and is a defense to §§708-814 and 815. Conference Committee Report No. 2 (1972).

SUPPLEMENTAL COMMENTARY ON §708-816

Act 13, Session Laws 2019, amended this section to provide a defense to prosecution for simple trespass and criminal trespass in the second degree for a property owner or agent who enters adjacent vacant property under certain conditions, including consulting with a tree arborist and providing written notice, to control albizia trees before the trees become hazardous. The legislature found that albizia trees are an invasive species that are prone to breaking and falling during high winds and tropical storms and, consequently, pose a hazard to public safety and critical infrastructure. Fallen albizia trees caused power outages and other structural damage on the island of Hawaii during tropical storm Iselle in 2014. Albizia trees fell over highways, roads, and driveways in such large numbers during that storm that many people were left trapped in their homes and rescue personnel were prevented from reaching them or, in some cases, returning to the rescuers' base of operations. The legislature further found that albizia trees located on private properties often create hazardous conditions for adjacent properties that should be prevented wherever possible. Albizia trees have been successfully eradicated on many properties, but some property owners have been unresponsive to inquiries from neighbors and repeated notices to control the trees on their property. Act 13 provided a way for neighbors to control adjacent albizia trees to prevent or address hazardous conditions, subject to certain conditions. Senate Standing Committee Report No. 597, Senate Standing Committee Report No. 1018.
Haw. Rev. Stat. § 711-1109.5 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109.5
Intentional interference with the use of a service animal or law enforcement animal.
Status: in_force

(1) A person commits the offense of intentional interference with the use of a service animal or law enforcement animal if the person, with no legal justification, intentionally or knowingly strikes, beats, kicks, cuts, stabs, shoots, or administers any type of harmful substance or poison to a service animal or law enforcement animal while the service animal or law enforcement animal is in the discharge of its duties.

(2) Subsection (1) shall not apply to:

(a) Accepted veterinary practices;

(b) Activities carried on for scientific research governed by standards or accepted educational or medicinal practices; or

(c) Cropping or docking as customarily practiced and permitted by law.

(3) Intentional interference with the use of a service animal or law enforcement animal is a misdemeanor.

(4) In addition to any other penalties, any person who is convicted of a violation of this section shall be ordered to make restitution to:

(a) The owner of the service animal or law enforcement animal for any veterinary bills and out-of-pocket costs incurred as a result of the injury to the service animal or law enforcement animal; and

(b) The person, entity, or organization that incurs the cost of retraining or replacing the service animal or law enforcement animal for the cost of retraining or replacing the service animal or law enforcement animal, if it is disabled or killed.

(5) Nothing in this section is intended to affect any civil remedies available for a violation of this section.

(6) As used in this section, "service animal" shall have the same meaning as in section 347-2.5. [L 2002, c 259, pt of §1; am L 2011, c 175, §10; am L 2013, c 205, §3; am L 2018, c 217, §10]
Haw. Rev. Stat. § 708-835.8 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.8
Theft of beer keg.
Status: in_force

(1) A person commits the offense of theft of beer keg if the person commits theft of a beer keg.

(2) For the purposes of this section, "beer keg" means a metal container used to hold five gallons or more of liquid that is stamped, engraved, stenciled, or otherwise marked with the name of a brewery manufacturer; provided that a deposit beverage container, as defined under section 342G-101, shall not be considered a beer keg.

(3) Theft of beer keg is a misdemeanor. [L 2008, c 53, §§1, 6; am L 2009, c 44, §2]
Haw. Rev. Stat. § 707-714 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-714
Reckless endangering in the second degree.
Status: in_force

(1) A person commits the offense of reckless endangering in the second degree if the person:

(a) Engages in conduct that recklessly places another person in danger of death or serious bodily injury; or

(b) Intentionally discharges a firearm in a populated area, in a residential area, or within the boundaries or in the direction of any road, street, or highway; provided that the provisions of this paragraph shall not apply to any person who discharges a firearm upon a target range for the purpose of the target shooting done in compliance with all laws and regulations applicable thereto.

(2) Reckless endangering in the second degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1990, c 62, §1; gen ch 1992; am L 2006, c 230, §30]
Haw. Rev. Stat. § 706-660.2 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-660.2
Sentence of imprisonment for offenses against children, elder persons, or handicapped persons.
Status: in_force

(1) Notwithstanding section 706-669, if not subjected to an extended term of imprisonment pursuant to section 706-662, a person shall be sentenced to a mandatory minimum term of imprisonment without possibility of parole as provided in subsection (2) if:

(a) The person, in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury upon another person who is:

(i) Sixty years of age or older;

(ii) Blind, a paraplegic, or a quadriplegic; or

(iii) Eight years of age or younger; and

(b) Such disability is known or reasonably should be known to the defendant.

(2) The term of imprisonment for a person sentenced pursuant to subsection (1) shall be as follows:

(a) For murder in the second degree--fifteen years;

(b) For a class A felony--six years, eight months;

(c) For a class B felony--three years, four months;

(d) For a class C felony--one year, eight months. [L 1988, c 89, §1; am L 1990, c 67, §8; am L 2015, c 35, §22]

COMMENTARY ON §706-660.2

Act 89, Session Laws 1988, added this section to mandate harsher penalties for crimes against victims who are less able to protect themselves. The legislature found that passage of this section will afford a greater measure of protection for the groups designated in this section. House Standing Committee Report No. 459-88, Senate Standing Committee Report No. 2544.

Act 35, Session Laws 2015, amended this section by adding subsection designations and making other technical nonsubstantive amendments.
Haw. Rev. Stat. § 706-651 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-651
[ §706-651] Payments by defendant; order of priority.
Status: in_force

[ §706-651] Payments by defendant; order of priority. When a defendant is ordered to make payments pursuant to chapters 351, 706, 846F, and 853, or as otherwise provided by law, payments shall be made in the following order of priority:

(1) Restitution;

(2) Crime victims compensation fee;

(3) Probation services fee;

(4) Human trafficking victim services fee;

(5) Other fees, including but not limited to internet crimes against children fee and drug demand reduction assessment fee;

(6) DNA analysis monetary assessment; and

(7) Fines. [L 2016, c 231, §14]

COMMENTARY ON §706-651

Act 231, Session Laws 2016, added this section, which establishes the priority for payments that a defendant is ordered to make, including restitution, crime victims compensation fee, probation services fee, human trafficking victims services fees, DNA analysis monetary assessment, and fines. Conference Committee Report No. 138-16.
Haw. Rev. Stat. § 705-511 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-511
Immunity, irresponsibility, or incapacity of a party to criminal solicitation.
Status: in_force

(1) A person shall not be liable under section 705-510 for criminal solicitation of another if under sections 702-224(1) and (2) and 702-225(1) he would not be legally accountable for the conduct of the other person.

(2) It is not a defense to a prosecution under section 705-510 that the person solicited could not be guilty of committing the crime because:

(a) He is, by definition of the offense, legally incapable in an individual capacity of committing the offense solicited;

(b) He is penally irresponsible or has an immunity to prosecution or conviction for the commission of the crime;

(c) He is unaware of the criminal nature of the conduct in question or of the defendant's criminal intent; or

(d) He does not have the state of mind sufficient for the commission of the offense in question.

(3) It is not a defense to a prosecution under section 705-510 that the defendant is, by definition of the offense, legally incapable in an individual capacity of committing the offense solicited. [L 1972, c 9, pt of §1]
Haw. Rev. Stat. § 702-211 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-211
State of mind as determinant of grade or class of a particular offense.
Status: in_force

When the grade or class of a particular offense depends on whether it is committed intentionally, knowingly, recklessly, or negligently, its grade or class shall be the lowest for which the determinative state of mind is established with respect to any element of the offense.

COMMENTARY ON §702-211

In many statutes the grade (felony, misdemeanor, or violation) or class (e.g., class A or class B felony) of an offense turns on whether the defendant acted intentionally, knowingly, recklessly, or negligently. Since a defendant may have differing states of mind with respect to the defendant's conduct, circumstances attendant thereto, and the result of the defendant's conduct, the Code makes it clear that, in those cases where distinctions are drawn on the basis of the defendant's state of mind, the conviction ought to be the lowest for which the determinative state of mind is established with respect to any element of the offense. As it has been put, "it is the lowest common denominator that indicates the quality of the defendant's conduct."[1]

The law of homicide provides a ready illustration of the application of the above principle. Intentional killing is usually treated as crime of higher class than reckless killing. If a defendant intentionally killed another, recklessly mistaken that the other's conduct threatened the defendant with serious bodily harm or death, the homicide ought to be viewed as reckless killing because that is all that is established with respect to attendant circumstances negativing the defense of self defense.

__________

§702-211 Commentary:

1. M.P.C., Tentative Draft No. 4, comments at 131 (1955).
Haw. Rev. Stat. § 706-660.1 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-660.1
Sentence of imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony.
Status: in_force

(1) A person convicted of a felony, where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(a) For murder in the second degree and attempted murder in the second degree--up to fifteen years;

(b) For a class A felony--up to ten years;

(c) For a class B felony--up to five years; and

(d) For a class C felony--up to three years.

The sentence of imprisonment for a felony involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining minimum term of imprisonment prescribed under section 706-669; provided further that a person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon the expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

(2) A person convicted of a second firearm felony offense as provided in subsection (1) where the person had a firearm in the person's possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, shall in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(a) For murder in the second degree and attempted murder in the second degree--twenty years;

(b) For a class A felony--thirteen years, four months;

(c) For a class B felony--six years, eight months; and

(d) For a class C felony--three years, four months.

The sentence of imprisonment for a second felony offense involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706-669; provided further that a person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

(3) A person convicted of a felony, where the person had a semiautomatic firearm or automatic firearm in the person's possession or used or threatened its use while engaged in the commission of the felony, whether the semiautomatic firearm or automatic firearm was loaded or not, and whether operable or not, shall in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

(a) For murder in the second degree and attempted murder in the second degree--twenty years;

(b) For a class A felony--fifteen years;

(c) For a class B felony--ten years; and

(d) For a class C felony--five years.

The sentence of imprisonment for a felony involving the use of a semiautomatic firearm or automatic firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706-669; provided further that a person who is imprisoned in a correctional institution as provided in this subsection shall become subject to the parole procedure as prescribed in section 706-670 only upon expiration of the term of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).

(4) In this section:

"Automatic firearm" has the same meaning defined in section 134-1.

"Firearm" has the same meaning defined in section 134-1 except that it does not include "semiautomatic firearm" or "automatic firearm".

"Semiautomatic firearm" means any firearm that uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger. [L 1976, c 204, §3; am L 1987, c 260, §1; am L 1990, c 195, §5; am L 1992, c 57, §1; gen ch 1992]

Revision Note

In subsection (4), paragraph designations deleted and definitions rearranged pursuant to §23G-15.

COMMENTARY ON §706-660.1

Designed to deter the use of firearms in the commission of offenses, this section, together with §706-660, is intended to require the court to impose a mandatory term of imprisonment in cases of felonies involving firearms. Nothing in this or in §706-660, however, is intended to preclude the court from imposing indeterminate or extended indeterminate sentences, or the paroling authority from fixing minimum terms of imprisonment, exceeding the terms provided for in this section. Senate Conference Committee Report No. 35, House Conference Committee Report No. 34 (1976).

Act 260, Session Laws 1987, amended this section by changing the conditions under which a mandatory sentence can be imposed. A mandatory sentence can be imposed regardless of whether the firearm was loaded, operable, or used as a threat. The legislature felt that allowing judicial discretion in imposing a mandatory sentence, for the first firearm offense, will address concerns that under certain circumstances the mere possession of a firearm may not justify a mandatory prison term. Senate Standing Committee Report No. 769, Senate Conference Committee Report No. 111, House Conference Committee Report No. 113.

Act 195, Session Laws 1990, amended this section to address community concerns in regard to the use of "assault weapons." Harsh sentences keep these weapons out of the hands of criminals. Senate Standing Committee Report No. 3058.

Act 57, Session Laws 1992, amended this section to conform subsection and paragraph designations to the style used in the Code. House Standing Committee Report No. 1198-92, Senate Standing Committee Report No. 1947.
Haw. Rev. Stat. § 710-1014.5 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1014.5
Misuse of 911 emergency telephone service.
Status: in_force

(1) A person commits the offense of misuse of 911 emergency telephone service if the person accesses the telephone number 911 and:

(a) Knowingly causes a false alarm; or

(b) Makes a false complaint or a report of false information in reckless disregard of the risk that a public safety agency will respond by dispatching emergency services.

(2) Misuse of 911 emergency telephone service is a misdemeanor.

(3) For purposes of this section, "public safety agency" means any federal, state, or county police, fire, emergency medical service, or emergency management agency. [L 2005, c 17, §1; am L 2014, c 111, §22]

COMMENTARY ON §710-1014.5

Act 17, Session Laws 2005, established as a misdemeanor offense, the misuse of 911 emergency telephone service, when an individual accesses 911 and knowingly causes a false alarm or recklessly makes a false complaint or report. The legislature found that the Act would prevent public safety agencies from wasting their time on false alarms and ensure that legitimate emergency requests were not hampered by the abuse of the emergency system. Senate Standing Committee Report No. 1297, House Standing Committee Report No. 129.

Act 111, Session Laws 2014, which amended subsection (3), updated and recodified Hawaii's emergency management laws to conform with nationwide emergency management practices by, among other things, establishing a Hawaii emergency management agency in the state department of defense with the functions and authority currently held by the state civil defense agency; establishing the power and authority of the director of Hawaii emergency management, who will be the adjutant general, and providing the director with the functions and authority currently held by the director of civil defense; establishing county emergency management agencies, each to be under the respective county mayor's direction, with the functions and authority currently held by the local organizations for civil defense; and repealing the chapters on disaster relief [chapter 127] and the civil defense [and] emergency act [chapter 128], which were determined to be obsolete with the creation of the Hawaii emergency management agency. Conference Committee Report No. 129-14.
Haw. Rev. Stat. § 710-1076 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1076
Tampering with or fabricating physical evidence.
Status: in_force

(1) A person commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, the person:

(a) Destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its verity or availability in the pending or prospective official proceeding or investigation; or

(b) Makes, presents, offers, or uses any false physical evidence, knowing it to be false, with intent that it be introduced in the pending or prospective official proceeding or investigation, or with intent to mislead a public servant who is or may be engaged in the pending or prospective official proceeding or investigation.

(2) For the purposes of this section, "physical evidence" includes any article, object, document, record, or other thing of physical substance.

(3) Tampering with or fabricating physical evidence is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2024, c 242, §2]

COMMENTARY ON §710-1076

Official proceedings rely on the integrity of physical evidence, in addition to the integrity of witnesses and jurors, to achieve equitable results. To allow the impairment or falsification of physical evidence would undermine greatly the fairness and impartiality of the judicial process.

This section makes it an offense both to conceal true evidence and to offer false evidence, since to do either would obviously misrepresent the truth which it is the object of the proceeding to determine. In both cases, the actor must have an intent that the concealment or falsification should have an effect in the proceeding. "Physical evidence" is defined principally to distinguish it from that evidence which is offered as testimony by witnesses.
Haw. Rev. Stat. § 708-881 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-881
Tampering with a publicly-exhibited contest.
Status: in_force

(1) A person commits the offense of tampering with a publicly-exhibited contest if:

(a) He confers, or offers or agrees to confer, directly or indirectly, any benefit upon:

(i) A contest participant with intent to influence him not to give his best efforts in a publicly-exhibited contest; or

(ii) A contest official with intent to influence him to perform improperly his duties in connection with a publicly-exhibited contest;

(b) Being a contest participant or contest official, he intentionally solicits, accepts, or agrees to accept, directly or indirectly, any benefit from another person with intent that he will thereby be influenced:

(i) In the case of a contest participant, not to give his best efforts in a publicly-exhibited contest; or

(ii) In the case of a contest official, to perform improperly his duties in connection with a publicly-exhibited contest; or

(c) With intent to influence the outcome of a publicly-exhibited contest he:

(i) Tampers with any contest participant, contest official, animal, equipment, or other thing involved in the conduct or operation of the contest, in a manner contrary to the rules and usages purporting to govern the contest in question; or

(ii) Substitutes a contest participant, animal, equipment, or other thing involved in the conduct or operation of the contest, for the genuine person, animal, or thing.

(2) In this section:

"Contest official" means any person who acts or expects to act in a publicly-exhibited contest as an umpire, referee, or judge, or otherwise to officiate at a publicly-exhibited contest.

"Contest participant" means any person who participates or expects to participate in a publicly-exhibited contest as a player, contestant, or member of a team, or as a coach, manager, trainer, or other person directly associated with a player, contestant, or team.

"Publicly-exhibited contest" means any professional or amateur sport, athletic game or contest, or race or contest involving machines, persons, or animals, viewed by the public, but does not include an exhibition which does not purport to be and which is not represented as being such a sport, game, contest, or race.

(3) Tampering with a publicly-exhibited contest is a misdemeanor. [L 1972, c 9, pt of §1]

Revision Note

In subsection (1)(a)(ii), "or" deleted and in subsection (2), paragraph designations deleted, definitions rearranged, and punctuation changed pursuant to §23G-15.

COMMENTARY ON §708-881

The purpose of this section is to penalize corruption of publicly-exhibited contests. It represents a broadening of previous legislation penalizing sports bribery and tampering. Note that publicly-exhibited contest includes, by definition in subsection (2)(a), not only sporting events, but also non-athletic contests, such as quiz shows. In addition to the possibilities of wholesale fraud, there is a substantial element of public affront at rigging or tampering with the outcome of publicly-exhibited contests: witness the quiz show scandals of the last decade. Moreover, it is felt that such behavior should be deterred because it "subjects legitimate entertainment and advertising to unfair and debasing competition."[1] The last part of subsection (2)(a) provides an exception for exhibitions, such as some wrestling spectacles, which do not purport to be and are not represented as being a sport, contest, game or race.

Subsection (1)(a) defines the offense in terms of the bribe offeror's conduct, whether it be addressed to the contest participant or the contest official. Subsection (1)(b) defines the offense in terms of the bribe solicitor or receiver. Finally, subsection (1)(c) is addressed to corruption, not by bribery, but by improper meddling or clandestine substitution.
Haw. Rev. Stat. § 703-308 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-308
Use of force to prevent suicide or the commission of a crime.
Status: in_force

(1) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent the other person from committing suicide, inflicting serious bodily harm upon oneself, committing or consummating the commission of a crime involving or threatening bodily injury, damage to or loss of property, or breach of the peace, except that:

(a) Any limitations imposed by the other provisions of this chapter on the justifiable use of force in self-protection, for the protection of others, the protection of property, the effectuation of an arrest, or the prevention of an escape from custody shall apply notwithstanding the criminality of the conduct against which such force is used; and

(b) The use of deadly force is not in any event justifiable under this section unless:

(i) The actor believes that there is a substantial risk that the person whom the actor seeks to prevent from committing a crime will cause death or serious bodily injury to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to innocent persons; or

(ii) The actor believes that the use of such force is necessary to suppress a riot after the rioters have been ordered to disperse and warned, in any particular manner that the law may require, that deadly force will be used if they do not obey.

(2) The justification afforded by this section extends to the use of confinement as preventive force only if the actor takes all reasonable measures to terminate the confinement as soon as the actor knows that the actor safely can, unless the person confined has been arrested on a charge of crime. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §703-308

The purpose of this section is to provide a justification for the use of force to prevent suicide, serious bodily injury, or the commission of a crime. It gives a right to use such force as the actor believes is immediately necessary to prevent suicide or serious bodily injury, or to prevent a crime involving or threatening bodily harm, damage to or loss of property, or a breach of the peace. The right to use force in crime prevention is a concomitant of the right to use force to make an arrest spelled out in §703-307. It is, however, limited by all of the limitations expressed in the preceding sections. Deadly force may not be used except for the purpose of preventing a crime which will cause death or serious bodily injury, under circumstances in which there is no substantial risk of injury to innocent persons. Deadly force may also be used if the actor believes such force is necessary to suppress a riot, following an appropriate warning.

Subsection (2) contains a rule about the use of confinement as preventive force, similar to the rules on the same subject in §§703-304 to 306.
Haw. Rev. Stat. § 709-901 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-901
Concealing the corpse of an infant.
Status: in_force

(1) A person commits the offense of concealing the corpse of an infant if the person conceals the corpse of a new-born child with intent to conceal the fact of its birth or to prevent a determination of whether it was born dead or alive.

(2) Concealing the corpse of an infant is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §709-901

Concealing an infant corpse makes impossible the determination of whether or not criminal conduct was involved in the failure of the fetus to be born alive or in the failure of the infant to continue to live. When an infant corpse is found after it has been hidden, the decomposition of the corpse makes it impossible to determine beyond a reasonable doubt: (1) whether the fetus had been born alive before it met its death (in which case the fetus would be a "person" as that term is defined in chapter 707, which covers in part, crimes involving homicide); (2) whether, if born alive, the death resulted from murder, manslaughter, negligent homicide, or other causes; and (3) whether, if not born alive, the pregnancy was terminated by an illegal abortion. Therefore it is advisable to have a residual section making it an offense to conceal the corpse of a new-born child.
Haw. Rev. Stat. § 701-107 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-107
Grades and classes of offenses.
Status: in_force

(1) An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime. Crimes are of three grades: felonies, misdemeanors, and petty misdemeanors. Felonies include murder in the first and second degrees, attempted murder in the first and second degrees, and the following three classes: class A, class B, and class C.

(2) A crime is a felony if it is so designated in this Code or if persons convicted thereof may be sentenced to imprisonment for a term which is in excess of one year.

(3) A crime is a misdemeanor if it is so designated in this Code or in a statute other than this Code enacted subsequent thereto, or if it is defined in a statute other than this Code which provides for a term of imprisonment the maximum of which is one year.

(4) A crime is a petty misdemeanor if it is so designated in this Code or in a statute other than this Code enacted subsequent thereto, or if it is defined by a statute other than this Code that provides that persons convicted thereof may be sentenced to imprisonment for a term not to exceed thirty days.

(5) An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty, is authorized upon conviction or if it is defined by a statute other than this Code which provides that the offense shall not constitute a crime. A violation does not constitute a crime, and conviction of a violation shall not give rise to any civil disability based on conviction of a criminal offense.

(6) Any offense declared by law to constitute a crime, without specification of the grade thereof or of the sentence authorized upon conviction, is a misdemeanor.

(7) An offense defined by any statute of this State other than this Code shall be classified as provided in this section and the sentence that may be imposed upon conviction thereof shall hereafter be governed by this Code. [L 1972, c 9, pt of §1; am L 1987, c 181, §1; am L 2005, c 18, §1]
Haw. Rev. Stat. § 708-857 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-857
Negotiating a worthless negotiable instrument.
Status: in_force

(1) A person commits the offense of negotiating a worthless negotiable instrument if that person intentionally issues or negotiates a negotiable instrument knowing that it will not be honored by the maker or drawee.

(2) For the purpose of this section, as well as in any prosecution for theft committed by means of a worthless negotiable instrument, either of the following shall be prima facie evidence that the drawer knew that the negotiable instrument would not be honored upon presentation:

(a) The drawer had no account with the drawee at the time the negotiable instrument was negotiated; or

(b) Payment was refused by the drawee for lack of funds upon presentation within thirty days after date or issue, whichever is later, and the drawer failed to make good within ten days after actual receipt of a notice of dishonor, as defined in section 490:3-503.

(3) The definitions of the following terms shall apply to this section:

"Issue" as defined in section 490:3-105.

"Negotiable instrument" as defined in section 490:3-104.

"Negotiation" as defined in section 490:3-201.

(4) Negotiating a worthless negotiable instrument is a misdemeanor. [L 1972, c 9, pt of §1; am L 1993, c 33, §2]

Revision Note

In subsection (3), paragraph designations deleted and punctuation changed pursuant to §23G-15.

COMMENTARY ON §708-857

This section is concerned with the passage of worthless negotiable instruments where the actor has knowledge that the instrument will not be honored. Originally, bad check legislation was necessitated by the common-law limitations on promissory fraud: misrepresentation of a future fact was not sufficient to establish theft by deception. Such artificial distinctions are largely obviated by the definition of "deception" used in the Code's theft provisions.[1] As noted in the comments to the Proposed Michigan Code,

the elimination of the promissory fraud doctrine thus eliminates the need for a bad check statute in its traditional form. This might suggest that there is no point served in continuing a bad check statute in the Draft. In answer, the statute can serve a useful purpose when the merchant or bank that is in fact defrauded does not wish to prosecute but the bank on which the bad check is drawn does.[2]

This section, moreover, protects the prevailing system of negotiable paper in addition to those individuals involved in a given case. Since emphasis in "bad check" cases ought to be placed upon the theft, rather than on the bad check itself, the sanction provided for this offense is relatively mild, i.e., a misdemeanor, and the grade of the offense does not, as in the case of theft offenses, vary according to the amount involved.

The incorporation of the Uniform Commercial Code's definitions of "issue," "negotiable instrument," and "negotiation" in subsection (3), is intended to insure that in this area, where protection of commercial transactions are reinforced with criminal sanctions, the civil and penal law are closely correlated. The use of the U.C.C.'s definition of "negotiation" insures that the indorser with knowledge or expectation of ultimate nonpayment, as well as the drawer, with such knowledge or expectation, will be covered.

Under the evidentiary rules established in subsection (2), the prosecution fulfills its initial burden of proving intent by demonstrating, beyond a reasonable doubt, either that the issuer had no account with the drawee, or that such an instrument was not made good within ten days of receipt of notice of dishonor. Again, the definitions of the Uniform Commercial Code are used for both convenience and uniformity. Note, however, the modifications toward leniency necessitated in adapting a civil statute to criminal use: actual, rather than constructive, receipt of notice of dishonor is required before the time in which the actor must make good begins to run. The time period required by subsection (2)(b) does not prevent prosecution before the time has elapsed, but only denies to the prosecution the benefit of that particular evidentiary provision before the stated time has elapsed.
Haw. Rev. Stat. § 710-1011 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1011
Refusing to aid a law enforcement officer.
Status: in_force

(1) A person commits the offense of refusing to aid a law enforcement officer when, upon a reasonable command by a person known to him to be a law enforcement officer, he intentionally refuses or fails to aid such law enforcement officer, in:

(a) Effectuating or securing an arrest; or

(b) Preventing the commission by another of any offense.

(2) Refusing to aid a law enforcement officer is a petty misdemeanor.

(3) A person who complies with this section by aiding a law enforcement officer shall not be held liable to any person for damages resulting therefrom, provided he acted reasonably under the circumstances known to him at the time. [L 1972, c 9, pt of §1; am L 2001, c 91, §4]

COMMENTARY ON §710-1011

This section is not designed to allow peace officers to foist their routine or dangerous duties upon innocent citizens. The reasonable context in which this aid is required precludes requests for routine and unnecessary, as well as dangerous and unconscionable, aid. The type of situation which the Code envisions is the request to a citizen, by a peace officer, to summon aid or render immediately vital information, where there is no question of danger, incrimination, or substantial inconvenience to the person of whom the aid is asked. Various forms of this law may be found in the proposed revisions of other states.[1]
Haw. Rev. Stat. § 712-1231 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1231
Social gambling; definition and specific conditions, affirmative defense.
Status: in_force

(a) Definition. "Social gambling" means gambling in which all of the following conditions are present:

(1) Players compete on equal terms with each other; and

(2) No player receives, or becomes entitled to receive, anything of value or any profit, directly or indirectly, other than the player's personal gambling winnings; and

(3) No other person, corporation, unincorporated association, or entity receives or becomes entitled to receive, anything of value or any profit, directly or indirectly, from any source, including but not limited to permitting the use of premises, supplying refreshments, food, drinks, service, lodging or entertainment; and

(4) It is not conducted or played in or at a hotel, motel, bar, nightclub, cocktail lounge, restaurant, massage parlor, billiard parlor, or any business establishment of any kind, public parks, public buildings, public beaches, school grounds, churches or any other public area; and

(5) None of the players is below the age of majority; and

(6) The gambling activity is not bookmaking.

(b) Affirmative defense:

(1) In any prosecution for an offense described in [section] 712-1223, 712-1224, 712-1225 or 712-1226, a defendant may assert the affirmative defense that the gambling activity in question was a social gambling game as defined in [section] 712-1231(a).

(2) If the defendant asserts the affirmative defense, the defendant shall have the burden of going forward with evidence to prove the facts constituting such defense unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, and of proving such facts by a preponderance of evidence.

(c) In any prosecution for an offense described in this part the fact that the gambling activity involved was other than a social gambling game shall not be an element of the offense to be proved by the prosecution in making out its prima facie case. [L 1973, c 201, pt of §1; gen ch 1993]

COMMENTARY ON §712-1231

Section 712-1231 is a completely new and rewritten section set forth by Act 201, Session Laws 1973. This section defines "social gambling" as gambling activity that meets all the prescribed conditions. These conditions are: (1) that all players engage as contestants on "equal terms"; (2) that no profiting be involved--other than the player's winnings; (3) that it should not be conducted at certain enumerated places, such as hotels, school grounds, public parks, any business establishment, etc.; (4) that no minor be involved in the game; and (5) that the gambling activity is not bookmaking. (Senate Standing Committee Report No. 806 (1973).)

With respect to the concept of prohibiting gambling in enumerated places, the Standing Committee Report states:

Your Committee notes the addition of the concept that gambling in certain enumerated places such as hotels, public parks, etc.-- is prohibited and that gambling conducted in such places is not to come within the protected confines of 'social gambling.' It is felt that this addition to the law clarifies the legislature's intent to prevent the intrusion of hotel and casino type operations into this State, as well as prevent exposure of gambling to children in public parks, school grounds, etc.

In this connection, casual gambling activities in a social context, involving contests of skill, and conducted in places other than those enumerated in the law, such as casual bets between golfers or bowlers would be "social gambling".

Section 712-1231 provides that in any prosecution for an offense described in §712-1223, 1224, 1225, or 1226, the defendant may assert the affirmative defense that the gambling activity was a social gambling game as defined in this section. In respect thereto, the Standing Committee Report No. 806 (1973), Senate Judiciary Committee, states:

There has been considerable concern whether the affirmative defense provisions of the Hawaii Penal Code are constitutional. In that regard, your Committee understands that statutorily prescribed affirmative defenses have been held constitutional. See Territory of Hawaii v. Shizuichi Yamamoto, et. al., 39 Haw. 556 (1952); McKelvey v. United States, 260 U.S. 353 (1922); United States v. Sidney B. Rowlette, et. al., 297 F.2d 475 (1968); and U.S. v. Carl Oslin Rumzy, Jr. 446 F.2d 1184 (1971).

A major change affected is the erasure of any mandatory requirement that the defendant utilize this affirmative defense. We note that this is an area of great concern. That is, whether the affirmative defense in the existing law forces the defendant, as a legal requirement, to testify in potential self-incrimination.

Without addressing ourselves to any other application of the affirmative defense in the Hawaii Penal Code, your Committee notes the existing law was to provide in §712-1231(b) that a defendant's resort to the affirmative defense is discretionary. See People v. Felder, 334 N.Y.S. 2d 992 (1972).

There appears to be some confusion as to the prosecutor's burden of proof in relation to the defense of social gambling. It is intended that the prosecution should not have the burden of proving as part of its prima facie case, that the gambling activity in question was other than a social gambling game. Accordingly, an explicit statement to that effect was included in §712-1231(c).

In contrast, it is the intent that the defendant shall be entitled to acquittal on the basis of the affirmative defense only if the trier of the facts finds by a preponderance of the evidence the facts constituting the affirmative defense. In other words, the defendant has both the burden of going forward with the evidence and the burden of persuasion by a preponderance of evidence with respect to the affirmative defense of social gambling.
Haw. Rev. Stat. § 712-1254 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1254
Bar to prosecution.
Status: in_force

If a violation of this part or chapter 329 is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this State.
Haw. Rev. Stat. § 708-835.55 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.55
Theft; agricultural product; sentencing.
Status: in_force

(1) Whenever a person is sentenced under sections 708-830.5, 708‑831, 708-832, or 708‑833, for an offense involving theft of an agricultural product or commodity, in addition to any penalty prescribed by those sections, the person shall be required to make payment to the property owner for:

(a) The value of the stolen agricultural product or commodity, pursuant to section 706-646; and

(b) The cost of replanting the agricultural product or commodity.

(2) For purposes of this section, "agricultural product or commodity" includes:

(a) Floricultural, horticultural, viticultural, aquacultural, forestry products or commodities; and

(b) Shrubbery, nuts, coffee, seeds, and other farm or plantation products or commodities,

whether for personal or commercial use. [L 2012, c 125, §1]

COMMENTARY ON §708-835.55

Act 125, Session Laws 2012, added this section, requiring persons sentenced for theft in the first, second, third, or fourth degree for an offense involving theft of an agricultural product or commodity to pay restitution to the victim in an amount equal to the value of what was stolen and the cost of replanting. The legislature found that agricultural theft continues to be a significant problem in the State and has resulted in millions of dollars in losses for the agricultural industry. The legislature further found that existing laws were not stringent enough to deter potential thieves. Act 125 would allow prosecutors to develop stronger cases against thieves of agricultural products and commodities. Senate Standing Committee Report No. 2289, Senate Standing Committee Report No. 3322.
Haw. Rev. Stat. § 712-1248 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1248
Promoting a detrimental drug in the second degree.
Status: in_force

(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 marijuana; or

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

(2) Promoting a detrimental drug in the second degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(j); am L 1989, c 384, §3]

Revision Note

In subsection (1)(a) and (b), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 709-900 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-900
Illegally marrying.
Status: in_force

(1) A person commits the offense of illegally marrying if the person intentionally marries or purports to marry, knowing that the person is legally ineligible to do so.

(2) Illegally marrying is a petty misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §709-900

This section is intended to serve two purposes: (1) to protect a party to a purported marriage from imposition and deception, and (2) to reinforce the statute setting forth the minimal requirements for valid marriage. The Code imposes its lowest form of criminal liability for intentionally marrying or purporting to marry when the actor knows the actor is ineligible to do so. Except to the extent that the previous offense relating to incest[1] covered some aspects of this conduct, this offense represents an addition to Hawaii law.

__________

§709-900 Commentary:

1. See H.R.S. §768-41 which makes it an offense to "marry" or engage in sexual intercourse with any person with whom marriage is prohibited by consanguinity or affinity. See also H.R.S. §572-1.
Haw. Rev. Stat. § 705-521 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-521
Scope of conspiratorial relationship.
Status: in_force

If a person guilty of criminal conspiracy, as defined in section 705-520, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit the crime with such other person or persons, whether or not he knows their identity.

COMMENTARY ON §705-521

This section is addressed to the problem of defining the scope of the conspiratorial relationship. Organized crime may involve a network of activity of which the defendant's conduct is but a small part. For example, the narcotics traffic may involve smuggling, possession, and sale of the narcotic. Questions affecting multiple prosecutions, joint prosecution, admissibility of evidence, and the statute of limitations have conventionally turned on the scope of the conspiracy charged.

The Code divorces procedural and evidentiary problems from the definition or scope of criminal conspiracy. Procedural problems are handled separately in §705-524 (dealing with venue) and in the rules of court and statutes relating to penal procedure.

The definition of §705-520 in effect limits the scope of the conspiracy to those crimes which the defendant intends to promote or facilitate. Section 705-521 limits the scope of the conspiracy "in term of parties, to those with whom he agreed, except where the same crime that he conspired to commit is, to his knowledge, also the object of a conspiracy between one of his co-conspirators and another person or persons."[1] In cases involving a broad scope of criminal operations entailing numerous different offenses, the focus is on whether the defendant knows that the defendant's co-conspirator has conspired with another person to commit the same crime. Focusing separately on each criminal objective, it is possible to conclude that different members of a criminal network are guilty of different conspiracies. Thus, in a narcotics operation, a smuggler, a distributor, and a retailer may all be guilty of conspiring that the retailer possess the narcotics, whereas the retailer may not be guilty of a conspiracy to have the smuggler engage in smuggling. The retailer may have no knowledge of or may be completely indifferent to the source or character of the retailer's supply.

Agreement under §§705-520 and 521 need not be explicit; it can, of course, be inferred from mutual facilitation and purpose. Section 705-521 specifically provides that in cases where there is no direct correspondence or cooperation, the defendant may be guilty of conspiracy with other persons, possibly unidentified, if the defendant knows that the defendant's co-conspirator has conspired with them to commit the same offense.

The inquiry which the Code requires is more complicated than that allowed under current and past doctrine which, in some statements,[2] has permitted a member of an illegal operation to be guilty of a conspiracy involving all of the operation's criminal objectives no matter how remote from the defendant's individual involvement.

We recognize that the inquiry demanded by the Draft will often be more detailed and sometimes will be more complicated than that called for under looser, current doctrine. We submit that any greater difficulty involved is justified by the need for effective means of limiting a conspirator's criminal liability and preventing the other abuses possible under looser approaches toward the scope of a conspiracy. Further, we submit that the focus upon each individual's culpability with regard to each criminal objective should be more helpful to juries than the broad formulations with which they are often charged today; and that it accords more closely with traditional standards for testing criminal liability.[3]
Haw. Rev. Stat. § 708-814.8 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-814.8
[ §708-814.
Status: in_force

[ §708-814.8] Enforcement of trespass laws on public land. When trespass involves public land, any state or county law enforcement officer may enforce the trespass laws of this part without regard to whether the land is owned by the State or by a county; provided that nothing in this section shall be construed to alter the existing responsibility of law enforcement officers to enforce, as applicable, the laws of the State, or to alter the respective jurisdictional boundaries observed by state and county law enforcement officers. Nothing contained in this section shall diminish, alter, or amend any existing rights, privileges, or practices of the Native Hawaiian people; nor shall the obligations of the State to the Native Hawaiian people be absolved.
Haw. Rev. Stat. § 709-902 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-902
Abandonment of a child.
Status: in_force

(1) A person commits the offense of abandonment of a child if, being a parent, guardian, or other person legally charged with the care or custody of a child less than fourteen years old, the person deserts the child in any place with intent to abandon it.

(2) Leaving a newborn child at a hospital, fire station, or police station or with emergency services personnel pursuant to section 587D‑2 shall not constitute a violation of this section.

(3) Abandonment of a child is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L Sp 2007, c 7, §3]

COMMENTARY ON §709-902

Abandonment of a child is essentially a residual offense hence the relatively low grade of its penalty. If an abandoned child dies, suffers bodily injury, or is exposed to a substantial risk of bodily injury, the parent, guardian, or person charged with care or custody of the child would, depending on the culpability of the actor and circumstances of the case, be subject to a charge of murder, manslaughter, negligent homicide, assault in some degree, or reckless endangering in the second degree. Section 709-902 should be invoked primarily in those cases of abandonment where the abandoned child is discovered and taken into protective custody before the child suffers bodily injury.
Haw. Rev. Stat. § 712-1218.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1218.5
Failure to maintain age verification records of sexually exploited individuals.
Status: in_force

(1) A person commits the offense of failure to maintain age verification records of sexually exploited individuals if, with the intent to profit therefrom, the person knowingly provides sexually exploited individuals to patrons or customers of a public establishment or provides sexually exploited individuals to a private club or event, and the person:

(a) Knowingly fails to create and maintain age verification records for each sexually exploited individual;

(b) Knowingly makes or causes to be made any false entry into the age verification records of sexually exploited individuals required by this section; or

(c) Knowingly fails to produce the age verification records of sexually exploited individuals required by this section upon request by a law enforcement officer for the purpose of verifying the age of a sexually exploited individual.

(2) Failure to maintain age verification records of sexually exploited individuals is a class C felony. [L 2002, c 240, pt of §3]

COMMENTARY ON §712-1218.5

Act 240, Session Laws 2002, added this section to establish criminal penalties against those who participate in or profit from the sexual exploitation of a minor.
Haw. Rev. Stat. § 704-420 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-420
[ §704-420] Examination reports; provided to director of health.
Status: in_force

[ §704-420] Examination reports; provided to director of health. Copies of all examination reports made pursuant to sections 704-404, 704-406, 704-411, and 704-414 shall be provided to the director of health.

COMMENTARY ON §704-420

Act 231, Session Laws 2016, added this section to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 708-8203 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8203
Telecommunication service fraud in the second degree.
Status: in_force

(1) A person commits the offense of telecommunication service fraud in the second degree if the person:

(a) Knowingly possesses a telecommunication service device with the intent to obtain telecommunication service without payment of applicable charges;

(b) Knowingly possesses written instructions or plans to make or assemble a telecommunication service device with the intent to use the written plans or instructions to make or assemble a device to obtain telecommunication service without payment of applicable charges; or

(c) With the intent to defraud another of the lawful charge for any telecommunication service, that is provided for a charge or compensation:

(i) Uses an access device without obtaining the consent of the holder of the access device or the telecommunication service provider, resulting in obtaining services, the value of which does not exceed $300 in any six-month period; or

(ii) Uses a telecommunication service device for the purpose of obtaining telecommunication services, the value of which does not exceed $300 in any six-month period, without obtaining the consent of the holder of the telecommunication service device or the telecommunication service provider.

(2) For the purposes of this section:

"Access device" means any number or code of an existing, canceled, revoked, or nonexistent telephone number, telephone calling card number, credit card number, account number, personal identification number, or other credit device or method of numbering or coding which is employed in the issuance of telephone numbers, credit numbers, or other credit devices that can be used to obtain telecommunication service.

"Holder of access device" means a person or organization to which an access device has been issued by a telecommunication service provider.

(3) Telecommunication service fraud in the second degree is a misdemeanor. [L 1987, c 268, pt of §2; am L 1993, c 120, §3; am L 1996, c 222, §4]
Haw. Rev. Stat. § 707-781 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-781
[ §707-781] Labor trafficking in the first degree.
Status: in_force

[ §707-781] Labor trafficking in the first degree. (1) A person commits the offense of labor trafficking in the first degree if the person intentionally or knowingly provides or obtains, or attempts to provide or obtain, another person for labor or services by any of the following means committed against the other person:

(a) Any of the acts constituting extortion as described in section 707-764, except that for purposes of this paragraph "labor" and "services" shall be as defined in section 707-780;

(b) The acts constituting kidnapping as described in section 707-720(1)(a) through (g), except that for purposes of this paragraph "labor" and "services" shall be as defined in section 707-780;

(c) The acts described in section 707-721(1) or 707-722, relating to unlawful imprisonment;

(d) The acts described in section 707-730, 707-731, or 707-732, relating to sexual assault in the first, second, or third degree;

(e) Force, deadly force, or unlawful force;

(f) The acts described in the definition of deception pursuant to section 708-800, or fraud, which means making material false statements, misstatements, or omissions to induce or maintain the person to engage or continue to engage in the labor or services;

(g) Requiring that labor or services be performed to retire, repay, or service a real or purported debt, if performing the labor or services is the exclusive method allowed to retire, repay, or service the debt and the indebted person is required to repay the debt with direct labor in place of currency; provided that this shall not include labor or services performed by a child for the child's parent or guardian;

(h) The acts described in either section 707-710, 707‑711, or 707-712, relating to assault;

(i) Withholding any of the person's government-issued identification documents with the intent to impede the movement of the person;

(j) Using any scheme, plan, or pattern intended to cause the person to believe that if the person did not perform the labor or services, then the person or a friend or a member of the person's family would suffer serious harm, serious financial loss, or physical restraint; or

(k) Using or threatening to use any form of domination, restraint, or control over the person which, given the totality of the circumstances, would have the reasonably foreseeable effect of causing the person to engage in or to remain engaged in the labor or services.

(2) Labor trafficking in the first degree is a class A felony. [L 2011, c 146, pt of §1]
Haw. Rev. Stat. § 707-753 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-753
Affirmative defense to promoting child abuse.
Status: in_force

It shall be an affirmative defense to a charge of promoting child abuse in the third degree that the defendant:

(a) Possessed less than three images of child pornography; and

(b) Promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof:

(i) Took reasonable steps to destroy each such image; or

(ii) Reported the matter to a law enforcement agency and afforded that agency access to each such image. [L 2002, c 200, pt of §1]

COMMENTARY ON §§707-752 AND 707-753

Act 200, Session Laws 2002, added these sections to add the offense of third degree promoting child abuse that prohibits the knowing possession of child pornography and to provide an affirmative defense to [promoting] child abuse that includes cooperation with law enforcement or destruction of the child pornography. House Standing Committee Report No. 417-02.
Haw. Rev. Stat. § 710-1074 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1074
Intimidating a juror.
Status: in_force

(1) A person commits the offense of intimidating a juror if the person uses force or a threat with intent to influence a juror's vote, opinion, decision, or other action as a juror.

(2) "Threat" as used in this section means any threat proscribed by section 707-764(1).

(3) Intimidating a juror is a class B felony. [L 1972, c 9, pt of §1; am L 1980, c 267, §3; gen ch 1993]
Haw. Rev. Stat. § 712-1274 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1274
Failure to prosecute.
Status: in_force

If the petition is filed by a citizen or by an organization, it shall not be dismissed by the complainant or for want of prosecution except upon a sworn statement by the complainant or the complainant's attorney, setting forth the reasons why the suit should be dismissed, and the dismissal ordered by the court. In case of failure to prosecute any such suit with reasonable diligence, or at the request of the complainant, the court, in its discretion, may substitute any other citizen or organization, including, but not limited to the attorney general or the prosecutor or prosecuting attorney of the county consenting thereto for the complainant. If a suit is brought by a citizen or by an organization and the court finds that there was no reasonable ground or cause therefor, the costs shall be taxed against such citizen or organization, except that no costs shall be taxed against state or county organizations.
Haw. Rev. Stat. § 712-1228 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1228
Gambling offenses; prima facie evidence.
Status: in_force

(1) Proof that a person knowingly possessed any gambling record specified in sections 712-1224 and 712-1225 or any gambling device in section 712-1226 is prima facie evidence that the person possessed the record or device with knowledge of its contents and character.

(2) In any prosecution under this part in which it is necessary to prove the occurrence of a sporting event, a published report of its occurrence in any daily newspaper, magazine, or other periodically printed publication of general circulation, shall be admissible in evidence and shall constitute prima facie evidence of the occurrence of the event. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1]
Haw. Rev. Stat. § 702-214 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-214
Causal relationship between conduct and result.
Status: in_force

Conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred.

COMMENTARY ON §702-214

This section and the following three sections deal with the problem of causation, which is of critical importance in those offenses in which a particular result of conduct is an element. The difficulty of the problem of causation does not lie in making a determination of actual causation, but rather in setting the appropriate standard for determining those instances in which the defendant will not be held liable for the result of the defendant's conduct because the defendant did not intend or contemplate the result or was unaware of the risk that it would obtain. The law has in some cases, under the inarticulate phrase "proximate cause," divorced the result of the defendant's conduct from the conduct because the defendant's state of mind with respect to the result would not allow the just imposition of liability. The four sections commencing here attempt a rational articulation of the factors which ought properly to be considered.

The section states the definition of actual causation. It is commonly called the "but-for" test. Once it is established that the defendant's conduct was the antecedent but for which the prohibited result would not have occurred, consideration of causality in its strict sense is finished and attention must then shift to §§702-215 and 216 which deal with the defendant's culpability with respect to the result. Section 702-217 deals with causation in offenses of absolute liability.

Hawaii law has previously not dealt directly with the problem of causation in the penal law context. However, in a case of murder, where the defendant claimed lack of intent on the basis that the victim was accidently killed when the victim stepped between the defendant and the intended victim, the court held that the defendant's intent was sufficient culpability.[1] A more sound rationale for the decision is supplied by §702-215; actual causation of the result having been established, the defendant will not be relieved of liability for an unintended result merely because another person, rather than the intended victim, was injured.

__________

§702-214 Commentary:

1. Territory v. Alcantara, 24 Haw. 197 (1918).
Haw. Rev. Stat. § 708-832 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-832
Theft in the third degree.
Status: in_force

(1) A person commits the offense of theft in the third degree if the person commits theft:

(a) Of property or services the value of which exceeds $250; or

(b) Of gasoline, diesel fuel, or other related petroleum products used as propellants of any value not exceeding $750.

(2) Theft in the third degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1974, c 201, §2 and c 242, §2; am L 1979, c 106, §7; am L 1986, c 314, §65; am L 2006, c 230, §38; am L 2016, c 231, §38]
Haw. Rev. Stat. § 701-112 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-112
Former prosecution in another jurisdiction: when a bar.
Status: in_force

When behavior constitutes an offense within the concurrent jurisdiction of this State and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this State under any of the following circumstances:

(1) The first prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 701-110(3), and the subsequent prosecution is based on the same conduct, unless:

(a) The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or

(b) The second offense was not consummated when the former trial began.

(2) The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which acquittal, final order, or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense for which the defendant is subsequently prosecuted.

(3) The former prosecution was improperly terminated, as improper termination is defined in section 701-110(4), and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated. [L 1972, c 9, pt of §1]

COMMENTARY ON §701-112

If the defendant has engaged in only one course of penal conduct, it seems very unjust to permit the defendant to be prosecuted twice simply because of the fortuitous circumstance that the defendant's behavior constitutes an offense in more than one jurisdiction. It is increasingly true that the federal law has made criminal various acts which are also criminal under this Code. If the federal prosecution is conducted first, it is unseemly as well as unfair for a state prosecution to follow, perhaps adding another penalty to the penalty set by federal law for the same act. Of course, a principle that there should be only one prosecution will require close cooperation between the authorities in both jurisdictions to assure that justice is done.

Subsection (1) bars a prosecution in Hawaii for the same conduct which has already resulted in an acquittal or a conviction in another jurisdiction unless the offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil, or unless the second offense was not completed when the former trial began.

Subsection (2) gives a collateral estoppel effect similar to that given in §701-111(2), and subsection (3) has the same effect as §701-111(3).

The proposed section differs from previous law. In Territory v. Lii,[1] it was held that the conviction of a person under the federal law for violation of the Mann Act did not preclude the person's conviction for procuring and pimping under Hawaii law.[2] The court looked upon the defendant's conduct as constituting two separate offenses and stated that:

The Fifth Amendment, having for its objective that no person shall be subjected to punishment for the same offense more than once, does not prohibit presentation of evidence in another and separate trial for a different offense. Neither does the Amendment nor our own statute prohibit successive prosecutions if the alleged wrongful act constitutes separate offenses in violation of two separate and distinct criminal statutes.[3]

Although the Lii case accords with the Constitution, it seems purely formalistic and harsh to subject a defendant to multiple prosecution simply because two jurisdictions have determined that the defendant's behavior constitutes an offense.
Haw. Rev. Stat. § 708-855 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-855
Criminal simulation.
Status: in_force

(1) A person commits the offense of criminal simulation if, with intent to defraud, the person makes, alters, or utters any object, so that it appears to have an antiquity, rarity, source, or authorship that it does not in fact possess.

(2) In subsection (1), "utter" means to offer, whether accepted or not, an object with representation by acts or words, oral or in writing, relating to its antiquity, rarity, source, or authorship.

(3) Criminal simulation is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §708-855

The special case of objects which have value not for what they represent, but for what they are (e.g., antiques, works of art, rare natural objects, etc.), is dealt with separately from the forgery offenses. Cases of falsification as it relates to such objects are treated separately because (a) commercial and economic repercussions are not likely to extend significantly beyond the individuals involved in the transaction, (b) there exists no danger of undermining a substantial and necessary public confidence in a medium of commerce, and (c), with regard to the typically unusual, one-of-a-kind, items and transactions involved, a given individual is both more likely and more able to protect oneself against the offender.
Haw. Rev. Stat. § 708-8201 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8201
Cable television service fraud in the second degree.
Status: in_force

(1) A person commits the offense of cable television service fraud in the second degree if the person knowingly:

(a) Possesses a cable television service device with the intent to obtain cable television service without payment of applicable charges; or

(b) Possesses written instructions or plans to make or assemble a cable television service device with the intent to use the written plans or instructions to make or assemble a device to obtain cable television service without payment of applicable charges.

(2) Cable television service fraud in the second degree is a misdemeanor. [L 1987, c 268, pt of §2]
Haw. Rev. Stat. § 708-839.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-839.6
Identity theft in the first degree.
Status: in_force

(1) A person commits the offense of identity theft in the first degree if that person makes or causes to be made, either directly or indirectly, a transmission of any personal information of another by any oral statement, any written statement, or any statement conveyed by any electronic means, with the intent to:

(a) Facilitate the commission of a murder in any degree, a class A felony, kidnapping, unlawful imprisonment in any degree, extortion in any degree, any offense under chapter 134, criminal property damage in the first or second degree, escape in any degree, any offense under part VI of chapter 710, any offense under section 711-1103, or any offense under chapter 842; or

(b) Commit the offense of theft in the first degree from the person whose personal information is used, or from any other person or entity.

(2) Identity theft in the first degree is a class A felony. [L 2002, c 224, pt of §1]
Haw. Rev. Stat. § 708-871.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-871.5
False labeling of Hawaii-grown coffee.
Status: in_force

(1) A person commits the offense of false labeling of Hawaii-grown coffee if the person knowingly transports, distributes, advertises, sells, or possesses with the intent to sell Hawaii-grown green coffee, cherry coffee, parchment coffee, or roasted coffee that is falsely labeled with regard to the geographic origin of the Hawaii-grown coffee.

(2) For the purposes of this section:

"Cherry coffee" means the unprocessed fruit of the coffee plant.

"Geographic origin" means the geographic areas designated as follows:

(a) Hamakua is the Hamakua district on the island of Hawaii, as designated by the State of Hawaii tax map;

(b) Hawaii is the State of Hawaii;

(c) Kau is the Kau district on the island of Hawaii, as designated by the State of Hawaii tax map;

(d) Kauai is the island of Kauai;

(e) Kona is the north Kona and south Kona districts on the island of Hawaii, as designated by the State of Hawaii tax map;

(f) Maui is the island of Maui;

(g) Molokai is the island of Molokai; and

(h) Oahu is the island of Oahu.

"Green coffee" means the agricultural commodity comprised of green coffee beans.

"Parchment coffee" means the dried product that remains when coffee cherries are processed by removing the coffee seeds from the pulp.

"Roasted coffee" means a product that results from heating the cherry coffee seeds to augment aroma and flavor.

(3) False labeling of Hawaii-grown coffee is a class C felony. In addition to any penalties imposed pursuant to section 706-605, the court shall impose on any defendant convicted of false labeling of Hawaii-grown coffee a mandatory minimum fine of $7,500 for each separate offense. Each act of false labeling of Hawaii-grown coffee shall constitute a distinct and separate offense. The mandatory minimum fine imposed shall not be suspended or waived. [L 2012, c 328, §1; am L 2025, c 126, §2]

COMMENTARY ON §708-871.5

Act 328, Session Laws 2012, added this section, making the offense of false labeling of Hawaii-grown coffee with regard to the geographic origin of the coffee a class C felony. Act 328 provided stronger criminal penalties to help deter the distribution of Hawaii-grown coffee that was falsely labeled as to geographic origin. Senate Standing Committee Report No. 3239, Conference Committee Report No. 114-12.

Act 126, Session Laws 2025, amended this section to expand the offense of false labeling of Hawaii-grown coffee to include roasted coffee. The legislature found that Hawaii-grown coffee is one of the State's most valuable and well-known agricultural products, contributing significantly to the economy through direct sales, employment, land preservation, and tourism. However, the industry faced an ongoing threat from coffee counterfeiting, where cheaper, lower-quality coffee is falsely labeled as originating from Hawaii. To protect this lucrative industry, the legislature enacted Act 211, Session Laws 2023, which required all coffee products carrying a Hawaii geographical reference to disclose the location where the coffee was grown and indicate the percentage by weight of locally grown coffee and coffee grown elsewhere. However, existing law was focused on green, or unroasted, coffee, creating a loophole that allowed mislabeling of roasted coffee containing little or no genuine Hawaii-grown beans despite most fraud, mislabeling, and misrepresentations of coffee occurring almost exclusively in roasted coffee products. Accordingly, Act 126 addressed this loophole and strengthened consumer protections by ensuring that roasted coffee labeled as Hawaii-grown truly originates from Hawaii farms. House Standing Committee Report No. 895, House Standing Committee Report No. 190, Senate Standing Committee Report No. 1324.
Haw. Rev. Stat. § 703-305 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-305
Use of force for the protection of other persons.
Status: in_force

(1) Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable to protect a third person when:

(a) Under the circumstances as the actor believes them to be, the person whom the actor seeks to protect would be justified in using such protective force; and

(b) The actor believes that the actor's intervention is necessary for the protection of the other person.

(2) Notwithstanding subsection (1):

(a) When the actor would be obliged under section 703-304 to retreat, to surrender the possession of a thing, or to comply with a demand before using force in self-protection, the actor is not obliged to do so before using force for the protection of another person, unless the actor knows that the actor can thereby secure the complete safety of such other person;

(b) When the person whom the actor seeks to protect would be obliged under section 703-304 to retreat, to surrender the possession of a thing or to comply with a demand if the person knew that the person could obtain complete safety by so doing, the actor is obliged to try to cause the person to do so before using force in the person's protection if the actor knows that the actor can obtain the other's complete safety in that way; and

(c) Neither the actor nor the person whom the actor seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in the actor's or the person's own. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

In subsection (2)(a), "and" deleted pursuant to §23G-15.

COMMENTARY ON §703-305

This section extends the defense of justification to include the use of physical force to protect another person on the same terms as the defense is available for the use of force in self-protection. The Code follows the Model Penal Code in allowing defense of others regardless of the relationship between the actor and the person being protected. It permits a person to use force to protect another person when the actor believes the other person would have been justified in using force to protect himself and he believes that his intervention is necessary to protect the other person. This formulation covers situations in which the other's infirmity, infancy, or other physical condition makes him especially unable to protect himself or susceptible to injury, even though the actor, in a similar predicament, might not himself have been justified in using force.

Subsection (2) provides certain exceptions and limitations. The actor need not retreat, surrender possession, or comply with a demand unless the actor knows the actor can thereby secure the complete safety of the other person. The actor must try to persuade the other person to retreat, surrender possession, or comply with a demand if the actor knows the actor can obtain the other's complete safety in that way. Finally, retreat is not required if the action takes place in the other's dwelling or place of business to any greater degree than is required in §703-304.

Hawaii case law shows only bare recognition of this type of justification.[1] The Code provides codification and elaboration.
Haw. Rev. Stat. § 706-623 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-623
Terms of probation.
Status: in_force

(1) [Repeal and reenactment on June 30, 2026. L 2020, c 19, §15.] When the court has sentenced a defendant to be placed on probation, the period of probation shall be as follows, unless the court enters the reason therefor on the record and sentences the defendant to a shorter period of probation:

(a) Ten years upon conviction of a class A felony;

(b) Five years upon conviction of a class B or class C felony under part II, V, or VI of chapter 707, chapter 709, and part I of chapter 712 and four years upon conviction of any other class B or C felony;

(c) One year upon conviction of a misdemeanor; except that upon a conviction under section 586-4, 586-11, or 709-906, the court may sentence the defendant to a period of probation not exceeding two years; or

(d) Six months upon conviction of a petty misdemeanor; provided that up to one year may be imposed upon a finding of good cause; except upon a conviction under section 709-906, the court may sentence the defendant to a period of probation not exceeding one year.

The court, on application of a probation officer, on application of the defendant, or on its own motion, may discharge the defendant at any time. Prior to the court granting early discharge, the defendant's probation officer shall be required to report to the court concerning the defendant's compliance or non-compliance with the conditions of the defendant's probation and the court shall afford the prosecuting attorney an opportunity to be heard. The terms of probation provided in this part, other than in this section, shall not apply to sentences of probation imposed under section 706-606.3.

(2) When a defendant who is sentenced to probation has previously been detained in any state or county correctional or other institution following arrest for the crime for which sentence is imposed, the period of detention following arrest shall be deducted from the term of imprisonment if the term is given as a condition of probation. The pre-sentence report shall contain a certificate showing the length of such detention of the defendant prior to sentence in any state or county correctional or other institution, and the certificate shall be annexed to the official records of the defendant's sentence. [L 1972, c 9, pt of §1; am L 1986, c 314, §24; am L 1989, c 124, §1; am L 1993, c 316, §§3, 6; am L 1994, c 229, §2; am L 1995, c 157, §1; am L 1998, c 172, §7; am L 2001, c 127, §3; am L 2006, c 230, §19; am L 2009, c 88, §§8, 17(1); am L 2010, c 166, §21; am L 2012, c 140, §3 and c 143, §1; am L 2020, c 19, §2]
Haw. Rev. Stat. § 704-403 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-403
Physical or mental disease, disorder, or defect excluding fitness to proceed.
Status: in_force

No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against the person or to assist in the person's own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

COMMENTARY ON §704-403

The section sets forth the universally accepted position in Anglo-American law that a defendant cannot be proceeded against (with the exception of being charged) unless the defendant has the capacity to understand the proceedings against the defendant and assist in the defendant's own defense. The Code deliberately avoids terms such as "the then present insanity"[1] and focuses on those factors which call for a suspension of the proceedings: (1) lack of capacity to understand the proceedings, or (2) lack of capacity to assist in the defense.
Haw. Rev. Stat. § 710-1010.2 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1010.2
[ § 710-1010.
Status: in_force

[ § 710-1010.2] Official misconduct. (1) A public servant commits the offense of official misconduct when, in the person 's official capacity, the person:

(a) With intent to obtain a benefit other than the person's lawful compensation, intentionally or knowingly performs an act using the power of that person's office, knowing that the act constitutes an unauthorized exercise of the person's official functions;

(b) With intent to obtain a benefit other than the person's lawful compensation, intentionally or knowingly refrains from performing an official duty that is imposed upon the person by law or is clearly inherent in the nature of the person's office; or

(c) Intentionally or knowingly submits or invites reliance on any statement, document, or record, in written, printed, or electronic form, that the person knows to be falsely made, completed, or altered, or in which the person knows to contain a false statement or false information.

(2) As used in this section:

"An official duty that is imposed upon the person by law or is clearly inherent in the nature of the person's office" means one or more unspecified duties that are so essential to the accomplishment of the purposes for which the office was created that it is clearly inherent in the nature of the office.

"Official function" means the decision, opinion, recommendation, vote, or other exercise or performance of duty of a public servant.

(3) Official misconduct is a class C felony. [L 2023, c 130, §2]

COMMENTARY ON §710-1010.2

Act 130, Session Laws 2023, added this section to establish the class C felony offense of official misconduct to prohibit a person, in the person's official capacity, from acting or refraining from performing an official duty with the intent to obtain a benefit other than the person's lawful compensation, or submitting or inviting reliance on any false statement, document, or record. The legislature found that public corruption can take many forms beyond mere economic gain, including illegal lobbying, bribery, sexual favors, favorable school placements, and other actions that violate the public trust for personal gain. Accordingly, Act 130 provided a mechanism to increase the public's trust and confidence in the state and local government while providing law enforcement with a tool to adequately deter and commensurately punish public corruption. Senate Standing Committee Report No. 1614, House Standing Committee Report No. 813, Conference Committee Report No. 8.
Haw. Rev. Stat. § 710-1014 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1014
Rendering a false alarm.
Status: in_force

(1) A person commits the offense of rendering a false alarm if the person knowingly causes a false alarm of fire or other emergency to be transmitted to or within an official or volunteer fire department, any other government agency, or any public utility that deals with emergencies involving danger to life or property.

(2) Rendering a false alarm is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §710-1014

The rendering of a false fire alarm is almost universally made criminal. The Code generalizes the principle to cover all emergency alarms and all governmental emergency organizations (the police would be included while responding to an alarm of this character), public utilities that deal with emergencies, and, in the case of fire departments, volunteer organizations. The justification for the provision is the prevention of the "waste of government resources and the likelihood that the actor will cause personnel or equipment to be unavailable to deal with real emergencies."[1]

__________

§710-1014 Commentary:

1. M.P.C., Tentative Draft No. 6, comments at 144 (1957).
Haw. Rev. Stat. § 708-8105 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8105
Credit card lists prohibited; penalty.
Status: in_force

(1) It is unlawful for any person, business, corporation, partnership, or other agency to make available, lend, donate, or sell any list or portion of a list of any credit cardholders and their addresses and account numbers to any third party without the express written permission of the issuer and the cardholders; except that a credit card issuer may make a list of its cardholders, including names, addresses, and account numbers, available, without the permission of the cardholders, to a third party pursuant to a contract, if the contract contains language requiring the third party to bind through contract each of its subcontractors by including language prohibiting the divulging of any part of the list for any purpose by the subcontractors except to fulfill and service orders pursuant to the contract between the credit card issuer and the authorized third party.

Notwithstanding any contrary provision of this section, a "consumer reporting agency", as that term is defined by the Fair Credit Reporting Act, Public Law No. 91-508, may provide lists of credit account names, addresses, and account numbers to third parties pursuant to that Act. Nothing in this section shall make unlawful or otherwise prohibit the transmittal of any such information to or from a "consumer reporting agency", as that term is defined in the Fair Credit Reporting Act, or a "debt collector", as that term is defined in the Fair Debt Collection Practices Act, Public Law No. 95-109. Notwithstanding the provisions of this section, it is lawful for any corporation to make available, lend, donate, or sell any list or portion of a list of any credit cardholders and their addresses and account numbers to a subsidiary or the parent corporation of such corporation or to another subsidiary of the common parent corporation.

(2) Violation of this section is a misdemeanor. [L 1986, c 314, pt of §61]
Haw. Rev. Stat. § 702-229 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-229
Definitions relating to corporations and unincorporated associations.
Status: in_force

As used in sections 702-227 and 702-228:

"Agent" means any director, officer, servant, employee or other person authorized to act in behalf of the corporation or association and, in the case of an unincorporated association, a member of such association.

"Corporation" does not include an entity organized as or by a governmental agency for the execution of a governmental program.

"High managerial agent" means an officer of a corporation or an unincorporated association, or, in the case of a partnership, a partner, or any other agent of a corporation or unincorporated association having duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation or the unincorporated association. [L 1972, c 9, pt of §1]

Revision Note

Numeric designations deleted and definitions rearranged pursuant to §23G-15.

COMMENTARY ON §702-229

It seems clear that, in dealing with corporate penal liability, government corporations must be exempt. Penal liability in such a case is pointless.

The phrases "agent" and "high managerial agent" are broadly and inclusively defined. Given the wide variety of employment and other agency relationships, the definitions must present criteria which are very general. Further refinement or elaboration should be left to a case-by-case determination.
Haw. Rev. Stat. § 702-219 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-219
Ignorance or mistake; reduction in grade and class of the offense.
Status: in_force

Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as the defendant supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and class of the offense of which the defendant may be convicted to those of the offense of which the defendant would be guilty had the situation been as the defendant supposed.

COMMENTARY ON §702-219

This section is addressed to a limited problem. A defendant intending to commit a certain offense, may, because of reasonable ignorance or mistake on the defendant's part, engage in conduct which (if the requisite state of mind were present) would be sufficient for conviction of a graver offense. It would not be fair to convict the defendant of the graver offense (unless some reduction in penalty were made to reflect the defendant's actual culpability) and it would not be fair to allow a complete acquittal because the defendant intended some other offense than the one with which the defendant is charged.

The problem may be stated by borrowing an example from the Model Penal Code commentary:

Burglary of a dwelling house may, for example, reasonably be treated as an offense of greater gravity than burglary of a store; and it is not unreasonable to require knowledge that the structure is a dwelling or at least recklessness that such may be the case. If we conceive of a defendant who had every ground to think that it was a store, although it actually was a dwelling, it may not be right to hold him for the graver crime. The doctrine that when one intends a lesser crime he may be convicted of a graver offense committed inadvertently leads to anomalous results if it is generally applied in the penal law....

If the defendant in the circumstances supposed is exculpated of the graver crime, it seems clear, however, that he should not be acquitted.[1]

The Code, following the suggestion of the Model Penal Code, resolves the dilemma by authorizing conviction for the graver offense while limiting the sentence (the grade and class) to that authorized for the offense which the defendant would have committed had the situation been as the defendant supposed. This limitation reflects the defendant's limited culpability.

__________

§702-219 Commentary:

1. M.P.C., Tentative Draft No. 4, comments at 137 (1955).
Haw. Rev. Stat. § 708-811 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-811
Burglary in the second degree.
Status: in_force

(1) A person commits the offense of burglary in the second degree if the person intentionally enters or remains unlawfully in a building with intent to commit therein a crime against a person or against property rights.

(2) Burglary in the second degree is a class C felony. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 712-1217 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1217
Open lewdness.
Status: in_force

(1) A person commits the offense of open lewdness if in a public place the person does any lewd act which is likely to be observed by others who would be affronted or alarmed.

(2) Open lewdness is a petty misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 707-701.5 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-701.5
Murder in the second degree.
Status: in_force

(1) Except as provided in section 707-701, a person commits the offense of murder in the second degree if the person intentionally or knowingly causes the death of another person; provided that this section shall not apply to actions taken under chapter 327L.

(2) Murder in the second degree is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706-656. [L 1986, c 314, §50; am L 2018, c 2, §6]

COMMENTARY ON §707-701.5

Act 2, Session Laws 2018, amended this section to provide that the offense of murder in the second degree does not apply to actions taken pursuant to chapter 327L, which allows an adult resident of the State with a medically confirmed terminal disease and less than six months to live to obtain a prescription for medication to end the person's life. The amendment was included among several immunities established for persons or organizations acting in good faith compliance with chapter 327L, including physicians, their associates, and the facilities or institutions where they provide services. Senate Standing Committee Report No. 3251.
Haw. Rev. Stat. § 710-1015 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1015
False reporting to law-enforcement authorities.
Status: in_force

(1) A person commits the offense of false reporting to law-enforcement authorities if the person intentionally makes a report or causes the transmission of a report to law-enforcement authorities relating to a crime or other incident within their concern when the person knows that the information contained in the report is false.

(2) False reporting to law-enforcement authorities is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §710-1015

The rationale behind this section is much the same as that behind §710-1014: it is undesirable that public resources be wasted, and it is possible that harm may occur from the diversion of public resources from legitimate needs.

The Model Penal Code and most recent state revisions deal with this problem directly.[1] The Code avoids specific listings of what kinds of information may not be falsely related to law-enforcement authorities by penalizing all knowing transmission of false information relating to a crime or other incident within their concern. This proscription would include cases where the crime or incident did not occur and where the report pretends to furnish information which the actor does not have.
Haw. Rev. Stat. § 707-712.7 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-712.7
Assault against an emergency worker.
Status: in_force

(1) A person commits the offense of assault against an emergency worker if the person, during an emergency period proclaimed by the governor or mayor pursuant to chapter 127A, within the area covered by the emergency or disaster:

(a) Intentionally, knowingly, or recklessly causes serious or substantial bodily injury to an emergency worker; or

(b) Intentionally, knowingly, or recklessly causes bodily injury to an emergency worker with a dangerous instrument.

(2) Assault against an emergency worker is a class B felony. [L 2006, c 116, §2; am L 2014, c 111, §16]

COMMENTARY ON §707-712.7

Act 116, Session Laws 2006, added this section, which classifies assault on an emergency worker, causing substantial bodily injury or with a dangerous weapon, as a class B felony. Act 116 penalized the commission of certain crimes during a time of a civil defense emergency proclaimed by the governor or during a period of disaster relief. The legislature found that Hurricanes Katrina and Rita created situations that highlighted the prevalence of opportunistic crimes that can occur during these times. When resources are needed to restore law and order, emergency response aid to victims may be hampered or delayed, leaving victims at an increased risk of bodily injury or death. Stronger measures to control law and order may deter looting and other crimes. House Standing Committee Report No. 757-06, Senate Standing Committee Report No. 3302, Conference Committee Report No. 64-06.

Act 111, Session Laws 2014, which amended this section, updated and recodified Hawaii's emergency management laws to conform with nationwide emergency management practices by, among other things, establishing a Hawaii emergency management agency in the state department of defense with the functions and authority currently held by the state civil defense agency; establishing the power and authority of the director of Hawaii emergency management, who will be the adjutant general, and providing the director with the functions and authority currently held by the director of civil defense; establishing county emergency management agencies, each to be under the respective county mayor's direction, with the functions and authority currently held by the local organizations for civil defense; and repealing the chapters on disaster relief [chapter 127] and the civil defense [and] emergency act [chapter 128], which were determined to be obsolete with the creation of the Hawaii emergency management agency. Conference Committee Report No. 129-14.
Haw. Rev. Stat. § 711-1110.5 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1110.5
Surrender or forfeiture of animals.
Status: in_force

Upon conviction, guilty plea, or plea of nolo contendere for any violation of section 711-1108.5, 711-1109, 711-1109.3, or 711-1109.35:

(1) The court may order the defendant to surrender or forfeit the animal whose treatment was the basis of the conviction or plea to the custody of a duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals for the time and under the conditions as the court shall order; and

(2) The court also may order the defendant to surrender or forfeit any other animals under the possession, custody, or control of the defendant to the custody of a duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals for the time and under the conditions as the court shall order, if there is substantial evidence that the animals are being abused or neglected.

The court shall order the defendant to reimburse the duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals for reasonable costs incurred to care, feed, and house any animal that is surrendered or forfeited pursuant to this section. [L 1985, c 262, §1; am L 2006, c 238, §1; am L 2007, c 114, §7; am L 2008, c 128, §§4, 7; am L 2009, c 11, §15 as superseded by c 160, §3; am L 2011, c 149, §§5, 6]
Haw. Rev. Stat. § 707-741 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-741
Incest.
Status: in_force

(1) A person commits the offense of incest if the person commits an act of sexual penetration with another who is within the degrees of consanguinity or affinity within which marriage is prohibited.

(2) Incest is a class C felony. [L 1972, c 9, pt of §1; am L 1987, c 176, §1; gen ch 1992]
Haw. Rev. Stat. § 705-512 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-512
Grading of criminal solicitation.
Status: in_force

Criminal solicitation is an offense one class or grade, as the case may be, less than the offense solicited; provided that criminal solicitation to commit murder in any degree is a class A felony.
Haw. Rev. Stat. § 712-1244 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1244
Promoting a harmful drug in the first degree.
Status: in_force

(1) A person commits the offense of promoting a harmful drug 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 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 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 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 concentrates, or any combination thereof; or

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

(2) Promoting a harmful drug in the first degree is a class A felony. [L 1972, c 9, pt of §1; am L 1975, c 119, §1 and c 163, §6(f); am L 1979, c 105, §66; am L 1981, c 31, §2; am L 1989, c 163, §3; gen ch 1992]

Revision Note

In subsection (1)(a), (b), and (c), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 712-1249 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1249
Promoting a detrimental drug in the third degree.
Status: in_force

(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.

(2) Promoting a detrimental drug in the third degree is a petty misdemeanor; provided that possession of three grams or less of marijuana is a violation, punishable by a fine of $130. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(k); gen ch 1993; am L 2019, c 273, §3; am L 2019, c 273, §3]
Haw. Rev. Stat. § 712-1277.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1277.5
Contempt.
Status: in_force

Any person who knowingly violates any order issued pursuant to this part shall be subject to civil contempt as well as punishment for criminal contempt of court under section 710-1077. Nothing in this section shall be construed in any way to preclude or preempt a criminal prosecution for violation of a controlled substance offense or any other criminal offense.
Haw. Rev. Stat. § 710-1021 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1021
Escape in the second degree.
Status: in_force

(1) A person commits the offense of escape in the second degree if the person intentionally escapes from a correctional or detention facility or from custody.

(2) Escape in the second degree is a class C felony. [L 1972, c 9, pt of 1; gen ch 1993]
Haw. Rev. Stat. § 707-727 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-727
Custodial interference in the second degree.
Status: in_force

(1) A person commits the offense of custodial interference in the second degree if:

(a) The person intentionally or knowingly takes, entices, conceals, or detains a minor knowing that the person has no right to do so; or

(b) The person intentionally or knowingly takes, entices, conceals, or detains from lawful custody any incompetent person, or other person entrusted by authority of law to the custody of another person or an institution.

(2) Custodial interference in the second degree is a misdemeanor, if the minor or incompetent person is taken, enticed, concealed, or detained within the State. If the minor or incompetent person is taken, enticed, concealed, or detained outside of the State under this section, custodial interference in the second degree is a class C felony. [L 1981, c 171, pt of §1; am L 1994, c 245, §2]
Haw. Rev. Stat. § 712A-7.5 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-7.5
Equitable sharing program; restrictions.
Status: in_force

Notwithstanding the provisions of section 712A-7, a seizing agency or prosecuting attorney shall not enter into an agreement to transfer or refer property seized under section 712A-6 to a federal agency directly, indirectly, through adoption, through an intergovernmental joint task force, or by any other means that would circumvent the provisions of this chapter, unless the seized property includes United States currency in excess of $100,000.

COMMENTARY ON §712A-7.5

Act 288, Session Laws 2025, added this section to limit the transfer of certain forfeiture property to federal agencies. The legislature found that the State's existing property forfeiture process required reform to ensure greater fairness, transparency, and accountability. Accordingly, Act 288 would make the State's civil asset forfeiture process more fair and just. Senate Standing Committee Report No. 1238, House Standing Committee Report No. 618.
Haw. Rev. Stat. § 708A-3 — HI Code / Division 5 / Title 37 / Chapter 708A / Section 708A-3
Money laundering; criminal penalty.
Status: in_force

(1) It is unlawful for any person:

(a) Who knows that the property involved is the proceeds of some form of unlawful activity, to knowingly transport, transmit, transfer, receive, or acquire the property or to conduct a transaction involving the property, when, in fact, the property is the proceeds of specified unlawful activity:

(i) With the intent to promote the carrying on of specified unlawful activity; or

(ii) Knowing that the transportation, transmission, transfer, receipt, or acquisition of the property or the transaction or transactions is designed in whole or in part to:

(A) Conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(B) Avoid a transaction reporting requirement under state or federal law;

(b) Who knows that the property involved in the transaction is the proceeds of some form of unlawful activity, to knowingly engage in the business of conducting, directing, planning, organizing, initiating, financing, managing, supervising, or facilitating transactions involving the property that, in fact, is the proceeds of specified unlawful activity:

(i) With the intent to promote the carrying on of specified unlawful activity; or

(ii) Knowing that the business is designed in whole or in part to:

(A) Conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(B) Avoid a transaction reporting requirement under state or federal law; or

(c) To knowingly conduct or attempt to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity, with the intent to:

(i) Promote the carrying on of specified unlawful activity; or

(ii) Conceal or disguise the nature, the location, the source, the ownership, or the control of property believed to be the proceeds of specified unlawful activity.

(2) For the purpose of the offense described in subsection (1)(c), the defendant's knowledge may be established by proof that a law enforcement officer represented the matter specified in subsection (1)(c) as true, and the defendant's subsequent statements or actions indicate that the defendant believed the representations to be true.

(3) For the purposes of subsection (1)(c), the term "represented" means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a state or county official authorized to investigate or prosecute violations of this section.

(4) This section shall not apply to any person who commits any act described in this section unless:

(a) The person believes the value or aggregate value of the property transported, transmitted, transferred, received, or acquired is $8,000 or more; or

(b) The value or the aggregate value of the property transported, transmitted, transferred, received, or acquired is $8,000 or more.

(5) A person who violates subsection (1):

(a) Is guilty of a class C felony where the value or aggregate value of the property transported, transmitted, transferred, received, or acquired is less than $10,000, and may be fined not more than $16,000 or twice the value of the property involved, whichever is greater; or

(b) Is guilty of a class B felony where the value or aggregate value of the property transported, transmitted, transferred, received, or acquired is $10,000 or more, and may be fined not more than $25,000 or twice the value of the property involved, whichever is greater. [L 1995, c 119, pt of §2; am L 1999, c 226, §1]

COMMENTARY ON §708A-3

Act 226, Session Laws 1999, amended this section by, among other things, creating a class C felony for persons guilty of money laundering when the value or aggregate value of the property involved is less than $10,000 but greater than $8,000, and imposing fines of no more than $16,000 or no more than twice the value of the property, whichever is greater, upon individuals found guilty of a class C felony. The legislature found that the minimum $10,000 ceiling for a money laundering transaction enables criminal organizations to avoid prosecution by structuring their illegal transactions to remain below $10,000. The legislature further found that this frustrates attempts by law enforcement and prosecutors to pursue criminal penalties against money launderers until the amount that they can prove has been laundered surpasses the $10,000 level. The legislature agreed that adding a lower offense for money laundering a lower sum would appropriately penalize such behavior. Senate Standing Committee Report No. 1494.
Haw. Rev. Stat. § 706-666 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-666
Definition of proof of conviction.
Status: in_force

(1) An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a conviction for purposes of sections 706-606.5, 706-662, and 706-665, although sentence or the execution thereof was suspended, provided that the defendant was not pardoned on the ground of innocence.

(2) Prior conviction may be proved by any evidence, including fingerprint records made in connection with arrest, conviction, or imprisonment, that reasonably satisfies the court that the defendant was convicted. [L 1972, c 9, pt of §1; am L 1982, c 246, §1]

COMMENTARY ON §706-666

Section 706-666 is addressed to the problems of the definition and proof of former convictions. The Code takes the position that, in determining whether the defendant is a persistent offender, conviction per se is sufficient provided the time for appeal has expired and the defendant has not been pardoned on the ground of innocence. The fact that the disposition of the defendant resulted in a suspended sentence or a suspended execution of a sentence should not be held material for purposes of extended terms.

Subsection (2) provides for a non-restrictive approach to admitting evidence on prior convictions. Since (1) the evidence relied upon is largely official records, (2) the issue is tried to the court, and (3) the court is not compelled to find the defendant a persistent offender, or to impose an extended term even if the minimal requirements are established, no sound purpose would be served by adopting a restrictive evidentiary approach.

SUPPLEMENTAL COMMENTARY ON §706-666

Act 246, Session Laws 1982, clarified the definition of a conviction by providing that an adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a conviction.
Haw. Rev. Stat. § 707-761 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-761
Extortionate extension of credit; prima facie evidence.
Status: in_force

(1) An extortionate extension of credit is any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.

(2) In any prosecution under this part, if it is shown that all of the following factors were present in connection with the extension of credit in question, there is prima facie evidence that the extension of credit was extortionate, but this section is nonexclusive and in no way limits the effect or applicability of subsection (1):

(a) The repayment of the extension of credit, or the performance of any promise given in consideration thereof, would be unenforceable, through civil judicial processes against the debtor:

(i) In the jurisdiction within which the debtor, if a natural person, resided; or

(ii) In every jurisdiction within which the debtor, if other than a natural person, was incorporated or qualified to do business at the time the extension of credit was made;

(b) The extension of credit was made at a rate of interest in excess of a yearly rate of forty-five per cent calculated according to the actuarial method of allocating payments made on a debt between principal and interest, pursuant to which payment is applied first to the accumulated interest and the balance applied to the unpaid principal;

(c) At the time the extension of credit was made, the debtor reasonably believed that either:

(i) One or more extensions of credit by the creditor had been collected or attempted to be collected by extortionate means, or the nonrepayment thereof had been punished by extortionate means; or

(ii) The creditor had a reputation for the use of extortionate means to collect extensions of credit or to punish the nonrepayment thereof;

(d) Upon the making of the extension of credit, the total of the extensions of credit by the creditor to the debtor then outstanding, including any unpaid interest or similar charges, exceeded $100.

(3) In any prosecution under this part, if evidence has been introduced tending to show the existence of any of the circumstances described in subparagraph (2)(a) or (2)(b) of this section, and direct evidence of the actual belief of the debtor as to the creditor's collection practices is not available, then for the purpose of showing the understanding of the debtor and the creditor at the time the extension of credit was made, the court may in its discretion allow evidence to be introduced tending to show the reputation as to collection practices of the creditor in any community of which the debtor was a member at the time of the extension. [L 1979, c 106, pt of §1; am L 1980, c 232, §38]
Haw. Rev. Stat. § 712-1271 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1271
Suit to abate.
Status: in_force

(1) Whenever there is reason to believe that a nuisance as defined in this chapter is in existence, kept, or maintained in any county, the attorney general of the State or the prosecutor or prosecuting attorney of the respective counties shall, or any citizen of the State residing within such county may in the citizen's own name, or any organization, including, but not limited to a tenant organization within such county may in the organization's own name, maintain a suit to abate and prevent the nuisance and to perpetually enjoin the person or persons causing, maintaining, aiding, abetting, or permitting the nuisance, or the owner, lessee, or agent of the building, premises, or place in or upon which the nuisance exists from directly or indirectly causing, maintaining, aiding, abetting, or permitting the nuisance.

(2) No action authorized under this part which seeks to abate or prevent a nuisance shall be filed or maintained against the State or any political subdivision thereof. [L 1979, c 181, pt of §2; gen ch 1993; am L 1996, c 246, §2; am L 1998, c 286, §2; am L 2005, c 123, §3]
Haw. Rev. Stat. § 711-1143 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1143
Rescission of declaration.
Status: in_force

(1) The owner of a dangerous dog may apply to the animal control authority to have the declaration rescinded after three years if all of the following requirements have been met:

(a) The owner and dangerous dog have had no subsequent violations of this part;

(b) The owner has complied with all provisions of this part for a period of three years; and

(c) The owner provides proof to the animal control authority of the dangerous dog's successful completion of a behavior modification or management program administered by an animal trainer or behaviorist who is certified by a nationally recognized organization.

(2) If the animal control authority finds that the owner and dangerous dog have complied with all of the requirements of this section and the owner has provided sufficient evidence that the dog is no longer dangerous, the animal control authority shall rescind the declaration. [L 2024, c 224, pt of §2; am L 2025, c 21, §19]
Haw. Rev. Stat. § 706-661 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-661
Extended terms of imprisonment.
Status: in_force

The court may sentence a person who satisfies the criteria for any of the categories set forth in section 706-662 to an extended term of imprisonment, which shall have a maximum length as follows:

(1) For murder in the second degree--life without the possibility of parole;

(2) For a class A felony--indeterminate life term of imprisonment;

(3) For a class B felony--indeterminate twenty-year term of imprisonment; and

(4) For a class C felony--indeterminate ten-year term of imprisonment.

When ordering an extended term sentence, the court shall impose the maximum length of imprisonment. The minimum length of imprisonment for an extended term sentence under paragraphs (2), (3), and (4) shall be determined by the Hawaii paroling authority in accordance with section 706-669. [L 1972, c 9, pt of §1; am L 1976, c 92, §8; am L 1999, c 286, §2; am L 2006, c 230, §§23, 54; am L Sp 2007 2d, c 1, §2]

Applicability of Act 1, Second Special Session of 2007

L Sp 2007 2d, c 1, §5 provides:

"SECTION 5. This Act shall apply to all sentencing or resentencing proceedings pending on or commenced after the effective date of this Act [October 31, 2007], whether the offense was committed prior to, on, or after the effective date of this Act [October 31, 2007]. A defendant whose extended term of imprisonment is set aside or invalidated shall be resentenced pursuant to this Act upon request of the prosecutor. This Act shall not entitle a defendant who has previously been sentenced to an extended term to be resentenced pursuant to the procedures set forth in this Act unless the defendant is otherwise legally entitled to be resentenced."
Haw. Rev. Stat. § 707-782 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-782
[ §707-782] Labor trafficking in the second degree.
Status: in_force

[ §707-782] Labor trafficking in the second degree. (1) A person commits the offense of labor trafficking in the second degree if the person knowingly:

(a) Acts as an individual or uses a licensed business or business enterprise to aid another in a venture knowing that the other person in that venture is committing the offense of labor trafficking in the first degree; or

(b) Benefits, financially or by receiving something of value, from participation in a venture knowing or in reckless disregard of the fact that another person has engaged in any act described in paragraph (a) in the course of that venture or that another person in that venture is committing the offense of labor trafficking in the first degree.

(2) Labor trafficking in the second degree is a class B felony; provided that if a violation of subsection (1) involves kidnapping or an attempt to kidnap, sexual assault in the first, second, or third degree, or the attempt to commit sexual assault in the first, second, or third degree, or an attempt to cause the death of a person, or if a death results, the offense shall be a class A felony.

(3) Upon conviction of a defendant for an offense under subsection (1), the court shall also order that any and all business licenses issued by the State be revoked for the business or enterprise that the defendant used to aid in the offense of labor trafficking in the second degree; provided that the court, in its discretion, may reinstate a business license upon petition to the court by any remaining owner or partner of the business or enterprise who was not convicted of an offense under this section or section 707-781. [L 2011, c 146, pt of §1]
Haw. Rev. Stat. § 708A-2 — HI Code / Division 5 / Title 37 / Chapter 708A / Section 708A-2
Definitions.
Status: in_force

As used in this chapter, unless the context otherwise requires:

"Proceeds" means property of any kind acquired or derived directly or indirectly from, produced through, realized through, or caused by an act or omission.

"Property" means anything of value, including any interest, benefit, privilege, claim, or right with respect to anything of value, whether real or personal, tangible or intangible.

"Specified unlawful activity" means any act, or series of acts, that:

(a) Constitutes a felony under the laws of this State;

(b) If occurring outside this State, may be punishable by confinement for more than one year under the laws of the jurisdiction in which the act occurred;

(c) Involves an act or acts constituting the offense of gambling, criminal property damage, extortion, theft, or prostitution or a drug offense under chapters 329, 329C, or part IV of chapter 712 or any firearm offense; or

(d) If occurring outside this State, would constitute the offense of gambling, criminal property damage, extortion, theft, or prostitution or a drug offense under chapters 329, 329C, or part IV of chapter 712 or any firearm offense under the laws of this State.

"Transaction" includes a purchase, sale, trade, loan, pledge, investment, gift, transfer, transmission, delivery, deposit, withdrawal, payment, transfer between accounts, exchange of currency, extension of credit, purchase, sale, or exchange of any monetary instrument, use of a safe deposit box, or any other acquisition or disposition of property by whatever means effected.

"Unlawful activity" means any act that is chargeable or indictable as an offense of any degree or class under the laws of this State or under federal law or, if the act occurred in a jurisdiction other than this State, would be chargeable or indictable as an offense of any degree or class under the laws of this State or under federal law. [L 1995, c 119, pt of §2; am L 1996, c 22, §1]

Revision Note

Paragraphs in definition of "specified unlawful activity" redesignated pursuant to §23G-15.

COMMENTARY ON §708A-2

Act 22, Session Laws 1996, amended this section by replacing the word "state" with the word "jurisdiction" in the definitions of "specified unlawful activity" and "unlawful activity." The legislature intended to clarify that the Money Laundering Act applied not only to activities occurring within the State of Hawaii or the United States, but also to activities occurring outside the United States. House Standing Committee Report No. 375-96, Senate Standing Committee Report No. 2602.
Haw. Rev. Stat. § 708-835.7 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.7
Theft of copper.
Status: in_force

(1) A person commits the offense of theft of copper if the person commits theft of copper that weighs a pound or more, but not including legal tender of the United States.

(2) Theft of copper is a class C felony. [L 2007, c 197, §§2, 7; am L 2009, c 44, §1]
Haw. Rev. Stat. § 708-839.55 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-839.55
Unauthorized possession of confidential personal information.
Status: in_force

(1) A person commits the offense of unauthorized possession of confidential personal information if that person intentionally or knowingly possesses, without authorization, any confidential personal information of another in any form, including but not limited to mail, physical documents, identification cards, or information stored in digital form.

(2) It is an affirmative defense that the person who possessed the confidential personal information of another did so under the reasonable belief that the person in possession was authorized by law or by the consent of the other person to possess the confidential personal information.

(3) Unauthorized possession of confidential personal information is a class C felony. [L 2006, c 139, §2]

COMMENTARY ON §708-839.55

Act 139, Session Laws 2006, added this section to increase the protection of personal information by making it a class C felony to intentionally or knowingly possess the confidential information of another without authorization. Hawaii law enforcement has found it difficult to curb the rise in identity theft-related crimes when identity thieves in possession of personal information who have not yet caused a monetary loss to the victim cannot be prosecuted for crimes other than petty misdemeanor thefts. The legislature found that adding a law to make intentionally or knowingly possessing the confidential information of another without authorization a class C felony would help to deter identity theft crimes. Senate Standing Committee Report No. 2636, Conference Committee Report No. 111-06.
Haw. Rev. Stat. § 711-1141 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1141
Designation as dangerous dog; basis.
Status: in_force

(1) An officer may find and declare a dog to be a dangerous dog if the officer has probable cause to believe that the dog falls within the definition of "dangerous dog". The declaration shall be based upon:

(a) The written complaint of a person who is willing to testify that the dog has acted in a manner that causes it to fall within the definition of "dangerous dog";

(b) Actions of the dog witnessed by an officer; or

(c) Other substantial evidence admissible in court.

(2) The declaration in subsection (1) shall be in writing and shall be served by the officer upon the owner of the dangerous dog, if known, using one of the following methods:

(a) Certified mail to the owner's last known address; or

(b) Personally.

(3) The owner of a dog declared to be a dangerous dog may initiate a contested case with the declarant officer's department or agency within thirty days following the service date of the declaration. [L 2024, c 224, pt of §2; am L 2025, c 21, §17]
Haw. Rev. Stat. § 707-726 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-726
Custodial interference in the first degree.
Status: in_force

(1) A person commits the offense of custodial interference in the first degree if:

(a) The person:

(i) Intentionally or knowingly violates a court order issued pursuant to chapter 586, or intentionally or knowingly takes, entices, conceals, or detains the minor from any other person who has a right to custody pursuant to a court order, judgment, or decree; and

(ii) Removes the minor from the State;

(b) The person intentionally or knowingly takes, entices, conceals, or detains a minor less than eleven years old from that minor's lawful custodian, knowing that the person had no right to do so; or

(c) The person, in the absence of a court order determining custody or visitation rights, intentionally or knowingly takes, detains, conceals, or entices away a minor with the intent to deprive another person or a public agency of their right to custody, and removes the minor from the State.

(2) It is an affirmative defense to a prosecution under this section that the person had "good cause" for the violation of a court order issued pursuant to chapter 586, for the taking, detaining, concealing, or enticing away of the minor, or for removing the minor from the State; provided that the person asserting the affirmative defense filed a report with the clerk of the family court detailing the whereabouts of the minor, the person who took, enticed, detained, concealed, or removed the minor or child, and the circumstances of the event as soon as the filing of the report was practicable; and provided further that the person asserting the affirmative defense also filed a request for a custody order as soon as the filing of the request was practicable.

As used in this section, "good cause" means a good faith and reasonable belief that the taking, detaining, concealing, enticing away, or removing of the minor is necessary to protect the minor from immediate bodily injury.

(3) The identity and address of the person reporting under subsection (2) shall remain confidential unless the information is released pursuant to a court order.

(4) Custodial interference in the first degree is a class C felony. [L 1981, c 171, pt of §1; am L 1982, c 48, §2; am L 1984, c 138, §1; am L 1986, c 314, §55; am L 1994, c 245, §1; am L 1996, c 146, §1]
Haw. Rev. Stat. § 702-209 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-209
Conditional intent.
Status: in_force

When a particular intent is necessary to establish an element of an offense, it is immaterial that such intent was conditional unless the condition negatives the harm or evil sought to be prevented by the law prohibiting the offense.

COMMENTARY ON §702-209

This section provides that when the law requires that a particular intent is necessary to establish an element of an offense, that intent is established notwithstanding its conditional nature, unless the condition negatives the harm or evil sought to be prevented. The section provides for a common sense result, and the cases in which the condition negatives the harm or evil sought to be prevented will not be many; nevertheless the distinction should be stated.

The section can best be illustrated by example. A person accused of burglary would not be excused because the person intended to steal only if no one else was in the building, whereas a person charged with attempted rape, predicated on a preliminary assault, would be excused of that offense if the person intended to effect sexual intercourse only if the mature victim consented. In the latter case, however, the person would, most likely, be guilty of an assault.
Haw. Rev. Stat. § 704-405 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-405
Determination of fitness to proceed.
Status: in_force

When the defendant's fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed pursuant to section 704-404, the court may make the determination on the basis of such report. If the finding is contested, the court shall hold a hearing on the issue. When the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to summon and to cross-examine the persons who joined in the report or assisted in the examination and to offer evidence upon the issue.

COMMENTARY ON §704-405

This section departs from the prior law[1] and provides that the issue of the defendant's fitness to proceed will be determined solely by the court. In this the Code follows the Model Penal Code.[2] The fitness of the defendant to proceed is only tangentially related to the defendant's condition at the time of the conduct alleged and the defendant's responsibility for that conduct. Moreover, there might be several periodic hearings on the question of the defendant's fitness to be proceeded against. It seems unwise to afford the defendant a jury determination in each instance.

The Code also allows the court to make a determination of fitness to proceed on the basis of an uncontested report; which is in accord with prior law in felony cases.[3] The last sentence of this section allows a limited exception to the hearsay rule so that the report of an examining expert may be received in evidence without the necessity of calling the expert to the stand. The exception is not inconsistent with the purpose of the hearsay rule because the defendant is assured of the right to summon and to cross-examine the reporting examiner if the defendant wishes.
Haw. Rev. Stat. § 707-712.5 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-712.5
Assault against a law enforcement officer in the first degree.
Status: in_force

(1) A person commits the offense of assault against a law enforcement officer in the first degree if the person:

(a) Intentionally or knowingly causes bodily injury to a law enforcement officer who is engaged in the performance of duty; or

(b) Recklessly or negligently causes, with a dangerous instrument, bodily injury to a law enforcement officer who is engaged in the performance of duty.

(2) Assault of a law enforcement officer in the first degree is a class C felony. The court shall, at a minimum, sentence the person who has been convicted of this offense to:

(a) An indeterminate term of imprisonment of five years, pursuant to section 706-660; or

(b) Five years probation, with conditions to include a term of imprisonment of not less than thirty days without possibility of suspension of sentence. [L 1990, c 192, §1; am L 2003, c 66, §2]
Haw. Rev. Stat. § 712-1279 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1279
Termination of lease.
Status: in_force

The notice by the owner of any business, premises, or place to the lessee that the lease will be revoked if the lessee continues the maintenance of the nuisance, and other action taken to revoke the lease or to obtain the termination of the nuisance shall be given appropriate consideration by the court in the determination of a criminal contempt action brought against the owner in connection with abatement procedures of this part.
Haw. Rev. Stat. § 707-759 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-759
Indecent electronic display to a child.
Status: in_force

(1) Any person who intentionally masturbates or intentionally exposes the genitals in a lewd or lascivious manner live over a computer online service, internet service, or local bulletin board service and who knows or should know or has reason to believe that the transmission is viewed on a computer or other electronic device by:

(a) A minor known by the person to be under the age of eighteen years;

(b) Another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(c) Another person who represents that person to be under the age of eighteen years,

is guilty of indecent electronic display to a child.

(2) Indecent electronic display to a child is a misdemeanor. [L 2008, c 80, §1]

COMMENTARY ON §707-759

Act 80, Session Laws 2008, added this section, establishing a new offense to address a specific form of grooming conduct by child predators involving masturbation or the lewd or lascivious exposure of the predator's genitals over the computer for view by a minor. The legislature found that with the widespread use and acceptance of the Internet and computers as tools for social networking and the anonymity they appeared to provide, children and teens are at a greater risk for victimization by persons who seek out minors for sexual purposes. Online predators abuse modern day technology to covertly invade what is considered to be the most secure of places, the home. Conference Committee Report No. 82-08, Senate Standing Committee Report No. 3407.
Haw. Rev. Stat. § 708-8204 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8204
Forfeiture of telecommunication service device and cable television service device.
Status: in_force

Any telecommunication service device, cable television service device, or instructions or plans therefor, or any materials for making or assembling a telecommunication service device possessed or used in violation of sections 708-8200 to 708-8203 may be ordered forfeited to the State for destruction or other disposition, subject to the requirements of chapter 712A.
Haw. Rev. Stat. § 708-835.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.5
Theft of livestock.
Status: in_force

(1) A person commits the offense of theft of livestock if the person commits theft by:

(a) Having in the person's possession a live animal of the bovine, equine, swine, sheep, or goat species, or its carcass or meat, while in or upon premises that the person knowingly entered or remained unlawfully in or upon, and that are fenced or enclosed in a manner designed to exclude intruders; or

(b) Having in the person's possession a live animal, carcass, or meat in any other location.

(2) Possession of livestock without a livestock ownership and movement certificate, when a certificate is required pursuant to section 142-49, is prima facie evidence that the livestock is or has been stolen.

(3) Theft of livestock is a class C felony.

(4) A person convicted of committing the offense of theft of livestock shall be sentenced in accordance with chapter 706, except that for a first offense the court shall impose a minimum sentence of a fine of at least $1,000 or restitution, whichever is greater. [L 1990, c 28, §1; am L 2005, c 182, §4; am L 2006, c 230, §39]

COMMENTARY ON §708-835.5

Act 28, Session Laws 1990, added this section to specify the minimum sentences for this class C felony. House Standing Committee Report No. 78-90.

Act 182, Session Laws 2005, amended this section by establishing that possession of livestock without a livestock ownership and movement certificate is prima facie evidence that the livestock is or has been stolen. Act 182 addressed the problem of agricultural theft in Hawaii by amending various provisions of Hawaii's theft laws relating to agricultural livestock and products. Conference Committee Report No. 77, Senate Standing Committee Report No. 1359.

Act 230, Session Laws 2006, amended subsection (1) by adding goats to the types of live animal or meat, the theft of which constitutes theft of livestock. House Standing Committee Report No. 665-06.
Haw. Rev. Stat. § 705-523 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-523
Immunity, irresponsibility, or incapacity of a party to criminal conspiracy.
Status: in_force

(1) A person shall not be liable under section 705-520 for criminal conspiracy if under sections 702-224(1) and (2) and 702-225(1) he would not be legally accountable for the conduct of the other person.

(2) It is not a defense to a prosecution under section 705-520 that a person with whom the defendant conspires could not be guilty of committing the crime because:

(a) He is, by definition of the offense, legally incapable in an individual capacity of committing the offense;

(b) He is penally irresponsible or has an immunity to prosecution or conviction for the commission of the crime;

(c) He is unaware of the criminal nature of the conduct in question or of the defendant's criminal intent; or

(d) He does not have the state of mind sufficient for the commission of the offense in question.

(3) It is not a defense to a prosecution under section 705-520 that the defendant is, by definition of the offense, legally incapable in an individual capacity of committing the offense that is the object of the conspiracy. [L 1972, c 9, pt of §1]

COMMENTARY ON §705-523

The problems arising out of possible immunity, irresponsibility, or incapacity of a person to a criminal conspiracy are dealt with essentially in the commentary on §705-511 (dealing with immunity, irresponsibility, or incapacity of a party to criminal solicitation). This section is intended to resolve these problems should they arise in a conspiracy context.

This section has no counterpart in previous Hawaii law. Other jurisdictions have held that there can be no conspiracy in such situations because a conspiracy, as an agreement of two or more persons, requires at least two guilty conspirators.[1] In keeping with the unilateral approach to conspiracy of this Code, however, it is evident that the danger of the conspiracy arising from collective joint action remains essentially the same whether or not one of the conspirators cannot be successfully prosecuted. Moreover, one of the principal reasons for imposing penal liability in the area of inchoate crimes, i.e., the unequivocal presence of a strong intent to commit a crime, is present regardless of the co-conspirator's innocence, incapacity, or irresponsibility.[2]

__________

§705-523 Commentary:

1. Prop. Mich. Rev. Cr. Code, comments at 102.

2. Id.; see also commentary on §705-520.
Haw. Rev. Stat. § 707-762 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-762
Financing extortionate extensions of credit.
Status: in_force

"Financing extortionate extensions of credit" includes wilfully advancing money or property, whether as a gift, as a loan, as an investment, pursuant to a partnership or profit-sharing agreement, or otherwise to any person, with reasonable grounds to believe that it is the intention of that person to use the money or property so advanced directly or indirectly for the purpose of making extortionate extensions of credit.
Haw. Rev. Stat. § 711-1106 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1106
Harassment.
Status: in_force

(1) A person commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person:

(a) Strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact;

(b) Insults, taunts, or challenges another person in a manner likely to provoke an immediate violent response or that would cause the other person to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another;

(c) Repeatedly makes telephone calls, facsimile transmissions, or any form of electronic communication as defined in section 711-1111(2), including electronic mail transmissions, without purpose of legitimate communication;

(d) Repeatedly makes a communication anonymously or at an extremely inconvenient hour;

(e) Repeatedly makes communications, after being advised by the person to whom the communication is directed that further communication is unwelcome; or

(f) Makes a communication using offensively coarse language that would cause the recipient to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another.

(2) Harassment is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1973, c 136, §9(b); am L 1992, c 292, §4; am L 1996, c 245, §2; am L 2009, c 90, §1]
Haw. Rev. Stat. § 702-200 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-200
Requirement of voluntary act or voluntary omission.
Status: in_force

(1) In any prosecution it is a defense that the conduct alleged does not include a voluntary act or the voluntary omission to perform an act of which the defendant is physically capable.

(2) Where the defense provided in subsection (1) is based on a physical or mental disease, disorder, or defect which precludes or impairs a voluntary act or a voluntary omission, the defense shall be treated exclusively according to chapter 704, except that a defense based on intoxication which is pathological or not self-induced which precludes or impairs a voluntary act or a voluntary omission shall be treated exclusively according to this chapter. [L 1972, c 9, pt of §1; am L 1986, c 325, §1]
Haw. Rev. Stat. § 710-1016.3 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1016.3
Obtaining a government-issued identification document under false pretenses in the first degree.
Status: in_force

(1) A person commits the offense of obtaining a government-issued identification document under false pretenses in the first degree if that person, with intent to mislead a public servant and intent to facilitate a felony, obtains an identification document issued by the State or any political subdivision thereof by:

(a) Making any statement, oral or in written, printed, or electronic form, that the person does not believe to be true, in an application for any identification document issued by the State or any political subdivision thereof; or

(b) Submitting or inviting reliance on any statement, document, or record, in written, printed, or electronic form, that the person knows to be falsely made, completed, or altered.

(2) Obtaining a government-issued identification document under false pretenses in the first degree is a class C felony. [L 2002, c 224, pt of §2; am L 2014, c 33, §3]

Revision Note

Section was enacted as an addition to part V but was codified to this part pursuant to §23G-15.
Haw. Rev. Stat. § 707-703 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-703
Negligent homicide in the second degree.
Status: in_force

(1) A person commits the offense of negligent homicide in the second degree if that person causes the death of:

(a) Another person by the operation of a vehicle in a negligent manner; or

(b) A vulnerable user by the operation of a vehicle in a manner that constitutes simple negligence as defined in section 707-704(2).

(2) Negligent homicide in the second degree is a class C felony. [L 1972, c 9, pt of §1; am L 1988, c 292, §2; am L 2012, c 316, §3]
Haw. Rev. Stat. § 708-895.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-895.5
Unauthorized computer access in the first degree.
Status: in_force

(1) A person commits the offense of unauthorized computer access in the first degree if the person knowingly accesses a computer, computer system, or computer network without authorization and thereby obtains information, and:

(a) The offense was committed for the purpose of commercial or private financial gain;

(b) The offense was committed in furtherance of any other crime;

(c) The value of the information obtained exceeds $20,000; or

(d) The information has been determined by statute or rule of court to require protection against unauthorized disclosure.

(2) Unauthorized computer access in the first degree is a class A felony. [L 2001, c 33, pt of §1; am L 2012, c 293, §4]
Haw. Rev. Stat. § 708-812.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-812.6
Unauthorized entry in a dwelling in the second degree.
Status: repealed

(1) A person commits the offense of unauthorized entry in a dwelling in the second degree if the person intentionally or knowingly enters unlawfully into a dwelling and another person was lawfully present in the dwelling.

(2) Unauthorized entry in a dwelling in the second degree is a class C felony.

(3) It shall be an affirmative defense that reduces this offense to a misdemeanor that, at the time of the unlawful entry:

(a) There was a social gathering of invited guests at the dwelling the defendant entered;

(b) The defendant intended to join the social gathering; and

(c) The defendant had no intent to commit any unlawful act other than the entry. [L 2006, c 230, pt of §2; am L 2011, c 187, §3]

COMMENTARY ON §708-812.6

Act 230, Session Laws 2006, added this section, creating the offense of unauthorized entry in a dwelling. The offense is a class C felony, which may be reduced to a misdemeanor.

Act 187, Session Laws 2011, redesignated the offense of unauthorized entry in a dwelling as a second degree offense. The legislature also repealed the element of reckless disregard of the risk that another person was lawfully present in the dwelling, with the intent that the presence of a person lawfully present in the dwelling shall be a strict liability element, and for purposes of prosecuting the offense, it shall not be necessary to prove that a defendant knew or had any reason to know that someone else was lawfully in the dwelling. Conference Committee Report No. 32.
Haw. Rev. Stat. § 710-1028 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1028
Hindering prosecution; definition of rendering assistance.
Status: in_force

For the purposes of sections [710-1029 and 710-1030], a person renders assistance to another if he:

(1) Harbors or conceals such person;

(2) Warns such person of impending discovery, apprehension, prosecution, or conviction, except this does not apply to a warning given in connection with an effort to bring another into compliance with the law;

(3) Provides such person with money, transportation, weapon, disguise, or other means of avoiding discovery, apprehension, prosecution, or conviction;

(4) Prevents or obstructs, by means of force, deception, or intimidation, anyone from performing an act that might aid in the discovery, apprehension, prosecution, or conviction of such person; or

(5) Suppresses by an act of concealment, alteration, or destruction any physical evidence that might aid in the discovery, apprehension, prosecution, or conviction of such person. [L 1972, c 9, pt of §1]
Haw. Rev. Stat. § 706-642 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-642
Time and method of payment.
Status: in_force

(1) When a defendant is sentenced to pay a fine, the court may grant permission for the payment to be made within a specified period of time or in specified installments. If no such permission is embodied in the sentence, the fine shall be payable forthwith by cash, check, or by a credit card approved by the court.

(2) When a defendant sentenced to pay a fine is also sentenced to probation, the court may make the payment of the fine a condition of probation.

(3) When a defendant sentenced to pay a fine is also ordered to make restitution or reparation to the victim or victims, or to the person or party who has incurred loss or damage because of the defendant's crime, the payment of restitution or reparation shall have priority over the payment of the fine, pursuant to section 706-651. No fine shall be collected until the restitution or reparation order has been satisfied. [L 1972, c 9, pt of §1; am L 1980, c 50, §3; am L 1986, c 226, §2; am L 2016, c 231, §24]

COMMENTARY ON §706-642

This section merely gives the court specific statutory authorization for two common sentencing practices: (1) installment payments of a fine, and (2) making a fine one of the conditions of continued probation.

SUPPLEMENTAL COMMENTARY ON §706-642

Act 50, Session Laws 1980, authorized the payment of fines by credit cards in recognition of the widespread use of credit cards and to enable the courts to take advantage of an efficient system of collection.

Act 226, Session Laws 1986, ensured that, in cases where both fines and restitution are imposed, the latter has priority; no fine is to be collected until the restitution order is satisfied. In enacting this change, the legislature stated that it "supports the concept of restitution as a valuable means of compensating losses incurred by victims and confronting the offender with the direct personal consequences of the crime." Senate Standing Committee Report No. 798-86.

Act 231, Session Laws 2016, amended subsection (3) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 710-1018 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1018
Securing the proceeds of an offense.
Status: in_force

(1) A person commits the offense of securing the proceeds of an offense if, with intent to assist another in profiting or benefiting from the commission of a crime, he aids the person in securing the proceeds of the crime.

(2) Securing the proceeds of an offense is a class C felony if the person assisted committed a class A or B felony or murder of any degree; otherwise it is a misdemeanor. [L 1972, c 9, pt of §1; am L 1997, c 149, §5]

COMMENTARY ON §710-1018

This section is aimed at persons who aid others to accomplish the unlawful objects of their crimes, for example, by safeguarding the proceeds thereof or converting the proceeds into a negotiable form. The actor need not have the intent to hinder prosecution required under §§710-1029 and 1030. As the Model Penal Code commentary points out, there would be "a certain artificiality in proceeding on the theory of obstruction of justice [by hindering prosecution] against one who has really linked himself to the principal offense, and whose interest in frustrating detection is bound to be as much for himself as others."[1]
Haw. Rev. Stat. § 707-783 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-783
[ §707-783] Additional sentencing considerations; victims held in servitude.
Status: in_force

[ §707-783] Additional sentencing considerations; victims held in servitude. In addition to the factors set forth in sections 706-606 and 706-621, when determining the particular sentence to be imposed on a defendant convicted under section 707-781 or 707‑782, the court shall consider:

(a) The time for which the victim was held in servitude; and

(b) The number of victims involved in the offense for which the defendant is convicted. [L 2011, c 146, pt of §1]
Haw. Rev. Stat. § 708-818 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-818
Burglary of a building during an emergency period.
Status: in_force

(1) A person commits the offense of burglary of a building if, during an emergency period proclaimed by the governor or mayor pursuant to chapter 127A and within the area covered by the emergency period, the person intentionally enters or remains unlawfully in a building other than a dwelling with intent to commit therein a crime against a person or against property rights.

(2) Burglary of a building during an emergency period is a class B felony. [L 2006, c 116, pt of §3; am L 2014, c 111, §18]

COMMENTARY ON §§708-817 AND 708-818

Act 116, Session Laws 2006, added these sections, classifying burglary of a dwelling during a civil defense emergency or during a period of disaster relief, as a class A felony and of a building during a civil defense emergency or during a period of disaster relief, as a class B felony. Act 116 penalized the commission of certain crimes during a time of a civil defense emergency proclaimed by the governor or during a period of disaster relief. The legislature found that Hurricanes Katrina and Rita created situations that highlighted the prevalence of opportunistic crimes that can occur during these times. When resources are needed to restore law and order, emergency response aid to victims may be hampered or delayed, leaving victims at an increased risk of bodily injury or death. Stronger measures to control law and order may deter looting and other crimes. House Standing Committee Report No. 757-06, Senate Standing Committee Report No. 3302, Conference Committee Report No. 64-06.

Act 111, Session Laws 2014, amended §§708-817 and 708-818. Act 111 updated and recodified Hawaii's emergency management laws to conform with nationwide emergency management practices by, among other things, establishing a Hawaii emergency management agency in the state department of defense with the functions and authority currently held by the state civil defense agency; establishing the power and authority of the director of Hawaii emergency management, who will be the adjutant general, and providing the director with the functions and authority currently held by the director of civil defense; establishing county emergency management agencies, each to be under the respective county mayor's direction, with the functions and authority currently held by the local organizations for civil defense; and repealing the chapters on disaster relief [chapter 127] and the civil defense [and] emergency act [chapter 128], which were determined to be obsolete with the creation of the Hawaii emergency management agency. Conference Committee Report No. 129-14.
Haw. Rev. Stat. § 702-234 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-234
Consent to bodily injury.
Status: in_force

In any prosecution involving conduct which causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:

(1) The conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic event or competitive sport; or

(2) The consent establishes a justification for the conduct under chapter 703. [L 1972, c 9, pt of §1]

COMMENTARY ON §702-234

This section specifies the types of cases in which consent to conduct which threatens or causes physical injury will constitute a defense.

Where the conduct and injury are the reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, the injury to one participant, whether it be deliberate (boxing) or fortuitous (basketball or football), should not import penal liability to the other party.

Subsection (2) permits effective consent when it is given in the context of a situation which would constitute a defense of justification under chapter 703. For example, a parent may intrust the care of a child to another person, thus, under some circumstances, consenting to the use of corporal punishment, which would be sufficient to establish justification for the use of moderate physical force. Again, an adult might submit to certain medical procedures which necessarily entail severe bodily injury.

Consent to bodily harm has not been dealt with in previous Hawaii penal law.[1]

SUPPLEMENTAL COMMENTARY ON §702-234

Section 234 in the Proposed Draft of the Code provided for a defense, in addition to the above text, where "the bodily injury consented to or threatened by the conduct consented to is not serious." The legislature, in enacting the Code in 1972, rejected this defense. Conference Committee Report No. 2 (1972) stated: "The Committee finds that the law should not permit the defense of consent to have such a broad application... and that the subsection should not permit, by consent, the type of conduct which would result in bodily injury and disruption of our social fabric."

__________

§702-234 Commentary:

1. But see Burrows v. Hawaiian Trust Co., 49 Haw. 351, 360, 417 P.2d 816, 821 (1966) ("Consent is a defense to assault and battery cases as well as to others, unless consent is against the policy of the law.").
Haw. Rev. Stat. § 708-8106 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8106
Defenses not available.
Status: in_force

In any prosecution for violation of this part, the prosecution is not required to establish and it is no defense:

(1) That a person other than the defendant who violated this part has not been convicted, apprehended, or identified; or

(2) That some of the acts constituting the offense did not occur in this State or were not a crime or element of a crime where they did occur. [L 1986, c 314, pt of §61]

COMMENTARY ON §§708-8100 TO 708-8106

Act 314, Session Laws 1986, incorporated into the Code the credit card offenses previously included under chapter 851. Apart from this change, credit card offense penalties were made more severe in recognition of the increase in the criminal abuse of credit cards. Also, Act 314 barred the disclosure of credit cardholder lists, except in limited circumstances, because the procurement from stores and credit bureaus of those lists increases the likelihood of credit card fraud and theft. Senate Standing Committee Report No. 820-86, Conference Committee Report No. 51-86.

Act 55, Session Laws 1988, amended §708-8100 by lowering the value of money, goods, and services, required as an element of credit card fraud in the class C felony category, from $500 to $300. This amendment makes this section uniform with similar statutory crimes. House Standing Committee Report No. 1173-88.

Act 287, Session Laws 1993, added §708-8100.5 to provide criminal sanctions for the fraudulent encoding of a credit card. The legislature found that criminal elements are now capable of changing the magnetic encoding on a credit card to match a usable code and then use the card without detection, resulting in tremendous potential loss to the State's commerce. The legislature further found that because this type of crime is more serious and sophisticated than simple credit card fraud or simple theft and the potential for economic loss is so great, classification of this offense as a class B felony is appropriate. Conference Committee Report No. 102.

Act 230, Session Laws 2006, amended §708-8100(2) to provide that each separate use of a stolen credit card that exceeds $300 can be charged as a separate incident. House Standing Committee Report No. 665-06.
Haw. Rev. Stat. § 712-1218 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1218
Failure to maintain age verification records of sexual performers.
Status: in_force

(1) A person commits the offense of failure to maintain age verification records of sexual performers if the person knowingly produces any pornographic performance, book, magazine, periodical, film, videotape, computer image, or other matter that contains one or more pornographic visual depictions made after June 30, 2002, of sexual conduct and:

(a) Knowingly fails to create and maintain age verification records for each sexual performer;

(b) Knowingly makes or causes to be made any false entry into the age verification records of sexual performers required by this section; or

(c) Knowingly fails to produce the age verification records of sexual performers required by this section, upon request by a law enforcement officer for the purpose of verifying the age of a sexual performer.

(2) Failure to maintain age verification records of sexual performers is a class C felony. [L 2002, c 240, pt of §3]

COMMENTARY ON §712-1218

Act 240, Session Laws 2002, added this section to establish criminal penalties against those who participate in or profit from the sexual exploitation of a minor.
Haw. Rev. Stat. § 712A-20 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-20
Short title.
Status: in_force

This chapter may be cited as the "Hawaii omnibus criminal forfeiture act".
Haw. Rev. Stat. § 711-1105 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1105
Obstructing.
Status: in_force

(1) A person commits the offense of obstructing if, whether alone or with others and having no legal privilege to do so, the person knowingly or recklessly:

(a) Obstructs any highway or public passage; or

(b) Provides less than thirty-six inches of space for passage on any paved public sidewalk.

(2) A person in a gathering commits the offense of obstructing if the person refuses to obey a reasonable request or order by a law enforcement officer:

(a) To move to prevent or to cease any activity prohibited under subsection (1); or

(b) To move to maintain public safety by dispersing those gathered in dangerous proximity to a public hazard.

(3) An order to move under subsection (2)(a), addressed to a person whose speech or other lawful behavior attracts an obstructing audience, is not reasonable if the obstruction can be readily remedied by police control.

(4) A person is not guilty of violating subsection (1) solely because persons gather to hear the person speak or because the person is a member of such a gathering.

(5) Obstructing is a petty misdemeanor if the person persists in the conduct specified in subsection (1) after a warning by a law enforcement officer; otherwise it is a violation. [L 1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4; am L 2014, c 51, §1]

COMMENTARY ON §711-1105

Although obstructing was formerly covered by the disorderly conduct statute, it raises certain important problems which indicate that it should have separate treatment. Primarily the problems relate to free speech and types of expressive conduct which, under the aegis of free speech, are constitutionally protected. Normally, the act of obstructing a public highway presents a great public inconvenience and serves no useful purpose. However, where the obstruction is caused by a crowd listening to a speaker, or even by a crowd protesting some official action, important goals are served by leaving the group as free from restriction as possible. The proposed section accomplishes these objectives.

Subsection (1) defines obstructing as knowing or reckless obstruction of any highway or public passage. "Obstructs" is defined in §711-1100 as "renders impassable without unreasonable inconvenience or hazard." This conduct constitutes a violation, and if the defendant fails to heed a warning by a peace officer, it may be treated as a petty misdemeanor. However, subsection (4) makes clear that a person does not violate subsection (1) solely because of the fact that people gather to hear the person speak, or because the person is a member of such a gathering.

Subsection (2) is intended to allow reasonable control by peace officers of a public gathering which obstructs highways or which is dangerously close to a public hazard, such as a flood. A person who fails to heed a reasonable request by a peace officer in such circumstances is guilty of a violation. However, subsection (3) declares that a person engaged in speech or other lawful behavior which attracts an obstructing crowd cannot be asked to move if the obstruction can be readily remedied by police control.
Haw. Rev. Stat. § 710-1061 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1061
False swearing in official matters.
Status: in_force

(1) A person commits the offense of false swearing in official matters if the person makes, under an oath required or authorized by law, a false statement which the person does not believe to be true, and:

(a) The statement is made in an official proceeding; or

(b) The statement is intended to mislead a public servant in the performance of the public servant's official duty.

(2) False swearing in official matters is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 708-871 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-871
False advertising.
Status: in_force

(1) A person commits the offense of false advertising if, in connection with the promotion of the sale of property or services, the person knowingly or recklessly makes or causes to be made a false or misleading statement in any advertisement addressed to the public or to a substantial number of persons.

(2) "Misleading statement" includes an offer to sell property or services if the offeror does not intend to sell or provide the advertised property or services:

(a) At the price equal to or lower than the price offered;

(b) In a quantity sufficient to meet the reasonably-expected public demand, unless quantity is specifically stated in the advertisement; or

(c) At all.

(3) False advertising is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

In subsection (2)(a), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 703-303 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-303
Execution of public duty.
Status: in_force

(1) Except as provided in subsection (2), conduct is justifiable when it is required or authorized by:

(a) The law defining the duties or functions of a public officer or the assistance to be rendered to a public officer in the performance of the public officer's duties;

(b) The law governing the execution of legal process;

(c) The judgment or order of a competent court or tribunal;

(d) The law governing the armed services or the lawful conduct of war; or

(e) Any other provision of law imposing a public duty.

(2) The other sections of this chapter apply to:

(a) The use of force upon or toward the person of another for any of the purposes dealt with in those sections; and

(b) The use of deadly force for any purpose, unless the use of deadly force is otherwise expressly authorized by law or occurs in the lawful conduct of war.

(3) The justification afforded by subsection (1) applies:

(a) When the actor believes the actor's conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; and

(b) When the actor believes the actor's conduct to be required or authorized to assist a public officer in the performance of the officer's duties, notwithstanding that the officer exceeded the officer's legal authority. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

In subsection (1)(a) and (b), "or" deleted pursuant to §23G-15.

COMMENTARY ON §703-303

This section broadly sets forth the circumstances in which conduct which would otherwise constitute an offense is justifiable because it is done in the course of public duty. Subsection (1) requires reference to other statutory provisions, as well as to judgments of courts, in order to ascertain what conduct is permissible. For example, if a statutory provision permits a door to be broken down in the execution of legal process, no offense is committed thereby.

Subsection (2) makes the other provisions of chapter 703 applicable to the use of force against the person for any of the purposes dealt with in chapter 703 and to any use of deadly force other than that expressly authorized by law or occurring in the lawful conduct of war. As will be seen, the sections on the use of force and deadly force against another's person have been worded so as to apply to any actor, including a public official. Subsection (2) therefore assures that this chapter will control such activity in preference to contrary provisions of other statutes.

Subsection (3) permits use of the defense in cases in which the actor believes the actor's conduct is required or authorized, despite some defect either in the authority which appears to demand or authorize it.

The section elaborates previous Hawaii law. Force necessary to acquire entry has previously been permitted by Hawaii law when a public officer was seeking to execute a court order to seize property,[1] to search under a search warrant,[2] or to enter to arrest.[3] As subsection (1)(a) and (b) point out, such prior statutes describe conduct which will be considered as justified under this section.

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§703-303 Commentary:

1. H.R.S. §654-3.

2. Id. §803-37.

3. Id. §803-11; see Hubertson v. Cole, 1 Haw. 72, 73 (1849).
Haw. Rev. Stat. § 707-757 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-757
Electronic enticement of a child in the second degree.
Status: in_force

(1) Any person who, using a computer or any other electronic device:

(a) Intentionally or knowingly communicates:

(i) With a minor known by the person to be under the age of eighteen years;

(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or

(iii) With another person who represents that person to be under the age of eighteen years;

(b) With the intent to promote or facilitate the commission of a felony, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and

(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time;

is guilty of electronic enticement of a child in the second degree.

(2) Electronic enticement of a child in the second degree is a class C felony. Notwithstanding any law to the contrary, if a person sentenced under this section is sentenced to probation rather than an indeterminate term of imprisonment, the terms and conditions of probation shall include, but not be limited to, a term of imprisonment of one year. [L 2002, c 200, pt of §1; am L 2006, c 80, §3]

Revision Note

In subsection (1)(a)(iii), "and" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 707-712.6 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-712.6
Assault against a law enforcement officer in the second degree.
Status: in_force

(1) A person commits the offense of assault against a law enforcement officer in the second degree if the person recklessly causes bodily injury to a law enforcement officer who is engaged in the performance of duty.

(2) Assault of a law enforcement officer in the second degree is a misdemeanor. The court shall sentence the person who has been convicted of this offense to a definite term of imprisonment, pursuant to section 706-663, of not less than thirty days without possibility of probation or suspension of sentence. [L 2003, c 66, §1]
Haw. Rev. Stat. § 712-1272 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1272
Temporary writ.
Status: in_force

Whenever the existence of a nuisance is shown in a suit brought under this part to the satisfaction of the court or the judge thereof, either by verified petition or affidavit, or both, the court or judge thereof shall allow a temporary writ of injunction to abate and prevent the continuance or recurrence of such nuisance, which injunction may include a provision prohibiting the person or persons causing, maintaining, aiding, abetting, or permitting the nuisance from residing in or entering into the building, premises, or place in or upon which the nuisance exists. The petition in such suit need not be verified, except in those suits brought by a citizen in the citizen's own name, or those suits brought by an organization in its own name, but shall be signed by the party bringing the same and shall include a certification that the complainant believes the allegations of the petition to be true.
Haw. Rev. Stat. § 710-1001 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1001
Forfeiture of property used as benefit or pecuniary benefit in the commission of an offense defined in this chapter.
Status: in_force

Any property offered, conferred, agreed to be conferred, or accepted as a benefit, pecuniary benefit, or compensation in the commission of an offense defined in this chapter is forfeited, subject to the requirements of chapter 712A, to the State.

COMMENTARY ON §710-1001

This section is derived from the previous law on the forfeiture of bribery money.[1] Since this chapter deals with additional kindred offenses, e.g., compounding, giving and receiving unlawful compensation, giving and receiving improper gifts, unlawful assistance of a private interest, and obtaining unlawful assistance of a public servant, the forfeiture is expressed in general terms to cover all sections in which property is offered, conferred, agreed to be conferred, or accepted as a benefit, pecuniary benefit, or compensation in the commission of an offense defined in this chapter. The mere solicitation or agreement to accept property would not, of course, work a forfeiture.

The forfeiture is specifically made subject to the requirements of §701-119 which embodies a single procedure for the establishment of all forfeitures declared by the Penal Code. The procedure provides, as did the previous law,[2] for the protection of innocent owners of property which is involved in the commission of an offense.

__________

§710-1001 Commentary:

1. H.R.S. §725-8.

2. See id. §§725-8 to 725-11.
Haw. Rev. Stat. § 712-1278 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1278
Fine, costs, lien on place.
Status: in_force

Any attorneys' fees, costs, expenses, and fines imposed against any owner of a business, premises or place in any proceedings under this part shall be a lien upon such business, premises, or place, to the extent of the interest of such person therein, enforceable and collectible by execution issued by the order of the court.
Haw. Rev. Stat. § 712-1245 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1245
Promoting a harmful drug in the second degree.
Status: in_force

(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.

(2) Promoting a harmful drug in the second degree is a class B felony. [L 1972, c 9, pt of §1; am L 1975, c 119, §2 and c 163, §6(g); am L 1989, c 163, §4; gen ch 1992]

Revision Note

In subsection (1)(a), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 712-1219.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1219.5
Disseminating visual depiction of sexual conduct without affixed information disclosing location of age verification records of sexual performers.
Status: in_force

(1) A person commits the offense of disseminating visual depiction of sexual conduct without affixed information disclosing location of age verification records of sexual performers if the person knowingly disseminates, sells, or otherwise transfers, or offers for sale or transfer, any book, magazine, periodical, film, videotape, computer image, or other matter that contains one or more visual depictions made after June 30, 2002, of sexual conduct, and that does not have affixed thereto a statement describing where the age verification records required by section 712-1218 may be located; provided that this section shall not be construed to impose a duty upon any persons to determine the accuracy of the contents of the affixed statement or of the records required to be kept at that location.

(2) Disseminating visual depiction of sexual conduct without affixed information disclosing location of age verification records of sexual performers is a misdemeanor. [L 2002, c 240, pt of §3]

COMMENTARY ON §712-1219.5

Act 240, Session Laws 2002, added this section to establish criminal penalties against those who participate in or profit from the sexual exploitation of a minor.
Haw. Rev. Stat. § 707-768 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-768
Firearms, explosives, and dangerous weapons.
Status: in_force

Extortion in any degree is a class A felony when a firearm, explosive, or any dangerous weapon is immediately available and is physically used as part of the threat.
Haw. Rev. Stat. § 705-501 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-501
Criminal attempt; attempting to aid another.
Status: in_force

(1) A person who engages in conduct intended to aid another to commit a crime is guilty of an attempt to commit the crime, although the crime is not committed or attempted by the other person, provided his conduct would establish his complicity under sections 702-222 through 702-226 if the crime were committed or attempted by the other person.

(2) It is not a defense to a prosecution under this section that under the circumstances it was impossible for the defendant to aid the other person in the commission of the offense, provided he could have done so had the circumstances been as he believed them to be. [L 1972, c 9, pt of §1]

COMMENTARY ON §705-501

When a defendant attempts to aid another in the commission of a crime and the other person attempts or commits the substantive offense, the defendant is liable, under the complicity provisions,[1] for the conduct of the other person. However, where the other person does not attempt or commit the crime, the complicity sections and ordinary attempt definitions do not cover the situation. Subsection (1) provides that the defendant will be guilty of attempt to commit the crime if complicity would have resulted had the other person attempted or committed the substantive offense. For example: A knows that B plans to kill C; B is unaware of A's knowledge and does not seek A's assistance; A prevents a warning from reaching C which would otherwise have reached him; B changes his mind before engaging in any conduct; A is guilty of attempted murder.

In one other respect the complicity sections and the attempt sections operate jointly. If a defendant engages in some conduct intended to aid another but does not complete the course of conduct sufficient for the purpose, the question then posed is whether the more limited conduct would result in complicity under §§702-222 through 226. Section 702-222 provides that complicity may rest on attempt to aid another. In determining whether the defendant's limited conduct is sufficient to constitute an attempt to aid, the standard of substantiality as set forth in §705-500 should be followed. If A, in the example stated above, was apprehended before he was able to prevent a message of warning from reaching C, the question of A's liability would turn on the substantiality of his action, i.e., whether his conduct was strongly corroborative of his criminal intent.

Subsection (2) is intended to eliminate the defense of impossibility. In the example stated above, A would be guilty notwithstanding the fact, e.g., that C died from natural causes before the warning possibly could have reached him.

This section represents an addition to Hawaii law.

__________

§705-501 Commentary:

1. Cf. §§702-222 to 226.
Haw. Rev. Stat. § 702-201 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-201
"Voluntary act" defined.
Status: in_force

"Voluntary act" means a bodily movement performed consciously or habitually as the result of the effort or determination of the defendant.

COMMENTARY ON §702-201

This section defines "voluntary act" in general terms relying chiefly on the characteristic of voluntariness--the effort and determination of the defendant. The Code's formulation is intended to exclude from the category of voluntary action such bodily movements as (a) reflex or convulsions, (b) bodily movements during unconsciousness and sleep, (c) conduct during hypnosis or resulting from hypnotic suggestion, and (d) any other bodily movement that is not a product of the effort and determination of the defendant, either conscious or habitual.

The exclusion of involuntary action from the scope of penal liability must be viewed in the light of the provisions of chapter 704 on physical disease, disorder, and defect which exclude penal responsibility. In that chapter acquittal is conditioned on submission to treatment or commitment tailored to the condition which excludes responsibility. The Code attempts to provide "therapy or ... custodial commitment"[1] for those dangerous individuals who are unable to conform their conduct to the requirements of the law because of some condition which would be difficult to regard as a "mental disease or defect" under orthodox treatment of penal irresponsibility. At the same time, because treatment is flexible and tailored to the condition in question, it does not bear "harshly on the individual whose condition is nonrecurrent."[2]

No prior Hawaii statutory provision dealt with the issue of voluntariness of acts (other than in its relation to duress or mental disease, disorder, or defect), however, a recent case tends to support the position of the Code.[3]

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§702-201 Commentary:

1. M.P.C., Tentative Draft No. 4, comments at 119 (1955).

2. Id. at 121.

3. See State v. Matsuda, 50 Haw. 128, 432 P.2d 888 (1967).