Haw. Rev. Stat. § 712-1276 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1276
Costs and expenses.
Status: in_force

For any attorneys' fees, costs, or expenses incurred in the closing of the building, premises, or place and keeping it closed, or incurred in enforcing the injunction prohibiting the person or persons causing, maintaining, aiding, abetting, or permitting the nuisance from residing or entering into the building, premises, or place in or upon which the nuisance exists, as well as the attorneys' fees, costs, and expenses incurred by the party bringing the action, a reasonable sum shall be allowed by the court.
Haw. Rev. Stat. § 712-1226 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1226
Possession of a gambling device.
Status: in_force

(1) A person commits the offense of possession of a gambling device if the person manufactures, sells, transports, places, possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody, or use of any gambling device, knowing it is to be used in the advancement of gambling activity which is not social gambling.

(2) Possession of a gambling device is a misdemeanor. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; gen ch 1993]

COMMENTARY ON §§712-1224 TO 712-1226

These sections enlarge the scope of the previous law by adding inchoate gambling offenses involving the possession of gambling records or devices, thus permitting police intervention at the anticipatory stage of gambling. The sections also complement and bolster the coverage of §§712-1221, 1222, and 1223.

Sections 712-1224 and 1225 concern the possession of gambling records. These records may consist of any writing, paper, instrument, or article of a kind "commonly used" in a bookmaking, lottery, or mutuel scheme. The gradation of penalties into a class C felony and a misdemeanor is made on the same basis as the gradation of penalties for promoting gambling activities (§§712-1221 and 1222).

Section 712-1226 makes it a misdemeanor to manufacture, sell, transport, or possess a gambling device, knowing it is to be used in the advancement of gambling activity which is not social gambling. The term "gambling device" is defined by §712-1220(5). The definition specifically excludes from its scope lottery tickets to avoid needless overlapping of §§712-1224 and 1225 with §712-1226.

These sections are needed and justifiable for two reasons. First, because of the nature of gambling offenses, the State often cannot prove the actual promotion of gambling activity while at the same time it can easily prove the culpable possession of gambling records or devices. In view of the defense afforded by §712-1227, possession of gambling records and devices provides a legitimate basis for permitting police intervention and imposing penal liability. Secondly, by allowing the State to prosecute for possession of records or devices, society is able to restrict unlawful gambling activity while it is in its preparatory stage. Especially is this so when the definition of the possessory offense relating to gambling devices is drawn so as to cover trafficking in the devices.

The coverage of the previous statutory law is sketchy in regard to the possession of gambling records or devices. A person found in possession of a lottery ticket was guilty of a misdemeanor.[1] There was no express provision penalizing possession of bookmaking records or receipts or gambling devices. The Code fills this gap and provides a basis for earlier police intervention.

The existing case law holds that operating a pinball machine that gives free games upon the scoring of a certain amount of points is a form of gambling.[2] The Proposed Draft of the Code, as well as the Code when adopted in 1972, accepted this position. Originally, "gambling" turned on the possibility of receiving something of value.[3] "Something of value" included "a privilege of playing at a game or scheme without charge." Thus, possession of a pinball machine originally came within the scope of §712-1225. However, by Act 201, Session Laws 1973, the legislature amended the definition of "something of value" by removing the phrase "or a privilege of playing at a game or scheme without charge." (See §712-1220(11), and Commentary thereon.) In commenting on the amendment, the Senate Committee on Judiciary, in Standing Committee Report No. 806 (1973) stated:

This phrase refers to such activities as pinball and other games involving the winning of a privilege of playing another game without charge. Such winnings were previously allowed under Hawaii law. Your Committee finds that there is no good reason to include 'free game' as something of value from gambling.

These three sections were originally numbered as §§712-1223, 1224 and 1225 in the Code when adopted in 1972. They were renumbered by Act 201, Session Laws 1973. Act 201 also made the following changes to these sections. In §§712-1224 and 1225, the phrase "other than as a player" was deleted, so that even a person who is a player may be subject to the offense of possession of gambling records. Also, in §712-1224, the clause "and constituting, reflecting, or representing more than 500 plays or chances therein" was inserted to describe the type of records of lottery or mutuel scheme that is necessary for the offense of possession of gambling records in the first degree.

SUPPLEMENTAL COMMENTARY ON §§712-1224 TO 712-1226

Act 174, Session Laws 1980, amended §712-1224 by expanding the offense to include persons who produce or distribute gambling records and by clarifying the definition and monetary amounts of such records. The purpose was to provide for more effective enforcement and to curb the number of pool tickets for extremely high amounts. Senate Standing Committee Report No. 857-80, House Standing Committee Report No. 492-80.

__________

§§712-1224 To 712-1226 Commentary:

1. H.R.S. §746-3.

2. Territory of Hawaii v. Uyehara, 42 Haw. 184 (1957); Territory of Hawaii v. Naumu, 43 Haw. 66 (1958).

3. §712-1220(4).
Haw. Rev. Stat. § 708-835.65 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.65
[ §708-835.
Status: in_force

[ §708-835.65] Fraud. (1) A person commits the offense of fraud if, with the intent to defraud, the person executes or attempts to execute any scheme or artifice to defraud or for the purpose of obtaining money or property by means of false or fraudulent pretenses, representations, or promises.

(2) For purposes of this section, "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services.

(3) Fraud shall be a class B felony. [L 2023, c 131, §2]

COMMENTARY ON §708-835.65

Act 131, Session Laws 2023, added this section to establish the offense of fraud as a class B felony. The legislature found that it was of utmost importance to restore public trust in state government and increase the level of transparency in government operations and accountability of individuals. To improve the standard of conduct within government, and to more effectively combat fraud, waste, and corruption, it was necessary to establish criminal offenses and penalties. Act 131 provided a mechanism to increase the public's trust and confidence in state and local government while providing law enforcement with a tool to adequately deter and commensurately punish acts of public corruption. Conference Committee Report No. 1, Senate Standing Committee Report No. 720.
Haw. Rev. Stat. § 708-838 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-838
Removal of identification marks.
Status: in_force

A person commits the offense of removal of identification marks if

(1) The person defaces, erases, or otherwise alters any serial number or identification mark placed or inscribed by the manufacturer, or

(2) The person knowingly, to conceal the true ownership of the property of another, defaces, erases, or otherwise alters any serial number or identification mark placed or inscribed

on any bicycle, movable or immovable construction tool or equipment, appliance, merchandise, or other article for the purpose of identifying the bicycle, movable or immovable tool or equipment, appliance, merchandise or other article or its component parts, with a value of more than $50. A person removes identification marks if the person attempts to or succeeds in erasing, defacing, altering, or removing a serial number or identification mark or part thereof, on the property of another.

Removal of identification marks is a misdemeanor. [L 1973, c 72, pt of §2; am L 1977, c 27, §1]
Haw. Rev. Stat. § 708-823.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-823.5
Aggravated criminal property damage.
Status: in_force

(1) A person commits the offense of aggravated criminal property damage if the person by means other than fire:

(a) Intentionally damages the property of another without the other's consent; and

(b) Has been convicted two or more times of an offense under section 708-822 or 708-823.

(2) For purposes of this section, "convicted two or more times" means that, at the time of the instant offense, the person had previously entered a plea of guilty or no contest or a judge or jury had previously returned a verdict of guilty against the person for two or more offenses committed on separate occasions.

(3) Aggravated criminal property damage is a misdemeanor. [L 2005, c 187, §1; am L 2006, c 181, §7; am L 2007, c 196, §2]

COMMENTARY ON §708-823.5

Act 187, Session Laws 2005, established the misdemeanor offense of aggravated criminal property damage which applies to a person who intentionally damages the property of another without the other's consent and has two or more convictions for criminal property damage in the third or fourth degree in the preceding five years. Act 187 was designed to address the problem of graffiti in the community. Conference Committee Report No. 67, Senate Standing Committee Report No. 1362.

Act 181, Session Laws 2006, amended this section by excluding property damage caused by means of fire. Act 181 included arson as a new class of property damage and defined four degrees of the offense of arson with appropriate sanctions. The legislature found that fires that are intentionally set cause extensive damage to public and private properties and threaten lives. Conference Committee Report No. 50-06.

Act 196, Session Laws 2007, amended subsection (1) by deleting the five-year look-back period. Conference Committee Report No. 34.
Haw. Rev. Stat. § 708-853 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-853
Forgery in the third degree.
Status: in_force

(1) A person commits the offense of forgery in the third degree if, with intent to defraud, the person falsely makes, completes, endorses, or alters a written instrument, or utters a forged instrument.

(2) Forgery in the third degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1988, c 155, §4; gen ch 1992]

COMMENTARY ON §§708-851 TO 708-853

As the drafters of the Model Penal Code noted, a revision of the criminal law which deals effectively with theft, fraud, attempt, and complicity diminishes the need for a separate offense of forgery. However, as in the case of the M.P.C.,

We retain forgery as a distinct offense partly because the concept is so embedded in statute and popular understanding that it would be inconvenient and unlikely that any legislature would completely abandon it, and partly in recognition of the special effectiveness of forgery as a means of undermining public confidence in important symbols of commerce, and of perpetrating large scale frauds.[1]

The Code establishes three degrees of forgery. The simple and least serious offense is forgery in the third degree, and involves the false making, completion, or alteration of any written instrument. The requisite state of mind is an "intent to defraud," which is specially defined to include knowledge that the actor is facilitating injury to the valuable interest of another, as well as intent to accomplish such injury.[2] "Written instrument" is broadly defined by §708-850(1) to include not only written or printed matter, but also coins, stamps, badges, seals, etc., which are evidence of value, right, privilege, or identification. Falsely making, falsely completing, and falsely altering a written instrument are also specifically defined in subsections 708-850(4), (5), and (6), respectively: the essential common element is that the final product falsely purports to be an authentic creation of its ostensible maker. Because truly serious forgeries are dealt with under the offenses of first or second degree forgery, forgery in the third degree is made a misdemeanor.

If the forged instrument is one which affects a legal right or interest, the offense is considered forgery in the second degree, and the sanction is increased to a class C felony. This category includes wills, deeds, contractual instruments, and generally all negotiable instruments and instruments relating to secured transactions.[3] These instruments are more stringently protected because of (1) the greater potential for individual harm which may generally result from the forgery of such instruments, and (2) the serious business and economic disruptions which would result from the undermining of public confidence in such matters.

Forgery, in any of its forms, of governmental or corporate financial issues or instruments, constitutes a class B felony. Impairment of public confidence in instruments or symbols of commerce could have disastrous effect upon governmental processes and the economy in general and clearly represents the most aggravated form of forgery. It is significant, in this regard, that such instruments were the first to be protected by the common law of forgery.[4] Moreover, it is felt that an additional danger exists since the average citizen cannot easily protect oneself against skillfully made forgeries of this kind; and professional criminals are most likely to concentrate on forging such instruments. Note that a forgery in the first degree must appear as part of a series. Thus, for example, only stocks, bonds, stamps, and securities which represent part of a larger issue fall within the definition of this offense. How many individual instruments constitute an issue is a matter left to case-by-case judicial interpretation.[5]

The Code's definition of the simple offense of forgery is nearly identical to that found in prior Hawaii law: "Forgery is the fraudulent making or altering a [sic] writing with the intent to deceive another and prejudice him in some right."[6] Moreover, Hawaii recognized two degrees of forgery. Forgery of a deed of conveyance, lease, promissory note, bill of exchange, due bill, check, order, and the like, involving a value of $100 or more, was roughly equivalent to the Code's forgery in the second degree, but drew a sentence similar to the Code's class B felony. All other forgery was forgery in the second degree and carried a sentence similar to the Code's class C felony. It is felt that the Code's gradation, solely according to the kind of instrument forged, is more indicative of the actual and potential degree of public and private harm involved. Moreover, the division of the offense into three degrees provides for more equitable treatment of forgery offenders.

Hawaii law previously provided an extraordinary penalty for repeated forgery offenses in the form of an additional sentence up to one-half the maximum allowed for last conviction.[7] Such severe treatment is rather difficult to justify rationally, and is found in neither the Model Penal Code nor the recent revisions of other states. The Code omits such selective sentencing provisions. The problem of habitual offenders is dealt with generally under chapter 706 (Disposition of Convicted Defendants).

SUPPLEMENTAL COMMENTARY ON §§708-851 TO 708-853

Act 155, Session Laws 1988, added the term "endorses" to these sections. Previously, forging a written instrument did not include false endorsements as a method of forging a written instrument; therefore, false endorsement was prosecuted as a theft. False endorsement, as a theft charge, carried a lighter sentence than forgery. The legislature felt the inclusion of false endorsements in these sections would strengthen the existing forgery laws. House Standing Committee Report No. 467-88, Senate Standing Committee Report No. 2550.

Act 243, Session Laws 1997, amended §§708-851 and 708-852 by making it an offense of forgery to fraudulently encode magnetic ink character recognition numbers on a written instrument. The legislature found that increasingly advanced technology has changed the way in which commercial paper can be handled between parties. One of the technological changes involved the use of magnetic character recognition numbers that enable scanners to quickly obtain information from the document. Changing the magnetic codes effectively tells the scanner different information than that intended, making it a forgery in fact, if not in name. However, that type of document alteration was not currently prohibited by law. The legislature found that the Act would protect parties in that type of situation. Senate Standing Committee Report No. 1551, House Standing Committee Report No. 987.

Act 147, Session Laws 2021, amended §708-851 to provide that the offense of forgery in the first degree includes forgery of a deed, will, codicil, contract, assignment, commercial instrument, or other instrument affecting a legal right, interest, obligation, or status where: (1) the purported maker or drawer of the instrument is a person who is sixty years of age or older; and (2) the age of the purported maker or drawer is known or reasonably should be known to the person who commits the forgery. Act 147 also amended §708-852 to provide that the offense of forgery in the second degree includes forgery of a written instrument, where: (1) the purported maker or drawer of the instrument is a person who is sixty years of age or older; and (2) the age of the purported maker or drawer is known or reasonably should be known to the person who commits the forgery. The legislature found that the rate of crimes targeting seniors in the State had increased in recent years. The legislature further found that senior citizens are especially vulnerable to long-term physical, emotional, and financial harm from criminal acts and that there was a lack of adequate protection against exploitation of senior citizens under existing law. Act 147 more closely aligned certain Penal Code statutes with common elder abuse scenarios to facilitate appropriate responses by law enforcement and prosecutors. Senate Standing Committee Report No. 1212.

__________

§§708-851 To 708-853 Commentary:

1. M.P.C., Tentative Draft No. 11, comments at 80 (1960).

2. Cf. §708-800.

3. Prop. Mich. Rev. Cr. Code, comments at 266.

4. M.P.C., Tentative Draft No. 11, comments at 78-79 (1960).

5. Prop. Mich. Rev. Cr. Code, comments at 266.

6. H.R.S. §743-1.

7. Id. §743-10.
Haw. Rev. Stat. § 706-674 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-674
[ §706-674] Life imprisonment without the possibility of parole; persons under the age of twenty-one; prohibited.
Status: in_force

[ §706-674] Life imprisonment without the possibility of parole; persons under the age of twenty-one; prohibited. Notwithstanding any other law to the contrary, no person convicted of a crime who was under the age of twenty-one at the time of the offense shall be sentenced to life imprisonment without the possibility of parole .

COMMENTARY ON §706-674

Act 152, Session Laws 2025, added this section to prohibit sentencing defendants who were under the age of twenty-one at the time of the offense to life imprisonment without the possibility of parole. The legislature found that juveniles are psychologically and developmentally different from adults and these differences should be recognized by the legal system. Juveniles are extremely vulnerable to negative environments and are easily influenced by crime-producing influences; are less capable than adults to consider the long-term impact of their actions, control their emotions and impulses, or evaluate risks and reward; and do not have control over their living situations and may experience traumas that create environments susceptible to gang involvement or exposure to adult criminal behaviors. Neuroscience and brain development research has demonstrated that brain maturation continues through an individual's mid-twenties. The legislature believed that, due to the research supporting continued brain maturation through early adulthood, defendants under the age of twenty-one at the time of the offense who had committed a serious offense should have the opportunity for parole after establishing a clear pattern of rehabilitation as established by positive behaviors while in custody. Senate Standing Committee Report No. 1080, House Standing Committee Report No. 807, Conference Committee Report No. 54.
Haw. Rev. Stat. § 708-804 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-804
Control of albizia trees on private property.
Status: in_force

(a) An owner of real property or the owner's agent shall be authorized to enter vacant real property that is privately owned and directly adjacent to the entering owner's property to control one or more albizia trees located on the adjacent property; provided that the entering owner:

(1) Has consulted with a tree risk assessment qualification certified arborist to confirm that the albizia trees on the adjacent property:

(A) Create a condition that could become hazardous to the entering owner's property or persons thereupon if left untreated; and

(B) May be felled and removed or otherwise treated according to current established methods that minimize risk to human health and safety, and without damaging any structure, utility pole, or utility line;

(2) Has unsuccessfully made two or more reasonable attempts within the previous thirty days to contact the owner of record of the adjacent property via telephone or registered mail; and

(3) Has given written notice to the adjacent property owner prior to accessing the adjacent property, to prevent the property from mistakenly being determined vacant where the land is not in production because it is, for example, resting pasture land at the intended time of entry.

(b) It shall be a defense to citation or prosecution under sections 708-814, 708-815, 708-820, 708-821, 708-822, 708-823, and 708-823.5 that the entering property owner or agent entered an adjacent property for the purposes of and in compliance with this section.

(c) As used in this section:

"Albizia tree" means any tree of the species Falcataria moluccana or Albizia chinensis .

"Vacant" means improved or unimproved but having no reasonable indication of use or maintenance for one year or more. [L 2019, c 13, §2]

Revision Note

In subsection (a), "that" deleted after "provided that" pursuant to §23G-15.

COMMENTARY ON §708-804

Act 13, Session Laws 2019, established this section to: (1) authorize a property owner or agent to enter adjacent vacant property under certain conditions, including consulting with a tree arborist and providing written notice, to control albizia trees before the trees become hazardous; and (2) provide a defense to citation or prosecution for trespass and property damage. The legislature found that albizia trees are an invasive species that are prone to breaking and falling during high winds and tropical storms and, consequently, pose a hazard to public safety and critical infrastructure. Fallen albizia trees caused power outages and other structural damage on the island of Hawaii during tropical storm Iselle in 2014. Albizia trees fell over highways, roads, and driveways in such large numbers during that storm that many people were left trapped in their homes and rescue personnel were prevented from reaching them or, in some cases, returning to the rescuers' base of operations. The legislature further found that albizia trees located on private properties often create hazardous conditions for adjacent properties that should be prevented wherever possible. Albizia trees have been successfully eradicated on many properties, but some property owners have been unresponsive to inquiries from neighbors and repeated notices to control the trees on their property. Act 13 provided a way for neighbors to control adjacent albizia trees to prevent or address hazardous conditions, subject to certain conditions. Senate Standing Committee Report No. 597, Senate Standing Committee Report No. 1018.
Haw. Rev. Stat. § 710-1067 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1067
Corroboration.
Status: in_force

In any prosecution under this part, except a prosecution based upon inconsistent statements pursuant to section 710-1065, falsity of a statement may not be established solely through contradiction by the testimony of a single witness.

COMMENTARY ON §710-1067

This section forbids convictions for perjury based solely upon the contradictory testimony of a single witness. Either some additional corroborating evidence or the contradictory testimony of an additional witness is needed for conviction.

The rationale for this rule is that the requirement is necessary as a safeguard to induce witnesses to testify freely.[1] Obtaining voluntary testimony in any proceeding would be difficult if the witness might be harassed upon the word of a disappointed litigant.[2] And if the witness were required to testify, it would seem that similar protection ought to be given the witness.

The policy question to be decided, then, is whether the overall protection and encouragement of persons who give statements (in the contexts specified by the offenses in this part) is worth foregoing occasionally the conviction of an apparent falsifier. The Code takes the position that it is. There is also an additional safeguard involved in protecting the innocent person. The protection rests upon the argument that since equally honest persons may well have different recollections of the same events, a conviction for a falsification offense ought not to rest upon the contradiction of two statements. Otherwise, an innocent person would be subject to prosecution every time another person, under oath, disputed the innocent person's recollection.[3]

This section would apply only to a relatively narrow class of cases which would not often be prosecuted. The section operates only where there is no evidence but the testimony of a single contradicting witness. Hence, one may view this section as a special gloss on the requirement of proof beyond a reasonable doubt, equivalent to stating that no case of a contradicting statement under oath, without more, can satisfy the general requirement of proof beyond a reasonable doubt in falsification cases.[4]

The Hawaii case law is that a person accused of perjury may be convicted only upon the testimony of two credible witnesses, or of one credible witness corroborated by other evidence sufficient to satisfy the trier of fact, beyond a reasonable doubt, as to the guilt of the accused.[5] Here, the Code is essentially in accord with the Hawaii rule, but codifies it, lends it greater clarity, and extends it to all falsification offenses in this part.

__________

§710-1067 Commentary:

1. See United States v. Weiler, 323 U.S. 606 (1944).

2. Prop. Mich. Rev. Cr. Code §4920, comments at 402.

3. See Weiler, supra.

4. Prop. Mich. Rev. Cr. Code, comments at 403.

5. See Territory of Hawaii v. Shite, 43 Haw. 203 (1957).
Haw. Rev. Stat. § 708-8100.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8100.5
Fraudulent encoding of a credit card.
Status: in_force

(1) A person commits the offense of fraudulent encoding of a credit card if, with the intent to defraud the issuer, or another person or organization providing money, goods, services or anything else of value, the person:

(a) Intentionally changes, alters, erases, adds, creates, tampers with, or manipulates a credit card number by encoding credit card numbers onto the magnetic strip of the credit card;

(b) Knowingly uses, utters, or offers a credit card with changed, altered, erased, added, tampered with, or manipulated magnetically or electronically encoded credit numbers on the magnetic strip of a credit card for the purpose of obtaining money, goods, services, or anything else of value; or

(c) Knowingly sells, or distributes any credit card with changed, altered, erased, added, tampered with, or manipulated magnetically or electronically encoded credit card numbers on the magnetic strip of the credit card.

(2) Fraudulent encoding of a credit card is a class B felony. [L 1993, c 287, §2]
Haw. Rev. Stat. § 712-1277 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1277
Owner not guilty of contempt; may pay costs.
Status: in_force

If the owner of the building, premises, or place has not been guilty of any criminal contempt of court in the proceedings, and appears and pays all costs, fees, and allowances which are a lien on the building, premises, or place and files a bond in a reasonable amount to be fixed by the court, with sureties, to be approved by the court or judge, conditioned that the owner will immediately abate any such nuisance that may exist at such building, premises, or place and prevent the same from being established or kept thereat for a period of one year thereafter, the court or the judge thereof, may, if satisfied of the owner's good faith, order the building, premises, or place closed under the order of abatement canceled so far as the same may relate to the closing of said building, premises, or place. The release of the building, premises, or place under the provisions of this section does not release it from any judgment, lien, penalty, or liability to which it may be subject by law.
Haw. Rev. Stat. § 710-1026.9 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1026.9
Resisting an order to stop a motor vehicle in the first degree.
Status: in_force

(1) A person commits the offense of resisting an order to stop a motor vehicle in the first degree if the person:

(a) Intentionally fails to obey a direction of a law enforcement officer, acting under color of the law enforcement officer's official authority, to stop the person's motor vehicle; and

(b) While intentionally fleeing from or attempting to elude a law enforcement officer:

(i) Operates the person's motor vehicle in reckless disregard of the safety of other persons; or

(ii) Operates the person's motor vehicle in reckless disregard of the risk that the speed of the person's vehicle exceeds:

(A) The applicable state or county speed limit by thirty miles per hour or more; or

(B) Eighty miles per hour or more, irrespective of the applicable state or county speed limit.

For purposes of this section, "the applicable state or county speed limit" shall have the same meaning as in section 291C-105.

(2) Resisting an order to stop a motor vehicle in the first degree is a class C felony. [L 2016, c 231, §47]

COMMENTARY ON §710-1026.9

Act 231, Session Laws 2016, added this section to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 712-1225 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1225
Possession of gambling records in the second degree.
Status: in_force

(1) A person commits the offense of possession of gambling records in the second degree if the person knowingly possesses any writing, paper, instrument, or article:

(a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise; or

(b) Of a kind commonly used in the operation, promotion, or playing of a lottery or mutuel scheme or enterprise.

(2) Possession of gambling records in the second degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 708-8301 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8301
Habitual unlicensed contracting activity; felony.
Status: in_force

(1) A person commits the offense of habitual unlicensed contracting activity if the person has had two or more convictions within ten years, preceding the conduct for which the person is charged under this section, for unlicensed contracting activity in violation of section 436B-27 or 708-8300, and:

(a) Engages in any activity for which a contractor's license is required under chapter 444, and is not licensed as a contractor under chapter 444 when engaging in the activity; or

(b) Uses any word, title, or representation to induce the false belief that the person is licensed under chapter 444 to engage in contracting activity.

(2) A conviction for purposes of this section is a judgment on a verdict, a finding of guilt, or a judgment on a plea of guilty or nolo contendere. The convictions shall have occurred on separate dates and be for separate incidents on separate dates. At the time of the instant offense, the convictions shall not have been expunged by pardon, reversed, or set aside.

(3) Habitual unlicensed contracting activity is a class C felony.

(4) It is an affirmative defense to a prosecution under this section that the defendant was a licensed contractor performing activity outside the scope of the defendant's contractor's license. This defense shall not preclude any administrative or civil enforcement action for the unlicensed activity. [L 2012, c 244, pt of §1]
Haw. Rev. Stat. § 710-1023 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1023
Promoting prison contraband in the second degree.
Status: in_force

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

(a) The person intentionally conveys known contraband 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 known contraband.

(2) "Contraband" means any article or thing, other than a dangerous instrument or drug as defined in section 710-1022(2), that a person confined in a correctional or detention facility is prohibited from obtaining or possessing by statute, rule, or order.

(3) Promoting prison contraband in the second degree is a class C felony. [L 1972, c 9, pt of §1; gen ch 1993; am L 1999, c 23, §1]
Haw. Rev. Stat. § 701-101 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-101
Applicability to offenses committed before the effective date of amendments.
Status: in_force

(1) Except as provided in subsection (2), amendments made by Act 314, Session Laws of Hawaii 1986, to this Code do not apply to offenses committed before the effective date of Act 314, Session Laws of Hawaii 1986. Prosecutions for offenses committed before the effective date of Act 314, Session Laws of Hawaii 1986, are governed by the prior law, which is continued in effect for that purpose, as if amendments made by Act 314, Session Laws of Hawaii 1986, to this Code were not in force. For purposes of this section, an offense is committed before the effective date of Act 314, Session Laws of Hawaii 1986, if any of the elements of the offense occurred before that date.

(2) In any case pending on or commenced after the effective date of amendments made by Act 314, Session Laws of Hawaii 1986, to this Code, involving an offense committed before that date upon the request of the defendant, and subject to the approval of the court, the provisions of chapter 706 amended by Act 314, Session Laws of Hawaii 1986, may be applied in particular cases. [L 1972, c 9, pt of §1; am L 1986, c 314, pt of §1]

Revision Note

Reference to subsection (3) in subsection (1) deleted.
Haw. Rev. Stat. § 712-1247 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1247
Promoting a detrimental drug in the first degree.
Status: in_force

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

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

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

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

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

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

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

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

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

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

(3) Any marijuana seized as evidence of a violation of this section in excess of one pound may be destroyed after it has been photographed and the weight thereof recorded. The remainder of the marijuana shall remain in the custody of the police department until the termination of any criminal action brought as a result of the seizure of the marijuana. Photographs duly identified as accurately representing the marijuana shall be deemed competent evidence of the marijuana involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the marijuana itself; provided that nothing in this subsection shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(i); am L 1981, c 31, §3 and c 123, §1; am L 1986, c 314, §75; am L 1989, c 384, §2]

Revision Note

In subsection (1)(a) to (f), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 712-1240.7 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1240.7
Methamphetamine trafficking.
Status: in_force

(1) A person commits the offense of methamphetamine trafficking if the person knowingly:

(a) Distributes methamphetamine in any amount to a minor; or

(b) Manufactures methamphetamine in any amount.

(2) Methamphetamine trafficking is a class A felony for which the defendant shall be sentenced as provided in subsection (3).

(3) Notwithstanding sections 706-620(2), 706-640, 706-641, 706-659, 706-669, and any other law to the contrary, a person convicted of methamphetamine trafficking shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment of not less than two years and not greater than eight years and a fine not to exceed $20,000,000; provided that:

(a) If the person has one prior conviction for methamphetamine trafficking pursuant to this section, promoting a dangerous drug in the first degree pursuant to section 712-1241 and methamphetamine was the drug upon which the conviction was predicated, or section 712-1240.8 as that section was in effect prior to July 1, 2016, the mandatory minimum term of imprisonment shall be not less than six years, eight months and not greater than thirteen years, four months;

(b) If the person has two prior convictions for methamphetamine trafficking pursuant to this section, promoting a dangerous drug in the first degree pursuant to section 712-1241 and methamphetamine was the drug upon which the conviction was predicated, or section 712-1240.8, as that section was in effect prior to July 1, 2016, the mandatory minimum term of imprisonment shall be not less than thirteen years, four months and not greater than twenty years; or

(c) If the person has three or more prior convictions for methamphetamine trafficking pursuant to this section, promoting a dangerous drug in the first degree pursuant to section 712-1241 and methamphetamine was the drug upon which the conviction was predicated, or section 712-1240.8 as that section was in effect prior to July 1, 2016, the mandatory minimum term of imprisonment shall be twenty years. [L 2006, c 230, pt of §4; am L 2016, c 231, §52]
Haw. Rev. Stat. § 707-715 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-715
Terroristic threatening, defined.
Status: in_force

A person commits the offense of terroristic threatening if the person threatens, by word or conduct, to cause bodily injury to another person or serious damage or harm to property, including the pets or livestock, of another or to commit a felony:

(1) With the intent to terrorize, or in reckless disregard of the risk of terrorizing, another person; or

(2) With intent to cause, or in reckless disregard of the risk of causing evacuation of a building, place of assembly, or facility of public transportation. [L 1972, c 9, pt of §1; am L 1979, c 184, §1(1); gen ch 1993; am L 2012, c 214, §1]
Haw. Rev. Stat. § 712A-14 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-14
Supplemental remedies.
Status: in_force

(1) The court shall order the forfeiture of any other property of an in personam civil or criminal defendant up to the value of the subject property if any of the property subject to forfeiture:

(a) Cannot be located;

(b) Has been transferred or conveyed to, sold to, or deposited with a third party;

(c) Has been placed beyond the jurisdiction of the court;

(d) Has been substantially diminished in value by any act or omission of a defendant, or a defendant's agent or assignee; or

(e) Has been commingled with other property which cannot be divided without difficulty.

(2) In addition to any other remedy provided for by law, if property subject to forfeiture is conveyed, alienated, disposed of, or otherwise rendered unavailable for forfeiture after the filing of a racketeering lien notice or provision of notice of pending forfeiture or after the filing and notice of a civil proceeding or criminal proceeding alleging forfeiture under this chapter, whichever is earlier, the State or seizing agency, on behalf of the State, may institute an action in circuit court against the person named in the racketeering lien or notice of pending forfeiture or the defendant in the civil proceeding or criminal proceeding, and the court shall enter final judgment against the person named in the racketeering lien or notice of pending forfeiture or the defendant in the civil proceeding or criminal proceeding in an amount equal to the fair market value of the property, together with reasonable investigative expenses and attorney fees. If a civil proceeding is pending, such action shall be filed only in the court where the civil proceeding is pending.

(3) This section does not limit the right of the State to obtain any order or injunction, receivership, writ, attachment, garnishment, or other remedy authorized under this chapter or appropriate to protect the interests of the State or available under other applicable law. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1993, c 196, §1; am L 1996, c 104, §6]
Haw. Rev. Stat. § 708-891 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-891
§§708-891 to 708-893 [OLD] REPEALED.
Status: repealed

§§708-891 to 708-893 [OLD] REPEALED. L 2001, c 33, §§5 to 7.

§708-891 Computer fraud in the first degree. (1) A person commits the offense of computer fraud in the first degree if the person knowingly accesses a computer, computer system, or computer network with the intent to commit the offense of theft in the first degree .

(2) Computer fraud in the first degree is a class A felony. [L 2001, c 33, pt of §1; am L 2012, c 293, §2]
Haw. Rev. Stat. § 712-1200.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1200.5
Commercial sexual exploitation.
Status: in_force

(1) A person commits the offense of commercial sexual exploitation if the person provides, agrees to provide, or offers to provide a fee or anything of value to another to engage in sexual conduct.

(2) As used in this section, "sexual conduct" has the same meaning as in section 712‑1200(2).

(3) Except as provided in subsection (4), commercial sexual exploitation is a petty misdemeanor.

(4) Commercial sexual exploitation is a class C felony if the person who commits the offense under subsection (1) does so in reckless disregard of the fact that the person exploited is a victim of sex trafficking.

(5) A person convicted of committing the offense of commercial sexual exploitation as a petty misdemeanor shall be sentenced as follows:

(a) For the first offense, a fine of no less than $500 but no more than $1,000 and the person may be sentenced to a term of imprisonment of no more than thirty days or probation; provided that in the event the convicted person defaults in payment of the fine, and the default was not contumacious, the court may order conversion of the unpaid portion of the fine to community service as authorized by section 706-605(1);

(b) For any subsequent offense, a fine of no less than $500 but no more than $1,000 and a term of imprisonment or probation of no more than thirty days, without possibility of suspension of sentence; and

(c) For purposes of this subsection, the court may impose as a condition of probation that the defendant complete a course of exploitation intervention classes; provided that the court shall only impose the condition for one term of probation.

(6) This section shall not apply to any member of a police department, a sheriff, or a law enforcement officer acting in the course and scope of duties; provided that the member of a police department, sheriff, or law enforcement officer is engaging in undercover operations; provided further that under no circumstances shall sexual contact initiated by a member of a police department, sheriff, or law enforcement officer; sexual penetration; or sadomasochistic abuse be considered to fall within the course and scope of duties. [L 2021, c 68, §2]

COMMENTARY ON §712-1200.5

Act 68, Session Laws 2021, established this section to create a separate commercial sexual exploitation offense for those who provide anything of value to engage in sexual conduct. 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. § 708-828 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-828
Criminal use of a noxious substance.
Status: in_force

(1) A person commits the offense of criminal use of a noxious substance if the person knowingly deposits on the premises or in the vehicle of another, without the other's consent, any stink bomb or device, irritant, or offensive-smelling substance, with the intent to interfere with another's use of the premises or vehicle.

(2) Criminal use of a noxious substance is a petty misdemeanor. [L 1972, c 9, pt of §1]

COMMENTARY ON §708-828

This section recognizes that the use value of a person's property may be impaired by the use of noxious substances without the involvement of tampering (§§708-826 to 827) or actual damage (§§708-820 to 823). This form of interference with the use of property can be significantly grave to warrant the low grade of criminal sanction provided by this section.

Under previous Hawaii law, the conduct described in this section would fall within the ambit of the indiscriminately-defined offense of common nuisance.[1] The Code sharpens the focus and definition of the offense, as it relates to noxious substances, and reduces slightly the possible penalty.

__________

§708-828 Commentary:

1. H.R.S. §727-1.
Haw. Rev. Stat. § 702-225 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-225
Liability for conduct of another; incapacity of defendant; failure to prosecute or convict or immunity of other person.
Status: in_force

In any prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that:

(1) The offense charged, as defined, can be committed only by a particular class of persons, and the defendant, not belonging to such class, is for that reason legally incapable of committing the offense in an individual capacity, unless imposing liability on the defendant is inconsistent with the purpose of the provision establishing the defendant's incapacity;

(2) The other person has not been prosecuted for or convicted of any offense, or has been convicted of a different offense or degree of offense, based upon the conduct in question; or

(3) The other person has a legal immunity from prosecution based upon the conduct in question. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

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

COMMENTARY ON §702-225

This section deals with certain defenses which will not be allowed in any case in which the liability of the defendant is based on the defendant's accountability for the conduct of another.

Subsection (1) deals with the limited problem posed by a person who cannot commit a particular offense in the person's individual capacity but who is accountable for conduct of another who engages in the prohibited conduct. The Code resolves the problem by providing for liability notwithstanding lack of individual capacity. Thus, for example, a woman cannot commit rape in her individual capacity, but she may nevertheless be guilty of that crime if she assists a man to commit rape upon another woman.

Subsection (2) eliminates the common-law defense based on lack of conviction of the person upon whose conduct the penal liability of the defendant is predicated. The absence of this defense does not, of course, relieve the prosecution of the requirement of proving that the offense was actually committed and the defendant's complicity therein.

Subsection (3) provides that, in the extremely rare case, where the person upon whose conduct the liability of the defendant is predicated has a legal immunity from prosecution, the defendant will not be afforded a defense on that ground.

Hawaii case law has recognized, by way of dictum, the principle in subsection (1).[1] The Supreme Court sidestepped an opportunity to rule on the issue resolved by subsection (2).[2] Subsection (3) is an addition to the law. No case has been found dealing with the effect of immunity in this context. Hawaii, unlike some other states, has not, to date, given its prosecutors statutory power to grant immunity.

__________

§702-225 Commentary:

1. Re Habeas Corpus, Balucan, 44 Haw. 271, 353 P.2d 631 (1960) ("It of course is true that a female may be convicted as an accomplice to an act which a female is incapable of perpetrating herself.").

2. See Republic v. Ruttmann, 11 Haw. 591 (1898). In Ruttmann, the defendant was charged for a crime on the basis of the defendant's own conduct and on the basis of the conduct of another. The court held that the prior acquittal of the other person was not a defense because the defendant had also been charged on the basis of the defendant's own conduct. The opinion indicates implied acceptance of the common-law position.
Haw. Rev. Stat. § 708-837.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-837.5
Failure to return leased or rented personal property; penalty.
Status: in_force

[(1)] A person commits the offense of failure to return leased or rented personal property other than a rental motor vehicle, when he knowingly or intentionally does not return the leased or rented personal property to the person, or his agent, from whom the personal property was leased or rented within fourteen days after the return date stated in the lease or rental contract, unless the person leasing or renting the personal property gives notice that he will not be able to return the leased or rented personal property by the date stated and with the permission of the owner of the property or his agent extends the date by which the personal property will be returned.

[(2)] Failure to return leased or rented personal property is a petty misdemeanor. [L 1980, c 171, §6]
Haw. Rev. Stat. § 712-1249.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1249.5
Commercial promotion of marijuana in the second degree.
Status: in_force

(1) A person commits the offense of commercial promotion of marijuana in the second degree if the person knowingly:

(a) Possesses marijuana having an aggregate weight of two pounds or more;

(b) Distributes marijuana having an aggregate weight of one pound or more;

(c) Possesses, cultivates, or has under the person's control fifty or more marijuana plants;

(d) Cultivates on land owned by another person, including land owned by the government or other legal entity, any marijuana plant, unless the person has the express permission from the owner of the land to cultivate the marijuana or the person has a legal or an equitable ownership interest in the land or the person has a legal right to occupy the land; or

(e) Sells or barters any marijuana or any Schedule V substance in any amount to a minor.

(2) Commercial promotion of marijuana in the second degree is a class B felony.

(3) Any marijuana seized as evidence in violation of this section in excess of an aggregate weight of two pounds as stated in subsection (1)(a), or in excess of an aggregate weight of one pound as stated in subsection (1)(b), or in excess of twenty-five marijuana plants as stated in subsection (1)(c) may be destroyed after the excess amount has been photographed and the number of plants and the weight thereof has been recorded. The required minimum amount of the marijuana needed to constitute the elements of this offense shall remain in the custody of the police until the termination of any criminal action brought as a result of the seizure of the marijuana. Photographs duly identified as accurately representing the marijuana shall be deemed competent evidence of the marijuana involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the marijuana itself; provided that nothing in this subsection shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence. [L 1986, c 314, §76; am L 1987, c 176, §8; am L 1989, c 384, §4]

Revision Note

In subsection (1)(a), (b), and (c), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 704-402 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-402
Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense; form of verdict and judgment when finding of irres
Status: in_force

(1) Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense.

(2) When the defense provided for by subsection (1) is submitted to a jury, the court shall, if requested by the defendant, instruct the jury as to the consequences to the defendant of an acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.

(3) When the defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the verdict and the judgment shall so state. [L 1972, c 9, pt of §1; am L 1973, c 136, §4(a); am L 1980, c 222, §1(1); am L 1982, c 229, §1; am L 1983, c 124, §14]

COMMENTARY ON §704-402

Subsection (1) provides that the issue of physical or mental disease, disorder, or defect excluding responsibility is a defense. By the use of the word "defense" in this section the Code does not intend to place a burden of proof upon the defendant. The intent of the Code is only to foreclose the issue of the defendant's lack of responsibility due to a physical or mental disease, disorder, or defect unless some evidence raises that issue. In most cases where the issue is raised it will be the defendant's evidence which raises the issue; however it is not inconceivable that the prosecutor's evidence may raise the issue. Once evidence is introduced on this issue, the prosecution is required to prove the responsibility of the defendant beyond a reasonable doubt. If the prosecuting attorney has introduced evidence on the issue, the defendant may rely on the failure of the prosecution, once having raised the issue, to prove responsibility beyond a reasonable doubt. Subsection (1) conforms to prior Hawaii law.[1]

Subsection (3) merely provides for a special verdict on the issue of responsibility when evidence of physical or mental disease, disorder, or defect has raised that issue. A defendant may, and often does, rely on alternative defenses or theories. Since commitment or conditional release is authorized for some defendants acquitted because of physical or mental disease, disorder, or defect excluding responsibility, the necessity of a special verdict is obvious. This subsection is also in substantial conformity with prior law.[2]

SUPPLEMENTAL COMMENTARY ON §704-402

Subsection (2) was added by Act 136, Session Laws 1973. It should be noted that the defendant has the option; the defendant decides whether the defendant wishes the jury instructed on the consequences to the defendant of an acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.

Act 229, Session Laws 1982, amended subsection (1) to provide that the defense of physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense. Senate Standing Committee Report No. 384 states:

The bill adopts the position of the United States Supreme Court in Leland v. Oregon that making the insanity defense an affirmative defense is not unconstitutional and does not violate the Due Process Clause of the Fourteenth Amendment. The courts have indicated that insanity is not an element of any offense. Thus, the establishing of insanity as an affirmative defense does not relieve the State of its burden of proof of the elements of the offense. The Oregon Supreme Court in State v. Stockett, 278 Or. 637, 565 P.2d 739, 743 (1977) reiterated the U.S. Supreme Court: "...the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime. For this reason, Oregon's placement of the burden of proof of insanity on Leland,...did not effect an unconstitutional shift in the state's traditional burden of proof beyond a reasonable doubt of all necessary elements of the offense."
Haw. Rev. Stat. § 708-8304 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8304
Unlicensed contractor fraud in the second degree.
Status: in_force

(1) A person commits the offense of unlicensed contractor fraud in the second degree if the person commits unlicensed contractor fraud and the total value of the property over which the person obtains control is less than $20,000.

(2) Unlicensed contractor fraud in the second degree is a class C felony. [L 2012, c 244, pt of §1]
Haw. Rev. Stat. § 710-1079 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1079
[ §710-1079] Making a false, fictitious, or fraudulent claim.
Status: in_force

[ §710-1079] Making a false, fictitious, or fraudulent claim. (1) A person commits the offense of making a false, fictitious, or fraudulent claim against the State or a county if the person makes or presents to any agent of the State, counties, or any department or agency thereof any claim upon or against the State, county, department, or agency that the person knows to be false, fictitious, or fraudulent.

(2) Making a false, fictitious, or fraudulent claim against the State or a county shall be a class C felony. [L 2023, c 131, pt of §3]
Haw. Rev. Stat. § 704-406 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-406
Effect of finding of unfitness to proceed and regained fitness to proceed.
Status: in_force

(1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in sections 704-407 and 704-421, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, assessment, care, and treatment; provided that:

(a) When the defendant is charged with a petty misdemeanor not involving violence or attempted violence, the defendant shall be diverted from the criminal justice system pursuant to section 704-421; and

(b) When the defendant is charged with a misdemeanor not involving violence or attempted violence, the commitment shall be limited to no longer than one hundred twenty days from the date the court determines the defendant lacks fitness to proceed.

If the court is satisfied that the defendant may be released on conditions without danger to the defendant or to another or risk of substantial danger to property of others, the court shall order the defendant's release, which shall continue at the discretion of the court, on conditions the court determines necessary; provided that the release on conditions of a defendant charged with a misdemeanor not involving violence or attempted violence shall continue for no longer than one hundred twenty days. A copy of all reports filed pursuant to section 704-404 shall be attached to the order of commitment or order of release on conditions that is provided to the department of health . When the defendant is committed to the custody of the director of health for detention, assessment, care, and treatment, the county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853; provided that the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided further that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the likely or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. No further disclosure of records shall be made except as provided by law.

(2) When the defendant is released on conditions after a finding of unfitness to proceed, the department of health shall establish and monitor a fitness restoration program consistent with conditions set by the court order of release, and shall inform the prosecuting attorney of the county that charged the defendant of the program and report the defendant's compliance therewith.

(3) When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, has reason to believe that the defendant has regained fitness to proceed, for a defendant charged with the offense of murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, the court shall appoint three qualified examiners and may appoint in all other cases one qualified examiner, to examine and report upon the physical and mental condition of the defendant. In cases in which the defendant has been charged with murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, the court shall appoint as examiners at least one psychiatrist and at least one licensed psychologist. The third examiner may be a psychiatrist, licensed psychologist, or qualified physician. One of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In all other cases, the one qualified examiner shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. All examiners shall be appointed from a list of certified examiners as determined by the department of health. After a hearing, if a hearing is requested, if the court determines that the defendant has regained fitness to proceed, the penal proceeding shall be resumed and the defendant shall no longer be committed to the custody of the director of health. In cases where a defendant is charged with the offense of murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, upon the request of the prosecuting attorney or the defendant, and in consideration of information provided by the defendant's clinical team, the court may order that the defendant remain in the custody of the director of health, for good cause shown, subject to bail or until a judgment on the verdict or a finding of guilt after a plea of guilty or nolo contendere. Thereafter, the court may consider a request from the director of health to rescind its order maintaining the defendant in the director's custody, for good cause shown. As used in this section, the term "qualified physician" means a physician qualified by the court for the specific evaluation ordered. If, however, the court is of the view that so much time has elapsed since the commitment or release on conditions of the defendant that it would be unjust to resume the proceeding, the court may dismiss the charge 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 the court determines necessary.

(4) An examination for regained fitness to proceed performed under this section may employ any method that is accepted by the professions of medicine or psychology for the examination of those alleged to be affected by a physical or mental disease, disorder, or defect, and shall include a review of records where the defendant, while under the custody of the director of health, was placed; provided that each examiner shall form and render an opinion on the defendant's regained fitness to proceed independently from the other examiners and the examiners, upon approval of the court, may secure the services of clinical psychologists and other medical or paramedical specialists to assist in the examination.

(5) The report of the examination for regained fitness to proceed shall include the following:

(a) A description of the nature of the examination;

(b) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense; and

(c) Where more than one examiner is appointed, a statement that the opinion rendered was arrived at independently of any other examiner, unless there is a showing to the court of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report. After all reports are submitted to the court, examiners may confer without restriction.

(6) All other procedures as set out in section 704-404(6) through (11) shall be followed for the completion of the report of the examination for regained fitness to proceed performed under this section.

(7) If a defendant committed to the custody of the director of health for a limited period pursuant to subsection (1) is not found fit to proceed prior to the expiration of the commitment, the charge for which the defendant was committed for a limited period shall be dismissed. Upon dismissal of the charge, the defendant shall be released from custody unless the defendant is subject to prosecution for other charges or subject to section 334-60.2 regarding involuntary hospitalization criteria, in which case the court shall order the defendant's commitment to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. Within a reasonable time following any other commitment under subsection (1), the director of health shall report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. The court, in addition, may appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to make a report. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:

(a) Release the defendant; or

(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.

(8) If a defendant released on conditions for a limited period pursuant to subsection (1) is not found fit to proceed prior to the expiration of the release on conditions order, the charge for which the defendant was released on conditions for a limited period shall be dismissed. Upon dismissal of the charge, the defendant shall be discharged from the release on conditions unless the defendant is subject to prosecution for other charges or subject to section 334-60.2 regarding involuntary hospitalization criteria, in which case the court shall order the defendant's commitment to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. Within a reasonable time following any other release on conditions under subsection (1), the court shall appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and:

(a) Release the defendant; or

(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. [L 1972, c 9, pt of §1; am L 1986, c 314, §7; am L 1993, c 87, §1; am L 1997, c 306, §2; am L 2006, c 230, §7; am L 2008, c 99, §2; am L 2011, c 53, §2 and c 112, §2; am L 2016, c 198, §4 and c 231, §6; am L 2020, c 26, §3]

COMMENTARY ON §704-406

Subsection (1) provides that following a determination of the defendant's unfitness to be proceeded against, the defendant shall be committed to the custody of the director of health or placed on conditional release for the duration of the defendant's unfitness.

The commitment or conditional release of the unfit defendant does not terminate until a determination by the court, after a hearing if one is requested, that the defendant is fit to be proceeded against. Upon such a determination, the penal proceedings resume unless the court finds that such resumption would be unjust. This section is designed to allow no hiatus in the procedure.

The Code, in its treatment of a defendant committed because of unfitness to proceed, conforms to the present Hawaii law which insures that a defendant so committed will remain in the custody of the director of health until the defendant has regained fitness.[1] Previous Hawaii law had no provision for conditional release of unfit defendants.

The second sentence of subsection (2) follows the suggestion of the Model Penal Code[2] and permits "the court to dismiss the prosecution if because of lapse of time it would be unjust to continue."[3] Under the prior law the power to dismiss the prosecution was vested in the prosecutor's discretion to enter a nolle prosequi. The Code accepts the position that

there is value ... in vesting such a power in the Court, to be exercised either where because of the lapse of time a defendant is unable to produce certain witnesses or other evidence once available which is essential to his defense, or where because of the length of the intervening period which he has spent in a mental institution subsequent to the alleged wrongful conduct it seems unjust to subject him to trial and punishment.[4]

SUPPLEMENTAL COMMENTARY ON §704-406

Act 314, Session Laws 1986, added subsection (3), which implements the holding in State v. Raitz, 63 Haw. 64 (1980). In Raitz, the court held that when a defendant is unlikely to become fit to proceed, due process requires that: (1) following commitment, there should be a timely determination of the likelihood of the defendant regaining fitness; and (2) if the court determines that the defendant will probably remain unfit, the defendant should be released or civilly committed. Conference Committee Report No. 51-86.

Act 87, Session Laws 1993, amended this section to require the court to appoint a panel of three qualified examiners to report on whether a defendant who has been conditionally released presents a substantial likelihood of becoming fit to proceed in the future. If the court determines that the defendant probably will remain unfit to proceed, it may dismiss the charge against the defendant or subject the defendant to involuntary civil commitment procedures. In addition, this Act allows the court, following the commitment of a defendant, to appoint a panel of three qualified examiners to report on the defendant's likelihood of becoming fit to proceed in the future. House Standing Committee Report No. 185, Senate Standing Committee Report Nos. 1061 and 1263.

Act 306, Session Laws 1997, amended subsections (3) and (4) to allow mental health examinations to be conducted by one rather than three examiners in nonfelony cases, and to require three examiners in felony cases. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Conference Committee Report No. 64.

Act 230, Session Laws 2006, amended this section to, among other things, clarify that when a defendant is found to be affected by a physical or mental disease, disorder, or defect and therefore remains unfit to proceed, the defendant may be committed to the custody of the director of health for placement in an appropriate institution, but only subject to the law governing involuntary civil commitment. House Standing Committee Report No. 665-06.

Act 99, Session Laws 2008, amended subsection (1) by requiring the county police departments to provide to the director of health and a defendant who is committed to the custody of the director, copies of certain police reports regarding that defendant. Act 99 expedited the records disclosure process for clinical evaluation purposes while protecting a patient's right of privacy. Conference Committee Report No. 161-08.

Act 53, Session Laws 2011, established a maximum time frame for the mental health commitment or conditional release of a defendant found unfit to proceed for trial. The Act limited the time of commitment or conditional release to a maximum of: (1) sixty days for persons charged with petty misdemeanors and (2) one hundred twenty days for persons charged with misdemeanors, where the petty misdemeanor or misdemeanor did not involve violence or attempted violence. Act 53 also required the dismissal of charges for defendants committed or placed on conditional release who are not found fit to proceed prior to the expiration of the commitment or conditional release unless certain elements are met.

The legislature found that when a defendant lacks fitness to proceed, criminal proceedings are suspended, and the defendant is committed to the director of health to be placed in an appropriate institution for detention, care, and treatment. The commitment to the director of health can be indefinite if the defendant continues to be found unfit to proceed, and the defendant may be held by the director of health for a period that is longer than the period of incarceration that the defendant would have received if the defendant had been sentenced to the maximum incarceration period allowed by law. House Standing Committee Report No. 700, Senate Standing Committee Report No. 1125.

Act 112, Session Laws 2011, amended this section by requiring the department of health to establish and monitor a fitness restoration program consistent with the conditions set by a court order of release when a defendant is released on conditions after a finding of unfitness to proceed; and to inform the prosecuting attorney of the county that charged the defendant of the fitness restoration program and report the defendant's compliance with the program. Act 112 provided a formal structure and mechanism to address community safety and monitoring concerns for persons found unfit to proceed and released on conditions. Conference Committee Report No. 79, Senate Standing Committee Report No. 1216, House Standing Committee Report No. 861.

Act 198, Session Laws 2016, amended this section by specifying procedures after a finding of unfitness to proceed and regained fitness to proceed. The legislature found that it is in the best interest of the defendants for the examination process to proceed in a timely, expedient manner by codifying procedures for appointing examiners for reevaluation of fitness. Conference Committee Report No. 153-16.

Act 231, Session Laws 2016, amended this section to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 26, Session Laws 2020, amended this section to make conforming amendments relating to the criminal justice diversion program established under §704-421 for defendants charged with petty misdemeanors not involving violence or attempted violence. 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.
Haw. Rev. Stat. § 712-1252 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1252
Knowledge of character, nature, or quantity of substance, or age of transferee; prima facie evidence.
Status: in_force

(1) The fact that a person engaged in the conduct specified by any section in this part is prima facie evidence that the person engaged in that conduct with knowledge of the character, nature, and quantity of the dangerous drug, harmful drug, detrimental drug, or intoxicating compounds possessed, distributed, or sold.

(2) The fact that the defendant distributed or sold a dangerous drug, harmful drug, detrimental drug, or intoxicating compound to a minor is prima facie evidence that the defendant knew the transferee to be a minor. [L 1972, c 9, pt of §1; am L 1984, c 122, §3; am L 1986, c 342, §5; am L 1987, c 283, §70; am L 1991, c 206, §2; am L 1992, c 207, §2; gen ch 1992]
Haw. Rev. Stat. § 712-1240.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1240.5
Manufacturing a controlled substance with a child present.
Status: in_force

(1) Except as provided in subsection (2), any person convicted of manufacturing a controlled substance in violation of this chapter, who commits the offense knowing that a child under the age of sixteen is present in the structure where the offense occurs, shall be sentenced to a term of two years imprisonment to run consecutively to the maximum indeterminate term of imprisonment for the conviction of any offense involving the manufacturing of a controlled substance.

(2) Any person convicted of manufacturing a controlled substance in violation of this chapter, who commits the offense knowing that a child under the age of eighteen is present in the structure where the offense occurs and causes the child to suffer serious or substantial bodily injury as defined in section 707-700, shall be sentenced to a term of five years imprisonment to run consecutively to the maximum indeterminate term of imprisonment for the conviction of any offense involving the manufacturing of a controlled substance.

(3) As used in this section, "structure" means any house, apartment building, shop, warehouse, building, vessel, cargo container, motor vehicle, tent, recreational vehicle, trailer, or other enclosed space capable of holding a child and equipment for the manufacture of a controlled substance. [L 2004, c 44, pt of §3]

COMMENTARY ON §712-1240.5

Act 44, Session Laws 2004, added this section, enhancing prison sentences for persons who manufacture drugs in the presence of a child and cause injury to a child, to protect children from the dangers of clandestine methamphetamine laboratories and homes where illegal substances may harm the children. House Standing Committee Report No. 495-04, Senate Standing Committee Report No. 3091.
Haw. Rev. Stat. § 712A-16 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-16
Disposition of property forfeited.
Status: in_force

(1) All property forfeited to the State under this chapter shall be transferred to the attorney general, who may:

(a) Sell forfeited property to the public by public sale; provided that for leasehold real property:

(i) The attorney general shall first offer the holder of the immediate reversionary interest the right to acquire the leasehold interest and any improvements built or paid for by the lessee for the then fair market value of the leasehold interest and improvements. The holder of the immediate reversionary interest shall have thirty days after receiving written notice within which to accept or reject the offer in writing; provided that the offer shall be deemed to be rejected if the holder of the immediate reversionary interest has not communicated acceptance to the attorney general within the thirty-day period. The holder of the immediate reversionary interest shall have thirty days after acceptance to tender to the attorney general the purchase price for the leasehold interest and any improvements, upon which tender the leasehold interest and improvements shall be conveyed to the holder of the immediate reversionary interest;

(ii) If the holder of the immediate reversionary interest fails to exercise the right of first refusal provided in subparagraph (i), the attorney general may proceed to sell the leasehold interest and any improvements by public sale; and

(iii) Any dispute between the attorney general and the holder of the immediate reversionary interest as to the fair market value of the leasehold interest and improvements shall be settled by arbitration pursuant to chapter 658A;

(b) Sell or destroy all raw materials, products, and equipment of any kind used or intended for use in manufacturing, compounding, or processing a controlled substance or any untaxed cigarettes in violation of chapter 245;

(c) Compromise and pay valid claims against property forfeited pursuant to this chapter; or

(d) Make any other disposition of forfeited property authorized by law.

(2) All forfeited property and the sale proceeds thereof shall, after payment of expenses of administration and sale, be distributed or retained as follows:

(a) One quarter shall be distributed to the unit or units of state or local government law enforcement whose officers or employees conducted the investigation and caused the arrest of the person whose property was forfeited or seizure of the property for forfeiture;

(b) One quarter shall be distributed to the prosecuting attorney who instituted the action producing the forfeiture; and

(c) One half shall be retained in the criminal forfeiture fund established by this chapter.

(3) All property and money distributed to units of state or local government pursuant to subsection (2)(a) and (b) shall be used for law enforcement purposes, including but not limited to drug recognition expert training and public awareness or outreach efforts, and shall complement but not supplant the funds regularly appropriated for these purposes.

(4) There shall be established in the department of the attorney general a special fund to be known as the criminal forfeiture fund into which shall be deposited the proceeds of a forfeiture and any penalties paid pursuant to section 712A-10(6). All moneys in the criminal forfeiture fund except for those disbursements provided for in subsection (2)(a) and (b) shall be expended by the attorney general and are hereby appropriated for the following purposes:

(a) The payment of any expenses necessary to seize, detain, appraise, inventory, safeguard, maintain, advertise, or sell property seized, detained, or forfeited pursuant to this chapter or of any other necessary expenses incident to the seizure, detention, or forfeiture of property and contract services and payments to reimburse any federal, state, or county agency for any expenditures made to perform the foregoing functions;

(b) The payment of expenses arising in connection with programs for training and education of law enforcement officers; and

(c) The payment of expenses arising in connection with enforcement pursuant to the drug nuisance abatement unit in the department of the attorney general.

(5) The attorney general shall adopt rules necessary to carry out the purpose of this chapter, including rules concerning the return of seized property, the disposition of property, the use of the criminal forfeiture fund, and compromising and paying valid claims against property forfeited.

(6) No less than forty days before the convening of each regular session, the attorney general shall provide to the legislature a report on the use of the Hawaii omnibus criminal forfeiture act during the fiscal year preceding the legislative session. The report shall include:

(a) The total amount and type of property seized by law enforcement agencies;

(b) The total number of administrative and judicial actions filed by prosecuting attorneys and the disposition thereof for each action;

(c) The total number of claims or petitions for remission or mitigation filed in administrative actions and the dispositions thereof for each action;

(d) The total amount and type of property forfeited and the sale proceeds thereof;

(e) The total amount and type of property distributed to units of state and local government;

(f) The amount of money deposited into the criminal forfeiture fund; and

(g) The amount of money expended by the attorney general from the criminal forfeiture fund under subsection (5) and the reason for the expenditures. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §§1, 2; am L 1991, c 166, §8; am L 1992, c 112, §2; am L 1993, c 196, §1; am L 1996, c 104, §6; am L 2000, c 249, §§12, 20(2); am L 2001, c 265, §4; am L 2002, c 16, §31 as superseded by c 94, §3; am L 2003, c 63, §2; am L 2016, c 161, §§2, 7(3); am L Sp 2021, c 9, §57; am L 2025, c 288, §5]
Haw. Rev. Stat. § 706-669 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-669
Procedure for determining minimum term of imprisonment.
Status: in_force

(1) When a person has been sentenced to an indeterminate or an extended term of imprisonment, the Hawaii paroling authority shall, as soon as practicable but no later than six months after commitment to the custody of the director of the department of corrections and rehabilitation hold a hearing, and on the basis of the hearing make an order fixing the minimum term of imprisonment to be served before the prisoner shall become eligible for parole.

(2) Before holding the hearing, the authority shall obtain a complete report regarding the prisoner's life before entering the institution and a full report of the prisoner's progress in the institution. The report shall be a complete personality evaluation for the purpose of determining the prisoner's degree of propensity toward criminal activity.

(3) The prisoner shall be given reasonable notice of the hearing under subsection (1) and shall be permitted to be heard by the authority on the issue of the minimum term to be served before the prisoner becomes eligible for parole. In addition, the prisoner shall:

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

(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 under [paragraphs] (a), (b), and (c).

(4) The authority in its discretion may, in any particular case and at any time, impose a special condition that the prisoner will not be considered for parole unless and until the prisoner has a record of continuous exemplary behavior.

(5) After sixty days notice to the prosecuting attorney, the authority in its discretion may reduce the minimum term fixed by its order pursuant to subsection (1).

(6) A verbatim stenographic or mechanical record of the hearing shall be made and preserved in transcribed or untranscribed form.

(7) The State shall have the right to be represented at the hearing by the prosecuting attorney who may present written testimony and make oral comments and the authority shall consider such testimony and comments in reaching its decision. The authority shall notify the prosecuting attorney of the hearing at the time the prisoner is given notice of the hearing. The hearing shall be opened to victims or their designees or surviving immediate family members who may present a written statement or make oral comments.

(8) The authority shall establish guidelines for the uniform determination of minimum sentences which shall take into account both the nature and degree of the offense of the prisoner and the prisoner's criminal history and character. The guidelines shall be public records and shall be made available to the prisoner and to the prosecuting attorney and other interested government agencies. [L 1972, c 9, pt of §1; am L 1976, c 92, §8; am L 1988, c 282, §1; gen ch 1993; am L 1996, c 4, §1 and c 193, §1; am L 2022, c 278, §29]

COMMENTARY ON §706-669

This section continues the policy of the previous law of vesting in the Board of Paroles and Pardons the exclusive authority to determine the minimum time which must be served before the prisoner will be eligible for parole. However, the Code differs from present law in two respects: (a) it does not recognize a sentence of imprisonment not subject to the possibility of parole except the instances enumerated in §706-606(a), and (b) it provides that the order of the Board shall be made upon the basis of a prior hearing which, under subsection (3), affords the prisoner an opportunity to be heard and a mode for participation. Both concepts are suggested by the Model Penal Code.[1] In addition, subsection (3) specifically provides that the prisoner will be afforded assistance and representation by counsel, if the prisoner wishes.

Subsection (2) continues the previous requirement that the Board of Paroles arm itself with sufficient information concerning the prisoner before it makes a determination as to parole eligibility. Subsection (4) is a continuation of the previous policy of granting to the Board the authority to impose a special condition relating to the prisoner's behavior before the prisoner will be eligible for parole. Subsection (5) gives the Board the discretionary power to reduce the minimum term previously fixed by its order. Subsection (6) insures that a record of the hearing will be made and preserved.

SUPPLEMENTAL COMMENTARY ON §706-669

When the legislature adopted the Code in 1972, it provided for life imprisonment without possibility of parole in the four instances enumerated in §706-606(a) (1972).

Act 92, Session Laws 1976, substituted the terms "Hawaii paroling authority" and "authority" for the term "board of paroles and pardons" and "board."

Act 282, Session Laws 1988, amended this section to allow the prosecuting attorney to appear and present oral comment and written testimony at minimum term hearings before the Hawaii paroling authority, disallowing oral testimony by witnesses. Senate Conference Committee Report No. 270, House Conference Committee Report No. 96-88.

Act 4, Session Laws 1996, amended this section by clarifying that victims may present written statements or oral comments at minimum prison term hearings before the parole board. The legislature found that the practice of the parole board was to permit victims or their representatives the opportunity to comment at minimum term hearings, although current law did not expressly provide for that opportunity. The legislature agreed that victims should be allowed to be heard and to be present at the hearings, and that victims were entitled to be heard when the crimes involved property, as well as when the crimes were against persons. Senate Standing Committee Report No. 1972, House Standing Committee Report No. 1025-96.

Act 193, Session Laws 1996, amended this section by providing that the prosecuting attorney shall receive sixty days notice prior to the reduction of minimum terms of imprisonment by the Hawaii paroling authority. Current law was unclear regarding whether the prosecuting attorney was entitled to notice prior to the reduction of minimum terms of imprisonment by the paroling authority. The Act clarified that the prosecuting attorney is entitled to notice. Conference Committee Report No. 60.

Act 278, Session Laws 2022, amended this section to replace references to "department of public safety" with "department of corrections and rehabilitation" to reflect the provisions in Act 278 that: (1) reestablished the department of public safety as an independent department of corrections and rehabilitation to administer the corrections, rehabilitation, and reentry of the inmate population; and (2) established a department of law enforcement to consolidate and administer certain criminal law enforcement and investigative functions of the department of public safety, department of transportation, department of the attorney general, and office of homeland security. The legislature found that the goals and functions of corrections and law enforcement are distinct, and separating the functions of the department of public safety into two departments would advance these distinct goals and objectives while allowing the corrections arm to more fully integrate strategies for rehabilitation. The legislature further found that reorganizing certain state law enforcement functions into a single entity with consistent training opportunities would allow for the efficient use of resources in administering correctional programs and improve decision making, promote accountability, streamline communication, decrease costs, reduce duplication of efforts, provide uniform training and standards, and promote uniform standards of law enforcement services. House Standing Committee Report No. 200-22, Senate Standing Committee Report No. 3292.
Haw. Rev. Stat. § 712-1214 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1214
Promoting pornography.
Status: in_force

(1) A person commits the offense of promoting pornography if, knowing its content and character, the person:

(a) Disseminates for monetary consideration any pornographic material;

(b) Produces, presents, or directs pornographic performances for monetary consideration; or

(c) Participates for monetary consideration in that portion of a performance which makes it pornographic.

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

Revision Note

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

COMMENTARY ON §712-1214

Section 712-1214 imposes a general penalty upon the commercial dissemination of pornography, regardless of the form of the "material" [§712-1210] or "performance" [§712-1210].

The definition of "pornographic" [§712-1210] is derived from a series of United States Supreme Court cases,[1] other proposed or enacted codifications,[2] and the Model Penal Code.[3] The usual reference with respect to "predominant appeal" test and the "limits of candor" test is to the "ordinary adult"; however, the definition is flexible to the extent that, on the first test, where the material or performance in question is addressed to a particular, clearly defined audience, such as homosexuals and sexual sadists, the reference is to the "special interest group."[4] Special problems relating to minors are handled separately in §712-1215.

References in United States Supreme Court opinions to "contemporary community standards" have proven troublesome for the Court and for lower courts that have tried to follow its decisions. In Roth the Court applied "contemporary community standards" to the predominant appeal test.[5] In Memoirs, the Court applied "contemporary community standards" to the limits of candor test,[6] but not to the predominant appeal test.[7] In Ginzburg the Court applied the concept of community standards in determining whether the material had social value for the audience (general public) to which it was directed.[8] It should, however, be noted that the Court in Ginzburg was sharply divided and that in most decisions the applications of "contemporary community standards" has been only to the predominant appeal and limits of candor tests.

The most serious problem in the application of "contemporary community standards" is the uncertain nature and size of the "community" referred to. On this too, the Court is divided. Mr. Justice Harlan has said:

There must first be decided the relevant "community" in terms of whose standards of decency the issue must be judged. We think that the proper test under this federal statute, reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency. We need not decide whether Congress could constitutionally prescribe a lesser geographical framework for judging this issue which would not have the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Cf. Butler v. Michigan, 352 U.S. 380.[9]

This "national community" standard has been echoed by Mr. Justice Brennan:

We do not see how any "local" definition of the "community" could properly be employed in delineating the area of expression that is protected by the Federal Constitution. ...It is true that Manual Enterprises dealt with the federal statute banning obscenity from the mails. But the mails are not the only means by which works of expression cross local community lines in this country. It can hardly be assumed that all the patrons of a particular library, bookstand, or motion picture theater are residents of the smallest local "community" that can be drawn around that establishment. Furthermore, to sustain the suppression of a particular book or film in one locality would deter its dissemination in other localities where it might be held not obscene, since sellers and exhibitors would be reluctant to risk criminal conviction in testing the variation between the two places....

It is true that local communities throughout the land are in fact diverse, and that in cases such as this one the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. The Court has regularly been compelled, in reviewing the criminal convictions challenged under the Due Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights of the local community which brought the prosecution and of the individual defendant. Such a task is admittedly difficult and delicate, but it is inherent in the Court's duty of determining whether a particular conviction worked a deprivation of rights guaranteed by the Federal Constitution. The Court has not shrunk from discharging that duty in other areas, and we see no reason why it should do so here. The Court has explicitly refused to tolerate a result whereby "the constitutional limits of free expression in the Nation would vary with state lines," Pennekamp v. Florida, supra, 328 U.S., at 335; we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is, after all, a national Constitution we are expounding.[10]

On the other hand, former Chief Justice Warren, dissenting in Jacobellis, thought the standard should be the "local" community:

It is my belief that when the Court said in Roth that obscenity is to be defined by reference to "community standards," it meant community standards not a national standard, as is sometimes argued. I believe that there is no provable "national standard," and perhaps there should be none. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one. It is said that such a "community" approach may well result in material being proscribed as obscene in one community but not in another, and, in all probability, that is true. But communities throughout the Nation are in fact diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society and of individuals.[11]

The disagreement within the Court is all the more difficult to understand because the standard provided in Roth, Manual Enterprises, Jacobellis, Memoirs, Mishkin, and other cases, was derived from the Model Penal Code,[12] which clearly intended that a national standard be applied.[13]

In the wake of the Supreme Court's failure to provide a clear rule, the state and lower federal courts have split three ways: applying either a "local,"[14] "state,"[15] or "national"[16] standard.

It appears to us that there is little to be gained by using the phrase "contemporary community standards"--which the Code deliberately does not employ. The reference will have to be made to contemporary standards of ordinary adults--but the use of the word "community" in this context has posed more problems than it has solved. It seems that the reference is at least statewide and probably national--but to use the word "community" at either level adds little or nothing. In any event, the Code's definition of "pornographic" will not prejudice further case development on this issue.

The Code limits the offense of promoting pornography to activity carried on for monetary consideration. It is commercial exploitation and not private tastes that are the gravamen of the offense. As the drafters of the Michigan proposed revision have pointed out:

... [T]he emphasis in this area should be on commercial distribution of pornographic material. We should not open up to prosecution, police investigation, search, etc. every person who in the privacy of his home exhibits pornographic materials to a few friends [cf. Redmond v. United States, 384 U.S. 264, 86 S.Ct. 1415, 16 L.Ed. 2d 521 (1966)].[17]

Moreover, making criminal private possession of materials, and possibly private expressions through performances, albeit pornographic in nature, appears to be unconstitutional.[18]

It should be pointed out that the definition of the offense provides that the accused must act knowingly with respect to the pornographic context and character of the material the accused disseminates or the performance the accused presents, directs, or in which the accused participates. This meets the constitutionally imposed requirement of mens rea in this type of case[19] and is in accord with the general principles set forth in chapter 702 of this Code.

The previous Hawaii law relating to pornographic and other condemned publications was set forth in HRS §727-8. No extended discussion is required to demonstrate that this section of the Code is to be preferred to previous law. In line with the Code's limitation to commercial exploitation, the available penalty has been increased.[20]
Haw. Rev. Stat. § 713-1300 — HI Code / Division 5 / Title 37 / Chapter 713 / Section 713-1300
Repeal and recodification.
Status: repealed

[Omitted as functus.]

APPENDIX

1. ABBREVIATIONS

Colum. L. Rev. Columbia Law Review

Eng. Rep. English Reports--Full Preprint

F. Federal Reporter

F.2d Federal Reporter, Second Series

F. Supp. Federal Supplement

Haw. Hawaii Reports

H.R.S. or HRS Hawaii Revised Statutes

H.R.Cr.P. Hawaii Rules of Criminal

Procedure (1960)

Ill. Cr. Code Illinois Criminal Code (1961)

M.P.C. American Law Institute, Model Penal

Code, Proposed Official

Draft (1962)

Mich. L. Rev. Michigan Law Review

N.Y.R.P.L. New York Revised Penal Law (1965)

Prop. Del. Cr. Code Proposed Delaware Criminal

Code (1967)

Prop. Mich. Rev. Cr. Code Proposed Michigan Revised

Criminal Code (1967)

Q.B. Queen's Bench Reports

Stan. L. Rev. Stanford Law Review

U.S. United States Supreme Court Reports

Weekly L. R. Weekly Law Reports (English)

2. TABLE OF DISPOSITION--TITLE 37. CRIMINAL LAW

R = Repealed

________________________________________________________________

Former § Present § Former § Present §

________________________________________________________________

C701 R 711-21 to 23 806-21 to 23

C702 R 711-26 to 42 806-26 to 42

C703 R 711-46 to 51 806-46 to 51

C704 R 711-56 806-56

705-1 to 3 R 711-61 to 64 806-61 to 64

705-4 801-1 711-65, 66 R

705-5 801-5 711-67, 68 806-65, 66

705-5.5 R 711-71 to 73 R

705-6 to 8 801-2 to 4 711-76, 77 R

705C-1 to 12 802-1 to 12 711-78, 79 806-72, 73

C706 R 711-80 to 83 R

C707 R 711-84 806-71

708-1 to 11 803-1 to 11 711-85, 91 to 94 R

708-21 to 24 803-21 to 24 711-96 806-76

708-31 to 38 803-31 to 38 C712 R

709-1 to 19 804-1 to 19 713-1 to 27 832-1 to 27

709-31 to 41 804-31 to 41 713C-1 to 6 833-1 to 6

709-51 804-51 714-1 to 6 834-1 to 6

710-1 to 11 805-1 to 11 715-1 to 19 841-1 to 19

710-12 to 14 R 716-1 to 7 831-1 to 7

710-15 805-12 718-1 to 8 835-1 to 8

711-1, 2 806-1, 2 719-1 to 6 836-1 to 6

711-6 to 10 806-6 to 10 720-1 to 12 842-1 to 12

711-16 to 18 806-16 to 18
Haw. Rev. Stat. § 708-839.8 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-839.8
Identity theft in the third degree.
Status: in_force

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

(2) Identity theft in the third degree is a class C felony. [L 2002, c 224, pt of §1]
Haw. Rev. Stat. § 710-1069.5 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1069.5
Misrepresenting a notarized document in the second degree.
Status: in_force

(1) A person commits the offense of misrepresenting a notarized document in the second degree if, with intent to mislead another, the person submits or invites reliance on a document that the person knows has been altered after the document had been notarized by a notary public in this or any other jurisdiction.

(2) Misrepresenting a notarized document in the second degree is a misdemeanor. [L 2008, c 175, pt of §3]

COMMENTARY ON §§710-1069 AND 710-1069.5

Act 175, Session Laws 2008, added these sections, establishing criminal offenses for misrepresenting a notarized document. Act 175 deterred fraud by strengthening the laws relating to notaries and notarized documents. Conference Committee Report No. 77-08.
Haw. Rev. Stat. § 712-1281 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1281
Forfeiture; fireworks.
Status: in_force

In addition to any other penalty that may be imposed for violation of section 132D-14(a)(1), any property used or intended for use in the commission of, attempt to commit, or conspiracy to commit an offense under section 132D-14(a)(1), or that facilitated or assisted such activity, and any proceeds or other property acquired or maintained with the proceeds from violation of section 132D-14(a)(1) may be subject to forfeiture pursuant to chapter 712A.

COMMENTARY ON §§712-1270 TO 712-1281

Act 181, Session Laws 1979, established this part to provide a remedy to abate as nuisances, offenses against public health and morals in the nature of offenses defined as prostitution, the display of indecent matter, and the like. It is based largely on sections 11225 to 11235 of the California Penal Code.

In enacting §712-1279, the legislature thought it desirable to place the burden upon the property owner to take appropriate action against the lessee to abate the nuisance, but felt that a categorical mandate requiring notice of revocation might raise collateral problems, particularly where chains of subleases were involved. Accordingly, the legislature chose to require the courts to consider the giving of notice and other actions the owner may or may not have taken to abate the nuisance when deliberating upon the issue of criminal contempt. Senate Standing Committee Report No. 892 (1979) states:

Such treatment prevents the imposition of penalty against the owner who may not have technically given notice but who, under peculiar circumstances, may have taken other reasonable and possibly more effective measures to abate the nuisance, and thereby acted in ... good faith.

Act 158, Session Laws 1990, amended §712-1270 to expand the nuisance law to permit closure of premises where drug offenses repeatedly occur. The legislature emphasized that this amendment is not intended to be applied to innocent landlords whose property may be inadvertently involved in drug offenses. Conference Committee Report No. 30.

Act 246, Session Laws 1996, amended §§712-1270 to 712-1280, by, inter alia, allowing any organization to bring a nuisance abatement suit and providing that the court may order that the person causing the nuisance be excluded from the premises under certain conditions. The Act also allowed the abatement of a nuisance that involves the manufacture as well as the distribution of drugs, and made the language in the statutes more consistent and comprehensive by referring to "buildings" and "premises" as well as a "place." The legislature believed that places used for illicit drugs, prostitution, or pornography were major factors contributing to the decline of neighborhoods, and that permitting any organization to bring a nuisance abatement action and allowing a court to exclude persons causing the nuisance strengthened part IV of chapter 712 to deal with these problems. Conference Committee Report No. 35, Senate Standing Committee Report No. 2618.

Act 286, Session Laws 1998, added §712-1270.5 to allow injunctions against entering or residing in any public or private building, premises, or place to issue against the person causing the nuisance. The legislature found that in 1996, Act 246 was passed, which amended various sections in chapter 712. The purpose of Act 246 was to allow organizations to maintain nuisance abatement suits and thereby obtain injunctive relief against persons utilizing certain buildings, premises, or places, to commit offenses against public health and morals. The legislature also found that the department of the prosecuting attorney, relying on Act 246, began to move for injunctions barring prostitutes from certain areas of Waikiki. The legal reasoning upon which Act 246 was applied to prostitutes was that prostitutes who solicit on public streets aggressively hinder both pedestrian and vehicular traffic and harass visitors to the point where their activity becomes a public nuisance. However, the circuit courts denied the motions for injunctions against prostitutes on the grounds that the nuisance abatement statute did not expressly apply to individuals.

In passing Act 246, the legislature expressly intended that the court could order, as part of the abatement of the nuisance, the exclusion of the person causing the nuisance from the place, building, or premises involved. Act 286 will solve the apparent ambiguity in the law by specifically stating that nothing in the nuisance abatement law prohibits injunctions against persons causing the nuisance. House Standing Committee Report No. 613-98, Conference Committee Report No. 93.

Act 286, Session Laws 1998, amended §712-1271 to provide that no actions authorized under part V of chapter 712 which seeks to abate or prevent a nuisance shall be filed or maintained against the State or any political subdivision thereof. Conference Committee Report No. 93.

Act 286, Session Laws 1998, amended §712-1273 to allow evidence of a person's general reputation to be introduced to prove the existence of a nuisance. Conference Committee Report No. 93.

Act 44, Session Laws 2004, added §712-1270.3 and amended §§712-1276 and 712-1278, to allow citizens to recover attorneys' fees and to receive the same protection as crime victims do. House Standing Committee Report No. 495-04.

Act 123, Session Laws 2005, added §712-1271.5, to establish that a preponderance of the evidence is the standard of proof applicable to nuisance abatement actions, §712-1271.6, to authorize a court to issue a protective order to prevent the disclosure of the identity of a witness when presented with evidence of acts of violence or prior threats of violence by any defendant in a nuisance abatement action, and §712-1277.5, to subject an individual who knowingly violates a protective order to civil as well as criminal contempt of court.

Act 123 also amended §§712-1270.5, 712-1271, 712-1272, 712-1273, 712-1275, and 712-1276 to, among other things, allow injunctions against persons who maintain, aid, abet, or permit a nuisance from entering or residing in any place where the nuisance exists and enable a court to enter an order suspending or revoking any business, professional, operational, or liquor license if the holder of the license is involved in maintaining, aiding, abetting, or permitting the nuisance. The legislature found that the Act would encourage neighborhood residents to report community nuisances such as drug activity by increasing the protections for witnesses in nuisance abatement actions, expanding the scope of injunctions to include persons associated with the nuisance, and providing law enforcement additional tools to abate a nuisance. Conference Committee Report No. 11, House Standing Committee Report No. 1288, Senate Standing Committee Report No. 638.

Act 136, Session Laws 2010, added §712-1281 to subject to forfeiture laws property used or intended to be used and proceeds acquired in the commission or attempted commission of the illegal importation, sale, and transfer of fireworks. Act 136 also amended §§712-1270 and 712-1270.3, respectively, to establish a nuisance action under the Penal Code to abate those activities, and to give citizens who bring an action to abate the activities the same rights and protections of victims and witnesses in criminal proceedings. The legislature found that increasing the penalties for violations of fireworks-related laws may serve to curb rampant illegal fireworks in the State. Conference Committee Report No. 18-10, Senate Standing Committee Report No. 3044.

Act 80, Session Laws 2015, amended §712-1270 to promote the enforcement of criminal gambling prohibitions by including gambling among the types of criminal offenses that are subject to the nuisance abatement laws. The legislature found that illegal gambling establishments can generate a large volume of cash and lead to neighborhood and community nuisances by becoming a haven for organized crime. Act 80 supplements existing police efforts by providing an additional tool to remedy illegal activity at specific buildings, premises, or places within the State. Senate Standing Committee Report No. 596, House Standing Committee Report No. 1492.

Act 154, Session Laws 2016, amended §712-1270 to remedy the situation of an unlawful occupation of real property by authorizing civil lawsuits that seek, among other things, an order of abatement that permanently prohibits the trespassers from residing on or entering onto the subject real property. The legislature found that "squatting," to settle on land without title, right, or payment of rent, had become common in certain areas of the State and was a serious nuisance to the owners of the property, adjoining landowners, and neighboring residents. Squatting presented significant legal issues for landowners because the legal process to evict a squatter was costly and time consuming. The problems multiplied when the squatter located on property that had been abandoned by the owner. Because neighboring landowners and residents did not have a property interest in the abandoned parcel, they usually did not have effective legal tools to remove the squatter. There was a lack of effective remedies to protect against noise, drug use, unsanitary conditions, and other illegal activities in their neighborhoods. Conference Committee Report No. 38-16.

Act 243, Session Laws 2025, amended §§712-1270, 712-1270.3, and 712-1281 by conforming references to §132D-14(a). These conforming amendments facilitated other amendments made by Act 243 establishing various penalties for fireworks offenses, including establishing heightened penalties under certain circumstances. The legislature found that there was an urgent need for a more structured approach to fireworks enforcement in the State. Act 243 would establish a graduated penalty structure that appropriately reflected the severity of violations, particularly those resulting in serious injury or death, which would serve as both a deterrent and an appropriate response to the harm caused. Senate Standing Committee Report No. 1268, Conference Committee Report No. 233.

Act 269, Session Laws 2025, amended §712-1270 to establish that every building, premises, or place used for the purpose of violating the hemp processors law is a nuisance subject to abatement. The legislature found that the hemp-cannabinoid marketplace in the State continued to evolve rapidly, with numerous websites and retail locations selling cannabis products under the guise of being labelled as hemp. The legislature further found that many websites were currently operating and advertising their sale of cannabis products, some of which acknowledged that the State is a medical cannabis only state, but others did not and still openly sold cannabis products. Accordingly, Act 269 would provide the department of health with clear enforcement tools to shut down illegal websites that are significantly impacting the regulated medical cannabis industry in the State. Senate Standing Committee Report No. 1817, Conference Committee Report No. 253.
Haw. Rev. Stat. § 712-1221 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1221
Promoting gambling in the first degree.
Status: in_force

(1) A person commits the offense of promoting gambling in the first degree if the person recklessly advances or profits from gambling activity by:

(a) Engaging in bookmaking to the extent that the person receives or accepts in any seven-day period more than five bets totaling more than $500;

(b) Receiving in connection with a lottery, or mutuel scheme or enterprise, money or written records from a person other than a player whose chances or plays are represented by such money or records; or

(c) Receiving or having become due and payable in connection with a lottery, mutuel, or other gambling scheme or enterprise, more than $1,000 in any seven-day period played in the scheme or enterprise.

(2) Promoting gambling in the first degree is a class B felony. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; am L 1983, c 161, §1; am L 1987, c 83, §1; gen ch 1992; am L 2022, c 111, §4]

Revision Note

In subsection (1)(a), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 708-858 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-858
Suppressing a testamentary or recordable instrument.
Status: in_force

(1) A person commits the offense of suppressing a testamentary instrument if, with intent to defraud, the person destroys, removes, or conceals any will, codicil, or other testamentary instrument.

(2) A person commits the offense of suppressing a recordable instrument if, with intent to defraud, the person destroys, removes, or conceals any deed, mortgage, security instrument, or other written instrument for which the law provides public recording.

(3) Each offense defined in this section is a class C felony. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §708-858

This section makes it a class C felony to destroy, remove, or conceal certain testamentary instruments or instruments for which the law provides recording. Despite the overlapping coverage, to some extent, with offenses of criminal property damage (§§708-820 to 823), there exists certain additional incidence of harm because the destruction of a will or a deed, for example, could have substantially the same effect as forgery if the destruction gave efficacy to a prior document and the grantor or testator refused or was unable to remedy the situation. This additional element of harm is the principal reason for the present section.
Haw. Rev. Stat. § 707-705 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-705
Negligent injury in the first degree.
Status: in_force

(1) A person commits the offense of negligent injury in the first degree if that person causes:

(a) Serious bodily injury to another person by the operation of a vehicle in a negligent manner; or

(b) Substantial bodily injury to a vulnerable user by the operation of a [vehicle] in a negligent manner.

(2) Negligent injury in the first degree is a class C felony. [L 1988, c 292, pt of §1; am L 2012, c 21, §2 and c 316, §4]

COMMENTARY ON §707-705

Act 292, Session Laws 1988, added this section which defines negligent injury in the first degree. The legislature felt that stronger measures were needed to protect the public and to deter those who negligently operate a motor vehicle, which results in bodily injury or death to others. Senate Conference Committee Report No. 278, House Conference Committee Report No. 105-88.

Act 21, Session Laws 2012, amended this section by modifying the scope of offenses relating to negligent injury to broaden the offenses' application to include injuries caused by more types of vehicles to increase public safety. The legislature found that a person was guilty of a negligent injury offense if that person caused serious or substantial bodily injury to another person while operating a motor vehicle. Act 21 would allow this negligent injury offense to also include the negligent operation of a moped or vessel and made operators of more types of vehicles more accountable for their actions when those actions involve the safety of others. Senate Standing Committee Report No. 2449, House Standing Committee Report No. 1101-12.

Act 316, Session Laws 2012, amended this section to include a provision for incidents involving a vulnerable highway user. Hawaii's roadways have often been called dangerous for pedestrians, cyclists, and others who legally use the public right of way without being in a vehicle. Unfortunately, when collisions occur between vehicles and these individuals, the outcome is often catastrophic. Amending the offense of negligent injury in the first degree to include a provision for incidents in which vulnerable highway users are involved may, at the very least, increase driver awareness of these individuals. Conference Committee Report No. 33-12.
Haw. Rev. Stat. § 707-704 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-704
Negligent homicide in the third degree.
Status: in_force

(1) A person is guilty of the offense of negligent homicide in the third degree if that person causes the death of another person by the operation of a vehicle in a manner which is simple negligence.

(2) "Simple negligence" as used in this section:

(a) A person acts with simple negligence with respect to the person's conduct when the person should be aware of a risk that the person engages in that conduct.

(b) A person acts with simple negligence with respect to attendant circumstances when the person should be aware of a risk that those circumstances exist.

(c) A person acts with simple negligence with respect to a result of the person's conduct when the person should be aware of a risk that the person's conduct will cause that result.

(d) A risk is within the meaning of this subsection if the person's failure to perceive it, considering the nature and purpose of the person's conduct and the circumstances known to the person, involves a deviation from the standard of care that a law-abiding person would observe in the same situation.

(3) Negligent homicide in the third degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1988, c 292, §3]
Haw. Rev. Stat. § 701-109 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-109
Method of prosecution when conduct establishes an element of more than one offense.
Status: in_force

(1) When the same conduct of a defendant may establish an element of more than one offense, the defendant may be prosecuted for each offense of which such conduct is an element. The defendant may not, however, be convicted of more than one offense if:

(a) One offense is included in the other, as defined in subsection (4) of this section;

(b) One offense consists only of a conspiracy or solicitation to commit the other;

(c) Inconsistent findings of fact are required to establish the commission of the offenses;

(d) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or

(e) The offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods of conduct constitute separate offenses.

(2) Except as provided in subsection (3) of this section, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.

(3) When a defendant is charged with two or more offenses based on the same conduct or arising from the same episode, the court, on application of the prosecuting attorney or of the defendant, may order any such charge to be tried separately, if it is satisfied that justice so requires.

(4) A defendant may be convicted of an offense included in an offense charged in the felony complaint, indictment, or information. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or

(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.

(5) The court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense. [L 1972, c 9, pt of §1; gen ch 1993; am L 2018, c 100, §1]

Revision Note

In subsections (1)(a), (b), and (c), and (4)(a), "or" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 708-823.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-823.6
Graffiti; sentencing.
Status: in_force

(1) Whenever a person is sentenced under section 708-821, 708-822, 708-823, or 708-823.5 for an offense in which the damage is caused by graffiti, in addition to any penalty prescribed by those sections, the person shall be required to:

(a) Remove the graffiti from the damaged property within thirty days of sentencing, if it has not already been removed and where consent from the respective property owner or owners has been obtained; and

(b) For a period of time not to exceed two years from the date of sentencing, along with any other person or persons who may be sentenced under this section for the same property, perform community service removing, within fourteen days, any graffiti applied to other property within two hundred fifty yards of the site of the offense for which the person was sentenced, where consent from the respective property owner or owners has been obtained, even if the property was damaged by another person;

provided that removal of graffiti shall not place the person or others in physical danger nor inconvenience the public.

(2) In lieu of performing graffiti removal pursuant to subsection (1), the court may require a person to perform one hundred hours of community service if the government agency that is responsible for supervising the graffiti removal lacks the necessary resources to ensure the person's compliance with subsection (1).

(3) For purposes of this section, "graffiti" means any unauthorized drawing, inscription, figure, or mark of any type intentionally created by paint, ink, chalk, dye, or similar substances. [L 2010, c 99, §1; am L 2011, c 156, §1]

COMMENTARY ON §708-823.6

Act 99, Session Laws 2010, added this section, requiring a person sentenced for criminal property damage, where the damage is caused by graffiti, to, among other things, remove the graffiti from the damaged property and to perform community service removing graffiti on other property within one hundred yards of the site of the offense for which the person was sentenced. The legislature found that graffiti was a community-wide problem. Act 99 was intended to impose appropriate penalties to deter the property crime. Senate Standing Committee Report No. 2974, House Standing Committee Report No. 495-10.

Act 156, Session Laws 2011, amended this section by extending the area applicable to graffiti removal requirements to two hundred fifty yards of the site of the offense; limiting graffiti removal requirements to cases where the removal would not endanger the convicted person or others or inconvenience the public; and allowing the court to impose a sentence of one hundred hours of community service instead of graffiti removal, where the government agency responsible for supervising the graffiti removal lacks the necessary resources to ensure the person's compliance with the graffiti removal. When a defendant who is convicted of property damage by graffiti is sentenced to remove graffiti within the same area where the defendant defaced the property of others, a defendant performs a valuable community service while gaining a direct understanding of the time and effort required by property owners and community members to restore what may take only minutes to vandalize. Conference Committee Report No. 53, Senate Standing Committee Report No. 1112.
Haw. Rev. Stat. § 711-1109.37 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109.37
Cruelty to animals by trapping.
Status: in_force

[§711-1109.37]Cruelty to animals by trapping. (1) A person commits the offense of cruelty to animals by trapping if the person intentionally, knowingly, or recklessly uses, sets, or maintains:

(a) A steel-jawed leg-hold trap; or

(b) A snare, conibear trap, or foot- or leg-hold trap in an area zoned as residential or any other area where such snare or trap is prohibited by law or rule; except under the situations described in subsection (2).

(2) Subsection (1)(b) shall not apply to employees of state or federal agencies, or persons acting as a designated cooperator or an agent of the State, who are carrying out activities required under a management plan approved by state or federal agencies, pursuant to a mandatory statutory duty for the protection of species listed as threatened or endangered species, or other wildlife species protected by law, or for the protection of public health, safety, or property.

(3) As used in this section:

"Conibear trap" means a contrivance consisting of metal or steel designed to kill by crushing the body or severing the spinal cord of any animal. "Conibear trap" shall not include snap traps used for rodent control.

"Foot- or leg-hold trap" means a contrivance consisting of metal or steel that is off-set, padded or laminated, and is designed to capture and hold any animal by a foot or limb.

"Snare" means a contrivance consisting of a noose, regardless of material, designed to capture, trap, or kill any animal or hold any animal by a foot, limb, or neck.

"Steel-jawed leg-hold trap" means a spring-powered contrivance that captures or holds the limb of an animal by exerting a lateral force with fix-mounted jaws.

(4) Cruelty to animals by trapping is a misdemeanor. [L 2013, c 208, §3]
Haw. Rev. Stat. § 712A-17 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-17
Limitation of actions.
Status: in_force

Notwithstanding any other provision of law, forfeiture proceedings under this chapter may be commenced at any time within the period in which a criminal proceeding may be instituted for a covered offense pursuant to section 701-108.
Haw. Rev. Stat. § 712-1275 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1275
Order of abatement.
Status: in_force

If the existence of a nuisance is established in a suit as provided herein, an order of abatement shall be entered as a part of the judgment in the case, which order shall include a provision permanently prohibiting the person or persons causing, maintaining, aiding, abetting, or permitting the nuisance, if said person or persons are a party to the proceeding, from residing in or entering into the building, premises, or place in or upon which the nuisance exists. The court, on the application of the person, may suspend the prohibition if the person is participating in a court-approved treatment and monitoring program which addresses the person's conduct which caused the nuisance. If the court determines that the person has successfully completed the program and that the person is not likely to again create a nuisance, the court may dissolve the injunction against the person. In the event that the court determines that an injunction against the person or persons causing, maintaining, aiding, abetting, or permitting the nuisance will not completely abate the nuisance or that one or more of the persons causing, maintaining, aiding, abetting, or permitting the nuisance are not parties to the proceeding, the court shall also direct the effectual closing of the building, premises, or place, against its use for any purpose, and that it be kept closed for a period not exceeding one year, unless sooner released, as provided by section 712-1277. While the order remains in effect as to closing, the building, premises, or place shall remain in the custody of the court. The court's orders may also include, but are not limited to, an order suspending or revoking any business, professional, operational, or liquor license.
Haw. Rev. Stat. § 705-522 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-522
Conspiracy with multiple criminal objectives.
Status: in_force

If a person conspires to commit a number of crimes, the person is guilty of only one conspiracy if the multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

COMMENTARY ON §705-522

This section substantially adopts the language of §5.03(3) of the Model Penal Code. In conspiracy, the danger for which the sanction is imposed arises out of the special circumstances of the joining of several individuals to effect a criminal object. Here, the law quite correctly recognizes that there is a special and unique danger in individuals combining to commit crime: this danger is easily seen in the pervasive and pernicious aspects of so-called "organized crime" today. Hence it may be seen that, in the area of conspiracy, the particular crimes which are the object of the conspiracy are of concern only in defining the criminality of the conspiratorial intent. Since it is the actual combination or agreement which we seek to condemn, each combination or agreement constitutes a single separate crime of conspiracy, regardless of how many separate offenses are intended under the agreement.

The traditional conspiracy question, of whether different objectives executed over a period of time are included in the same agreement, is largely avoided by the modifying clause at the end of the section. Rather than considering such questions of intent and causality, the Code focuses upon the more significant question of a continuous association for criminal purposes.[1]

In this area, the Code is in accord with the present prevailing doctrine of most jurisdictions. The development of the present doctrine may easily be traced in a series of Supreme Court decisions.

In United States v. Rabinowich,[2] the Court recognized that a conspiracy is not to be equated with the commission of the crime contemplated, and neither arises under nor violates the statute the violation of which is its object.[3] Subsequently, in Frohwerk v. United States,[4] the Supreme Court attempted to settle a question which had formerly been uncertain in the federal courts; i.e., whether a conspiracy was singular although its objectives were multiple. The Court held that "the conspiracy is the crime, and that is one, however diverse its objects."[5] The issue was resolved in Braverman v. United States,[6] wherein the Court explains,

Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.[7]

It is this view which is adopted in both the Model Penal Code and the present Code.
Haw. Rev. Stat. § 704-409 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-409
Access to defendant by examiners of defendant's choice.
Status: in_force

When, notwithstanding the report filed pursuant to section 704-404, the defendant wishes to be examined by one or more qualified physicians or other experts of the defendant's own choice, such examiner or examiners shall be permitted to have reasonable access to the defendant for the purposes of such examination.

COMMENTARY ON §704-409

The section makes it clear that a defendant in custody pending determination of the defendant's fitness to proceed or the defendant's penal responsibility shall be entitled to examination by medical experts of the defendant's own choice notwithstanding rules or regulations of the prison or hospital or other facility in which the defendant is held. Final determination of the question of reasonable access should reside with the court and not with the warden or hospital administrator.
Haw. Rev. Stat. § 710-1016.4 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1016.4
Obtaining a government-issued identification document under false pretenses in the second degree.
Status: in_force

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

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

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

(2) Obtaining a government-issued identification document under false pretenses in the second degree is a misdemeanor. [L 2002, c 224, pt of §2; am L 2014, c 33, §4]

Revision Note

Section was enacted as an addition to part V but was codified to this part pursuant to §23G-15.

COMMENTARY ON §§710-1016.3 AND 710-1016.4

Act 224, Session Laws 2002, added these sections to provide criminal penalties for persons who obtain identity documents under false pretenses. The legislature found that misappropriation of personal identification information was on the rise. Act 224 addresses the criminal conduct associated with intentional identity theft. Conference Committee Report No. 25-02.

Act 33, Session Laws 2014, amended §§710-1016.3 and 710-1016.4 to apply to electronic statements, documents, or records. The legislature found that many government and business records are kept in electronic form. However, the current law prohibited only the alteration of records kept in written form. In 2000, Hawaii adopted the Uniform Electronic Transactions Act, chapter 489E, to recognize the need to establish the legal validity of electronic records, signatures, and contracts. Act 33 protected consumers by making relevant criminal offenses also applicable to electronic statements, documents, or records. Senate Standing Committee Report No. 3330, House Standing Committee Report No. 260-14.
Haw. Rev. Stat. § 702-223 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-223
Liability for conduct of another; complicity with respect to the result.
Status: in_force

When causing a particular result is an element of an offense, an accomplice in the conduct causing the result is an accomplice in the commission of that offense, if the accomplice acts, with respect to that result, with the state of mind that is sufficient for the commission of the offense.

COMMENTARY ON §702-223

This section is intended to make clear that a defendant charged, on the basis of the defendant's complicity in the conduct of another, with causing a particular result will not be allowed to escape accountability for the result because the defendant solicited or aided, etc., a different or more limited result if the defendant had the requisite state of mind with respect to the actual result.

Thus, for example, one who urges a driver to increase the speed of an automobile, disregarding known risks to pedestrians, would stand in the same position as the driver on a charge of reckless homicide and would not be allowed to defend on the ground that one solicited the violation of the traffic law and not the homicide law.
Haw. Rev. Stat. § 708A-1 — HI Code / Division 5 / Title 37 / Chapter 708A / Section 708A-1
Title.
Status: in_force

This chapter shall be known and may be cited as the "Money Laundering Act".
Haw. Rev. Stat. § 702-202 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-202
Voluntary act includes possession.
Status: in_force

Possession is a voluntary act if the defendant knowingly procured or received the thing possessed or if the defendant was aware of the defendant's control of it for a sufficient period to have been able to terminate the defendant's possession.

COMMENTARY ON §702-202

Offenses of possession are pervasive in the law, but possession per se is not a bodily movement or an omission, although the course of conduct leading to or continuing possession might include a voluntary act or omission. Therefore, this section makes it explicit that possession is an act, within the meaning of §§702-200 and 201, if the possessor knowingly procured or received the thing possessed or was aware of control thereof for a sufficient period to have been able to terminate possession. The "thing possessed" refers to the physical object per se, knowledge of particular qualities or properties of the physical object possessed is dealt with as a mens rea problem in subsequent sections.

Hawaii law has had many statutes making various kinds of possession illegal.[1] When considered with the previous statutory requirement that penal liability must be based on "doing what the penal law forbids"[2] the logical implication of such statutes was that possession is an act within the penal law. This section merely states that position with greater clarity.
Haw. Rev. Stat. § 712A-4 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-4
Covered offenses.
Status: in_force

Offenses for which property is subject to forfeiture under this chapter are:

(a) All offenses that specifically authorize forfeiture;

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

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

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

(e) Criminal trespass on agricultural land as defined in section 708-823.2. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1991, c 166, §1; am L 1993, c 196, §1; am L 1996, c 104, §6; am L 1997, c 277, §3; am L 1998, c 155, §4 and c 307, §1; am L 1999, c 18, §19; am L 2002, c 200, §4 and c 240, §§5, 11; am L 2006, c 7, §1; am L 2011, c 146, §2; am L 2013, c 247, §4; am L 2016, c 206, §17; am L 2019, c 15, §3; am L 2021, c 68, §12; am L 2025, c 235, §43]

COMMENTARY ON §712A-4

Act 277, Session Laws 1997, amended this section to include the offense of trademark counterfeiting in the offenses for which property is subject to forfeiture under the chapter. 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.

Act 155, Session Laws 1998, made insurance fraud an offense subject to the property forfeiture law. The purpose of Act 155 was to minimize insurance fraud and maximize savings to Hawaii's consumers by clarifying insurance fraud laws and strengthening effective enforcement. House Standing Committee Report No. 1259-98, Senate Standing Committee Report No. 2554.

Act 307, Session Laws 1998, amended this section to authorize forfeiture of a person's property if the person is caught breaking into a motor vehicle. The legislature found that forfeiture of property has proven to be a successful deterrent to criminal activity. Including unauthorized entry into a motor vehicle as one of the offenses under this section should provide an effective deterrent to the class C felony. Because unauthorized entry into a motor vehicle included the elements of theft, criminal property damage, and burglary, already covered by the forfeiture law, the legislature found that unauthorized entry into a motor vehicle should also be covered. Conference Committee Report No. 98.

Act 18, Session Laws 1999, amended this section by deleting the brackets around "trademark counterfeiting,". Act 277, Session Laws 1997, amended this section by adding trademark counterfeiting as an offense for which property is subject to forfeiture. Acts 155 and 307, Session Laws 1998, amended this section, adding new offenses for which property is subject to forfeiture; Act 155, insurance fraud and Act 307, unauthorized entry into motor vehicle. Act 155 amended the 1997 version of this section. However, Act 307 used the pre-1997 version of the section for amendment, omitting the reference to trademark counterfeiting. The deletion of the brackets around "trademark counterfeiting." by Act 18, Session Laws 1999, ratified the revisor's replacement of "trademark counterfeiting." House Standing Committee Report No. 900, Senate Standing Committee Report No. 1239.

Act 200, Session Laws 2002, amended this section to subject to forfeiture, property used in promoting child abuse and electronic enticement of a child. The legislature found that Act 200 addressed the problem of utilizing computer technology in committing crimes against children. Senate Standing Committee Report No. 2867, Conference Committee Report No. 36-02.

Act 240, Session Laws 2002, amended this section by including sexual exploitation of a minor within covered offenses subject to forfeiture of property upon conviction. Conference Committee Report No. 79-02.

Act 7, Session Laws 2006, amended this section by adding unlawful methamphetamine trafficking and manufacturing of a controlled substance with a child present to the offenses that are subject to forfeiture. Act 7 clarified that the offenses were originally intended to be a part of the Penal Code's section on forfeiture. Senate Standing Committee Report No. 2559, House Standing Committee Report No. 1115-06.

Act 146, Session Laws 2011, amended this section by adding labor trafficking to the offenses for which property is subject to forfeiture.

Act 146 established, among other things, a class A and class B felony offense for labor trafficking, an offense for nonpayment of wages, and an offense for unlawful conduct with respect to documents. The legislature found that Hawaii is one of only five states without a specific labor trafficking statute, yet labor trafficking has occurred at an unprecedented level in the State. Act 146 sent an unmistakable warning to individuals and entities engaged in labor trafficking and provided a clearer and more structured means for law enforcement agencies to protect and aid trafficking victims. Also, Act 146 would be a catalyst for law enforcement agencies, service providers, and other state agencies and community organizations to engage in needed training and education on labor trafficking. Conference Committee Report No. 77.

Act 247, Session Laws 2013, amended this section by adding the offenses of promoting prostitution, solicitation of a minor for prostitution, habitual solicitation of prostitution, and solicitation of prostitution near schools or public parks under the State's forfeiture laws. The legislature found that Act 247 strengthened the laws and penalties for crimes that exploit children subjected to prostitution. Furthermore, by amending, among other things, the State's forfeiture laws, Act 247 discouraged individuals from engaging in solicitation of prostitution. Conference Committee Report No. 64.

Act 206, Session Laws 2016, amended this section to include the offense of sex trafficking in the list of covered offenses for which property is subject to forfeiture. Senate Standing Committee Report No. 3450.

Act 15, Session Laws 2019, amended this section to add the unlicensed manufacture or sale of liquor as offenses for which property is subject to forfeiture. The legislature found that unlicensed liquor sales encourage underaged consumption of liquor and provide an attractive venue for the distribution of other illegal substances and engagement in other illegal activity. Additional negative impacts to communities include the accompanying noise, disruptive behavior, nuisance complaints, and other acts of violence and destruction resulting from unlicensed liquor sales. The legislature noted that, considering the many dangers associated with liquor consumption, all liquor sales and manufacturing should be licensed and carefully monitored. Senate Standing Committee Report No. 380.

Act 68, Session Laws 2021, amended this section to rename offenses involving the solicitation of prostitution to reference 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.

Act 235, Session Laws 2025, amended this section by adding criminal trespass on agricultural land as defined in §708-823.2 as an offense for which property is subject to forfeiture under chapter 712A. The legislature found that agricultural crimes, including theft, vandalism, trespassing, and illegal hunting, posed a significant and growing threat to the sustainability and growth of the State's agricultural industry. Weak enforcement mechanisms and resource shortages related to agricultural crime hindered effective crime prevention and prosecution, allowing repeat offenses to persist with limited legal consequences. The legislature accordingly found that Act 235 would provide a comprehensive response to agricultural crimes by strengthening existing legal frameworks and establishing penalties for violations related to agriculture and agricultural lands. Conference Committee Report No. 217, House Standing Committee Report No. 1241, House Standing Committee Report No. 1451, Senate Standing Committee Report No. 927.
Haw. Rev. Stat. § 705-526 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-526
Grading of criminal conspiracy.
Status: in_force

(1) A conspiracy to commit murder in any degree is a class A felony.

(2) Except as provided in subsection (1), a conspiracy to commit a class A felony is a class B felony.

(3) Except as provided in subsections (1) and (2), conspiracy to commit a crime is an offense of the same class and grade as the most serious offense which is an object of the conspiracy. [L 1972, c 9, pt of §1; am L 1997, c 149, §3]

COMMENTARY ON §705-526

Except for the reduction of conspiracy to commit a class A felony, the Code makes the same sanctions available for criminal conspiracy as are made available for the substantive offense which is the object of the conspiracy. The discussion in the commentary on §705-502 regarding the Code's position in postulating a general equivalence, for sentencing purposes, between criminal attempt and the offense attempted is generally applicable to this section which postulates approximately the same equivalence in the conspiracy context. Due to the extreme inchoate nature of the offense, reduction in sentence in the case of class A felonies is provided.

Under previous Hawaii law, a conspiracy to commit any felony was a conspiracy of the "first degree," punishable by a term of imprisonment of up to ten years, or a maximum fine of $10,000, or both.[1] The Code reserves this magnitude of sentence (which corresponds roughly to a sentence for a class B felony[2] for conspiracies to commit offenses which the Code has made class A or B felonies. Under the Code, however, conspiracy to commit a class C felony may not be penalized as severely as under past Hawaii law, since under the Code a class C felony ordinarily carries a maximum sentence of five years' imprisonment.[3]

The Code is also in accord with previous Hawaii law regarding conspiracies to commit misdemeanors, since both normally impose a maximum fine of $1,000, or a maximum term of imprisonment of one year, or both.[4] The former law would, however, have allowed for harsher treatment of those offenses which the Code terms petty misdemeanors, since conspiracies to commit all non-felonies were treated the same under Hawaii law.[5]

Generally speaking, the Code is in substantial accord with previous Hawaii law, however, it allows for a closer concurrence between the grade of the crime which was the object of the conspiracy and the sanction imposed for that conspiracy.

SUPPLEMENTAL COMMENTARY ON §705-526

Act 149, Session Laws 1997, amended this section to provide that conspiracy to commit murder in any degree is a class A felony. The legislature found that the offense of murder warranted punishment under the Code sufficient to fit the grave consequences of the crime, and that persons who are found guilty of conspiracy or solicitation to commit murder should also be penalized to a similarly serious degree. The legislature recognized that two Hawaii supreme court opinions, State v. Kaakimaka (84 H. 280, 933 P.2d 617 (1997)) and State v. Soto (84 H. 229, 933 P.2d 66 (1997)), concluded that conspiracy to commit murder and solicitation to commit murder are class C felonies. The legislature acknowledged that the decisions had led to incongruous sentencing under the sentencing guidelines of the Code. Conspiracy and solicitation are ordinarily designated the same level of felony offense as the underlying crime, or at the very least, one grade lower. Senate Standing Committee Report No. 1600.

__________

§705-526 Commentary:

1. H.R.S. §728-9.

2. Cf. §§706-640 and 660.

3. §706-660.

4. H.R.S. §728-10; §§706-640(3) and 663, this Code.

5. H.R.S. §728-10.
Haw. Rev. Stat. § 707-734 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-734
Indecent exposure.
Status: in_force

(1) A person commits the offense of indecent exposure if, the person intentionally exposes the person's genitals to a person to whom the person is not married under circumstances in which the actor's conduct is likely to cause affront.

(2) Indecent exposure is a petty misdemeanor. [L 1986, c 314, pt of §57; am L 1991, c 214, §2]
Haw. Rev. Stat. § 706-622.8 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-622.8
First-time drug offender prior to 2004; probation; expungement.
Status: in_force

A person sentenced prior to July1, 2004, for a first-time drug offense, pursuant to section 706‑622.5, and who otherwise meets all the requirements of section 706‑622.5, may apply to the court for expungement of the record of conviction for the drug offense. The court shall issue a court order to expunge the record of conviction for the drug offense; provided the person has successfully completed a substance abuse treatment program and has complied with the other terms and conditions set by the court. A person granted an expungement of conviction under this section or section 706-622.5(4) shall not be eligible for another expungement of conviction under this section or section 706‑622.5.

COMMENTARY ON §706-622.8

Act 58, Session Laws 2006, added this section to allow a person sentenced prior to July 1, 2004, for a first-time drug offense pursuant to §706-622.5, who completed a drug treatment program and complied with the terms set by the court, to apply for expungement of the record of conviction. Act 58 corrected a drafting error in Act 161, Session Laws 2002, which authorized an expungement of the record of arrest rather than the record of conviction. Act 44, Session Laws 2004, corrected the error, authorizing the expungement of the record of conviction, but only prospectively from its effective date, July 1, 2004. This led to the inconsistent result of some defendants being permitted to expunge their record of conviction and others not being able to do so. Act 58 permitted defendants sentenced prior to Act 44, Session Laws 2004, to expunge their record of conviction. Senate Standing Committee Report No. 3212.
Haw. Rev. Stat. § 710-1029 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1029
Hindering prosecution in the first degree.
Status: in_force

(1) A person commits the offense of hindering prosecution in the first degree if, with the intent to hinder the apprehension, prosecution, conviction, or punishment of another for a class A, B, or C felony or murder in any degree, the person renders assistance to the other person.

(2) Hindering prosecution in the first degree is a class C felony. [L 1972, c 9, pt of §1; am L 1997, c 149, §6]
Haw. Rev. Stat. § 704-415 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-415
Disposition of application for discharge, conditional release, or modification of conditions of release.
Status: in_force

(1) If the court is satisfied from the report filed pursuant to section 704-414, and such testimony of the reporting examiners as the court deems necessary, that:

(a) The person is affected by a physical or mental disease, disorder, or defect and the discharge, conditional release, or modification of conditions of release applied for may be granted without danger to the committed or conditionally released person or to the person or property of others; or

(b) The person is no longer affected by a physical or mental disease, disorder, or defect,

the court shall grant the application and order the relief. If the court is not so satisfied, it shall promptly order a hearing.

(2) Any such hearing shall be deemed a civil proceeding and the burden shall be upon the applicant to prove that the person is no longer affected by a physical or mental disease, disorder, or defect or may safely be either released on the conditions applied for or discharged. According to the determination of the court upon the hearing, the person shall be:

(a) Discharged;

(b) Released on such conditions as the court determines to be necessary; or

(c) Recommitted to the custody of the director of health, subject to discharge or release only in accordance with the procedure prescribed in section 704-412. [L 1972, c 9, pt of §1; am L 1982, c 232, §1; am L 2006, c 230, §14]

COMMENTARY ON §704-415

Following the filing of the report pursuant to §704-414, the court may grant the application summarily if it is convinced that it can be granted without danger to the defendant or to the person or property of others. The Code allows the court some flexibility in taking testimony of examiners without the necessity of a full hearing. If the testimony of the examiners, in addition to the report, satisfies the court that favorable action on the application is appropriate, it may be granted summarily. If the court is not satisfied, a full hearing is indicated, following which the court shall make a determination consistent with the danger the committed or conditionally released person presents to oneself and to others.

The Code takes the position that the burden should remain with the State to prove that the freedom applied for cannot be safely granted.

SUPPLEMENTAL COMMENTARY ON §704-415

Act 232, Session Laws 1982, shifted from the State to the applicant, the burden to prove that a conditional release, discharge, or modification of condition of release may be safely granted without danger to the person or community following a judgment of acquittal on the grounds of disease, disorder, or defect excluding responsibility.

Act 230, Session Laws 2006, amended this section, among others, to ensure that the person's physical or mental disease, disorder, or defect is considered in commitment and release provisions. House Standing Committee Report No. 665-06.
Haw. Rev. Stat. § 712-1223 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1223
Gambling.
Status: in_force

(1) A person commits the offense of gambling if the person knowingly participates in any gambling activity.

(2) Gambling is a misdemeanor. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; gen ch 1993; am L 2022, c 111, §6]

COMMENTARY ON §§712-1221 TO 712-1223

Part III of chapter 712 adopts a comprehensive pattern of gambling legislation proposed in Michigan[1] and enacted in New York.[2] These three sections of the Code initiate a comprehensive revision of Hawaii's gambling laws. For the most part the coverage of the previous law has been preserved, although the emphasis has been changed in several instances. The Code provides penalties for those who exploit gambling activity; however, at the same time, the Code introduces some limited liberalizations in the area which reflect the actual attitude of society toward gambling.

Part III provides inclusive coverage for all forms of gambling exploitation. Section 712-1221 covers exploitations of gambling in the form of "advancing" or "profiting" from gambling activity.[3] It is aimed at large-scale gambling and is the most aggravated offense in this area. Under this section, a class C felony sanction is provided for a person who (a) engages in bookmaking to the extent that the person receives or accepts in any one day more than five bets totaling more than $500, (b) receives in connection with a lottery or mutuel scheme money or written records from a person other than a player whose chances or plays are represented by such money or records, or (c) receives in connection with a lottery, mutuel, or other scheme or enterprise more than $1,000 in any one day of money played in the scheme or enterprise.

"Bookmaking" is defined in §712-1220(2) as taking bets "upon the outcomes of future contingent events." The definition of "lottery" in §712-1220(6) is comprehensive as was that provided by the prior law,[4] without sacrificing clarity. The definition of "mutuel" adds a specific definition not previously contained in Hawaii legislation.[5]

A class C felony is imposed for violation of §712-1221 in recognition of the large-scale exploitive nature of the offense.

Section 712-1222 provides misdemeanor liability for promoting gambling in the second degree if a person knowingly profits from gambling activity. This section covers the small-time promoter who profits from gambling activity when the promoter receives money or other property as a result of participation in the proceeds of any gambling activity.

Act 201, Session Laws 1973, amended §712-1222 by deleting therefrom the advancing of gambling activities and limiting it to profiting from gambling activities. This was done because advancing gambling activity is covered by the new offense of gambling. Senate Standing Committee Report No. 806 (1973).

Section 712-1223 provides misdemeanor liability for gambling if a person knowingly advances or participates in any gambling activity. This is a new section which was added by Act 201, Session Laws 1973. The Legislature stated that gambling in all its aspects is to be prohibited except in the limited case of "social gambling" as set forth in §712-1231. Thus, in Standing Committee Report No. 806, the Senate Committee on Judiciary noted:

"While the second degree promoting offense treats the problem of 'profiting' from gambling in isolation, a new offense of 'gambling' has been created to cover all other acts related to gambling for which evidence of profit need not be available nor applicable. The point of this is to obtain a clearer statement that gambling in all its aspects is prohibited except in the limited case of 'social gambling'.

Under the existing law the broad scope of the second degree promoting offense requires that 'social gambling' be considered in a context that includes profiting from gambling. However, 'social gambling' and profiting are mutually exclusive by definition except in the case of the player's winnings. This seems to be a point of confusion. As proposed, the differential exclusion of social gambling is permitted to be considered apart from the profiting problem, and it is thought that thus, a more systematic treatment is achieved."

The former statutory law is all inclusive in condemning as criminal any gambling regardless of how innocuous. Under prior law it was a misdemeanor to set up or assist in any type of lottery scheme,[6] to sell or buy a ticket or chance in a lottery scheme,[7] to conduct or play any game of chance or any game where money is lost or won or to be present where such games occur,[8] to exhibit or expose to view in a barricaded place any gambling paraphernalia,[9] to be present in a barricaded place where gambling paraphernalia is exposed to view,[10] to conduct or assist in any bunco games (such as "three card monte" or the "shell game"),[11] to bet on the outcome of any sporting event,[12] and to allow another person to use any building or vessel for gambling activity.[13] The Code recognizes distinctions in gambling which were not recognized in prior law. It provides increased penalties for exploitive conduct, but exempts social gambling and the casual bet as criminal offenses. The Code's sections strengthen the law by providing a class C felony penalty for the "professional" promoter, instead of a misdemeanor penalty as provided under previous law. By broadly defining the terms "advancing gambling activity" and "promoting gambling activity" it makes unnecessary the explicit listing of various games of chance that was present in previous statutory law.[14] Small-time gamblers are punished as misdemeanants under the Code, the same penalty available under the former law.

SUPPLEMENTAL COMMENTARY ON §§712-1221 TO 712-1223

Act 161, Session Laws 1983, amended §712-1221(1) so that a person may be prosecuted under this section if that person owed more than $1,000 in any one day as a result of a gambling scheme. The prior law prohibited as evidence, the receipt of wagered money, thereby requiring police to witness the actual transfer of money before making an arrest. The amendment enables police to prosecute bookmakers for gambling based on the contents of seized bookmaking records. Senate Standing Committee Report No. 721, House Standing Committee Report No. 440.

Act 83, Session Laws 1987, amended §712-1221 by changing the one-day period to seven days because there were difficulties with proving promotion of gambling within a one-day period. The extension of the time period would also allow for more effective law enforcement pursuant to this section. Senate Standing Committee Report No. 545.

Act 83, Session Laws 1987, amended §712-1222 by making changes to this section for the purpose of conforming with §712-1221. Conformity was desired with §712-1221 so that if there is insufficient evidence to prove the first degree offense, a person could be found guilty of the second degree offense. Senate Standing Committee Report No. 545.

Act 196, Session Laws 1990, added §712-1222.5 which makes it illegal to promote gambling aboard ships. The legislature found that intrastate gambling junkets would be detrimental to the State's family oriented tourist industry. House Standing Committee Report No. 466-90.

Act 57, Session Laws 1992, amended §712-1222.5 to clarify that gambling activities which are conducted during travel to and from foreign nations and Hawaii are exempt to the same extent as gambling activities which are conducted during travel to and from other states and territories of the United States and Hawaii. Act 57 further amended this section to conform subsection and paragraph designations to the style used in the Code. House Standing Committee Report No. 1198-92, Senate Standing Committee Report No. 1947.

Act 111, Session Laws 2022, amended §712-1221 to: (1) elevate the offense of promoting gambling in the first degree to a class B felony; and (2) change the requisite state of mind for the offense to recklessness. Act 111 also amended §712-1222 to: (1) elevate the offense of promoting gambling in the second degree to a class C felony; and (2) change the requisite state of mind for the offense to negligence. Further, Act 111 amended §712-1223 to modify the offense of gambling by repealing reference to the act of advancing any gambling activity. The legislature found that violent activity in and around illegal gambling houses had increased in recent years, with reports of armed robberies, stabbings, and shootings becoming more commonplace. The legislature further found that in addition to violent crimes, illegal gambling houses are known for being drug and sex trafficking establishments. The legislature noted that by strengthening the criminal penalties for promoting gambling in the first and second degrees, persons seeking work at illegal gambling houses would be deterred from participating in the illegal enterprise. In addition, Act 111 would guard the safety and welfare of the State's citizens, particularly in residential neighborhoods, by strengthening existing laws relating to the promotion of gambling. Senate Standing Committee Report No. 3847, House Standing Committee Report No. 786-22, Conference Committee Report No. 51-22.

__________

§§712-1221 To 712-1223 Commentary:

1. Prop. Mich. Rev. Cr. Code, Chapter 61.

2. N.Y.R.P.L., Article 225.

3. See §712-1220(1) and (9).

4. H.R.S. §746-1.

5. Cf. id.

6. Id. §746-2.

7. Id. §746-3.

8. Id. §746-4.

9. Id. §746-5.

10. Id. §746-6.

11. Id. §746-7.

12. Id. §746-8.

13. Id. §746-9.

14. E.g., id. §746-4.
Haw. Rev. Stat. § 701-116 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-116
Proving applicability of the Code.
Status: in_force

When the application of the Code depends on the finding of a fact which is not required to be found beyond a reasonable doubt:

(1) The burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made; and

(2) The fact must be proved by a preponderance of the evidence. [L 1972, c 9, pt of §1]

COMMENTARY ON §701-116

The draft follows the Model Penal Code in defining a standard of proof of facts called for in application of the Code. It would cover, for example, a finding that the defendant lacks mental capacity to proceed.[1] It logically places the burden of proof on the side whose interest or contention would be furthered if the finding is made. Proof must be by a preponderance of the evidence. Thus when facts making the defendant subject to increased penalties must be proved,[2] the prosecution need not prove them beyond a reasonable doubt, but only by preponderant evidence. The Model Penal Code draftsmen explain:

... proof that satisfies the court is not likely to leave room for a substantial doubt; and this, in our view, affords an adequate protection in an area where we deliberately have sought to broaden the discretion of the court.[3]

__________

§701-116 Commentary:

1. Cf. §§704-403 to 406.

2. Cf. §706-662.

3. M.P.C., Tentative Draft No. 4, comments at 114 (1955).
Haw. Rev. Stat. § 712-1224 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1224
Possession of gambling records in the first degree.
Status: in_force

(1) A person commits the offense of possession of gambling records in the first degree if the person knowingly possesses, produces, or distributes any writing, paper, instrument, or article:

(a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise, and constituting, reflecting, or representing more than five bets totaling more than $500; or

(b) Of a kind commonly used in the operation, promotion, or playing of a lottery or mutuel scheme or enterprise, and constituting, reflecting, or representing more than one hundred plays or chances therein or one play or chance wherein the winning amount exceeds $5,000.

(2) Possession of gambling records in the first degree is a class C felony. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of §1; am L 1980, c 174, §1; gen ch 1993]
Haw. Rev. Stat. § 706-657 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-657
Enhanced sentence for second degree murder.
Status: in_force

(a) The court may sentence a person who was twenty-one years of age or older at the time of the offense and who has been convicted of murder in the second degree to life imprisonment without the possibility of parole under section 706-656 if the court finds that the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity or that the person was previously convicted of the offense of murder in the first degree or murder in the second degree in this State or was previously convicted in another jurisdiction of an offense that would constitute murder in the first degree or murder in the second degree in this State.

(b) Hearings to determine the grounds for imposing an enhanced sentence for second degree murder may be initiated by the prosecutor or by the court on its own motion. The court shall not impose an enhanced term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed. Subject to the provision of section 706-604, the defendant shall have the right to hear and controvert the evidence against the defendant and to offer evidence upon the issue.

(c) The provisions pertaining to commutation in section 706-656(2) shall apply to persons sentenced pursuant to this section.

(d) As used in this section:

"Especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to a victim.

"Previously convicted" means a sentence imposed at the same time or a sentence previously imposed that has not been set aside, reversed, or vacated. [L 1993, c 271, §1; am L 1996, c 15, §2; am L 2014, c 202, §3; am L 2025, c 152, §4]
Haw. Rev. Stat. § 707-724 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-724
§§707-724 and 707-725 REPEALED.
Status: repealed

§§707-724 and 707-725 REPEALED. L 1979, c 106, §§1, 2.
Haw. Rev. Stat. § 705-531 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-531
Multiple convictions.
Status: in_force

A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or culminate in the commission of the same substantive crime.

COMMENTARY ON §705-531

This section reflects a position which underlies much of this chapter: that the danger which is represented by inchoate crimes lies in the possibility that the substantive will be carried to fruition because of disposition of the defendant. Hence any number of stages preparatory to the commission of a given offense, if taken together, still only constitute a single danger: that the crime contemplated will be committed. Such a rationale precludes cumulating convictions of attempt, solicitation, and conspiracy to commit the same offense. Section 705-531 precludes conviction of more than one inchoate crime for conduct intended to result in the commission of the same offense.

There was nothing in previous Hawaii law to prevent prosecution of multiple inchoate offenses for conduct intended to result in the commission of a single crime.
Haw. Rev. Stat. § 703-301 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-301
Justification a defense; civil remedies unaffected.
Status: in_force

(1) In any prosecution for an offense, justification, as defined in sections 703-302 through 703-309, is a defense.

(2) The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action. [L 1972, c 9, pt of §1]

COMMENTARY ON §703-301

This section does not attempt to define the defense of justification. An extended definition is given in the sections which follow. Subsection (1) merely establishes that justification is a defense. This places the burden of producing some credible evidence of the existence of justification on the defendant. If the defendant produces such evidence, or if it appears as part of the prosecution's case, the defendant is entitled to have the defense considered by the jury. The prosecution, however, must prove beyond a reasonable doubt, facts which negative the defense.

Subsection (2) preserves civil remedies for conduct which may give rise to a defense of justification. Civil standards of conduct are higher than we propose for criminal liability. For example, unreasonable conduct on the part of the defendant might suffice for civil liability whereas criminal liability will turn on the defendant's own subjective mental state. It therefore seems desirable explicitly to preserve civil remedies.

Prior Hawaii statutory and case law recognized some of the defenses which the Code unites in this chapter under the defense of justification. Reference to such recognition will be made in the commentary under the sections which follow. There is some language in old Hawaii case law which indicates that the defense of justification is affirmative in nature;[1] to the extent that this language would be followed today, the Code represents a change.
Haw. Rev. Stat. § 708-824 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-824
Failure to control widely dangerous means.
Status: in_force

(1) A person commits the offense of failure to control widely dangerous means if, knowing that widely dangerous means are endangering life or property, the person negligently fails to take measures to prevent or mitigate the danger and:

(a) The person knows that the person is under an official, contractual, or other legal duty to take measures to prevent, control, or mitigate the danger; or

(b) The means were employed by the person or with the person's assent, or on premises in the person's custody or control.

(2) Failure to control widely dangerous means is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §708-824

This section imposes misdemeanor liability upon a person for the negligent failure to prevent or mitigate danger resulting from the use of widely dangerous means where either (a) the actor is under some legal duty to do so, or (b) the actor is actually or constructively responsible for employing such means. This offense combines the Model Penal Code's offenses of "Failure to Control or Report a Dangerous Fire" and "Failure to Prevent Catastrophe."[1] The underlying premise is that a citizen's criminal liability for potential widespread destruction arises from the citizen's tortious or contractual liability with regard to the potential harm.

Hawaii previously had no statute dealing generally with the problems of catastrophe and the mitigation of the risk thereof but rather dealt separately with various substantive acts which represented a general public danger. The only general heading under which such offenses were grouped is "common nuisance," which included such widely dangerous aspects as spreading disease, making and storing gunpowder, blasting with explosives, and keeping dangerous animals.[2] In a similar vein, however, Hawaii provided a misdemeanor sanction for the failure of any able-bodied person to help combat a fire.[3] In simplifying and combining the above-mentioned sections of the Model Penal Code, this Code fills an apparently neglected area of Hawaii law.

__________

§708-824 Commentary:

1. M.P.C. §§220.1(3) and 220.2(3), respectively.

2. H.R.S. §727-1.

3. Id. §185-8.
Haw. Rev. Stat. § 704-408 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-408
Determination of irresponsibility.
Status: in_force

If the report of the examiners filed pursuant to section 704-404, or the report of examiners of the defendant's choice under section 704-409, states that the defendant at the time of the conduct alleged was affected by a physical or mental disease, disorder, or defect that substantially impaired the defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law, the court shall submit the defense of physical or mental disease, disorder, or defect to the jury or the trier of fact at the trial of the charge against the defendant.

COMMENTARY ON §704-408

This section provides for the direct qualified acquittal of the defendant when the report filed pursuant to §704-404 satisfies the court that at the time of the conduct alleged the defendant suffered from a physical or mental disease, disorder, or defect which precluded responsibility. A hearing shall be had on the issue of the defendant's responsibility if it is requested by either party or the court. If the court is satisfied on the basis of the report or the hearing or both that the defendant should not be held responsible for the conduct alleged, it shall, upon motion by the defendant, acquit the defendant. Thus, a trial in such cases will be avoided. If the defendant maintains that the defendant did not engage in the conduct alleged, or has a defense in addition to that excluding responsibility, the defendant can, of course, withhold the motion and the case will proceed to trial.

The section changes the prior law in that it vests the power of direct acquittal in the court and does not make it dependent on prosecutorial discretion.[1]

SUPPLEMENTAL COMMENTARY ON §704-408

Act 222, Session Laws 1980, amended the section to require the submission of the insanity defense to the trier of fact at the trial. The intent was to eliminate bifurcated trials on the insanity defense and to have all factual issues, including insanity, heard at one trial. Conference Committee Report No. 38-80 (72-80).

Act 230, Session Laws 2006, made technical nonsubstantive amendments to this section.
Haw. Rev. Stat. § 712-1207 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1207
Street prostitution and commercial sexual exploitation; designated areas.
Status: in_force

(1) It shall be unlawful for any person within the boundaries of Waikiki and while on any public property to:

(a) Offer or agree to engage in sexual conduct with another person in return for a fee or anything of value; or

(b) Provide, agree to provide, or offer to provide a fee or anything of value to another person to engage in sexual conduct.

(2) It shall be unlawful for any person within the boundaries of other areas in the State designated by county ordinance pursuant to subsection (3), and while on any public property to:

(a) Offer or agree to engage in sexual conduct with another person in return for a fee or anything of value; or

(b) Provide, agree to provide, or offer to provide a fee or anything of value to another person to engage in sexual conduct.

(3) Upon a recommendation of the chief of police of a county, that county may enact an ordinance that:

(a) Designates areas, each no larger than three square miles, as zones of significant prostitution-related activity that is detrimental to the health, safety, or welfare of the general public; or

(b) Alters the boundaries of any existing area under paragraph (a);

provided that not more than four areas may be designated within the State.

(4) Notwithstanding any law to the contrary, any person violating this section shall be guilty of a petty misdemeanor and shall be sentenced to a mandatory term of thirty days imprisonment. The term of imprisonment shall be imposed immediately, regardless of whether the defendant appeals the conviction, except as provided in subsection (5).

(5) As an option to the mandatory term of thirty days imprisonment, if the court finds the option is warranted based upon the defendant's record, the court may place the defendant on probation for a period not to exceed six months, subject to the mandatory condition that the defendant observe geographic restrictions that prohibit the defendant from entering or remaining on public property, in Waikiki and other areas in the State designated by county ordinance during the hours from 6 p.m. to 6 a.m. Upon any violation of the geographic restrictions by the defendant, the court, after a hearing, shall revoke the defendant's probation and immediately impose the mandatory thirty-day term of imprisonment. Nothing contained in this subsection shall be construed as prohibiting the imposition of stricter geographic restrictions under section 706-624(2)(h).

(6) Any person charged under this section may be admitted to bail, pursuant to section 804-4, subject to the mandatory condition that the person observe geographic restrictions that prohibit the defendant from entering or remaining on public property, in Waikiki and other areas in the State designated by county ordinance during the hours from 6 p.m. to 6 a.m. Notwithstanding any other provision of law to the contrary, any person who violates these bail restrictions shall have the person's bail revoked after a hearing and shall be imprisoned. Nothing contained in this subsection shall be construed as prohibiting the imposition of stricter geographic restrictions under section 804-7.1.

(7) Notwithstanding any other law to the contrary, a police officer, without warrant, may arrest any person when the officer has probable cause to believe that the person has committed a violation of subsection (5) or (6), and the person shall be detained, without bail, until the hearing under the appropriate subsection can be held, which shall be held as soon as reasonably practicable.

(8) For purposes of this section:

"Area" means any zone within a county that is defined with specific boundaries and designated as a zone of significant prostitution by this section or a county ordinance.

"Public property" includes any street, highway, road, sidewalk, alley, lane, bridge, parking lot, park, or other property owned or under the jurisdiction of any governmental entity or otherwise open to the public.

"Seeks medical or law enforcement assistance" includes but is not limited to making, or assisting someone who is making, a report to the 911 system, a poison control center, a medical provider, a reproductive health provider, or any law enforcement agency or providing care to someone who is awaiting the arrival of medical or law enforcement personnel.

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

"Waikiki" means that area of Oahu bounded by the Ala Wai canal, the ocean, and Kapahulu avenue.

(9) This section shall apply to all counties; provided that if a county enacts an ordinance to regulate street prostitution and commercial sexual exploitation, other than an ordinance designating an area as a zone of significant prostitution-related activity, the county ordinance shall supersede this section and no person shall be convicted under this section in that county.

(10) Notwithstanding this section or any other law to the contrary, a person, except for a person who provides, agrees to provide, or offers to provide a fee or anything of value to another person to engage in sexual conduct, who in good faith seeks medical or law enforcement assistance for themselves or another person, or is the subject of another person's good faith act seeking medical or law enforcement assistance, shall not:

(a) Be arrested, charged, prosecuted, or convicted;

(b) Have their property be subject to civil forfeiture; or

(c) Otherwise be penalized,

pursuant to this section, if the probable cause or evidence for the arrest, charge, prosecution, conviction, seizure, or penalty was gained as a result of seeking medical or law enforcement assistance; provided that this subsection shall not apply to any other criminal offense. [L 1998, c 149, §2; am L 2000, c 143, §1; am L 2011, c 145, §8; am L 2021, c 68, §7; am L 2025, c 261, §4]

COMMENTARY ON §712-1207

Act 149, Session Laws 1998, added this section to require that as a mandatory condition of probation and bail, defendants are to observe geographic restrictions prohibiting them from entering or walking on the public streets or sidewalks of Waikiki during the hours from 6 p.m. to 6 a.m. Defendants that live in Waikiki and choose to remain in Waikiki during the prohibited hours are required to stay off the streets and sidewalks during those hours. The legislature believed that although the restriction covered a large physical space, it was narrowly tailored to cover only the hours most closely associated with the crime. Also, the restriction was sufficiently definite to provide adequate notice of the behavior that is prohibited. Act 149 also allowed the counties to enact ordinances regulating street solicitation that shall supersede the provisions of this section. Conference Committee Report No. 83.

Act 143, Session Laws 2000, amended this section by expanding the prohibition of street solicitation of prostitution from Waikiki to other areas designated by the council of the appropriate county, but to not more than four areas of the State. The legislature found that allowing counties to designate additional areas as "prostitution-free zones" could provide counties with a way to address the proliferation of prostitution beyond the Waikiki area. This Act also provided for the denial of bail to those persons arrested for violating the terms of bail or probation upon entering the prohibited designated areas. Conference Committee Report No. 72.

Act 145, Session Laws 2011, amended this section by extending the offense of solicitation of prostitution to include those who pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct. Conference Committee Report No. 76.

Act 68, Session Laws 2021, amended this section to: (1) rename the offense to reference commercial sexual exploitation; and (2) provide that the compensation for engaging in sexual conduct includes anything of value. 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.

Act 261, Session Laws 2025, amended this section to establish safe harbor protections for survivors of sexual exploitation who seek medical or law enforcement assistance. The legislature found that sex trafficking remained a serious issue in the State. Survivors often face significant barriers to seeking help, including fear of prosecution, stigma, and a lack of access to trauma-informed care. The legislature further found that criminalizing survivors only deepens their suffering, creating barriers to seeking help and perpetuating stigma. Accordingly, Act 261 established safe harbor protections to ensure that survivors who seek medical or law enforcement assistance are not criminalized for their exploitation and, instead, are given the opportunity to access support, seek justice, and rebuild their lives. House Standing Committee Report No. 1209, House Standing Committee Report No. 1729.