Haw. Rev. Stat. § 704-412 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-412
Committed person; application for conditional release or discharge; by the director of health; by the person.
Status: in_force

(1) After the expiration of at least ninety days following an original order of commitment pursuant to section 704-411(1)(a), or after the expiration of at least sixty days following the revocation of conditional release pursuant to section 704-413, if the director of health is of the opinion that the person committed is still affected by a physical or mental disease, disorder, or defect and may be granted conditional release or discharged without danger to self or to the person or property of others or that the person is no longer affected by a physical or mental disease, disorder, or defect, the director shall make an application for either the conditional release or discharge of the person, as appropriate. In such a case, the director shall submit a report to the court by which the person was ordered committed and shall transmit copies of the application and report to the prosecuting attorney of the county from which the person was committed and to the person committed.

(2) After the expiration of ninety days from the date of the order of commitment pursuant to section 704-411, or after the expiration of sixty days following the revocation of conditional release pursuant to section 704-413, the person committed may apply to the court from which the person was committed for an order of discharge upon the ground that the person is no longer affected by a physical or mental disease, disorder, or defect. The person committed may apply for conditional release or discharge upon the ground that, though still affected by a physical or mental disease, disorder, or defect, the person may be released without danger to self or to the person or property of others. A copy of the application shall be transmitted to the prosecuting attorney of the county from which the person was committed. If the court denies the application, the person shall not be permitted to file another application for either conditional release or discharge until one year after the date of the hearing held on the immediate prior application.

(3) Upon application to the court by either the director of health or the person committed, the court shall complete the hearing process and render a decision within sixty days of the application; provided that for good cause the court may extend the sixty-day time frame upon the request of the director of health or the person committed. [L 1972, c 9, pt of §1; am L 2006, c 230, §11; am L 2008, c 100, §4; am L 2009, c 127, §3]

COMMENTARY ON §704-412

This section provides that the continued custody of a person who has been committed following a qualified acquittal shall depend on whether he can be discharged or conditionally released without danger to himself or to the person or property of others. The criterion is not whether continued hospitalization is medically indicated or whether the committed person has been restored to physical or mental health according to laws governing other forms of commitment. The criterion is dangerousness. The necessity of avoiding confusion here is paramount. In the case of the defendant acquitted on the basis of mental disease, it has been pointed out that:

Although his mental disease may have greatly improved, such person may still be dangerous because of factors in his personality and background other than mental disease. Also, such a standard [dangerousness] provides a possible means for control of the occasional defendant who may be quite dangerous but who successfully feigned mental disease to gain an acquittal.[1]

The section also provides for the procedure to be followed in making the application, whether application is made by the director of health or by the committed person. The requirement of notice to the prosecuting attorney and to the defendant (if application is made by the director) and the independent examination provided by §704-414 are designed to protect both the public and the committed person.
Haw. Rev. Stat. § 712-1203 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1203
Promoting prostitution.
Status: in_force

(1) A person commits the offense of promoting prostitution if the person knowingly advances or profits from prostitution.

(2) Promoting prostitution is a class B felony. [L 1972, c 9, pt of §1; am L 1993, c 130, §3; am L 2008, c 147, §9; am L 2011, c 145, §4; am L 2016, c 206, §15]
Haw. Rev. Stat. § 710-1016.6 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1016.6
Impersonating a law enforcement officer in the first degree.
Status: in_force

(1) A person commits the offense of impersonating a law enforcement officer in the first degree if, with intent to deceive, the person pretends to be a law enforcement officer and is armed with a firearm.

(2) Impersonating a law enforcement officer in the first degree is a class C felony. [L 1987, c 130, pt of §3]
Haw. Rev. Stat. § 701-114 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-114
Proof beyond a reasonable doubt.
Status: in_force

(1) Except as otherwise provided in section 701-115, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:

(a) Each element of the offense;

(b) The state of mind required to establish each element of the offense;

(c) Facts establishing jurisdiction;

(d) Facts establishing venue; and

(e) Facts establishing that the offense was committed within the time period specified in section 701-108.

(2) In the absence of the proof required by subsection (1), the innocence of the defendant is presumed. [L 1972, c 9, pt of §1; am L 1973, c 136, §2(a)]
Haw. Rev. Stat. § 704-416.5 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-416.5
Supervision of person on conditional release.
Status: in_force

(1) Any person hospitalized under this chapter who is subsequently placed on conditional release shall be subject to the supervision of a probation officer until such time as that supervision is terminated by order of the court.

(2) The probation officer shall report, as the court may order, whether the conditionally released person is complying with the conditions of the release. [L 1983, c 69, §1; am L 2006, c 230, §15]

COMMENTARY ON §704-416.5

Act 69, Session Laws 1983, added this section to this chapter so that a defendant who is acquitted and committed pursuant to this chapter shall be supervised by the adult probation division upon that person's conditional release. The legislature felt that supervision is necessary for the safety and welfare of the individual as well as the community. Senate Standing Committee Report No. 719, House Standing Committee Report No. 506.

Act 230, Session Laws 2006, made technical nonsubstantive amendments to this section.
Haw. Rev. Stat. § 702-235 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-235
Ineffective consent.
Status: in_force

Unless otherwise provided by this Code or by the law defining the offense, consent does not constitute a defense if:

(1) It is given by a person who is legally incompetent to authorize the conduct alleged;

(2) It is given by a person who by reason of youth, mental disease, disorder, or defect, or intoxication is manifestly unable or known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged;

(3) It is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or

(4) It is induced by force, duress or deception. [L 1972, c 9, pt of §1]

Revision Note

In paragraphs (1) and (2), "or" deleted pursuant to §23G-15.

COMMENTARY ON §702-235

This section deprives the defendant of a defense based on consent in those situations where the victim's apparent consent is actually meaningless.

Subsection (1) deprives consent of effectiveness if it is given by a person who is not authorized to give it. Thus, for example, consent by an unauthorized person to the taking of another's property is not effective consent.

Subsection (2) relates to persons who are manifestly unable, or known to the defendant to be unable, to make a reasonable judgment concerning the conduct consented to because of immaturity, abnormal mental capacity, or intoxication.

Subsection (3) covers those cases where the law "deliberately ignores the actual attitude on the part of the 'victim' in order to protect members of the class of which he or she is a member."[1] For example, sexual intercourse with a female below a certain age might be prohibited.

Subsection (4) reiterates in this context the general and pervasive principle that assent induced by force, duress, or deception is not legally effective consent.

It should be noted that although the Code deprives the consent of its effectiveness in the situations stated in this section, the Code does not thereby impose absolute liability. Facts which deprive consent of its effectiveness negative a defense, thereby making them elements of the offense. With respect to each element the defendant must act with a culpable state of mind. Thus, for example, sexual intercourse with a female who because of her youth cannot give effective consent does not impose automatic penal liability upon the defendant. It must be proven that with respect to the attendant circumstance of the girl's age the defendant acted culpably. This is so whether that attendant circumstance is specified in the definition of the offense or specified in a separate statute depriving her consent of effectiveness. At the very least it would have to be proven that the defendant was reckless (or, if specially provided, negligent) with respect to the girl's age, i.e., that he ignored a known (or, in the case of negligence, foreseeable) risk that the girl was below the statutory age permitting effective consent.

In Hawaii case law, cases of ineffective consent are found in relation to various sex offenses, where the consent of the female is deprived of effectiveness because of her immaturity;[2] furthermore, liability with respect to the female's age is absolute.[3] This section of the Code, as well as the definitions of sex offenses, changes this result.
Haw. Rev. Stat. § 703-310 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-310
Provisions generally applicable to justification.
Status: in_force

(1) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under sections 703-303 to 703-309 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of the actor's use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

(2) When the actor is justified under sections 703-303 to 703-309 in using force upon or toward the person of another but the actor recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence toward innocent persons. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 712-1273 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1273
Suit to have precedence.
Status: in_force

The suit when brought shall have precedence over all cases, excepting criminal proceedings, election contests, and hearings on injunctions, and in the suit evidence of the general reputation of the building, premises, place, or persons, and of the use or threat of violence shall be admissible for the purpose of proving the existence of the nuisance.
Haw. Rev. Stat. § 707-756 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-756
Electronic enticement of a child in the first 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:

(i) That is a murder in the first or second degree;

(ii) That is a class A felony; or

(iii) That is another covered offense as defined in section 846E-1,

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 first degree.

(2) Electronic enticement of a child in the first degree is a class B felony. Notwithstanding any law to the contrary, a person convicted of electronic enticement of a child in the first degree shall be sentenced to an indeterminate term of imprisonment as provided by law. [L 2002, c 200, pt of §1; am L 2006, c 80, §2; am L 2008, c 80, §3]
Haw. Rev. Stat. § 711-1104 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1104
Unlawful assembly.
Status: in_force

(1) A person commits the offense of unlawful assembly if:

(a) The person assembles with five or more other persons with intent to engage in conduct constituting a riot; or

(b) Being present at an assembly that either has or develops a purpose to engage in conduct constituting a riot, the person remains there with intent to advance that purpose.

(2) Unlawful assembly is a misdemeanor. [L 1972, c 9, pt of §1]

COMMENTARY ON §711-1104

Section 711-1104 is intended to reach those who have assembled for the purpose of rioting or who are on their way to the scene of a riot, but who have not yet begun to riot, or who associate with a group of known potential rioters with intent to aid their cause. It thus comprises both unlawful assembly and riot at the common law, and constitutes in effect an expanded concept of attempted riot. Punishment is at the misdemeanor level.

Specifically the section requires assembling with five or more others with intent to engage in conduct constituting a riot, or remaining at an assembly that develops a purpose to engage in a riot, with intent to advance that purpose.
Haw. Rev. Stat. § 707-713 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-713
Reckless endangering in the first degree.
Status: in_force

(1) A person commits the offense of reckless endangering in the first degree if the person employs widely dangerous means in a manner which recklessly places another person in danger of death or serious bodily injury or intentionally fires a firearm in a manner which recklessly places another person in danger of death or serious bodily injury.

(2) Reckless endangering in the first degree is a class C felony. [L 1972, c 9, pt of §1; am L 1978, c 215, §1; am L 1988, c 285, §1; gen ch 1992]
Haw. Rev. Stat. § 707-712 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-712
Assault in the third degree.
Status: in_force

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

(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or

(b) Negligently causes bodily injury to another person with a dangerous instrument.

(2) Assault in the third degree is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 708-814 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-814
Criminal trespass in the second degree.
Status: in_force

(1) A person commits the offense of criminal trespass in the second degree if:

(a) The person knowingly enters or remains unlawfully in or upon premises that are enclosed in a manner designed to exclude intruders or are fenced;

(b) The person enters or remains unlawfully in or upon commercial premises after a reasonable warning or request to leave by the owner or lessee of the commercial premises, the owner's or lessee's authorized agent, or a police officer; provided that this paragraph shall not apply to any conduct or activity subject to regulation by the National Labor Relations Act.

For the purposes of this paragraph, "reasonable warning or request" means a warning or request communicated in writing at any time within a one-year period inclusive of the date the incident occurred, which may be evidenced by a copy of the previously issued written warning or request, whether or not the copy is posted at the premises or retained by the county police department, and which may contain but is not limited to the following information:

(i) A warning statement advising the person that the person's presence is no longer desired on the property for a period of one year from the date of the notice, that a violation of the warning will subject the person to arrest and prosecution for trespassing pursuant to this subsection, and that criminal trespass in the second degree is a petty misdemeanor;

(ii) The legal name, any aliases, and a photograph, if practicable, or a physical description, including but not limited to sex, racial extraction, age, height, weight, hair color, eye color, or any other distinguishing characteristics of the person warned;

(iii) The name of the person giving the warning along with the date and time the warning was given; and

(iv) The signature of the person giving the warning, the signature of a witness or police officer who was present when the warning was given and, if possible, the signature of the violator;

(c) The person enters or remains unlawfully on unimproved or unused lands without the permission of the owner of the land, the owner's agent who is authorized to give the permission, or the person in lawful possession of the land, and the lands:

(i) Are fenced, enclosed, or secured in a manner designed to exclude the general public; or

(ii) Have a sign or signs displayed on the unenclosed, unimproved, or unused land sufficient to give reasonable notice and reads as follows: "Private Property - No Trespassing", "Government Property - No Trespassing", or a substantially similar message; provided that the sign or signs shall contain letters no less than two inches in height and shall be placed at reasonable intervals no less than three signs to a mile along the boundary line of the land and at roads and trails entering the land in a manner and position as to be clearly noticeable from outside the boundary line.

For the purposes of this paragraph, "unimproved or unused lands" means any land upon which there is no improvement; construction of any structure, building, or facility; or alteration of the land by grading, dredging, or mining that would cause a permanent change in the land or that would change the basic natural condition of the land. Land remains "unimproved or unused land" under this paragraph notwithstanding minor improvements, including the installation or maintenance of utility poles, signage, and irrigation facilities or systems; minor alterations undertaken for the preservation or prudent management of the unimproved or unused land, including the installation or maintenance of fences, trails, or pathways; maintenance activities, including forest plantings and the removal of weeds, brush, rocks, boulders, or trees; and the removal or securing of rocks or boulders undertaken to reduce risk to downslope properties; or

(d) The person enters or remains unlawfully in or upon any area of a housing project that is closed to the public pursuant to section 356D-6.7 and meets the signage requirements of section 356D-6.7, or the person enters or remains unlawfully in or upon any property that is subject to section 356D-6.7 and meets the signage requirements of section 356D-6.7 after a reasonable warning or request to leave by the housing authority or law enforcement officer, as defined in section 710-1000, based upon an alleged violation of law or administrative rule, notwithstanding any invitation or authorization provided to the person by a tenant of that housing project or a member of that tenant's household.

As used in this paragraph:

"Housing authority" means a property manager, resident manager, tenant monitors, security guards, or others officially designated by the Hawaii public housing authority, for the housing project.

"Housing project" means a public housing project, or elder or elderly housing as defined in section 356D-1, or state low-income housing project as defined in section 356D-51.

"Reasonable warning or request" means a warning or request communicated in writing at any time within a one-year period inclusive of the date the incident occurred, which may contain but is not limited to the following information:

(i) A warning statement advising the person that for a period of one year from the date of the notice, the person's presence is no longer desired in or on the areas of the subject housing project that are closed to the public, that a violation of the warning will subject the person to arrest and prosecution for trespassing pursuant to this subsection, and that criminal trespass in the second degree is a petty misdemeanor;

(ii) The legal name, any aliases, and a photograph, if practicable, or a physical description, including but not limited to sex, racial extraction, age, height, weight, hair color, eye color, or any other distinguishing characteristics of the person warned;

(iii) The name of the person giving the warning along with the date and time the warning was given;

(iv) The signature of the person giving the warning and, if possible, the signature of the violator; and

(v) The name and signature of a witness or law enforcement officer, as defined in section 710-1000, who was present when the warning was given.

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

(a) A process server who enters or remains in or upon the land or premises of another, unless the land or premises are secured with a fence and locked gate, for the purpose of making a good faith attempt to perform the process server's legal duties and to serve process upon any of the following:

(i) An owner or occupant of the land or premises;

(ii) An agent of the owner or occupant of the land or premises; or

(iii) A lessee of the land or premises.

For the purposes of this paragraph, "process server" means any person authorized under the Hawaii rules of civil procedure, district court rules of civil procedure, Hawaii family court rules, or section 353C-10 to serve process; or

(b) A professional land surveyor, or assistant under the direct supervision of the professional land surveyor, who enters or remains in or upon the land or premises of another for the purpose of performing land surveying at the request of the landowner of, or person with an interest in, the real property to be surveyed.

(3) Criminal trespass in the second degree is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1974, c 49, §1; am L 1979, c 201, §1; am L 1980, c 232, §40; am L 1981, c 177, §2; gen ch 1993; am L 1998, c 146, §1; am L 2004, c 50, §2; am L 2005, c 181, §2 and c 212, §3; am L 2011, c 208, §2; am L 2013, c 145, §1; am L 2015, c 101, §3; am L 2017, c 136, §3; am L 2018, c 31, §3; am L 2019, c 245, §2; am L 2023, c 209, §4; am L 2025, c 235, §39]
Haw. Rev. Stat. § 702-205 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-205
Elements of an offense.
Status: in_force

The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as:

(a) Are specified by the definition of the offense, and

(b) Negative a defense (other than a defense based on the statute of limitations, lack of venue, or lack of jurisdiction). [L 1972, c 9, pt of §1]

COMMENTARY ON §702-205

As explained in the commentary to §702-204, a clear analysis requires that the various distinct ingredients of an offense be separately recognized. The ingredients, denominated "elements" in §702-205, are the conduct, the circumstances attendant to conduct, and the results of conduct, which are specified in the definition of an offense and which negative a defense on the merits.

The effect of including within the definition of "element" facts (conduct, attendant circumstances, results) which negative a defense on the merits (a defense other than one based on the statute of limitations, lack of venue, or lack of jurisdiction) is to postulate an equivalence of the state of mind required to establish a particular offense regardless of the diverse circumstances giving rise to the charge. Thus, if the crime of murder requires that the defendant act intentionally or knowingly with respect to each element, one who intentionally kills another, recklessly mistaken that the other's conduct threatens one's life, would not be guilty of murder, although one might be guilty of a crime requiring only recklessness. Since the defendant must act intentionally or knowingly with respect to attendant circumstances which negative the defense of self-defense, conviction for murder would fail unless it could be proven that defendant knew or believed that the defendant's assailant's conduct did not in fact threaten serious bodily harm or death.

Prior Hawaii law did not deal directly with the problem of defining "element" of an offense; however, the question has been treated tangentially in cases involving sufficient corroboration of extrajudicial confessions. A footnote in one case has provided the following comment and definition:

Proof of the commission of a crime consists of three elements, each of which must be proved beyond a reasonable doubt: (1) the basic injury, such as the death in murder, the burning in arson, or the missing property in theft, (2) the fact that the basic injury was the result of a criminal, rather than a natural or accidental cause, and (3) the identification of the defendant as the perpetrator of the crime. The first two of these elements constitute the corpus delicti or body of the crime, which is proved when the prosecution has shown that a crime has been committed by someone.[1]

However, the same opinion, which involved a charge of burglary, also referred to that requirement, under the prior law, that the entry be accompanied by an intent to commit a felony, as an "essential element".[2]

The Code seeks to eliminate the somewhat inconsistent use of the word "element" and to provide a less abstract and more meaningful definition.

SUPPLEMENTAL COMMENTARY ON §702-205

The legislature enacted §702-205 of the Proposed Draft of the Code without change; however, in chapter 703, dealing with defenses of justification, the legislature departed from the Proposed Draft and required an objective assessment of the defendant's state of mind, or a "reasonable belief" on the defendant's part, respecting the attendant circumstances which justify conduct otherwise deemed unlawful. Therefore, the example set forth in the second paragraph of the above commentary is no longer applicable.
Haw. Rev. Stat. § 702-224 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-224
Liability for conduct of another; exemption from complicity.
Status: in_force

Unless otherwise provided by this Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:

(1) He is a victim of that offense;

(2) The offense is so defined that his conduct is inevitably incident to its commission; or

(3) He terminates his complicity prior to the commission of the offense and:

(a) Wholly deprives his complicity of effectiveness in the commission of the offense; or

(b) Gives timely warning to the law enforcement authorities or otherwise makes reasonable effort to prevent the commission of the offense. [L 1972, c 9, pt of §1]

Revision Note

In paragraph (1), "or" deleted pursuant to §23G-15.

COMMENTARY ON §702-224

This section sets forth obvious exceptions which must be made to the provisions relating to complicity.

Even though a victim of an offense in a limited sense assists its commission, it seems clear that the victim ought not to be regarded as an accomplice. For example, the business person who yields to extortion ought not be regarded as an accomplice of the extortionist. Similarly it would be unwise to regard parents who yield to the threat of kidnappers and clandestinely pay a ransom as accomplices in the commission of the crime.

Other parties who participate in the commission of an offense and who cannot logically be called victims of the crime raise problems which call for exclusion from the category of "accomplice." In those cases where the commission of an offense necessarily involves the conduct of two persons, it is questionable wisdom to push the concept of complicity to its outer limits. In the case of an illegal abortion, it is questionable whether a woman ought to be deemed the accomplice of the abortionist when an abortion is performed upon her. Similar questions might be raised about the complicity of a patron of a prostitute or the complicity of the purchaser in an illegal sale. In such cases, if general rules hitherto stated were to control, prosecutorial rather than legislative discretion would determine how diverse situations should be handled and the treatment the individuals involved should receive. The exemption established by subsection (2) will leave to the legislature the determination of what distinctions, if any, ought to be made.

Subsection (3) seeks to relieve a person of liability based on the person's complicity if the reason for its imposition no longer obtains. Thus, if the accomplice deprives the accomplice's action of effectiveness before the offense is committed, the accomplice should not be accountable for the conduct of another. What the erstwhile accomplice must do to relieve the accomplice of potential liability will vary depending on the conduct that establishes the accomplice's complicity. More will be required of one who distributes arms than one who offers verbal encouragement.

Hawaii has recognized in at least one case that the victim of a crime will not be regarded as an accomplice of the defendant.[1] Although two cases in Hawaii have referred to apparent partners in acts of sodomy as "accomplices,"[2] which would be contrary to subsection (2) of the Code, the result is without significance because each "accomplice" would have been liable for the same offense on the basis of the accomplice's own conduct. Subsection (3) is substantially in accord with prior law.[3]

__________

§702-224 Commentary:

1. Re Habeas Corpus, Balucan, 44 Haw. 271, 353 P.2d 631 (1960) (victim in a case involving a charge of sexual intercourse with a female under the age of sixteen may not refuse to testify concerning the incident on the basis of self-incrimination because she cannot be prosecuted on the charge).

2. Republic v. Luning, 11 Haw. 390 (1898) (dictum).

3. H.R.S. §702-13.
Haw. Rev. Stat. § 708-836.8 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-836.8
[ §708-836.
Status: in_force

[ §708-836.8] Theft of catalytic converter. (1) A person commits the offense of theft of catalytic converter if the person commits theft of a catalytic converter.

(2) For the purposes of this section, "catalytic converter" shall have the same meaning as that term is defined in section 289-1.

(3) Theft of catalytic converter is a class C felony. [L 2022, c 88, §3]

COMMENTARY ON §708-836.8

Act 88, Session Laws 2022, added this section to establish the offense of theft of catalytic converter. The legislature found that catalytic converter thefts were on the rise across the State. Catalytic converters contain precious metals such as platinum, palladium, and rhodium, the prices of which had recently increased, making catalytic converters highly sought after by thieves due to their high resale value. The relative ease and speed in which a person could remove a catalytic converter from a vehicle, coupled with the value of the scrap and precious metal, had contributed to the increase in catalytic converter thefts. While catalytic converters could typically be resold on the market for less than a few hundred dollars, replacing a stolen catalytic converter could cost a car owner more than $1,000 or perhaps more depending on the extent of damages. The legislature noted that Act 88 established the offense of theft of a catalytic converter as a class C felony, thereby removing any burdensome requirement of proving a defendant had knowledge of the value of the property. Conference Committee Report No. 65-22, Senate Standing Committee Report No. 2951, Senate Standing Committee Report No. 2357.
Haw. Rev. Stat. § 708-8104 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8104
Possession of unauthorized credit card machinery or incomplete cards.
Status: in_force

(1) A person other than the cardholder possessing an incomplete credit card, with intent to complete it without the consent of the issuer or a person possessing, with knowledge of its character, machinery, plates, or any other contrivance designed to reproduce instruments purporting to be the credit cards of the issuer who has not consented to the preparation of such credit cards, commits the offense of possession of unauthorized credit card machinery or incomplete cards.

A credit card is incomplete if part of the matter other than the signature of the cardholder, which an issuer requires to appear on the credit card, before it can be used by a cardholder, has not yet been stamped, embossed, imprinted, or written on it.

If a person other than the cardholder or issuer possesses two or more incomplete credit cards, it is prima facie evidence that the person intended to complete them without the consent of the owner.

(2) Possession of unauthorized credit card machinery or incomplete cards is a class C felony. [L 1986, c 314, pt of §61]
Haw. Rev. Stat. § 710-1022 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1022
Promoting prison contraband in the first degree.
Status: in_force

(1) A person commits the offense of promoting prison contraband in the first degree if:

(a) The person intentionally conveys a dangerous instrument or drug to any person confined in a correctional or detention facility; or

(b) Being a person confined in a correctional or detention facility, the person intentionally makes, obtains, or possesses a dangerous instrument or drug.

(2) A "dangerous instrument" shall have the same meaning as defined in section 707-700; a dangerous instrument may only be possessed by or conveyed to a confined person with the facility administrator's express prior approval. A "drug" shall include dangerous drugs, detrimental drugs, harmful drugs, intoxicating compounds, marijuana, and marijuana concentrates as listed in section 712-1240; a drug may only be possessed by or conveyed to a confined person with the facility administrator's express prior approval and under medical supervision.

(3) Promoting prison contraband in the first degree is a class B felony. [L 1972, c 9, pt of §1; am L 1976, c 99, §1; am L 1986, c 339, §79; gen ch 1993]
Haw. Rev. Stat. § 710-1024 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1024
Bail jumping in the first degree.
Status: in_force

(1) A person commits the offense of bail jumping in the first degree if, having been released from custody by court order with or without bail, upon condition that the person will subsequently appear as ordered in connection with a charge of having committed a felony, the person knowingly fails to appear as ordered.

(2) Bail jumping in the first degree is a class C felony. [L 1972, c 9, pt of §1; am L 1993, c 10, §1; am L 2004, c 17, §1]
Haw. Rev. Stat. § 706-670 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-670
Parole procedure; release on parole; terms of parole, recommitment, and reparole; final unconditional release.
Status: in_force

§706-670 Parole procedure; release on parole; terms of parole, recommitment, and reparole; final unconditional release.

(1) [Repeal and reenactment on July 1, 2018, by L 2013, c 67, §2 deleted by L 2017, c 77, §2.] Parole hearing. A person sentenced to an indeterminate term of imprisonment shall receive an initial parole hearing at least one month before the expiration of the minimum term of imprisonment determined by the Hawaii paroling authority pursuant to section 706-669. If the person has been sentenced to multiple terms of imprisonment, the parole hearing shall not be required until at least one month before the expiration of the minimum term that expires last in time. A validated risk assessment shall be used to determine the person's risk of re-offense and suitability for community supervision. For purposes of this subsection, "validated risk assessment" means an actuarial tool to determine a person's likelihood of engaging in future criminal behavior. The department of corrections and rehabilitation shall select a research-based risk assessment tool and shall validate the accuracy of the risk assessment tool at least every five years in consultation with the paroling authority. Assessments shall be performed by department of corrections and rehabilitation staff who are trained in the use of the risk assessment tool. Except for good cause shown to the paroling authority, a person who is assessed as low risk for re-offending shall be granted parole upon completing the minimum sentence, unless the person:

(a) Is found to have an extensive criminal history record that is indicative of a likelihood of future criminal behavior in spite of the finding by the risk assessment by the paroling authority;

(b) Is found to have committed misconduct while in prison that is equivalent to a misdemeanor or felony crime within thirty-six months of the expiration of the minimum term of imprisonment;

(c) Has any pending felony charges in the State;

(d) Is incarcerated for a sexual offense under part V of chapter 707 or child abuse under part VI of chapter 707; or

(e) Does not have a parole plan as set forth under section 706-670(3) and (4), as approved by, and at the discretion of, the paroling authority.

If parole is not granted at the initial parole hearing, additional hearings shall be held at twelve-month intervals or less until parole is granted or the maximum period of imprisonment expires. The State shall have the right to be represented at the initial parole hearing and all subsequent parole hearings by the prosecuting attorney, who may present written testimony and make oral comments. The authority shall consider the testimony and comments in reaching its decision. The authority shall notify the appropriate prosecuting attorney of the hearing at the time the prisoner is given notice of the hearing.

(2) Parole conditions. The authority, as a condition of parole, may impose reasonable conditions on the prisoner as provided under section 706-624.

(3) Prisoner's plan and participation. Each prisoner shall be given reasonable notice of the prisoner's parole hearing and shall prepare a parole plan, setting forth the manner of life the prisoner intends to lead if released on parole, including specific information as to where and with whom the prisoner will reside, a phone contact where the prisoner can be reached, and what occupation or employment the prisoner will follow, if any. The prisoner shall be paroled in the county where the prisoner had a permanent residence or occupation or employment prior to the prisoner's incarceration, unless the prisoner will: reside in a county in which the population exceeds eight-hundred thousand persons; reside in a county in the State in which the committed person has the greatest family or community support, opportunities for employment, job training, education, treatment, and other social services, as determined by the Hawaii paroling authority; or be released for immediate departure from the State. The institutional parole staff shall render reasonable aid to the prisoner in the preparation of the prisoner's plan and in securing information for submission to the authority. In addition, the prisoner shall:

(a) Be permitted to consult with any persons whose assistance the prisoner reasonably desires, including the prisoner's own legal counsel, in preparing for a hearing before the authority;

(b) Be permitted to be represented and assisted by counsel at the hearing;

(c) Have counsel appointed to represent and assist the prisoner if the prisoner so requests and cannot afford to retain counsel; and

(d) Be informed of the prisoner's rights as set forth in this subsection.

(4) Authority's decision; initial minimum term of parole. The authority shall render its decision regarding a prisoner's release on parole within a reasonable time after the parole hearing. A grant of parole shall not be subject to acceptance by the prisoner. If the authority denies parole after the hearing, it shall state its reasons in writing. A verbatim stenographic or mechanical record of the parole hearing shall be made and preserved in transcribed or untranscribed form. The authority, in its discretion, may order a reconsideration or rehearing of the case at any time and shall provide reasonable notice of the reconsideration or rehearing to the prosecuting attorney. If parole is granted by the authority, the authority shall set the initial minimum length of the parole term.

(5) Release upon expiration of maximum term. If the authority fixes no earlier release date, a prisoner's release shall become mandatory at the expiration of the prisoner's maximum term of imprisonment.

(6) Sentence of imprisonment includes separate parole term. A sentence to an indeterminate term of imprisonment under this chapter includes as a separate portion of the sentence a term of parole or of recommitment for violation of the conditions of parole.

(7) Revocation hearing. When a parolee has been recommitted, the authority shall hold a hearing within sixty days after the parolee's return to determine whether parole should be revoked. The parolee shall have reasonable notice of the grounds alleged for revocation of the parolee's parole. The institutional parole staff shall render reasonable aid to the parolee in preparation for the hearing. In addition, the parolee shall have, with respect to the revocation hearing, those rights set forth in subsection (3)(a), (3)(b), (3)(c), and (3)(d). A record of the hearing shall be made and preserved as provided in subsection (4).

(8) Length of recommitment and reparole after revocation of parole. If a parolee's parole is revoked, the term of further imprisonment upon such recommitment and of any subsequent reparole or recommitment under the same sentence shall be fixed by the authority but shall not exceed in aggregate length the unserved balance of the maximum term of imprisonment.

(9) Final unconditional release. When the prisoner's maximum parole term has expired or the prisoner has been sooner discharged from parole, a prisoner shall be deemed to have served the prisoner's sentence and shall be released unconditionally. [L 1972, c 9, pt of §1; am L 1976, c 92, §8; am L 1983, c 30, §1; am L 1984, c 257, §3; am L 1986, c 314, §47; am L 1988, c 282, §2; am L 1993, c 101, §2 and c 201, §2; gen ch 1993; am L 1996, c 193, §2; am L Sp 2007, c 8, §15; am L 2012, c 139, §§8, 12, §14(4); am L 2013, c 67, §2; am L 2016, c 231, §69; am L 2017, c 77, §2; am L 2022, c 278, §29]
Haw. Rev. Stat. § 703-304 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-304
Use of force in self-protection.
Status: in_force

(1) Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.

(2) The use of deadly force is justifiable under this section if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.

(3) Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.

(4) The use of force is not justifiable under this section:

(a) To resist an arrest which the actor knows is being made by a law enforcement officer, although the arrest is unlawful; or

(b) To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(i) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or

(ii) The actor believes that such force is necessary to protect himself against death or serious bodily injury.

(5) The use of deadly force is not justifiable under this section if:

(a) The actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

(ii) A public officer justified in using force in the performance of his duties, or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape, is not obliged to desist from efforts to perform his duty, effect the arrest, or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.

(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime. [L 1972, c 9, pt of §1; ree L 1975, c 163, §3; am L 2001, c 91, §4]

COMMENTARY ON §703-304

This section substantially adopts the Model Penal Code rules on justification of the use of force in self-protection. It has been rewritten and reorganized to make it more easily understandable.

Subsection (1) requires a belief by the actor that the use of protective force is actually necessary, and that unlawful force (defined in §703-300) is to be used by the assailant. He must believe, further, that immediate use of force is required, although the threatened harm to him need not be "imminent," as the rule was sometimes phrased at common law. It is enough that unlawful force is threatened on the present occasion by his assailant. The actor may make his defensive move without waiting for his assailant to load his gun or to summon reinforcements. Finally, the actor must believe that the particular degree of force used by him is necessary. This formulation is not meant to require a precise equation, but it will limit the defense to situations in which a particular scope and degree of retaliation is believed by the actor to be appropriate to the aggression.

Subsections (2) and (5) strictly limit the use of deadly force. Under the circumstances specified in subsection (2), the actor may use deadly force if he believes it is necessary to protect himself against death, serious bodily harm, kidnapping, rape, or forcible sodomy. This formulation has two implications: (a) the actor must believe that deadly force is the only viable means of preventing the specified harm, and (b) the actor must believe that one of the specified harms is threatened on the present occasion. "Deadly force" is defined in §703-300. Its use is further restricted by subsection (5). Deadly force may not be used if the actor provoked his assailant's use of force against himself in the same encounter with the purpose of causing death or serious bodily injury. Of course, if he intends only moderate harm and receives a deadly response, the initial aggressor may respond with deadly force. The use of deadly force is also denied when the actor can avoid using it with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right to it, or by complying with a demand that he refrain from taking an action which he has no legal duty to take. In any of these cases, the Code may seem to be opting for cowardice. However, it should be the strong principle of any criminal code to prevent death wherever possible. To quote the Model Penal Code commentary,

It rests, of course, upon the view that protection of life has such a high place in a proper scheme of social values that the law cannot permit conduct which places life in jeopardy, when the necessity for doing so can be avoided by the sacrifice of the much smaller value that inheres in standing up to an aggression.[1]

However, a duty to retreat or take over evasive action is not imposed in two situations. Subsection (5), subparagraph (b)(i), states that the actor is not required to retreat from his dwelling or his place of work unless he was the initial aggressor or unless he is assailed in his place of work by another person whose place of work he knows it to be. We would not normally expect a man to abandon his home to an aggressor and would allow him to stand his ground, although an exception is made, consistent with paragraph (a), if the actor is the initial aggressor. The exception for an attack in a man's place of work is new with the Model Penal Code. The same principles which permit a man to remain in his home would, for example, permit a shopkeeper to defend himself in his place of business without abandoning it to attackers. Subparagraph (b)(ii), of the same subsection, relates to public officials or persons assisting them using force in the performance of duty. It would be against public interest to require a public officer to abandon his duty if he meets resistance. This Code follows the Model Penal Code in extending the justification to all arrests and performances of duty, even if they are technically unlawful. Throughout chapter 703 the rule is that resistance to unlawful arrest is to be made in court rather than physically.

The Code also specifically requires surrendering possession of a thing when the attacker asserts a claim of right thereto. Where a person offers deadly force unless another surrenders property to him, and claims a right to the property, it is certainly sound policy to save life and litigate the disputed ownership in court. Naturally, however, this rule does not apply in cases of robbery, where the assailant can make no claim of right, and it is the purpose of the Code to permit deadly resistance to robbery if the conditions of subsection (2) are met. Finally, deadly force is impermissible if the actor can avoid using it by complying with a demand that he refrain from any action which he has no duty to take. Again, the policy of saving life seems more insistent than the right of the individual to complete freedom of action.

Subsection (3) states the generally applicable rule that the actor need not retreat or take any other evasive action before estimating the necessity for the use of force in self-protection.

Subsection (4) sets general limits on the use of self-protective force. Paragraph (a) follows the Model Penal Code in forbidding any use of force to resist an arrest which the actor knows is being made by a peace officer. Resistance to even an unlawful arrest should be made in court. No valid social policy is served by permitting physical resistance to peace officers who are known as such by the actor. If the law were to permit physical resistance, it would in effect be sanctioning unnecessary injury. However, only force for the purpose of resisting an arrest is proscribed. If the officer threatens to use unlawful force after the arrest, the normal self-protection rules would apply. In other words, the actor may resist a "peril greater than arrest."[2] Paragraph (b) is closely related to §703-306 (protection of property) which permits the use of force by the occupier or possessor of property to protect it. The actor may not use force to counter that permissible force, when it is directed at him under a claim of right to protect the property, unless he is a public officer or a person assisting him or a person making or assisting in a lawful arrest, or unless he believes that he must use force to protect himself against death or serious bodily harm. A third Model Penal Code exception, dealing with a right of re-entry or recaption, has been omitted. As explained in the commentary to §703-306, it does not seem wise to deal separately with these matters. This Code treats them under the more general rules relating to protection of property.

Subsection (6) recognizes that confinement may be used as protective force. Because of the continuing nature of confinement, however, the Code requires the actor to terminate the confinement as soon as he knows he can do so safely. He has no such duty if the person is arrested, simply because the legality of a confinement will then be tested by ordinary judicial processes.
Haw. Rev. Stat. § 706-645 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-645
Revocation of fine or restitution.
Status: in_force

(1) A defendant who has been sentenced to pay a fine or restitution and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced the defendant for a revocation of the fine or restitution or of any unpaid portion thereof.

(2) If it appears to the satisfaction of the court that the circumstances which warranted the imposition of the fine or restitution have changed, or that it would otherwise be unjust to require payment, the court may revoke the fine or restitution or the unpaid portion thereof in whole or in part. Prior to revocation, the court shall afford the prosecuting attorney an opportunity to be heard. [L 1972, c 9, pt of §1; am L 1986, c 314, §37; gen ch 1992]

COMMENTARY ON §706-645

This section allows a defendant, who is not in contumacious default, to voluntarily appear and seek the relief that would be accorded to the defendant if the defendant's appearance were involuntary under §706-644.
Haw. Rev. Stat. § 708-837 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-837
Failure to return a rental motor vehicle; penalty.
Status: in_force

[(1)] A person commits the offense of failure to return a rental motor vehicle when he intentionally does not return the motor vehicle to the person, or his agent, from whom the vehicle was rented within forty-eight hours after the time stated on the rental agreement, unless the person renting the vehicle gives notice that he will not be able to return the vehicle in the stated time and extends the time in which the vehicle will be returned.

[(2)] Failure to return a rental motor vehicle is a misdemeanor. [L 1973, c 63, §1]

COMMENTARY ON §708-837

This section was added by Act 63, Session Laws 1973, "to provide an incentive to a person who rents a motor vehicle to return it to its lawful owner." House Standing Committee Report No. 821.

The Committee Report further states that "rental agencies have been plagued for a number of years with overdue and abandoned vehicles. Presently, there is no legal means available to compel a person to return the vehicle when it is overdue. This proposed bill would make it a misdemeanor if a person intentionally fails to return a rental motor vehicle."
Haw. Rev. Stat. § 710-1016.9 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1016.9
Defense.
Status: in_force

(1) Employment by the State or a subdivision thereof or by the United States as a law enforcement officer at the time of the conduct charged is an affirmative defense to a prosecution for impersonating a law enforcement officer.

(2) It is no defense to a prosecution for impersonating a law enforcement officer that the office the person pretended to hold did not in fact exist. [L 1987, c 130, pt of §3]

COMMENTARY ON §§710-1016.6 TO 710-1016.9

Act 130, Session Laws 1987, was enacted by the legislature because it was concerned about the increase in the incidence of police impersonators. The legislature believed it was important to be able to prosecute people who intend to deceive others by impersonating law enforcement officers. Senate Conference Committee Report No. 85, House Conference Committee Report No. 60.
Haw. Rev. Stat. § 712A-12 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-12
Judicial in rem forfeiture proceedings.
Status: repealed

(1) If a forfeiture is authorized by law, it shall be ordered by a court on an action in rem brought by the prosecuting attorney on a verified petition for forfeiture filed in the criminal or civil division of the circuit court.

(2) A civil in rem action may be brought in addition to or in lieu of the civil and criminal in personam forfeiture procedures set forth in sections 712A-13 and 712A-14 or the administrative forfeiture as set forth in section 712A-10. Judicial in rem forfeiture proceedings are in the nature of an action in rem and are governed by the rules of civil procedure whether brought in the criminal or civil division of the circuit court, unless a different procedure is provided by law.

(3) On the filing of a civil in rem action by the State in circuit court the clerk of the court in which the action is filed shall give, and the attorney for the State may give, notice of the filing of the action in the manner provided by section 712A-8 unless the files of the clerk of the court reflect that notice has previously been given.

(4) An owner of or interest-holder in the property may file a claim against the property, within thirty days after the notice, for a hearing to adjudicate the validity of the claimed interest in the property. The hearing shall be held by the court without a jury.

(5) The claim shall be signed by the claimant and sworn on oath before a notary public and shall set forth all the following:

(a) The name of the claimant;

(b) The address at which the claimant will accept future mailings from the court or the prosecuting attorney;

(c) The nature and extent of the claimant's interest in the property;

(d) The time, transferor and circumstances of the claimant's acquisition of the interest in the property;

(e) The specific provisions of this chapter relied on in asserting that the property seized for forfeiture is not subject to forfeiture;

(f) Facts supporting each assertion that the property is not subject to forfeiture;

(g) Any additional facts supporting the claimant's claim; and

(h) The precise relief sought.

Copies of the claim shall be mailed to the seizing agency and to the prosecuting attorney. One extension of thirty days for filing of the claim may be granted upon a written request demonstrating good cause provided that the request is received within the thirty-day period for filing of a claim.

(6) The hearing on the claim, to the extent practicable and consistent with the interest of justice, shall be held within sixty days after the filing of the petition. The court may consolidate the hearing on the claim with a hearing on any other claim concerning the same property.

(7) At the hearing, the claimant may testify, present evidence and witnesses on the claimant's behalf, and cross- examine witnesses who appear at the hearing. The State may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing.

(8) The State has the initial burden of showing by a preponderance of the evidence that the claimant's interest in the property is subject to forfeiture. On such a showing by the State, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture.

(9) In accordance with its findings at the hearing, the court shall order an interest in property returned or conveyed to the claimant, if any, who has established by a preponderance of the evidence that the claimant's interest is not subject to forfeiture. The court shall order all other property, including all interests in the property, forfeited to the State and proceed pursuant to sections 712A-15 and 712A-16. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1991, c 166, §7; am L 1993, c 196, §1; am L 1996, c 104, §§4, 6]

COMMENTARY ON §712A-12

Act 104, Session Laws 1996, amended this section to change the State's initial burden of proof standard from "probable cause" to the higher standard of "preponderance of the evidence" that a defendant's property is subject to forfeiture. Act 104 also repealed the sunset provision of the Hawaii omnibus criminal forfeiture act to make the law permanent. The purpose of the Act was to make the omnibus criminal forfeiture act permanent and to ensure that it was fair to persons claiming an interest in the property subject to forfeiture. Conference Committee Report No. 122.
Haw. Rev. Stat. § 711-1146 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1146
[ §711-1146] Inspection.
Status: in_force

[ §711-1146] Inspection. Upon the presentation of proper credentials, any officer may enter at reasonable times any building, structure, or premises in the State for the purpose of determining and enforcing compliance with this part or of any court order issued under this part; provided that the entry shall be made in a manner that causes the least possible inconvenience to the person in possession or occupying the building, structure, or premises; provided further that a court order authorizing the entry shall be obtained if entry is denied or resisted.
Haw. Rev. Stat. § 704-417 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-417
Use of out-of-state institutions.
Status: in_force

The term "appropriate institution" includes any institution within or without this State to which the defendant may be eligible for admission and treatment for physical or mental disease, disorder, or defect.

COMMENTARY ON §704-417

This section is intended to permit the court (acting through the director of health) or the director of health to utilize institutions outside the jurisdiction of the State.
Haw. Rev. Stat. § 712A-3 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-3
Venue.
Status: in_force

An action brought pursuant to this chapter may be brought in the county which the property is seized or in any county where an owner or interest-holder could be complained against for the conduct alleged to give rise to the forfeiture of the property.
Haw. Rev. Stat. § 712-1241 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1241
Promoting a dangerous drug in the first degree.
Status: in_force

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

(a) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:

(i) One ounce or more, containing methamphetamine, heroin, morphine, fentanyl, or cocaine or any of their respective salts, isomers, and salts of isomers; or

(ii) One and one-half ounce or more, containing one or more of any of the other dangerous drugs;

(b) Distributes:

(i) Twenty-five or more capsules, tablets, ampules, dosage units, or syrettes containing one or more dangerous drugs; or

(ii) One or more preparations, compounds, mixtures, or substances of an aggregate weight of:

(A) One-eighth ounce or more, containing methamphetamine, heroin, morphine, fentanyl, or cocaine or any of their respective salts, isomers, and salts of isomers; or

(B) Three-eighths ounce or more, containing any other dangerous drug;

(c) Distributes any dangerous drug in any amount to a minor except for methamphetamine; or

(d) Manufactures a dangerous drug in any amount, except for methamphetamine; provided that this subsection shall not apply to any person registered under section 329-32.

(2) Promoting a dangerous drug in the first degree is a class A felony. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(c); am L 1979, c 112, §1; am L 1981, c 31, §1; am L 1982, c 9, §1; am L 1988, c 146, §1; am L 1989, c 163, §1; gen ch 1992; am L 1996, c 308, §2; am L 1997, c 319, §2; am L 2002, c 161, §6; am L 2004, c 44, §5; am L 2006, c 230, §49; am L 2016, c 231, §54; am L 2025, c 4, §1]
Haw. Rev. Stat. § 707-702 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-702
Manslaughter.
Status: in_force

(1) A person commits the offense of manslaughter if:

(a) The person recklessly causes the death of another person; or

(b) The person intentionally causes another person to commit suicide;

provided that this section shall not apply to actions taken under chapter 327L.

(2) In a prosecution for murder or attempted murder in the first and second degrees it is an affirmative defense, which reduces the offense to manslaughter or attempted manslaughter, that the defendant was, at the time the defendant caused the death of the other person, under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation. The reasonableness of the explanation shall be determined from the viewpoint of a reasonable person in the circumstances as the defendant believed them to be; provided that an explanation that is not otherwise reasonable shall not be determined to be reasonable because of the defendant's discovery, defendant's knowledge, or the disclosure of the other person's actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the other person made an unwanted nonforcible romantic or sexual advance toward the defendant, or in which the defendant and the other person dated or had a romantic relationship. If the defendant's explanation includes the discovery, knowledge, or disclosure of the other person's actual or perceived gender, gender identity, gender expression, or sexual orientation, the court shall instruct the jury to disregard biases or prejudices regarding the other person's actual or perceived gender, gender identity, gender expression, or sexual orientation in reaching a verdict.

(3) Manslaughter is a class A felony. [L 1972, c 9, pt of §1; am L 1987, c 181, §8; am L 1996, c 197, §2; am L 2003, c 64, §1; am L 2006, c 230, §28; am L 2018, c 2, §7; am L 2019, c 149, §1]
Haw. Rev. Stat. § 708-891.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-891.5
Computer fraud in the second degree.
Status: in_force

(1) A person commits the offense of computer fraud in the second degree if the person knowingly accesses a computer, computer system, or computer network with the intent to commit the offense of theft in the second degree.

(2) Computer fraud in the second degree is a class B felony. [L 2001, c 33, pt of §1; am L 2012, c 293, §3]
Haw. Rev. Stat. § 712-1208 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1208
Promoting travel for prostitution.
Status: in_force

(1) A person commits the offense of promoting travel for prostitution if the person knowingly sells or offers to sell travel services that include or facilitate travel for the purpose of engaging in what would be prostitution if occurring in the State.

(2) "Travel services" has the same meaning as in section 468L-1.

(3) Promoting travel for prostitution is a class C felony. [L 2004, c 82, §2]

COMMENTARY ON §712-1208

Act 82, Session Laws 2004, added this section, making it a class C felony to sell or offer to sell travel services promoting prostitution. The legislature found that the sex industry has expanded to include people in the travel industry arranging for travelers to take advantage of prostitution overseas. These profiteers should not be promoting in Hawaii overseas activities that are illegal in this State. The legislature found that establishing a new offense of promoting travel for prostitution recognizes that travel businesses should be held accountable for their roles, if any, in encouraging prostitution and the consequent abuse and exploitation of women. Conference Committee Report No. 28-04, House Standing Committee Report No. 494-04.
Haw. Rev. Stat. § 711-1109.3 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109.3
Cruelty to animals by fighting dogs in the first degree.
Status: in_force

(1) A person commits the offense of cruelty to animals by fighting dogs in the first degree if the person:

(a) Knowingly:

(i) Causes, sponsors, arranges, or holds a dogfight for entertainment or financial gain; or

(ii) Owns, trains, transports, possesses, sells, transfers, or equips any dog with the intent that the dog shall be engaged in a dogfight; or

(b) Recklessly:

(i) Allows a dogfight to occur on any property owned or controlled by the person; or

(ii) Allows any dog intended to be used for a dogfight to be kept, trained on, or transported in, any property owned or controlled by the person.

(2) Nothing in this section shall prohibit any of the following:

(a) The use of dogs in the management of livestock by the owner of the livestock or the owner's employees or agents or other persons in lawful custody thereof;

(b) The use of dogs in hunting wildlife including game; or

(c) The training of dogs or the use of equipment in the training of dogs for any purpose not prohibited by law.

(3) As used in this section, "dogfight" means a dog or dogs pitted against another dog or dogs with the intent that the encounter will result in injury to one or more of the dogs.

(4) Violation of this section shall be a class B felony.

(5) If there is any conflict between this section and section 711-1109, or any other provision of law, this section shall apply. [L 1983, c 129, §1; am L 1987, c 230, §5; am L 2011, c 149, §4]
Haw. Rev. Stat. § 705-525 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-525
Duration of conspiracy.
Status: in_force

For purposes of section 701-108, the following apply:

(1) Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom the defendant conspired.

(2) It is prima facie evidence that the agreement has been abandoned if neither the defendant nor anyone with whom the defendant conspired did any overt act in pursuance of the conspiracy during the applicable period of limitation.

(3) If an individual abandons the agreement, the conspiracy is terminated as to the individual only if and when the individual advises those with whom the individual conspired of the individual's abandonment or the individual informs the law-enforcement authorities of the existence of the conspiracy and of the individual's participation therein. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §705-525

This section adopts the Model Penal Code's provisions defining the duration of a conspiracy for purposes of time limitations.

Subsection (1) is in accord with the generally accepted doctrine that the conspiracy terminates when the crime or crimes which are its objectives are committed or all the conspirators agree to abandon the conspiracy.

It should be pointed out that where abandonment is not an issue and termination rests on accomplishment of the criminal objective, subsidiary agreements of concealment must be distinguished from offenses requiring an extended period of time for commission and, therefore, also acts of concealment during that period of time. In the former cases it is held that the conspiracy terminates with the accomplishment of its primary objective and its duration is not extended by agreement and effort to conceal the venture from law-enforcement authorities. The latter cases hold that the conspiracy continues until its final objective is reached. Thus, a conspiracy to use undue influence to obtain "no prosecution" rulings from the Bureau of Internal Revenue has been held to terminate upon getting the rulings and is not extended by concealment activities thereafter, whereas a conspiracy to commit the offense of income tax evasion has been held to continue until the period of limitation on tax prosecutions runs, and acts of concealment are regarded as in furtherance of the conspiratorial objective.[1]

Subsection (2) provides that it is prima facie evidence that the agreement has been abandoned prior to the applicable period of limitation by all conspirators if none performs an overt act in pursuance of the conspiracy during period of limitation. This evidentiary rule is, of course, not conclusive and, in the absence of an overt act, other evidence of the vitality of the conspiracy during the period of limitation may be sufficient to prove that the agreement has not been abandoned.

Subsection (3) provides for abandonment of the conspiracy by an individual member and its termination as to the individual member. Abandonment of a conspiracy must be distinguished from renunciation under §705-530(3). The former starts the period of limitation running but does not otherwise affect liability. The latter constitutes an affirmative defense.

The Code's formulation requires that to abandon the conspiracy the individual member must take steps to remove the encouragement which the individual member's prior allegiance had given the individual member's co-conspirators.

As a general matter, the policy behind statutes of limitation dictates that they should begin to run when an individual's criminal conduct ends. If the crime is conspiracy, this conduct theoretically ends when he ceases to agree in the purpose that the conspiratorial objective be committed. Since, however, conspiracy involves the additional considerations that his conduct has incited and encouraged others in their criminal purposes, which they may continue to pursue, the law should require in addition some action to remove the incitement caused by his agreement, in order that the others may be dissuaded and commission of the crime be averted. It is submitted that the generally accepted requirement that he advise his coconspirators of his abandonment should suffice for this purpose. The Draft provides, in addition, the alternative method of informing and confessing to the law enforcement authorities, since this affords an even greater likelihood that commission of the crime will be prevented and may in some cases provide the conspirator with a safer or more practical means of abandoning the scheme.[2]

There was no previous Hawaii law dealing with the duration of a conspiracy.

__________

§705-525 Commentary:

1. Compare Grunewald v. United States, 353 U.S. 391 (1957), with Forman v. United States, 361 U.S. 416, rehearing denied, 362 U.S. 937 (1960).

2. M.P.C., Tentative Draft No. 10, comments at 155 (1960).
Haw. Rev. Stat. § 711-1113 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1113
Interference with the operation of a public transit vehicle.
Status: in_force

(1) A person commits the offense of interference with the operation of a public transit vehicle if the person intentionally, knowingly, or recklessly causes:

(a) Damage of a public transit vehicle, resulting in the vehicle's removal from service; or

(b) The unreasonable interruption of a public transit system or service.

(2) As used in this section, "public transit vehicle" includes:

(a) Any public paratransit vehicle providing service to the disabled;

(b) Any transit vehicle used for the transportation of passengers in return for legally charged fees or fares, including any taxi; and

(c) Any transit vehicle owned or operated by a government entity, including any school bus.

(3) Interference with the operation of a public transit vehicle shall be a violation; provided that interference with the operation of a public transit vehicle that results in serious bodily injury to, or death of, any person, shall be a class C felony. [L 2023, c 191, §1]

COMMENTARY ON §711-1113

Act 191, Session Laws 2023, added this section to establish the offense of interference with the operation of a public transit vehicle. The legislature found that public transit vehicles provide essential transportation services to thousands of residents and visitors across the State. Many Hawaii residents and visitors rely on public transportation for education, employment, health care, housing, and community purposes. Act 191 served as a deterrent against acts that interfere with the safe and timely operation of public transit vehicles. Conference Committee Report No. 20, House Standing Committee Report No. 1628.
Haw. Rev. Stat. § 706-621 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-621
Factors to be considered in imposing a term of probation.
Status: repealed

The court, in determining whether to impose a term of probation, shall consider:

(1) The factors set forth in section 706-606 to the extent that they are applicable;

(2) The following factors, to be accorded weight in favor of withholding a sentence of imprisonment:

(a) The defendant's criminal conduct neither caused nor threatened serious harm;

(b) The defendant acted under a strong provocation;

(c) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense;

(d) The victim of the defendant's criminal conduct induced or facilitated its commission;

(e) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime;

(f) The defendant's criminal conduct was the result of circumstances unlikely to recur;

(g) The character and attitudes of the defendant indicate that the defendant is unlikely to commit another crime;

(h) The defendant is particularly likely to respond affirmatively to a program of restitution or a probationary program or both;

(i) The imprisonment of the defendant would entail excessive hardship to the defendant or the defendant's dependents; and

(j) The expedited sentencing program set forth in section 706-606.3, if the defendant has qualified for that sentencing program. [L 1972, c 9, pt of §1; am L 1980, c 165, §1; am L 1986, c 314, §22; gen ch 1992; am L 1993, c 316, §§2, 6; am L 1995, c 157, §1; am L 2001, c 127, §3]

COMMENTARY ON §706-621

This section states grounds or the types of factors which, while not controlling the court in the exercise of its discretion, should be accorded weight in favor of withholding the sanction of imprisonment. The exercise of discretion by different judges cannot be expected to lead to precisely uniform sentences; however, legislative guidelines such as the Code proposes will promote consistency in sentencing.

Such guides, if properly defined, should serve to promote both the thoughtfulness and consistency of dispositions, while distributing responsibility between the legislature and the court. This is the normal procedure in other fields involving large discretionary powers; there seems no reason why it should not be attempted here.[1]

These factors suggest that the court's first concern might be to determine the future danger threatened by the defendant's continued presence in open society, and that it minimize its concern for the purely deterrent purposes of the sanction of imprisonment.

SUPPLEMENTAL COMMENTARY ON §706-621

Act 165, Session Laws 1980, deleted former paragraphs (2) and (6) and amended paragraph (8). After reviewing the section, the legislature "decided to leave a great deal of discretion with the trial court to allow for the greatest possible leeway in dealing effectively with convicted persons." Conference Committee Report No. 35-80 (53-80).

Act 316, Session Laws 1993, amended this section to provide that the court, in determining whether to impose a term of probation, shall consider the expedited sentencing program set forth in §706-606.3 if the defendant has qualified for that program. House Standing Committee Report No. 1174, Senate Standing Committee Report No. 849.

Act 157, Session Laws 1995, extended the sunset date of the amendment to this section made by Act 316, Session Laws 1993, from June 30, 1995 to June 30, 2001. The legislature found that the expedited sentencing program served as "a viable alternative in a small number of select cases" and that the program should continue to be available within the criminal justice system. However, the legislature believed that there was insufficient basis to determine whether the program should be made permanent. Conference Committee Report No. 62.

Act 127, Session Laws 2001, repealed the sunset date for the expedited sentencing program of the family court, and in doing so, also prevented the possibility of the inadvertent repeal of important probation laws established in connection with the program. The purpose of the program was to allow for the expeditious removal of the offender from the family home, in cases of intra-family felony sexual assault or incest, thus allowing the child to remain in the home. The legislature found that the program applied only to those offenders found to be "safe to probate" and minimized the possibility of revictimizing the child by eliminating the need to testify and requiring treatment and supervision of all members of the child's family. The legislature further found that the program had been effective and beneficial to the families concerned. Senate Standing Committee Report No. 1453, Conference Committee Report No. 114.
Haw. Rev. Stat. § 712-1204 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1204
REPEALED.
Status: repealed

L 2011, c 145, §6.

COMMENTARY ON §§712-1201 TO 712-1204

These four sections deal with the non-prostitutes who derive financial gain from the work of prostitutes. The real danger presented by this class of people is that its members have a motive to coerce women or men into prostitution. Through their promotion of prostitution activities they magnify the extent to which prostitution is practiced. Aside from coercion into and the promotion of prostitution, these promoters often gain a vicious hold over the prostitutes under their control.

Section 712-1201 defines the types of conduct which are the gravamen of the offense of promoting prostitution. These types of conduct are termed "advancing prostitution" and "profiting from prostitution." The sections following, §§712-1202, 1203, and 1204, delineate various degrees of the offense of promoting prostitution.

Promoting prostitution in the first degree, as defined by §712-1202, is the most serious offense in this trilogy. The aggravating circumstances are the criminal coercion of the prostitute or the young age of the prostitute. The offense is a class B felony.

Section 712-1203, promoting prostitution in the second degree, deals with two less serious aggravating circumstances in this type of activity: (a) advancing or profiting by operating or owning a house of prostitution or a prostitution business or enterprise involving prostitution by two or more prostitutes, or (b) advancing or profiting from prostitution of a person less than 18 years of age. This section provides penalties against the "madam" of a house of prostitution, those persons who run and control "call girl rings", and lessors and owners of real property who knowingly rent or permit premises to be used for prostitution purposes. It also penalizes those who take under their control for prostitution purposes girls under the age of 18 years. Promoting prostitution in the second degree is made a class C felony.

Section 712-1204 defines the offense of promoting prostitution in the third degree, that is, knowingly advancing or profiting from prostitution. This section strikes at the small scale promoter. The taxicab driver who pimps for a prostitute, the bartender who sets up customers for a prostitute, and the hotel clerk who regularly furnishes the prostitute and his or her customer with accommodations would all come within the ambit of this provision. Of course, if any of the aggravating attendant circumstances previously discussed exist, §§712-1202 or 1203 would apply. Promoting prostitution in the third degree is a misdemeanor.

The previous law dealt both with the criminal coercion of a person to become a prostitute as well as what is commonly referred to as "procuring" a person for the practice of prostitution.[1] The sanction provided was roughly equivalent to a class C felony. These sections also consider other factors, namely the youth of the prostitute and the number of prostitutes involved in the operation. In addition, it provides for three degrees of the offense; the highest degree, presenting the most serious aggravations, is made a class B felony, a more severe sanction than that provided by prior law. The least serious case, promotion in the third degree, is a misdemeanor, the same sanction provided for what was previously termed "soliciting." The best that can be said for the former statutes in this area is that they were inartfully drawn. They probably bordered on vagueness which may have been unconstitutional. The Code achieves greater clarity than the previous law and provides for sanctions which are more realistically addressed to the circumstances involved in the offenses.

SUPPLEMENTAL COMMENTARY ON §§712-1201 TO 712-1204

Act 130, Session Laws 1993, amended §712-1202 to raise, from fourteen to sixteen, the age of exploited minors that would subject a perpetrator to a first degree charge for the offense of promoting prostitution. The Act also amended §§712-1202 and 712-1203 to make the language in these sections gender neutral. The legislature found that there was a need to enlarge the scope of persons subject to increased criminal penalties for promoting teen-age prostitution. Conference Committee Report No. 62.

Act 147, Session Laws 2008, amended §712-1202 by adding a reference to "force, threat, or intimidation" and deleting "criminal coercion." Act 147 also applied the offense to a person who knowingly advances or profits from prostitution of a person less than eighteen, rather than sixteen, years old. The legislature strengthened the laws on prostitution and related offenses to deter and punish sexual exploitation of minors, including obscenity-related activities. Conference Committee Report No. 38-08.

Act 147, Session Laws 2008, amended §712-1203(1) by adding a reference to "prostituted persons." Conference Committee Report No. 38-08.

Act 145, Session Laws 2011, amended §712-1201 by making conforming and nonsubstantive amendments.

Act 145, Session Laws 2011, amended §712-1202 by adding inducing a person to act by specified means and including the use of fraud as elements of promoting prostitution in the first degree. Act 145 also increased the penalty for the offense to a class A felony. Conference Committee Report No. 76.

Act 145, Session Laws 2011, repealed §712-1204, promoting prostitution in the third degree, and amended §712-1203, promoting prostitution in the second degree, by incorporating conduct previously prohibited under §712-1204 within the second degree offense. Act 145 increased the penalty for the second degree offense to a class B felony. Senate Standing Committee Report No. 1137, Conference Committee Report No. 76.

Act 206, Session Laws 2016, amended §712-1201 by amending the section heading to conform to amendments made to other sections in the Hawaii Revised Statutes by Act 206.

Act 206, Session Laws 2016, amended §712-1202, among others, to establish a victim and survivor-centered approach to comprehensive anti-sex trafficking laws. Specifically, Act 206 amended §712-1202 by: (1) replacing the offense of promoting prostitution in the first degree with sex trafficking, a class A felony and violent crime; and (2) specifying that the offense of sex trafficking requires proof of negligence with respect to the victim's age when the victim of sex trafficking is under eighteen years of age. The legislature found that the existing laws relating to prostitution and promoting prostitution may not have been suitable to address certain circumstances in which coercion or other inability to consent is present. Act 206 allowed Hawaii to join other states that had adopted comprehensive anti-sex trafficking legislation. Conference Committee Report No. 147-16, Senate Standing Committee Report No. 3450.

Act 206, Session Laws 2016, amended §712-1203 to change the offense of promoting prostitution in the second degree to the offense of promoting prostitution. Senate Standing Committee Report No. 3450.

Act 68, Session Laws 2021, amended §712-1201 to: (1) amend the definition of "profits from prostitution" to include the acceptance or receipt of anything of value to participate in the proceeds of prostitution activity; and (2) specify that the definitions in this section do not include the conduct of prostituted persons under §712-1200 or persons engaged in commercial sexual exploitation under §712-1200.5. Act 68 also amended §712-1202 to: (1) specify that sex trafficking includes advancing or profiting from prostitution through coercion; and (2) make a person strictly liable for sex trafficking of a minor in terms of the victim’s age. The legislature found that sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in the community. The legislature further found that protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators, and that amending Hawaii's sex trafficking laws to better reflect the current reality and challenges would improve outcomes for trafficking victims and survivors. Senate Standing Committee Report No. 1654, Conference Committee Report No. 45.

__________

§§712-1201 To 712-1204 Commentary:

1. H.R.S. §768-56.

2. Id. §§768-53, 768-54.
Haw. Rev. Stat. § 708-875 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-875
Trademark counterfeiting.
Status: in_force

(1) A person commits the offense of trademark counterfeiting who knowingly manufactures, produces, displays, advertises, distributes, offers for sale, sells, or possesses with the intent to sell or distribute any item bearing or identified by a counterfeit mark, knowing that the mark is counterfeit.

(2) As used in this section:

"Counterfeit mark" means any spurious mark that is identical to or confusingly similar to any print, label, trademark, service mark, or trade name registered in accordance with chapter 482 or registered on the Principal Register of the United States Patent and Trademark Office.

"Sale" includes resale.

(3) Trademark counterfeiting is a class C felony.

(4) In any action brought under this section resulting in a conviction or a plea of nolo contendere, the court shall order the forfeiture and destruction of all counterfeit marks and the forfeiture and destruction or other disposition of all items bearing a counterfeit mark, and all personal property, including any items, objects, tools, machines, equipment, instrumentalities, or vehicles of any kind, employed or used in connection with a violation of this section, in accordance with the procedures set forth in chapter 712A. [L 1997, c 277, §1]

COMMENTARY ON §708-875

Act 277, Session Laws 1997, added this section, which establishes the offense of trademark counterfeiting as a class C felony, and which authorizes the forfeiture and destruction or other disposition of counterfeited property. The legislature found that trademark counterfeiting was a recurring problem in Hawaii for retail boutiques and trademark products of the University of Hawaii, and that tourists are often the target for the scams. The legislature believed that the Act would safeguard not only consumers from the sale of counterfeit products, but would also protect the reputation and quality of trademarks and ensure that trademarks are used for their legitimate and intended purposes. House Standing Committee Report No. 1620, Senate Standing Committee Report No. 759.
Haw. Rev. Stat. § 702-236 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-236
De minimis infractions.
Status: in_force

(1) The court may dismiss a prosecution if, having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds that the defendant's conduct:

(a) Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the offense;

(b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

(c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense.

(2) The court shall not dismiss a prosecution under subsection (1)(c) of this section without filing a written statement of its reasons. [L 1972, c 9, pt of §1]

Revision Note

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

COMMENTARY ON §702-236

Following the suggestion of the Model Penal Code,[1] this Code allows the court to dismiss de minimis infractions of the law. An obvious example of an area where such discretion might appropriately be exercised is the field of minor sex offenses, where a rejected partner might seek revenge through the penal process.

While it has been claimed that the determination of whether the defendant's conduct is "within a customary license or tolerance," or caused harm "to an extent too trivial to warrant the condemnation of conviction," will vary not only on the merits of the case but according to the differing inclinations of judges, the answer does not lie, as it has been suggested, in requiring the prosecutor's consent.[2] The prosecutor has exercised the prosecutor's prosecutorial discretion by bringing the charge against the defendant. Furthermore, prosecutors, like judges, differ in their assessment of the same standards.
Haw. Rev. Stat. § 708-856 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-856
Obtaining signature by deception.
Status: in_force

(1) A person commits the offense of obtaining a signature by deception if, with intent to defraud, the person:

(a) Causes another, by deception, to sign or execute a written instrument; or

(b) Utters the written instrument specified in [paragraph] (a).

(2) Obtaining a signature by deception is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §708-856

The conduct proscribed by this section does not constitute forgery, but is typically preparatory to theft by deception. A signature is not "property" within the meaning of §708-800, and hence cannot be the subject of a theft provision. Nor does forgery cover the result, since the instrument is precisely what it purports to be, i.e., an authentic creation of its ostensible maker. But since the individual culpability and probable results of such actions are so little distinguishable from those of forgery, it is felt that a penalty commensurate with that for the lowest forgery offense (forgery in the third degree, §708-853) ought to attach to obtaining a signature by deception. Note that the requisite intent to defraud, as defined in §708-800, is the same as that required for the forgery offenses.
Haw. Rev. Stat. § 707-769 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-769
Defenses to extortion.
Status: in_force

(1) It is a defense to a prosecution for extortion as defined by paragraph (1) of section 707-764 that the defendant:

(a) Was unaware that the property or service was that of another; or

(b) Believed that the defendant was entitled to the property or services under a claim of right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.

(2) If the owner of the property is the defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution for extortion under paragraph (1) of section 707-764 that:

(a) The property which is obtained or over which unauthorized control is exerted constitutes household belongings; and

(b) The defendant and the defendant's spouse or reciprocal beneficiary were living together at the time of the conduct.

(3) "Household belongings" means furniture, personal effects, vehicles, or money or its equivalent in amounts customarily used for household purposes, and other property usually found in and about the common dwelling and accessible to its occupants.

(4) It is an affirmative defense to a prosecution for extortion as defined in paragraphs (1) and (2) of section 707-764 and as further defined by subparagraphs (e), (f), (g), and (i), that the defendant believed the threatened accusation, penal charge, or exposure to be true, or the proposed action of a public servant was justified, and that the defendant's sole intention was to compel or induce the victim to give property or services to the defendant due the defendant as restitution or indemnification for harm done, or as compensation for property obtained or lawful services performed, or to induce the victim to take reasonable action to prevent or to remedy the wrong which was the subject of the threatened accusation, charge, exposure, or action of a public servant in circumstances to which the threat relates.

(5) In a prosecution for extortion as defined in paragraph (1) of section 707-764, it is not a defense that the defendant has an interest in the property if the owner has an interest in the property to which the defendant is not entitled. [L 1979, c 106, pt of §1; gen ch 1993; am L 1997, c 383, §68; am L 2015, c 35, §25]
Haw. Rev. Stat. § 704-407 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-407
Special hearing following commitment or release on conditions.
Status: in_force

(1) At any time after commitment as provided in section 704‑406, the defendant or the defendant's counsel or the director of health may apply for a special post-commitment or post-release hearing. If the application is made by or on behalf of a defendant not represented by counsel, the defendant shall be afforded a reasonable opportunity to obtain counsel, and if the defendant lacks funds to do so, counsel shall be assigned by the court. The application shall be granted only if the counsel for the defendant satisfies the court by affidavit or otherwise that, as an attorney, the counsel has reasonable grounds for a good faith belief that the counsel's client has an objection based upon legal grounds to the charge.

(2) If the motion for a special post-commitment or post‑release hearing is granted, the hearing shall be by the court without a jury. No evidence shall be offered at the hearing by either party on the issue of physical or mental disease, disorder, or defect as a defense to, or in mitigation of, the offense charged.

(3) After the hearing, the court shall rule on any legal objection raised by the application and, in an appropriate case, may quash the indictment or other charge, find it to be defective or insufficient, or otherwise terminate the proceedings on the law. Unless all defects in the proceedings are promptly cured, the court shall terminate the commitment or release ordered under section 704-406 and:

(a) Order the defendant to be discharged;

(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or

(c) Subject to section 334-121 regarding assisted community treatment criteria, order the defendant to be released on conditions as the court deems necessary. [L 1972, c 9, pt of §1; am L 1980, c 222, §1(2); gen ch 1993; am L 2006, c 230, §8; am L 2016, c 231, §7]

COMMENTARY ON §704-407

This section affords the defendant and the defendant's counsel the opportunity, notwithstanding the defendant's unfitness to proceed, to make any objection to the prosecution which is susceptible of a fair determination without the personal participation of the defendant. It seems clear that this is an eminently sensible provision in view of the fact that it is the defendant's inability to participate in the defendant's defense (either because the defendant lacks capacity to either understand the proceedings or to assist in the defendant's own defense) that has rendered the defendant unfit to be proceeded against. If a valid objection to the continuance of the prosecution can be established without the participation of the defendant, there is no reason not to terminate it.

This section is an addition to the law. The concept was originally proposed by the Massachusetts Judicial Council[1] and adopted as an optional alternative by the Model Penal Code.[2]

SUPPLEMENTAL COMMENTARY ON §704-407

Act 222, Session Laws 1980, eliminated post-commitment release motions based upon factual grounds and limited such motions to those based upon legal grounds. The intent was to have all factual issues, including insanity, heard in one trial.

Act 230, Session Laws 2006, amended this section to, among other things, allow the court to order the release of the defendant on conditions, subject to the law governing involuntary outpatient treatment.

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).

__________

§704-407 Commentary:

1. Massachusetts Judicial Council, Thirty-Sixth Report 22-24, 27-28 (1960).

2. M.P.C. §4.06. The other alternative is to limit post- commitment hearings to legal objections to the prosecution which are susceptible of a determination prior to trial.
Haw. Rev. Stat. § 707-765 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-765
Extortion in the first degree.
Status: in_force

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

(a) Of property, labor, or services the value of which exceeds $200 in total during any twelve-month period; or

(b) By making or financing any extortionate extension of credit, or by collecting any extension of credit by extortionate means.

(2) Extortion in the first degree is a class B felony. [L 1979, c 106, pt of §1; gen ch 1993; am L 2008, c 147, §5]
Haw. Rev. Stat. § 706-660 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-660
Sentence of imprisonment for class B and C felonies; ordinary terms; discretionary terms.
Status: in_force

(1) Except as provided in subsection (2), a person who has been convicted of a class B or class C felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:

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

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

The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.

(2) A person who has been convicted of a class B or class C felony for any offense under part IV of chapter 712 may be sentenced to an indeterminate term of imprisonment; provided that this subsection shall not apply to sentences imposed under sections 706-606.5, 706-660.1, 712-1240.5, 712-1240.8 as that section was in effect prior to July 1, 2016, 712-1242, 712-1245, 712-1249.5, 712‑1249.6, 712-1249.7, and 712-1257.

When ordering a sentence under this subsection, the court shall impose a term of imprisonment, which shall be as follows:

(a) For a class B felony--ten years or less, but not less than five years; and

(b) For a class C felony--five years or less, but not less than one year.

The minimum length of imprisonment 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 and c 204, §2; am L 1980, c 294, §2; am L 1986, c 314, §38; am L 2013, c 280, §2; am L 2016, c 231, §29]

COMMENTARY ON §706-660

This section embodies three important policy determinations of the Code.

With the exception of special problems calling for extended terms of incarceration as provided in subsequent sections, it provides for only one possible maximum length of imprisonment for each class of felony. Assuming care is used in designating the grade and class of each offense, this should go a long way in ameliorating the variety of inconsistent sentences previously authorized.

In 1965, the legislature enacted a law designed to end judicially imposed inconsistent sentences of imprisonment.[1] This policy known as true indeterminate sentencing is continued. The court's discretion is limited to choosing between imprisonment and other modes of sentencing. Once the court has decided to sentence a felon to imprisonment, the actual time of release is determined by parole authorities. Having decided on imprisonment, the court must then impose the maximum term authorized.[2] The concept is accepted in California[3] and is being proposed in Michigan.[4] This policy is also in substantial accord with the proposed A.B.A. Standards on sentencing.[5]

Inevitably, there will remain some disparity arising from the fact that some judges will be more strongly inclined toward granting probation (or other non-imprisonment disposition) than others. The criteria set forth in part II of this chapter, for withholding a sentence of imprisonment, are intended to alleviate this disparity somewhat. Moreover, §706-669, governing the procedure for determining the actual minimum time to be served, provides that the parole board must make an initial determination as soon as practicable but, in any event, no later than six months following commitment. Thus, "[g]rossly inappropriate denial[s] of probation can in most instances be cured fairly promptly through parole, if the circumstances favoring release are evident...."[6]

Finally, this section embodies a policy of differentiating exceptional problems calling for extended terms of imprisonment[7] from the problems which the vast majority of offenders present. Most of the felony sentences previously authorized in Hawaii were clearly intended to encompass the most dangerous offender. The uniform application of a sentence designed to encompass exceptional cases seems clearly unwarranted in the cases presented by the vast majority of offenders. This is borne out by the A.B.A.'s recent study:

...[M]any sentences authorized by statute in this country are, by comparison to other countries and in terms of the needs of the public, excessively long for the vast majority of cases. Their length is undoubtedly the product of concern for protection against the most exceptional cases, most notably the particularly dangerous offender and the professional criminal. It would be more desirable for the penal code to differentiate explicitly between most offenders and such exceptional cases, by providing lower, more realistic sentences for the former and authorizing a special term for the latter.[8]

The sentences provided in this section, when compared to the extended sentences authorized in subsequent sections, seek to achieve the recommended explicit differentiation.

SUPPLEMENTAL COMMENTARY ON §706-660

Act 204, Session Laws 1976, amended the first sentence by adding the exception excluding persons convicted of felonies involving firearms. In its report, the Conference Committee states that it "intends to require the court in cases of felonies where a firearm was used to impose a mandatory term of imprisonment" and that nothing contained in the bill "should be construed as precluding (a) the court from imposing an indeterminate sentence or an extended indeterminate sentence, or (b) the Hawaii paroling authority from fixing the minimum term of imprisonment at a length greater than the term of imprisonment provided for in this bill [706-660.1]." Conference Committee Report Nos. 34 and 35.

Act 294, Session Laws 1980, restricted this section to sentences for class B and C felonies, eliminating provisions relating to class A felonies. For class A felonies, see §706-659.

Act 280, Session Laws 2013, amended this section by granting a sentencing court the discretion to sentence a defendant convicted of a class B or class C felony drug offense to a prison sentence of a length appropriate to the defendant's particular offense and underlying circumstances. Specifically, this Act allows a court to impose a sentence of imprisonment for certain class B felonies for not less than five years, and a sentence of imprisonment for certain class C felonies for not less than one year. The legislature found that state mandatory minimum sentencing laws are being challenged across the nation because these laws mandate longer prison sentences regardless of whether the sentencing court believes the punishment is appropriate based on the circumstances and facts of the case. Studies have shown that mandatory minimum sentencing of drug users causes an increase in incarceration costs and have a disproportionate impact on women and certain racial and ethnic groups. Senate Standing Committee Report No. 496, House Standing Committee Report No. 1464.

Act 231, Session Laws 2016, amended subsection (2) 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. § 707-786 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-786
[ §707-786] Nonpayment of wages.
Status: in_force

[ §707-786] Nonpayment of wages. (1) A person commits the offense of nonpayment of wages if the person, in the capacity as an employer of an employee, intentionally or knowingly or with intent to defraud fails or refuses to pay wages to the employee, except where required by federal or state statute or by court process. In addition to any other penalty, a person convicted of nonpayment of wages shall be fined not less than $2,000 nor more than $10,000 for each offense.

(2) Nonpayment of wages is:

(a) A class C felony, if the amount owed to the employee is equal to or greater than $2,000 or if the defendant convicted of nonpayment of wages falsely denies the amount or validity of the wages owed; or

(b) A misdemeanor, if the amount owed to the employee is less than $2,000.

(3) A person commits a separate offense under this section for each pay period during which the employee earned wages that the person failed or refused to pay the employee. If no set pay periods were agreed upon between the person and the employee at the time the employee commenced the work, then each "pay period" shall be deemed to be bi-weekly.

(4) In addition to any other penalty, the court shall order restitution to be paid to the employee, consisting of an amount that is the greater of:

(a) The wages earned by the employee that were unpaid by the person convicted of nonpayment of wages; or

(b) The value of the employee's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, Public Law 75-718, title 29 United States Code sections 201 through 219, inclusive, whichever is greater.

(5) An employee who is the victim of nonpayment of wages may bring a civil action to recover all wages owed by the defendant convicted of nonpayment of wages.

(6) For purposes of this section:

"Employee" means any person working for another for hire, including an individual employed in domestic service or at a family's or person's home, any individual employed by the individual's spouse, or by an independent contractor.

"Person" includes any individual, partnership, association, joint-stock company, trust, corporation, the personal representative of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any persons, but shall not include the United States.

"Wages" means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis of calculation. [L 2011, c 146, pt of §1]
Haw. Rev. Stat. § 707-731 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-731
Sexual assault in the second degree.
Status: in_force

(1) A person commits the offense of sexual assault in the second degree if the person:

(a) Knowingly subjects another person to an act of sexual penetration by compulsion;

(b) Knowingly subjects to sexual penetration a person who is mentally incapacitated or physically helpless;

(c) While employed:

(i) In a state correctional facility;

(ii) By a private company providing services at a correctional facility;

(iii) By a private company providing community-based residential services to persons committed to the director of corrections and rehabilitation and having received notice of this statute;

(iv) By a private correctional facility operating in the State; or

(v) As a law enforcement officer as defined in section 710-1000,

knowingly subjects to sexual penetration: an imprisoned person; a person confined to a detention facility; a person committed to the director of corrections and rehabilitation; a person residing in a private correctional facility operating in the State; a person in custody; a person who is stopped by a law enforcement officer; or a person who is being accompanied by a law enforcement officer for official purposes; provided that this paragraph shall not be construed to prohibit a law enforcement officer from performing a lawful search pursuant to a warrant or exception to the warrant clause; or

(d) Knowingly subjects to sexual penetration a person who is at least sixteen years old and the actor is contemporaneously acting in a professional capacity to instruct, advise, or supervise such a person; provided that the actor is:

(i) No less than five years older than the minor; and

(ii) Not legally married to the minor.

Paragraphs (b) and (c) shall not be construed to prohibit practitioners licensed under chapter 453 or 455 from performing any act within their respective practices.

(2) Sexual assault in the second degree is a class B felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §10; am L 1997, c 366, §1; am L 2002, c 36, §1; am L 2004, c 61, §4; am L 2006, c 230, §33; am L 2009, c 11, §73; am L 2016, c 153, §1; am L 2021, c 22, §2; am L 2022, c 278, §29]
Haw. Rev. Stat. § 712A-2 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-2
Jurisdiction.
Status: in_force

(1) The State may commence an in rem proceeding in the circuit court if the property for which forfeiture is sought is within this State at the time of the filing of the action.

(2) The State may commence a civil in personam proceeding in the circuit court if the courts of this State have in personam jurisdiction of an owner of or interest-holder in the property.

(3) The State may commence a criminal in personam proceeding in the court which has in personam jurisdiction of an owner of or interest-holder in the property. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1993, c 196, §1; am L 1994, c 178, §2; am L 1996, c 104, §6]

COMMENTARY ON §712A-2

Act 178, Session Laws 1994, amended this section to specify when the State may commence in rem, civil in personam, and criminal in personam proceedings. The legislature recognized the importance of complying with federal case law pertaining to due process and of ensuring that the statutes are as clear as possible on the circumstances and procedures surrounding forfeiture. Conference Committee Report No. 27.
Haw. Rev. Stat. § 701-115 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-115
Defenses.
Status: in_force

(1) A defense is a fact or set of facts which negatives penal liability.

(2) No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented. If such evidence is presented, then:

(a) If the defense is not an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in the light of any contrary prosecution evidence, raises a reasonable doubt as to the defendant's guilt; or

(b) If the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of fact finds that the evidence, when considered in light of any contrary prosecution evidence, proves by a preponderance of the evidence the specified fact or facts which negative penal liability.

(3) A defense is an affirmative defense if:

(a) It is specifically so designated by the Code or another statute; or

(b) If the Code or another statute plainly requires the defendant to prove the defense by a preponderance of the evidence. [L 1972, c 9, pt of §1; am L 1973, c 136, §2(b)]

COMMENTARY ON §701-115

The Code establishes two classes of defenses. As to both, it places an initial burden on the defendant to come forward with some credible evidence of facts constituting the defense, unless, of course, those facts are supplied by the prosecution's witnesses.

As to the burden of persuasion, two different rules are codified. In the case of defenses which are not affirmative, the defendant need only raise a reasonable doubt as to the defendant's guilt. The other side of the coin is that the prosecution must prove beyond a reasonable doubt facts negativing the defense. The prosecution in fact does this when the jury believes its case and disbelieves the defense.

In the case of affirmative defenses, the burden on the defendant increases. Now the defendant must prove by a preponderance of the evidence facts which negative the defendant's penal liability. Subsection (4) defines "affirmative defense," making it clear that this type of defense needs special legislative prescription. Unless the legislature has made a particular defense affirmative, the defendant's burden is only to raise a reasonable doubt.
Haw. Rev. Stat. § 712-1201 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1201
Advancing prostitution; profiting from prostitution; definition of terms.
Status: in_force

In sections 712-1202 and 712-1203:

(1) A person "advances prostitution" if the person knowingly causes or aids a person to commit or engage in prostitution, procures or solicits patrons for prostitution, provides persons for prostitution purposes, permits premises to be regularly used for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution;

(2) A person "profits from prostitution" if the person accepts or receives money, anything of value, or other property pursuant to an agreement or understanding with any person whereby the person participates or is to participate in the proceeds of prostitution activity; and

(3) The definitions in subsections (1) and (2) shall not include those engaged in conduct outlined in section 712-1200 as the prostituted person or section 712-1200.5 as the person engaged in commercial sexual exploitation. [L 1972, c 9, pt of §1; am L 2011, c 145, §2; am L 2016, c 206, §13; am L 2021, c 68, §5]
Haw. Rev. Stat. § 711-1114 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1114
Renumbered as §711-1125.
Status: in_force

§711-1114 Renumbered as §711-1125.
Haw. Rev. Stat. § 708-803 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-803
Habitual property crime.
Status: in_force

(1) A person commits the offense of habitual property crime if the person is a habitual property crime perpetrator and commits a property crime.

(2) For the purposes of this section, "habitual property crime perpetrator" means a person who, within ten years of the instant offense, has convictions for offenses within this chapter for:

(a) Any combination of two felonies or misdemeanors; or

(b) Any combination of either one felony or one misdemeanor and one petty misdemeanor; or

(c) Three petty misdemeanors.

The convictions shall be for separate incidents on separate dates. The prosecution is not required to prove any state of mind with respect to the person's status as a habitual property crime perpetrator. Proof that the person has the requisite minimum prior convictions shall be sufficient to establish this element.

(3) A person commits a property crime if the person engages in conduct that constitutes an offense under this chapter. It can be established that the person has committed a property crime by either the prosecution proving that the person is guilty of or by the person pleading guilty or no contest to committing any offense under this chapter.

(4) Habitual property crime is a class C felony.

(5) For a conviction under this section, the sentence shall be either:

(a) An indeterminate term of imprisonment of five years; provided that the minimum term of imprisonment shall be not less than one year; or

(b) A term of probation of five years, with conditions to include but not be limited to one year of imprisonment; provided that probation shall only be available for a first conviction under this section. [L 2004, c 49, §1; am L 2014, c 118, §1; am L 2016, c 231, §36]

COMMENTARY ON §708-803

Act 49, Session Laws 2004, added this section, establishing the offense of habitual property crime, a class C felony. The legislature found that in 2002, Hawaii ranked first in the nation for property crime rates and second in larceny theft rates, and that a large portion of the crimes are committed by habitual offenders. The legislature also found that Act 49 would punish repeat offenders of property crime. House Standing Committee Report No. 902-4, Senate Standing Committee Report No. 2616.

Act 118, Session Laws 2014, amended subsection (4) by clarifying that the sentence for a person convicted of habitual property crime will be: (1) an indeterminate term of imprisonment of five years, with a minimum term of one year; or (2) for a first conviction only, a term of probation of five years, with conditions to include but not be limited to one year of imprisonment. The legislature found that property crimes have been a continual problem in Hawaii. The Federal Bureau of Investigation reported in 2012 that Hawaii ranked thirty-one out of fifty-two jurisdictions when it came to the amount of property crimes at a rate per one hundred thousand inhabitants. The legislature strongly supported the services offered through the Judiciary's Hawaii's Opportunity Probation with Enforcement (HOPE) Probation program, drug court, mental health court, and veterans treatment court, and suggested, without the intent of limiting the court's discretion, that when sentencing a defendant to a term of probation for conviction of a habitual property crime, the court consider sentencing the defendant to the programs, if appropriate. Senate Standing Committee Report No. 3258, Conference Committee Report No. 42-14.

Act 231, Session Laws 2016, amended this section by reducing by one the number of qualifying convictions required to meet the habitual property crime perpetrator status and allowing any offense committed under chapter 708 to qualify. Act 231 also doubled the length of time from five years to ten years that a conviction can qualify a person for habitual theft status, based on the recommendation of the penal code review committee, which was convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015). The legislature concluded that it was necessary to further strengthen this section, the habitual property crime statute. While it is not desirable to incarcerate an individual for stealing items worth $300, the current felony theft threshold, especially when reminded of the fact that each day of incarceration costs Hawaii taxpayers $137 per incarcerated individual, it is important to properly penalize those individuals who have made a career of thievery. Conference Committee Report No. 138-16.
Haw. Rev. Stat. § 711-1109.35 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109.35
Cruelty to animals by fighting dogs in the second degree.
Status: in_force

(1) A person commits the offense of cruelty to animals by fighting dogs in the second degree if the person knowingly:

(a) Wagers on a dogfight;

(b) Attends or pays to attend a dogfight; or

(c) Possesses any device intended to enhance the dog's fighting ability with the intent that the device be used to train or prepare the dog for a dogfight.

(2) As used in this section:

"Bait dog" means a live animal used to train or prepare dogs for a dogfight.

"Device" means both animate and inanimate objects and includes live animals used as bait dogs.

"Dogfight" means a dog or dogs pitted against another dog or dogs with the intent that the encounter will result in injury to one or more of the dogs.

"Wager" means staking or risking something of value on the outcome of a dogfight.

(3) Cruelty to animals by fighting dogs in the second degree is a class C felony. [L 2011, c 149, §1]
Haw. Rev. Stat. § 712-1227 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1227
Possession of gambling records; defense.
Status: in_force

In any prosecution under sections 712-1224 and [712-1225], it is a defense that the writing, paper, instrument, or article possessed by the defendant was neither used nor intended to be used in the advancement of gambling activity, except for records used in social gambling.

COMMENTARY ON §712-1227

This section establishes a defense in a prosecution under §§712-1224 and 1225. It is a defense to such a prosecution that the record possessed is "neither used nor intended to be used in the advancement of gambling activity, except for records used in social gambling." In view of the relaxed standards provided in §§712-1224 and 1225 (i.e., possession of an article "of a kind commonly used..."), a defense has been provided for those defendants who are able to produce some evidence which raises a reasonable doubt that their possession of the records was preparatory to unlawful gambling.

This section was originally numbered as §712-1226, but was renumbered by Act 201, Session Laws 1973.
Haw. Rev. Stat. § 706-650 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-650
Drug demand reduction assessments; special fund.
Status: in_force

(1) In addition to any disposition authorized by chapter 706 or 853, any person who is:

(a) Convicted of an offense under part IV of chapter 712, except sections 712-1250.5 and 712-1257;

(b) Convicted under section 707-702.5;

(c) Convicted of a felony or misdemeanor offense under part IV of chapter 329;

(d) Convicted under section 291-3.1, 291-3.2, 291-3.3, 291E-61, or 291E-61.5;

(e) Found in violation of part III of chapter 291E; or

(f) Charged with any offense under paragraphs (a) to (d) who has been granted a deferred acceptance of guilty or no contest plea;

shall be ordered to pay a monetary assessment under subsection (2), except as provided under subsection (5).

(2) Monetary assessments for individuals subject to subsection (1) shall not exceed the following:

(a) $3,000 when the offense is a class A felony;

(b) $2,000 when the offense is a class B felony;

(c) $1,000 when the offense is a class C felony;

(d) $500 when the offense is a misdemeanor; or

(e) $250 when the person has been found guilty of an offense under section 712-1249, 291-3.1, 291-3.2, 291-3.3, 291E-61, or has been found in violation of part III of chapter 291E.

Notwithstanding sections 706-640 and 706-641 and any other law to the contrary, the assessments provided by this section shall be in addition to and not in lieu of, and shall not be used to offset or reduce, any fine authorized or required by law and shall be paid pursuant to section 706-651.

(3) There is established a special fund to be known as the "drug demand reduction assessments special fund" to be administered by the department of health. The disbursement of money from the drug demand reduction assessments special fund shall be used to supplement substance abuse treatment and other substance abuse demand reduction programs.

(4) All monetary assessments paid and interest accrued on funds collected pursuant to this section shall be deposited into the drug demand reduction assessments special fund.

(5) If the court determines that the person has the ability to pay the monetary assessment and is eligible for probation or will not be sentenced to incarceration, unless otherwise required by law, the court may order the person to undergo a substance abuse treatment program at the person's expense. If the person undergoes a substance abuse treatment program at the person's expense, the court may waive or reduce the amount of the monetary assessment. Upon a showing by the person that the person lacks the financial ability to pay all or part of the monetary assessment, the court may waive or reduce the amount of the monetary assessment. [L 1995, c 205, §§1, 4; am L 1996, c 7, §1; am L 1998, c 152, §3; am L 2001, c 116, §1; am L 2004, c 152, §1; am L 2016, c 231, §27]
Haw. Rev. Stat. § 706-602 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-602
Pre-sentence diagnosis, notice to victims, and report.
Status: in_force

(1) The pre-sentence diagnosis and report shall be made by personnel assigned to the court or other agency designated by the court and shall include:

(a) An analysis of the circumstances attending the commission of the crime;

(b) The defendant's history of delinquency or criminality, physical and mental condition, family situation and background, economic status and capacity to make restitution or to make reparation to the victim or victims of the defendant's crimes for loss or damage caused thereby, education, occupation, and personal habits;

(c) Information made available by the victim or other source concerning the effect that the crime committed by the defendant has had upon said victim, including but not limited to, any physical or psychological harm or financial loss suffered;

(d) Information concerning defendant's compliance or non-compliance with any order issued under section 806-11; and

(e) Any other matters that the reporting person or agency deems relevant or the court directs to be included.

(2) The court personnel or agency shall give notice of the Crime Victim Compensation Act, the application for compensation procedure, and the possibility of restitution by the defendant to all victims of the convicted defendant's criminal acts. [L 1972, c 9, pt of §1; am L 1973, c 179, §23; am L 1975, c 89, §1; am L 1990, c 256, §1; gen ch 1992; am L 1993, c 215, §5; am L 1998, c 240, §8; am L 2012, c 51, §1]

COMMENTARY ON §706-602

This section sets forth the topics required to be covered in the pre-sentence investigation and report. The Code recognizes that these topics constitute a minimum of the information which should be before the sentencing judge. Additional matters may be included by the pre-sentence investigator. A defendant is protected against the inclusion of unfounded facts, derogatory information, statements and conclusions by the provision of §706-604 providing for notice and opportunity to controvert.

This section is in accord with existing Hawaii rules of procedure[1] and, although it is somewhat more specific, it has been approved by the Adult Probation Office of the First Circuit.

SUPPLEMENTAL COMMENTARY ON §706-602

In enacting the Code, the legislature changed the Proposed Draft by substituting the phrase "pre-sentence diagnosis" for the phrase "pre-sentence investigation". (See Supplemental Commentary on §706-601.)

Act 179, Session Laws 1973, amended this section to provide that the pre-sentence diagnosis and report shall "be made by personnel assigned to the court, intake center, or other agency designated by the court." This amendment was made as part of an extensive act implementing that portion of the Hawaii Correctional Master Plan pertaining to the management and establishment of intake service centers, correctional facilities, and programs.

Act 89, Session Laws 1975, amended this section to require that an analysis of the convicted person's ability to make restitution to the victim of the convicted person's crime be included in the pre-sentence diagnosis and report. As amended, the section further requires appropriate personnel to notify the victim of the victim's right to restitution. The intent of the legislature was to repay the victim for the victim's loss and develop in the convicted person "...a degree of self-respect and pride in knowing that he or she has righted the wrong committed." Senate Standing Committee Report No. 789, House Standing Committee Report No. 425.

Act 256, Session Laws 1990, amended this section to require the inclusion of information on the effect of the crime to the victim in all pre-sentencing reports submitted to the courts. The legislature believed that sentencing decisions which are based solely on the circumstances of the defendant's prior history and on an abstract view of the offense are decisions made in a vacuum. The legislature was convinced that the sentencing judge should, therefore, be informed of the impact which the offense has had on the victim as a representative of the entire community because criminal proceedings are brought on behalf of and intended to protect everyone. House Standing Committee Report No. 1193-90.

Act 215, Session Laws 1993, amended this section to provide that the pre-sentence diagnosis and report shall include information concerning the defendant's compliance or noncompliance with any order issued to the defendant pursuant to §806-11, at the time of arraignment, to dispose of all firearms and ammunition within the defendant's possession in a manner in compliance with chapter 134 within forty-eight hours of the issuance of the order. Conference Committee Report No. 66.

Act 240, Session Laws 1998, renamed the criminal injuries compensation commission to the crime victim compensation commission to more accurately reflect the commission's purpose. This section was amended to conform to that name change. House Standing Committee Report No. 1060-98.

Act 51, Session Laws 2012, amended this section by deleting the Intake Service Center as an agency responsible for preparing the pre-sentence diagnosis and report for defendants and for giving notices of the Crime Victim Compensation Act and other specified restitution procedures to increase efficiency in the pre-sentence investigative process as it relates to convicted defendants. The legislature found that Act 51 updated the law relating to pre-sentence investigation process and reporting and correctly designated pre-sentence investigation and reporting duties to the Judiciary. House Standing Committee Report No. 607-12, Senate Standing Committee Report No. 3187.
Haw. Rev. Stat. § 706-659 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-659
Sentence of imprisonment for class A felony.
Status: in_force

Notwithstanding part II; sections 706-605, 706-606, 706-606.5, 706-660.1, 706-661, and 706-662; and any other law to the contrary, a person who has been convicted of a class A felony, except class A felonies defined in chapter 712, part IV, or section 707-702, shall be sentenced to an indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669. A person who has been convicted of a class A felony defined in chapter 712, part IV, or section 707-702, may be sentenced to an indeterminate term of imprisonment, except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be twenty years. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.

COMMENTARY ON §706-659

Act 294, Session Laws 1980, enacted this section to provide for automatic sentence of imprisonment for any person convicted of a class A felony. The legislature stated: "Your Committee feels that the seriousness of class A felonies...merits mandatory imprisonment. This bill effects this purpose by denying suspension of sentence and probation as sentencing options in class A convictions, but retains, through indeterminate sentence, the option of parole by the paroling authority in order that unusual extenuating circumstances can be given due consideration." Senate Standing Committee Report No. 965-80.

Act 229, Session Laws 1994, amended this section, inter alia, to allow the court to make an exception for a person convicted of a class A felony defined in chapter 712, part IV, from the mandatory sentence of an indeterminate term of imprisonment without the possibility of suspension of sentence or probation. The legislature believed that, in certain instances, the public is better served by allowing judges some discretion in evaluating all appropriate sentencing and treatment alternatives available for drug offenders. Conference Committee Report No. 62.

Act 292, Session Laws 2012, amended this section by exempting a person convicted of manslaughter from a mandatory indeterminate term of twenty years imprisonment without the possibility of suspension of sentence or probation, but allowing that person to be sentenced to an indeterminate maximum and minimum term of imprisonment to be determined by the court and paroling authority respectively. The legislature noted that traffic related fatalities were a serious issue and that persons convicted of certain offenses involving traffic fatalities should be dealt with accordingly. The legislature found that Act 292 provided clarity regarding the imposition of a term of imprisonment, as a condition for probation, for a person convicted of manslaughter, and makes this section consistent with §706-620(2), which allows for a sentence of probation for an offense of manslaughter. Senate Standing Committee Report No. 3229, Conference Committee Report No. 44-12.
Haw. Rev. Stat. § 706-673 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-673
Notice of escape.
Status: in_force

(1) As used in this section, the following terms have the following meanings:

"Offense against the person" means any of the offenses described in chapter 707 and includes any attempt to commit any of those offenses.

"Prisoner" means a person who has been convicted of an offense against the person.

"Surviving immediate family member" means a person who is a surviving grandparent, parent, sibling, spouse or reciprocal beneficiary, child, or legal guardian of a deceased victim.

"Victim" means the person who was the victim of the offense against the person for which the prisoner was convicted.

(2) Upon written request, the department of corrections and rehabilitation shall give notice of the escape of a prisoner, immediately following the escape, by the most reasonable and expedient means available, to each victim or a surviving immediate family member of the victim, through the victim witness assistance program in the county where the crime was committed.

(3) Neither the failure of any state officer or employee to carry out the requirements of this section nor compliance with it shall subject the State, the officer, or employee to liability in any civil action. However, such failure may provide a basis for such disciplinary action as may be deemed appropriate by a competent authority. [L 1990, c 193, §1; am L 1997, c 383, §67; am L 2022, c 278, §29]
Haw. Rev. Stat. § 710-1072 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1072
Tampering with a witness.
Status: in_force

(1) A person commits the offense of tampering with a witness if he intentionally engages in conduct to induce a witness or a person he believes is about to be called as a witness in any official proceeding to:

(a) Testify falsely or withhold any testimony which he is not privileged to withhold; or

(b) Absent himself from any official proceeding to which he has been legally summoned.

(2) Tampering with a witness is a misdemeanor. [L 1972, c 9, pt of §1]

COMMENTARY ON §710-1072

The social harm dealt with in this section is the same as that dealt with in the prior two sections, however, the means specified in the definition of this offense (i.e., conduct intended to induce) are not as culpable as in the former sections, hence tampering with a witness is only graded as a misdemeanor. A person who attempts to affect testimony, or the absence of it, by, e.g., persuasion or trickery, as opposed to bribery or intimidation, does not commit an offense grave enough to be condemned as a felony. However, unlike the sections on witness bribery and intimidation,[1] an attempt to induce a prospective witness to avoid process is not made an offense: this is because neither the means nor the end is illegal in itself.[2]
Haw. Rev. Stat. § 712A-18 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-18
Victim restitution.
Status: in_force

Nothing herein precludes a court from ordering restitution or reparation to a victim by the defendant as part of a sentence imposed for a violation of a covered offense. The State shall not be compelled to provide funds for victim restitution or reparation under this chapter.
Haw. Rev. Stat. § 708-813 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-813
Criminal trespass in the first degree.
Status: in_force

(1) A person commits the offense of criminal trespass in the first degree if:

(a) That person knowingly enters or remains unlawfully:

(i) In a dwelling; or

(ii) In or upon the premises of a hotel or apartment building;

(b) That person:

(i) Knowingly enters or remains unlawfully in or upon premises that are fenced or enclosed in a manner designed to exclude intruders; and

(ii) Is in possession of a firearm, as defined in section 134-1, at the time of the intrusion; or

(c) That person enters or remains unlawfully in or upon the premises of any public school as defined in section 302A-101, or any private school, after reasonable warning or request to leave by school authorities or a police officer; provided however, such warning or request to leave shall be unnecessary between 10:00 p.m. and 5:00 a.m.

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

(a) A process server who enters or remains in or upon the land or premises of another, unless the land or premises are secured with a fence and locked gate, for the purpose of making a good faith attempt to perform their legal duties and to serve process upon any of the following:

(i) An owner or occupant of the land or premises;

(ii) An agent of the owner or occupant of the land or premises; or

(iii) A lessee of the land or premises; or

(b) A professional land surveyor, or assistant under the direct supervision of the professional land surveyor, who enters or remains in or upon the land or premises of another for the purpose of performing land surveying at the request of the landowner of, or person with an interest in, the real property to be surveyed.

(3) As used in this section, "process server" means any person authorized under the Hawaii rules of civil procedure, district court rules of civil procedure, Hawaii family court rules, or section 353C-10 to serve process.

(4) Criminal trespass in the first degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1974, c 55, §1; am L 1975, c 32, §1; am L 1981, c 177, §1; am L 1996, c 89, §18; am L 2000, c 200, §1; am L 2015, c 101, §2; am L 2023, c 209, §3]
Haw. Rev. Stat. § 707-785 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-785
[ §707-785] Restitution for victims of labor trafficking.
Status: in_force

[ §707-785] Restitution for victims of labor trafficking. (1) In addition to any other penalty, and notwithstanding a victim's failure to request restitution under section 706-646(2), the court shall order restitution to be paid to the victim, consisting of an amount that is the greater of:

(a) The total gross income or value to the defendant of the victim's labor or services; or

(b) The value of the victim's labor or services, as guaranteed under the minimum wage provisions of chapter 387 or the Fair Labor Standards Act of 1938, Public Law 75-718, title 29 United States Code sections 201 through 219, inclusive, whichever is greater.

(2) The return of the victim to the victim's home country or other absence of the victim from the jurisdiction shall not relieve the defendant of the defendant's restitution obligation. [L 2011, c 146, pt of §1]
Haw. Rev. Stat. § 704-418 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-418
Immaturity excluding penal conviction; transfer of proceedings to family court.
Status: in_force

(1) A person shall not be tried for or convicted of an offense if the person is subject to the exclusive original jurisdiction of the family court, unless the family court has waived jurisdiction over the person.

(2) No court shall have jurisdiction to try or convict a person of an offense if penal proceedings against the person are barred by subsection (1). When it appears that a person charged with the commission of an offense may be of such an age that penal proceedings may be barred under subsection (1), the court shall hold a hearing thereon, and the burden shall be on the prosecution to establish to the satisfaction of the court that the penal proceeding is not barred upon such grounds. If the court determines the penal proceeding is barred, custody of the person charged shall be surrendered to the family court, and the case, including all papers and processes relating thereto, shall be transferred. [L 1972, c 9, pt of §1; am L 1981, c 206, §1; gen ch 1993]
Haw. Rev. Stat. § 708-834 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-834
Defenses: unawareness of ownership; claim of right; household belongings; co-interest not a defense.
Status: in_force

(1) It is a defense to a prosecution for theft that the defendant:

(a) Was unaware that the property or service was that of another; or

(b) Believed that the defendant was entitled to the property or services under a claim of right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.

(2) If the owner of the property is the defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution for theft of property that:

(a) The property which is obtained or over which unauthorized control is exerted constitutes household belongings; and

(b) The defendant and the defendant's spouse or reciprocal beneficiary were living together at the time of the conduct.

(3) "Household belongings" means furniture, personal effects, vehicles, money or its equivalent in amounts customarily used for household purposes, and other property usually found in and about the common dwelling and accessible to its occupants.

(4) In a prosecution for theft, it is not a defense that the defendant has an interest in the property if the owner has an interest in the property to which the defendant is not entitled. [L 1972, c 9, pt of §1; am L 1979, c 106, §8; am L 1980, c 232, §41; gen ch 1993; am L 1997, c 383, §69]

COMMENTARY ON §708-834

Both the defenses allowed under §708-834(1) are probably unnecessary in light of an informed reading of the substantive definitions of the various modes of theft. The existence of either condition (a) or (b) would relieve the actor of the culpability required to establish the offense: the actor could not have intended to deprive another of property (or refuse payment for services) unless the actor was aware that the property or services were that of another; and a claim of right, assuming that it amounts to a belief that the actor is the true owner, would not only indicate that the actor did not have the requisite mental state, it would constitute a mistake of fact defense under §702-218. The summary and restatement of this subsection is principally for purposes of clarity and emphasis.

The marital defense of subsection (2) is based upon various theories. First, the uncertainty of ownership of much household property, together with the potential bitterness of interspousal conflict, provide numerous opportunities for a miscarriage of justice.[1] Alternatively, it is said that household belongings, defined in subsection (3), constitute a kind of "common pool of wealth," and that misappropriations in this context are so generally tolerated as not to deviate substantially from socially-accepted norms. A wife who rifles her husband's wallet, or a husband who pawns his wife's jewelry, does not present a grave danger to the community, so long as the activity is so confined. Finally, criminal courts are unsuited to handle breakdowns in the family structure of which interspousal theft complaints are only a symptom.[2]

Subsection (4) is intended to cover the situation where an aggrieved person attempts to seek an informal solution by threatening legal action unless restitution, indemnification, or compensation is made. The most significant instance of this device is the waiver of prosecution commonly offered by insurance companies in exchange for the return of valuable merchandise. The rationale here is that it is hardly fair to penalize someone for trying to recover one's own goods (or the value thereof), nor could the penal law realistically expect to suppress such natural inclinations.

Subsection (5) merely requires that the interest which the actor asserts under a claim of right must be inconsistent with that of the victim. The premise is that if the interest is not inconsistent, it does not justify the actor's possession as opposed to that of the victim. Furthermore, it is felt that "co- owners should be as well protected against the depredations of other co-owners as they are against outsiders."[3]

SUPPLEMENTAL COMMENTARY ON §708-834

Act 106, Session Laws 1979, amended this section as part of a consolidation of laws pertaining to extortion.

Act 232, Session Laws 1980, added subsection (4) and the words "co-interest not a defense" in the section heading to restore language erroneously omitted by L 1979, Act 107, §8.

Act 383, Session Laws 1997, amended this section to provide a defense to prosecution for theft of property to reciprocal beneficiaries. In establishing the status of reciprocal beneficiaries, the Act provides certain rights and benefits and represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage. Conference Committee Report No. 2.
Haw. Rev. Stat. § 712-1240.9 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1240.9
Methamphetamine trafficking; restitution and reimbursement.
Status: repealed

When sentencing a defendant convicted of methamphetamine trafficking pursuant to section 712-1240.7 or 712-1240.8 as that section was in effect prior to July 1, 2016, the court may order restitution or reimbursement to the State or appropriate county government for the cost incurred for any cleanup associated with the manufacture or distribution of methamphetamine and to any other person injured as a result of the manufacture or distribution of methamphetamine.

COMMENTARY ON §§712-1240.7 TO 712-1240.9

Act 230, Session Laws 2006, added §§712-1240.7 and 712-1240.8, methamphetamine trafficking in the first and second degrees. House Standing Committee Report No. 665-06.

Act 230, Session Laws 2006, also added §712-1240.9, authorizing a court to order restitution or reimbursement when sentencing a defendant convicted under §712-1240.7 or §712-1240.8.

Act 231, Session Laws 2016, amended §712-1240.7 by, among other things, removing possession and distribution of methamphetamine from the statute. Act 231 placed possession and distribution of methamphetamine in the statutes relating to promoting a dangerous drug [§§712-1241 and 712-1242], which gives the court the discretion to impose probation and drug treatment when appropriate. The offenses remaining in §712-1240.7 are distribution of methamphetamine to a minor and manufacturing of methamphetamine, which remain class A felonies. The amendments implemented recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015). The Penal Code Review Committee commented, on page 59 of its report, that "[w]hile the Committee recognizes these dangers and challenges, it is of the opinion that the current Methamphetamine Trafficking statutes are not properly addressing those challenges and should be changed based on the experience of the Committee regarding the application of these provisions in the criminal justice system in Hawaii." House Standing Committee Report No. 660-16.

Act 231, Session Laws 2016, repealed §712-1240.8 and amended §712-1240.9 by making a conforming amendment. Act 231 implemented recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 711-1101 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1101
Disorderly conduct.
Status: in_force

(1) A person commits the offense of disorderly conduct if, with intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person:

(a) Engages in fighting or threatening, or in violent or tumultuous behavior;

(b) Makes unreasonable noise;

(c) Subjects another person to offensively coarse behavior or abusive language which is likely to provoke a violent response;

(d) Creates a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit; or

(e) Impedes or obstructs, for the purpose of begging or soliciting alms, any person in any public place or in any place open to the public.

(2) Noise is unreasonable, within the meaning of subsection (1)(b), if considering the nature and purpose of the person's conduct and the circumstances known to the person, including the nature of the location and the time of the day or night, the person's conduct involves a gross deviation from the standard of conduct that a law-abiding citizen would follow in the same situation; or the failure to heed the admonition of a police officer that the noise is unreasonable and should be stopped or reduced.

The renter, resident, or owner-occupant of the premises who knowingly or negligently consents to unreasonable noise on the premises shall be guilty of a noise violation.

(3) Disorderly conduct is a petty misdemeanor if it is the defendant's intention to cause substantial harm or serious inconvenience, or if the defendant persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a violation. [L 1972, c 9, pt of §1; am L 1973, c 136, §9(a); am L 1974, c 164, §1; am L 1978, c 182, §1; am L 1979, c 79, §1; gen ch 1993; am L 2003, c 48, §2]
Haw. Rev. Stat. § 707-711 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-711
Assault in the second degree.
Status: in_force

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

(a) Intentionally, knowingly, or recklessly causes substantial bodily injury to another;

(b) Recklessly causes serious bodily injury to another;

(c) Intentionally or knowingly causes bodily injury to a correctional worker, as defined in section 710-1031(2), who is engaged in the performance of duty or who is within a correctional facility;

(d) Intentionally or knowingly causes bodily injury to another with a dangerous instrument;

(e) Intentionally or knowingly causes bodily injury to an educational worker who is engaged in the performance of duty or who is within an educational facility. For the purposes of this paragraph, "educational worker" means any administrator, specialist, counselor, teacher, or employee of the department of education or an employee of a charter school; a person who is a volunteer, as defined in section 90-1, in a school program, activity, or function that is established, sanctioned, or approved by the department of education; or a person hired by the department of education on a contractual basis and engaged in carrying out an educational function;

(f) Intentionally or knowingly causes bodily injury to any emergency medical services provider who is engaged in the performance of duty. For the purposes of this paragraph, "emergency medical services provider" means emergency medical services personnel, as defined in section 321-222, and physicians, physician's assistants, nurses, nurse practitioners, certified registered nurse anesthetists, respiratory therapists, laboratory technicians, radiology technicians, and social workers, providing services in the emergency room of a hospital;

(g) Intentionally or knowingly causes bodily injury to a person employed at a state-operated or -contracted mental health facility. For the purposes of this paragraph, "a person employed at a state-operated or -contracted mental health facility" includes health care professionals as defined in section 451D-2, administrators, orderlies, security personnel, volunteers, and any other person who is engaged in the performance of a duty at a state-operated or -contracted mental health facility;

(h) Intentionally or knowingly causes bodily injury to a person who:

(i) The defendant has been restrained from, by order of any court, including an ex parte order, contacting, threatening, or physically abusing pursuant to chapter 586; or

(ii) Is being protected by a police officer ordering the defendant to leave the premises of that protected person pursuant to section 709-906(4), during the effective period of that order;

(i) Intentionally or knowingly causes bodily injury to any firefighter or water safety officer who is engaged in the performance of duty. For the purposes of this paragraph, "firefighter" has the same meaning as in section 710-1012 and "water safety officer" means any public servant employed by the United States, the State, or any county as a lifeguard or person authorized to conduct water rescue or ocean safety functions;

(j) Intentionally or knowingly causes bodily injury to a person who is engaged in the performance of duty at a health care facility as defined in section 323D-2. For purposes of this paragraph, "a person who is engaged in the performance of duty at a health care facility" includes health care professionals as defined in section 451D-2, physician assistants, surgical assistants, advanced practice registered nurses, nurse aides, respiratory therapists, laboratory technicians, and radiology technicians;

(k) Intentionally or knowingly causes bodily injury to a person who is engaged in providing home health care services, as defined in section 431:10H-201;

(l) Intentionally or knowingly causes bodily injury to a person employed or contracted to work by a mutual benefit society, as defined in section 432:1-104, to provide case management services to an individual in a hospital, health care provider's office, or home, while that person is engaged in the performance of those services;

(m) Intentionally or knowingly causes bodily injury to a person who is sixty years of age or older and the age of the injured person is known or reasonably should be known to the person causing the injury;

(n) Intentionally or knowingly causes bodily injury to a sports official who is engaged in the lawful discharge of the sports official's duties. For the purposes of this paragraph, "sports official" and "lawful discharge of the sports official's duties" have the same meaning as in section 706-605.6;

(o) Intentionally or knowingly causes bodily injury to a national guard member who is engaged in the performance of duty. For purposes of this paragraph, "national guard member" means a member of the national guard on any duty or service done under or in pursuance of an order or call of the governor or the President of the United States or any proper authority as provided by law; or

[(p)] Intentionally or knowingly causes bodily injury to any protective services worker who is engaged in the performance of the worker's duties. For purposes of this paragraph, "protective services worker" means any administrator, specialist, social worker, case manager, or aide employed by the department of human services to investigate or provide services in response to reports of child abuse or neglect, or to investigate or provide services in response to reports of abuse or neglect of a vulnerable adult.

(2) Assault in the second degree is a class C felony. [L 1972, c 9, pt of §1; am L 1979, c 84, §1; am L 1986, c 314, §52; am L 1987, c 257, §1; am L 1988, c 279, §1; am L 2006, c 230, §29 and c 298, §16; am L 2007, c 9, §19 and c 79, §1; am L 2008, c 100, §7; am L 2010, c 146, §1; am L 2011, c 63, §3 and c 187, §1; am L 2016, c 231, §33; am L 2018, c 147, §1; am L 2021, c 147, §2; am L 2023, c 140, §2; am L 2025, c 8, §1 and c 142, §1]
Haw. Rev. Stat. § 712-1255 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1255
Conditional discharge.
Status: in_force

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

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

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

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

(5) After conviction, for any offense under this chapter or chapter 329, but prior to sentencing, the court shall be advised by the prosecutor whether the conviction is defendant's first or a subsequent offense. If it is not a first offense, the prosecutor shall file an information setting forth the prior convictions. The defendant shall have the opportunity in open court to affirm or deny that the defendant is identical with the person previously convicted. If the defendant denies the identity, sentence shall be postponed for such time as to permit the trial, before a jury if the defendant has a right to trial by jury and demands a jury, on the sole issue of the defendant's identity with the person previously convicted. [L 1972, c 9, pt of §1; am L 1987, c 176, §10; gen ch 1993]
Haw. Rev. Stat. § 712-1222 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1222
Promoting gambling in the second degree.
Status: in_force

(1) A person commits the offense of promoting gambling in the second degree if the person negligently advances or profits from gambling activity.

(2) Promoting gambling in the second degree is a class C felony. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; am L 1987, c 83, §2; gen ch 1992; am L 2022, c 111, §5]
Haw. Rev. Stat. § 707-751 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-751
Promoting child abuse in the second degree.
Status: in_force

(1) A person commits the offense of promoting child abuse in the second degree if, knowing or having reason to know its character and content, the person:

(a) Disseminates child pornography;

(b) Reproduces child pornography with intent to disseminate;

(c) Disseminates any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography;

(d) Disseminates any pornographic material which employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct; or

(e) Possesses thirty or more images of any form of child pornography, and the content of at least one image contains one or more of the following:

(i) A minor who is younger than the age of twelve;

(ii) Sadomasochistic abuse of a minor; or

(iii) Bestiality involving a minor.

(2) As used in this section:

"Child pornography" means any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct, if:

(a) The pornographic production of such visual representation involves the use of a minor engaging in sexual conduct; or

(b) The pornographic visual representation has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual conduct.

"Community standards" means the standards of the State.

"Computer" shall have the same meaning as in section 708-890.

"Disseminate" means to publish, sell, distribute, transmit, exhibit, present material, mail, ship, or transport by any means, including by computer, or to offer or agree to do the same.

"Lascivious" means tending to incite lust, to deprave the morals in respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards.

"Material" means any printed matter, visual representation, or sound recording and includes, but is not limited to, books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, and tape or wire recordings.

"Minor" means any person less than eighteen years old.

"Pornographic" shall have the same meaning as in section 712-1210.

"Sadomasochistic abuse" means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

"Sexual conduct" means actual or simulated sexual intercourse, including genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, masturbation, bestiality, sexual penetration, deviate sexual intercourse, sadomasochistic abuse, or lascivious exhibition of the genital or pubic area of a minor.

"Visual representation" refers to, but is not limited to, undeveloped film and videotape, and data stored on computer disk or by electronic means that are capable of conversion into a visual image.

(3) The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material. The fact that the person who was employed, used, or otherwise contained in the pornographic material was at that time, a minor, is prima facie evidence that the defendant knew the person to be a minor.

(4) Promoting child abuse in the second degree is a class B felony. [L 1978, c 214, §2; am L 1982, c 218, §2; am L 1986, c 314, §59; am L 1997, c 363, §2; am L 2002, c 200, §3; am L 2012, c 212, §1; am L 2016, c 16, §2]
Haw. Rev. Stat. § 706-606.4 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-606.4
Sentencing in enumerated offenses committed in the presence of a minor.
Status: in_force

(1) In addition to the factors considered under section 706-606, the court shall consider the following aggravating factors in determining the particular sentence to be imposed:

(a) The defendant has been convicted of committing or attempting to commit an offense; and

(b) The offense contemporaneously occurred in the presence of a minor.

(2) As used in this section:

"In the presence of a minor" means in the actual physical presence of a child or knowing that a child is present and may hear or see the offense.

"Offense" means a violation of section 707-710 (assault in the first degree), 707-711 (assault in the second degree), 707‑730 (sexual assault in the first degree), 707-731 (sexual assault in the second degree), 707-732 (sexual assault in the third degree), 709-906 (abuse of family or household members), or 711-1109.8 (sexual assault of an animal). [L 1999, c 268, §2; am L 2003, c 3, §16; am L 2016, c 157, §1; am L 2021, c 31, §3]

COMMENTARY ON §706-606.4

Act 268, Session Laws 1999, added this section to require judges, when imposing a sentence, to consider the fact that the crime was committed in the presence of a minor as an aggravating factor of the crime; the court shall consider the aggravating factors in addition to the factors to be considered under §706-606. The legislature found that children who witness domestic violence are harmed in many ways, and acknowledged that domestic violence is a perpetuation of a violent cycle, as children of abuse grow up to be abusers themselves. Studies have documented multiple problems among children that have witnessed continual assaults by one parent on another in the home, including psychological and emotional distress, cognitive functioning problems, and physical problems. Because of the high social and financial costs resulting from domestic violence, the legislature agreed that more serious penalties should be imposed for both their deterrent and punitive effects. Conference Committee Report No. 26.

Act 3, Session Laws 2003, made a technical amendment to this section, by deleting the brackets around the word "or" in the phrase "abuse of family or household members."

Act 157, Session Laws 2016, amended this section to provide that the commission of certain offenses of assault, sexual assault, and abuse of a family or household member in the presence of a minor is an aggravating factor to be considered in the sentencing of the defendant convicted of the offense. The legislature found that research has shown that children who witness assault or domestic violence can suffer severe emotional and developmental difficulties that are similar to those of children who are victims of direct physical and mental abuse. By broadening the application of the aggravating factor considered by the courts when sentencing defendants convicted of committing certain crimes in the presence of a minor pursuant to this section to include the commission of assault and sexual assault offenses regardless of the preexisting legal relationship between the defendant and the victim or the child, Act 157 recognized the impact that witnessing an assault has on a child. The use of the aggravating factor for sentencing does not elevate the seriousness of the offense charged. Conference Committee Report No. 13-16.

Act 31, Session Laws 2021, amended this section to provide that the commission or attempted commission of the offense of sexual assault of an animal in the presence of a minor is an aggravating factor to be considered in the sentencing of the defendant convicted of the offense. The legislature found that sexual assault of an animal has been significantly linked to the sexual abuse of children as well as interpersonal violence and other forms of animal cruelty. In addition, sexual abusers of animals have been shown to collect and share child pornography and express interest in other aberrant behavior involving sexual violence and fetish behaviors. The legislature further found that although Hawaii had strong animal cruelty laws, some acts of sexual assault on animals could not be prosecuted under those laws because the acts did not cause bodily injury. Establishing sexual assault of an animal as a separate crime would allow law enforcement officers to better identify potentially dangerous and violent sexual predators in the community. The legislature noted that the high penalties for the offense of sexual assault of an animal were intended not just to protect animals but also to be a deterrent against the sexual assault of children because animal abuse is often a precursor to child abuse. House Standing Committee Report No. 979, House Standing Committee Report No. 1827, Senate Standing Committee Report No. 43.
Haw. Rev. Stat. § 708-817 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-817
Burglary of a dwelling during an emergency period.
Status: in_force

(1) A person commits the offense of burglary of a dwelling 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:

(a) Intentionally enters or remains unlawfully in a dwelling with intent to commit therein a crime against a person or against property rights; and

(b) Recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling at the time.

(2) Burglary of a dwelling during an emergency period is a class A felony. [L 2006, c 116, pt of §3, am L 2014, c 111, §17]
Haw. Rev. Stat. § 710-1068 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1068
Irregularities no defense.
Status: in_force

It is not a defense to a prosecution under this part:

(1) That the defendant was not competent, for reasons other than lack of penal responsibility, to make the false statement alleged;

(2) That the statement was inadmissible under the law of evidence;

(3) That the oath was administered or taken in an irregular manner; or

(4) That the person administering the oath lacked authority to do so, if the taking of the oath was required or authorized by law. [L 1972, c 9, pt of §1]

Revision Note

In paragraphs (1) and (2), "or" deleted pursuant to §23G-15.

COMMENTARY ON §710-1068

This section precludes certain defenses which might be raised by a defendant in a prosecution under a section in this part. The same result would probably be reached by court interpretation; however, to avoid confusion this section deals with these defenses specifically.

Subsection (1) precludes a defense based on the incompetency of a defendant to give certain testimony. This subsection does not apply where the incompetency is based on a complete lack of penal responsibility (i.e., the defenses to penal liability provided by chapter 704.).

Subsection (2) precludes a defense based on the inadmissibility, under the rules of evidence, of the false testimony. For example, a defendant in a perjury prosecution could not claim that, because a correct application of the rules of evidence would have precluded the defendant's testimony as being hearsay or irrelevant, the defendant is not guilty of the falsification offense. This subsection follows logically from the definition of "materially false statement" in §710-1000(9), which separates "materiality" from "admissibility." "These provisions are based on the same basic principle that once a person's testimony is admitted he cannot excuse his perjury on the ground that the testimony was subject to objection and should have been excluded in the first instance."[1]

Subsection (3) states the general rule that irregularities in the administration of the oath are not a defense to falsification under oath.

Section[s 710-1060, 1061, and 1062] deal with statements under oath or affirmation. The guiding principle is that when the community commands or authorizes certain statements to be made with special formality or on notice of special sanction, the seriousness of the demand for honesty is sufficiently evident to warrant application of criminal sanctions. Oath, affirmation for those with religious or other scruples against oaths, or--under Section [710-1000(10)]--notice that the state means to apply criminal penalties to misstatements, should suffice. Technical irregularities in the administration of the oath are of no concern to the defendant, as we have expressly provided in subsection (3).[2]

Subsection (4) "is designed to deal with a situation where the oath was taken as required by law, but was administered by a person who lacked authority to do so,"[3] such as a notary whose commission expired. The Code precludes a defense to falsification under such circumstances.
Haw. Rev. Stat. § 712-1229 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1229
Lottery offenses; no defense.
Status: in_force

It is no defense to a prosecution under any section of this part relating to a lottery that the lottery itself is drawn or conducted outside this State and is not in violation of the laws of the jurisdiction in which it is drawn or conducted.

COMMENTARY ON §712-1229

This section provides that it is no defense to a prosecution under any section relating to a lottery that the lottery itself is drawn or conducted outside this State and is not in violation of the laws of the jurisdiction in which it is drawn. This eliminates spurious defenses in cases involving the Irish Sweepstakes or lotteries conducted in other states. Because the person who places the bet or buys the lottery ticket is not criminal under this part, only the seller or promoter is covered and it should make no difference that the seller or promoter is dealing in "chances" based on an out-of-state contingency. The section was renumbered from §712-1228 to §712-1229 by Act 201, Session Laws 1973.
Haw. Rev. Stat. § 708-836.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-836.6
Unauthorized entry into motor vehicle in the second degree.
Status: in_force

(1) A person commits the offense of unauthorized entry into a motor vehicle in the second degree if the person intentionally or knowingly enters into a motor vehicle without being invited, licensed, or otherwise authorized to do so.

(2) Unauthorized entry into a motor vehicle in the second degree is a misdemeanor. [L 2006, c 230, §3]

COMMENTARY ON §708-836.6

Act 230, Session Laws 2006, added the misdemeanor crime of unauthorized entry into motor vehicle in the second degree. House Standing Committee Report No. 665-06.
Haw. Rev. Stat. § 711-1108 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1108
Abuse of a corpse.
Status: in_force

(1) A person commits the offense of abuse of a corpse if, except as authorized by law, the person:

(a) Treats a human corpse in a way that the person knows would outrage ordinary family sensibilities; or

(b) Accepts the donation of a dead human body or any of its parts.

(2) An entity to whom body parts are entrusted commits the offense of abuse of a corpse if, except as authorized by law, the entity to whom body parts are entrusted disposes of a dead human body without a disposition permit. Disposal of a dead human body includes removal of body parts or organs; provided that it shall not be an offense for a procurement organization to remove body parts or organs for transplantation or therapy prior to obtaining a disposition permit.

(3) The preparation of a corpse for burial or cremation in a manner consistent with traditional Hawaiian cultural customs and practices shall not be a violation of this section.

(4) The burial or cremation of a corpse prepared consistent with traditional Hawaiian cultural customs and practices shall not be a violation of this section.

(5) Abuse of a corpse is a misdemeanor.

(6) For the purposes of this section, "procurement organization" has the same meaning as defined in section 327-2. [L 1972, c 9, pt of §1; gen ch 1993; am L 2015, c 171, §2; am L 2020, c 43, §4]

COMMENTARY ON §711-1108

This section prohibits any sort of outrageous treatment of a human corpse, including sexual contact (necrophilia) and physical abuse. It does not, of course, relate to legally authorized activities of undertakers and physicians. Knowledge that ordinary family sensibilities would be outraged must be proved.
Haw. Rev. Stat. § 704-421 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-421
Proceedings for defendants charged with petty misdemeanors not involving violence or attempted violence; criminal justice diversion program.
Status: in_force

(1) In cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence, if, at the hearing held pursuant to section 704-404(2)(a) or at a further hearing held after the appointment of an examiner pursuant to section 704-404(2)(b), the court determines that the defendant is fit to proceed, then the proceedings against the defendant shall resume. In all other cases under this section where fitness remains an outstanding issue, the court shall continue the suspension of the proceedings and either commit the defendant to the custody of the director of health to be placed in a hospital or other suitable facility, including an outpatient facility, for further examination and assessment or, in cases where the defendant was not subject to an order of commitment to the director of health for the purpose of the fitness examination under section 704-404(2), the court may order that the defendant remain released on conditions the court determines necessary for placement in a group home, residence, or other facility prescribed by the director of health for further assessment by a clinical team pursuant to subsection (3).

(2) In cases under this section where the defendant's fitness to proceed remains an outstanding issue at the hearing held pursuant to section 704-404(2)(a) or a further hearing held after the appointment of an examiner pursuant to section 704-404(2)(b), as applicable, the director of health, within fourteen days of that hearing or as soon thereafter as is practicable, shall report to the court on the following:

(a) The defendant's current capacity to understand the proceedings against the defendant and the defendant's current ability to assist in the defendant's own defense;

(b) Whether, after assessment of the defendant pursuant to subsection (3)(a) or (b), the defendant's clinical team believes that the defendant meets the criteria for involuntary hospitalization under section 334-60.2 or assisted community treatment under section 334-121; and

(c) The date that the director of health filed a petition for involuntary hospitalization or assisted community treatment on behalf of the defendant pursuant to subsection (3)(a) or (b), as applicable.

If, following the report, the court finds the defendant fit to proceed, the proceedings against the defendant shall resume. In all other cases, the court shall dismiss the charge with or without prejudice in the interest of justice.

(3) During the defendant's commitment to the custody of the director of health or release on conditions pursuant to subsection (1):

(a) If the defendant's clinical team determines that the defendant meets the criteria for involuntary hospitalization set forth in section 334-60.2, the director of health, within seven days of the clinical team's determination, shall file with the family court a petition for involuntary hospitalization pursuant to section 334-60.3. If the petition is granted, the defendant shall remain hospitalized for a period of time as provided by section 334-60.6; or

(b) If the defendant's clinical team determines that the defendant does not meet the criteria for involuntary hospitalization, or the court denies the petition for involuntary hospitalization, the defendant's clinical team shall determine whether an assisted community treatment plan is appropriate pursuant to part VIII of chapter 334. If the clinical team determines that an assisted community treatment plan is appropriate, the psychiatrist or advanced practice registered nurse from the clinical team shall prepare the certificate for assisted community treatment specified by section 334-123, including a written treatment plan for the provision of mental health services to the defendant. The clinical team shall identify a community mental health outpatient program that agrees to provide mental health services to the defendant as the designated mental health program under the assisted community treatment order. The clinical team shall provide the defendant with a copy of the certificate. Within ten days of provision of the certificate to the defendant by the clinical team, the director of health shall file with the family court the assisted community treatment petition described in section 334-123. When a petition for assisted community treatment has been filed for a defendant, the defendant committed to the custody of the director of health shall remain in custody until the family court issues a decision on the petition; provided that the judge may order that the subject be released during the pendency of that action.

(4) This section shall not apply to any case under the jurisdiction of the family court unless the presiding judge orders otherwise. [L 2020, c 26, §1; am L 2024, c 87, §9]

COMMENTARY ON §704-421

Act 26, Session Laws 2020, established this section to require that, in cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence and the defendant's fitness to proceed remains an outstanding issue: (1) the court continue the suspension of the proceedings and commit the defendant to the custody of the director of health to be placed in a hospital or other suitable facility for further examination and assessment; and (2) if the court determines that the defendant is not fit to proceed following receipt of the director of health's report on the defendant's current capacity, the court shall dismiss the charge with or without prejudice in the interest of justice. The legislature noted significant increases in the number of individuals with mental illness that were arrested and remained in custody while awaiting a psychiatric evaluation of competency. If determined to be legally unfit to proceed with their cases, these individuals continued to remain in custody until restoration of their legal fitness to proceed. The legislature found that the mental health core steering committee, a collaboration of the department of health and the judiciary, published a Joint Report on January 9, 2020, proposing legislation to divert nonviolent petty misdemeanants living with mental illness from the criminal justice system within days of their arrest, rather than months, to further the goal of crime prevention, ensure appropriate diversion to community treatment, and further the goal of rehabilitation, among other amendments to existing statute. The legislature further found that Act 26 reflected the recommendations of the steering committee to achieve a more efficient and just response in the treatment of individuals with mental disorders within the criminal justice system. Senate Standing Committee Report No. 3757.

Act 87, Session Laws 2024, amended this section to provide a mechanism for the automatic screening of certain nonviolent defendants for involuntary hospitalization or assisted community treatment. The legislature found that criminal justice diversion programs and assisted community treatment provide certain defendants with critical mental health services and alternative forms of justice to help achieve significantly better health outcomes for individuals suffering with mental illness. As certain defendants may require mental health evaluations and assessments to determine specific services needed, improvements to existing mental health services would improve timely access to services and prevent certain individuals from repeatedly getting caught up in the criminal justice system. Accordingly, the legislature found that Act 87 would support criminal justice diversion programming to ensure that individuals who interact with the justice system receive timely and appropriate treatment for their behavioral and mental health challenges. Senate Standing Committee Report No. 3308, House Standing Committee Report No. 558-24.
Haw. Rev. Stat. § 712-1209.6 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1209.6
Prostitution; motion to vacate conviction.
Status: in_force

(1) A person convicted of committing the offense of prostitution under section 712-1200, loitering for the purpose of engaging in or advancing prostitution under section 712-1206(2), street prostitution and commercial sexual exploitation in designated areas under section 712-1207(1)(a) or (2)(a), or convicted of a lesser offense when originally charged with a violation of section 712-1200, 712-1206(2), or 712-1207(1)(a) or (2)(a), may file a motion to vacate the conviction if the defendant is not subsequently convicted of any offense under the Hawaii Penal Code within three years after the date of the original conviction.

(2) The court shall hold a hearing on a motion filed under this section to review the defendant's record over the three years after the date of the original conviction under section 712-1200, 712-1206(2), or 712-1207(1)(a) or (2)(a) or conviction of a lesser offense when originally charged with a violation of any of those sections, and if the court finds that the defendant has not been convicted of any offense under the Hawaii Penal Code within this three year period, the court shall vacate the conviction. [L 2012, c 216, §2; am L 2015, c 35, §29; am L 2016, c 206, §16; am L 2019, c 176, §2; am L 2021, c 68, §11]

COMMENTARY ON §712-1209.6

Act 216, Session Laws 2012, added this section to: (1) authorize a person convicted of committing the offense of prostitution to file a motion to vacate the conviction under certain circumstances; and (2) establish procedures for the motion to vacate the conviction. The legislature found that human trafficking, consisting of the subjugation, recruitment, harboring, or transportation of people for the purpose of forced labor or services, or commercial sexual exploitation, was one of the fastest growing criminal industries. Act 216 would assist in combating human trafficking by allowing trafficking victims who were forced into prostitution to file a motion to have their prostitution convictions vacated from their records. Conference Committee Report No. 109-12.

Act 35, Session Laws 2015, amended subsection (1)(b) by changing: (1) the phrase "severe form of trafficking" to "severe form of trafficking in persons"; and (2) "title 22 United States Code section 7102(13)" to "title 22 United States Code section 7102(9)(A)."

Act 206, Session Laws 2016, amended this section to conform to amendments made to other sections in the Hawaii Revised Statutes by Act 206. Senate Standing Committee Report No. 3450.

Act 176, Session Laws 2019, amended this section to permit persons convicted of certain prostitution offenses to file a motion to vacate the conviction if the defendant is not convicted of another offense under the Penal Code within three years of the original prostitution conviction. The legislature found that sex trafficking victims are often misidentified and criminalized by law enforcement and that, although the existing law allowed sex trafficking victims to vacate prostitution convictions by proving their victimization within six years from the time that victimization ceased, trafficking victims may face significant challenges in disclosing and proving their victimization. The legislature noted that persons who have been convicted of certain prostitution offenses, regardless of whether they have been or can allege that they were victims of sex trafficking, should be able to vacate their convictions after a reasonable period of three years from the date of conviction; provided that these persons have maintained a clean record free of convictions under the Penal Code during that period of time. The legislature found that by helping trafficking victims to clear their criminal records, Act 176 would support victims in reintegrating into society and finding non-exploitative employment, bring about substantial cultural reform, and send a strong message that a person's participation in prostitution is often complex and should not bar access to resources, safety, and compassion. Conference Committee Report No. 53, Senate Standing Committee Report No. 786.

Act 68, Session Laws 2021, made conforming amendments to this section to reflect the following amendments made under Act 68: (1) the removal from the scope of the offense of prostitution under §712-1200, of the act of paying another to engage in sexual conduct, which was reestablished under Act 68 as the separate offense of commercial sexual exploitation; and (2) the renaming of the offense under §712-1207 to "street prostitution and commercial sexual exploitation." The legislature found that sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in the community. The legislature further found that protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators, and that amending Hawaii's sex trafficking laws to better reflect the current reality and challenges would improve outcomes for trafficking victims and survivors. Senate Standing Committee Report No. 1654, Conference Committee Report No. 45.
Haw. Rev. Stat. § 712-1215 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1215
Promoting pornography for minors.
Status: in_force

(1) A person commits the offense of promoting pornography for minors if:

(a) Knowing its character and content, the person disseminates to a minor material that is pornographic for minors;

(b) Knowing its character and content, the person disseminates material that is pornographic for minors to a law enforcement officer who represents that officer's self as a minor; or

(c) Knowing the character and content of a motion picture film or other performance that, in whole or in part, is pornographic for minors, the person:

(i) Exhibits the motion picture film or other performance to a minor;

(ii) Sells to a minor an admission ticket or pass to premises where there is exhibited or to be exhibited the motion picture film or other performance; or

(iii) Admits a minor to premises where there is exhibited or to be exhibited the motion picture film or other performance.

(2) Subsection (1) does not apply to a parent or legal guardian of the minor or to a sibling of the minor, or to a person who commits any act specified therein in the person's capacity and within the scope of the person's employment as a member of the staff of any public library.

(3) Promoting pornography for minors is a class C felony. [L 1972, c 9, pt of §1; am L 1974, c 190, §1; am L 1988, c 283, §1; gen ch 1993; am L 2000, c 21, §2; am L 2018, c 96, §1; am L 2024, c 244, §2]

Revision Note

In subsection (1)(b)(i), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 712-1253 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1253
Penalties under other laws.
Status: in_force

Any penalty imposed for violation of this chapter or chapter 329 is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law.
Haw. Rev. Stat. § 706-600.5 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-600.5
Definitions of terms in this chapter.
Status: in_force

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

"Day" means a twenty-four-hour period of time.

"Month" means a thirty-day period of time.

"Secure drug treatment facility" means a facility employing security protocols modeled after a minimum-security detention center, including continuous direct supervision.

"Year" means a three hundred sixty-five-day period of time. [L 1987, c 202, §1; am L Sp 2009, c 4, §1]

COMMENTARY ON §706-600.5

Act 202, Session Laws 1987, clarified the time periods within this chapter by providing definitions for a "day," "month," and "year." This clarification should eliminate confusion by law enforcement personnel in regard to these time periods. House Standing Committee Report No. 556.

Act 4, Special Session Laws 2009, promoted the rehabilitation of convicted drug offenders through alternatives to incarceration by authorizing the placement of certain drug offenders in secure drug treatment facilities. Conference Committee Report No. 25. Act 4 amended this section by adding the definition of "secure drug treatment facility."