Haw. Rev. Stat. § 712A-10 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-10
Administrative forfeiture.
Status: repealed

The prosecuting attorney may initiate administrative forfeiture of property other than real property, the estimated value of which is less than $100,000, or of any vehicle or conveyance, regardless of value. Administrative forfeiture shall be processed in the following manner:

(1) The prosecuting attorney shall file a petition with the attorney general, pursuant to rules adopted by the attorney general.

(2) The prosecuting attorney shall give notice of pending forfeiture by making reasonable efforts to serve a copy of the petition in a manner provided in section 712A-8(a) or 712A-8(b) on all persons known to have an interest in the property, together with instructions for filing a claim and cost or in pauperis bond, or a petition for remission or mitigation.

(3) The attorney general shall give notice of intention to forfeit the property administratively by publication in the manner provided in section 712A-8(c). Notice by publication shall include:

(a) A description of the property;

(b) The estimated value of the property;

(c) The date and place of the seizure;

(d) The offense for which the property is subject to forfeiture;

(e) Instructions for filing a claim and cost or in pauperis bond, or a petition for remission or mitigation; and

(f) Notice that the property will be forfeited to the State if a claim and cost or in pauperis bond or petition for remission or mitigation is not filed in substantial compliance with this section.

(4) Persons claiming an interest in the property may file either a petition for remission or mitigation of forfeiture, or a claim and cost or in pauperis bond, but not both, with the attorney general, within thirty days of notice by publication or receipt of written notice, whichever is earlier. Notwithstanding section 1-29, the thirty-day time period prescribed herein is computed by excluding the first day and including the last day, unless the last day is a Saturday, Sunday, or holiday and then it is also excluded, and the thirty-day time period runs until the end of the next day which is not a Saturday, Sunday, or a holiday. "Holiday" includes any day designated as a holiday pursuant to section 8-1.

(5) Any person claiming seized property may seek remission or mitigation of the forfeiture by timely filing a petition with the attorney general. A petition for remission or mitigation shall not be used to challenge the sufficiency of the evidence to support the forfeiture or the actions of any government official but shall presume a valid forfeiture and ask the attorney general to invoke the executive power to pardon the property, in whole or in part. The petition shall be signed by the petitioner and sworn on oath before a notary public and shall contain the following:

(a) A reasonably complete description of the property;

(b) A statement of the interest of the petitioner in the property, as owner or interest-holder which may be supported by bills of sale, contracts, or mortgages, or other documentary evidence; and

(c) Facts and circumstances sufficient to show whether the petitioner:

(i) Owns or holds an interest in the seized property as defined by section 712A-1;

(ii) Had any knowledge that the property was or would be involved in any violation of the law;

(iii) Had any knowledge of the particular violation which subjected the property to seizure and forfeiture;

(iv) Had any knowledge that the user of the property had any record, including arrests, except when the person was acquitted or the charges dismissed due to lack of evidence, for the violation which subjected the property to seizure and forfeiture or for any crime which is similar in nature.

Any subsequent pleadings or written communications alleging matters pertaining to [subparagraph] (b) or (c) of this [paragraph] must also be signed by the petitioner and sworn on oath before a notary public.

(6) If the attorney general, with sole discretion, determines that remission is not warranted, the attorney general may discretionarily mitigate the forfeiture where the petitioner has not met the minimum requirements for remission but where there are present other extenuating circumstances indicating that some relief should be granted to avoid extreme hardship. Mitigation may also be granted where the minimum requirements for remission have been met but the overall circumstances are such that the attorney general determines that complete relief is not warranted. Mitigation shall take the form of a money penalty imposed upon the petitioner which shall be deposited into the criminal forfeiture fund established under section 712A-16. Extenuating circumstances include:

(a) Language or culture barrier;

(b) Humanitarian factors such as youth or extreme age;

(c) Presence of physical or mental disease, disorder, or defect;

(d) Limited or peripheral criminal culpability;

(e) Cooperation with the seizing agency or the prosecuting attorney; and

(f) Any contributory error on the part of government officials.

(7) It shall be the duty of the attorney general to inquire into the facts and circumstances alleged in a petition for remission or mitigation of forfeiture. However, no petitioner is entitled to a hearing on the petition for remission or mitigation. Hearings, if any, shall be held at the discretion of the attorney general.

(8) The attorney general shall provide the seizing agency and the petitioner a written decision on each petition for remission or mitigation within sixty days of receipt of the petition unless the circumstances of the case require additional time, in which case the attorney general shall notify the petitioner in writing and with specificity within the sixty-day period that the circumstances of the case require additional time and further notify the petitioner of the expected decision date.

(9) Any person claiming seized property may seek judicial review of the seizure and proposed forfeiture by timely filing with the attorney general a claim and bond to the State in the amount of ten per cent of the estimated value of the property or in the sum of $2,500, whichever is greater, with sureties to be approved by the attorney general, upon condition that if the claimant fails to prove that claimant's interest is exempt from forfeiture under section 712A-5, the claimant shall pay the State's costs and expenses, including reasonable attorneys fees incurred in connection with a judicial proceeding. In lieu of a cost bond, a claimant may file an in pauperis bond sworn on oath before a notary public. An in pauperis bond shall be in the form set out in the appendix to the rules of penal procedure. The claim shall be signed by the claimant and sworn on oath before a notary public and shall comply with the requirements of section 712A-12(5). Upon receipt of the claim and bond, the attorney general shall notify the prosecuting attorney who may discretionarily continue to seek forfeiture by petitioning the circuit court for forfeiture of the property within forty-five days of receipt of notice that a proper claim and bond has been filed. The prosecuting attorney may also elect to honor the claim in which case the prosecuting attorney shall notify the seizing agency and authorize the release of the seizure for forfeiture on the property or on any specified interest in it.

(10) If a judicial forfeiture proceeding is instituted subsequent to notice of administrative forfeiture pursuant to paragraph (9), no duplicate or repetitive notice shall be required. The judicial proceeding, if any, shall adjudicate all timely filed claims. At the judicial proceeding, the claimant may testify, present evidence and witnesses on the claimant's behalf, and cross-examine witnesses who appear at the hearing. The State may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. The State has the initial burden of showing by a preponderance of the evidence that the claimant's interest in the property is subject to forfeiture. On such a showing by the State, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture.

(11) In the event a claim and bond has not been filed in substantial compliance with this section, or if the attorney general, with sole discretion, determines that remission or mitigation is not warranted, the attorney general shall order forfeited all property seized for forfeiture. In the event the attorney general, with sole discretion, determines that remission or mitigation is warranted, the attorney general shall notify the seizing agency and the prosecuting attorney and order the release of the seizure for forfeiture on the property or on any specified interest in it. There shall be no appeal from the attorney general's decision or order of forfeiture or remission or mitigation.

(12) Administrative proceedings and the adoption of rules under this section are exempt from the requirements of chapter 91, the Hawaii administrative procedure act, and are adjudicatory functions for the purposes of applicable sections of the Hawaii Revised Statutes. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1991, c 166, §5; am L 1993, c 196, §1; am L 1994, c 178, §4; am L 1996, c 104, §§3, 6]

COMMENTARY ON §712A-10

Act 178, Session Laws 1994, amended this section to clarify how the thirty-day time period for filing a petition for remission or mitigation of forfeiture is computed, and to require that subsequent pleadings or written communications alleging certain matters regarding a petition for remission or mitigation be signed by the petitioner and sworn on oath before a notary public. The legislature recognized the importance of complying with federal case law pertaining to due process and of ensuring that the statutes are as clear as possible on the circumstances and procedures surrounding forfeiture. Conference Committee Report No. 27.

Act 104, Session Laws 1996, amended this section to allow both the State and the defendant to present evidence and witnesses, and to cross-examine witnesses, in a forfeiture proceeding. Act 104 also repealed the sunset provision of the Hawaii omnibus criminal forfeiture act to make the law permanent. The purpose of Act 104 was to make the omnibus criminal forfeiture act permanent and to ensure that it was fair to persons claiming an interest in the property subject to forfeiture. Conference Committee Report No. 122.
Haw. Rev. Stat. § 702-220 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-220
Ignorance or mistake of law; belief that conduct not legally prohibited.
Status: in_force

In any prosecution, it shall be an affirmative defense that the defendant engaged in the conduct or caused the result alleged under the belief that the conduct or result was not legally prohibited when the defendant acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in:

(1) A statute or other enactment;

(2) A judicial decision, opinion, or judgment;

(3) An administrative order or administrative grant of permission; or

(4) An official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the offense. [L 1972, c 9, pt of §1; am L 1973, c 136, §3(b); gen ch 1993]

COMMENTARY ON §702-220

This section deals with a special type of ignorance or mistake of law--mistaken belief by the defendant that the defendant's conduct is not legally prohibited by the penal law. It must, in most instances, be held that such a mistaken belief will afford no excuse because recognition of this defense would allow each individual to define the limits of application of a penal statute by claiming that, because of the individual's ignorance or mistake, the proscription of the statute is not applicable to the individual.

Just as a judgment of criminality cannot be imposed unless the conduct in question has been defined as criminal, so, once the conduct has been so defined, one cannot usurp the lawmaking function by pleading that his ignorance must mean that the conduct is not criminal as to him. That doctrine is just, so long as the behavior content of the criminal law is coterminous with the knowledge that a member of the community may be expected to have about the limits of tolerable behavior. But, in fact, the criminal law has been indiscriminately employed to proscribe conduct that does not carry its own warning of illegality.... Nonetheless, ... [the first offender] has no defense under prevailing law. Therein resides a major dilemma.[1]

In order to avoid manifest injustice, the Code allows a limited affirmative defense in certain cases.

The defense is afforded where the defendant acts in reasonable reliance on an official statement of the law afterwards determined to be erroneous. In such cases the defendant's conduct is consistent with law-abidingness. Moreover, notwithstanding the fact that official statements of the law must sometime be overruled, no social purpose would be served by discouraging reasonable reliance on them while they stand. Certainly penal liability for such reasonable reliance is inconsistent with the concept of culpability which permeates this Code.

Hawaii has recognized the doctrine that the defendant will not be afforded a defense based on the defendant's ignorance that the defendant's conduct is prohibited by the penal law.[2] The limited defense afforded by this section of the Code has not previously been available; it has however been adopted or proposed in other states.[3]

SUPPLEMENTAL COMMENTARY ON §702-220

Section 220 of the Proposed Draft of the Code had provided for an affirmative defense when "the statute or other enactment defining the offense is not known to the defendant and has not been reasonably made available to him, by publication or otherwise, prior to the conduct or result alleged." This affirmative defense, based on obscure publication or unavailability of the content of the penal law, was deleted by the legislature for the reasons set forth in Conference Committee Report No. 2 (1972), the relevant portion of which is quoted in the Supplemental Commentary on §702-218.
Haw. Rev. Stat. § 707-716 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-716
Terroristic threatening in the first degree.
Status: in_force

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

(a) By threatening another person on more than one occasion for the same or a similar purpose;

(b) By threats made in a common scheme against different persons;

(c) Against a public servant arising out of the performance of the public servant's official duties. For the purposes of this paragraph, "public servant" includes but is not limited to an educational worker or protective services worker. "Educational worker" and "protective services worker" have the same meanings as defined in section 707-711;

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

(e) With the use of a dangerous instrument or a simulated firearm. For purposes of this section, "simulated firearm" means any object that:

(i) Substantially resembles a firearm;

(ii) Can reasonably be perceived to be a firearm; or

(iii) Is used or brandished as a firearm; or

(f) By threatening a person who:

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

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

(2) Terroristic threatening in the first degree is a class C felony; provided that terroristic threatening in the first degree is a class B felony if committed with a firearm as defined in section 134-1, whether the firearm was loaded or not, and whether operable or not, or a simulated firearm, while in one of the locations or premises listed in section 134-9.1(a). [L 1979, c 184, pt of §1(2); am L 1989, c 131, §1; gen ch 1992; am L 2006, c 230, §31; am L 2007, c 79, §2; am L 2010, c 146, §2; am L 2011, c 63, §4; am L 2013, c 255, §1; am L 2023, c 52, §11; am L 2025, c 142, §2]
Haw. Rev. Stat. § 706-665 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-665
Former conviction in another jurisdiction.
Status: in_force

For purposes of sections 706-606.5, 706-620, and 706-662(1), a conviction of the commission of a crime in another jurisdiction shall constitute a previous conviction. Such conviction shall be deemed to have been of a felony if sentence of death or of imprisonment in excess of one year was authorized under the law of such other jurisdiction. Such a conviction shall be graded, for purposes of section 706-620 by comparing the maximum imprisonment authorized under the law of such other jurisdiction with the maximum imprisonment authorized for the relevant grade of felony.

COMMENTARY ON §706-665

Since the minimal requirements for an extended term of imprisonment for a persistent offender deal in part with former convictions, it becomes necessary to treat the problem raised by former convictions in another jurisdiction. The Code recognizes such convictions for purposes of §706-662. In order to achieve a uniform standard for grading foreign convictions, the Code measures the authorized sentence in the jurisdiction where the conviction occurred according to the grading system of this Code.

A problem is presented by the fact that some states authorize imprisonment for terms of more than one year for crimes denominated as misdemeanors or petty misdemeanors by the Code. There is no easy answer to this dilemma. For the purposes of determining the persistency of an offender, the power and integrity of the penal codes of other states must be recognized. The court, however, is not compelled to order an extended term of imprisonment even if the minimal conditions are established. Where a defendant's status as a persistent offender is based on foreign convictions which are greater than those authorized by the Code, the court is free not to make such a finding if, in the opinion of the court, it would result in undue hardship.
Haw. Rev. Stat. § 706-626 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-626
Summons or arrest of defendant on probation; commitment without bail.
Status: in_force

At any time before the discharge of the defendant or the termination of the period of probation:

(1) The court may, in connection with the probation, summon the defendant to appear before it or may issue a warrant for the defendant's arrest;

(2) A probation or law enforcement officer, having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order, may arrest the defendant without a warrant and the defendant shall be held in custody pending the posting of bail pursuant to a bail schedule established by the court, or until a hearing date is set; provided that when the punishment for the original offense does not exceed one year, the probation or law enforcement officer may admit the probationer to bail; or

(3) The court, if there is probable cause to believe that the defendant has committed another crime or has been held to answer therefor, may commit the defendant without bail, pending a determination of the charge by the court having jurisdiction thereof. [L 1972, c 9, pt of §1; am L 1986, c 314, §28; am L 1989, c 125, §1; am L 2001, c 24, §1 and c 91, §4]

COMMENTARY ON §706-626

The court, in order to control the conditions of suspension or probation, must have power, either by summons or warrant, to require the defendant to appear before the court. Subsection (1) provides this power. Subsection (2) provides a more limited power for probation and peace officers; they may arrest without a warrant only where there is probable cause to believe that the defendant has failed to comply with a condition of probation or suspension.

Subsection (3) is addressed to the problem presented by a defendant who is on probation or under suspended sentence and who is accused or charged with commission of another crime. The commission of a crime while on probation or under suspension of sentence would, in most cases, constitute a violation of a condition of probation or suspension. The question thus presented is whether the issue of guilt, with respect to the most recent crime, should be tried informally as a violation of a condition of suspension or probation or whether the issue should be tried independently. The Code resolves this question by providing that the defendant may be held pending an independent or formal determination by the court having jurisdiction over the charge, thus preserving for the defendant all procedural rights. This subsection must be read in conjunction with §706-628(1) which provides for revocation in cases where the defendant "has been convicted of another crime."

Subsection (1) is in substantial accord with prior law governing the circuit courts.[1] Subsection (2) is an addition to the law and subsection (3) represents a slight departure from it. The circuit court apparently had the power--although it may choose not to exercise it--to decide, in a probation proceeding, the issue of whether the defendant has committed a crime during the period of probation.[2]

SUPPLEMENTAL COMMENTARY ON §706-626

Act 125, Session Laws 1989, required that a probationer be placed in custody after arrest for a probation violation and permitted an arrested probationer to post bail in certain circumstances. Senate Standing Committee Report No. 1331.

Act 24, Session Laws 2001, amended this section to authorize probation or peace officers to admit defendants to bail when the punishment for the original offense does not exceed one year. Although law enforcement personnel may set bail for petty misdemeanor and misdemeanor offenses, they are not authorized to do so for probation violators and must defer to the courts. The legislature found that the ability to immediately arrest and set bail for petty misdemeanor and misdemeanor probationers would allow more efficient processing of probation violations. Senate Standing Committee Report No. 1516, House Standing Committee Report No. 547.
Haw. Rev. Stat. § 706-606.6 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-606.6
Repeat violent and sexual offender; enhanced sentence.
Status: repealed

(1) Notwithstanding any other provision of law to the contrary, any person who is convicted of an offense under section 707-701.5, 707-702, 707-730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712-1202, 712-1203, or 712-1209.1, after having been convicted on at least three prior and separate occasions of an offense under section 707-701.5, 707-702, 707-710, 707-711, 707‑730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712-1202, 712-1203, or 712-1209.1, or of an offense under federal law or the laws of another state that is comparable to an offense under section 707-701.5, 707-702, 707-710, 707-711, 707-730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712-1202, 712-1203, or 712-1209.1, shall be sentenced to an extended term of imprisonment as provided in section 706-661.

(2) A conviction shall not be considered a prior offense unless the conviction occurred within the following time periods:

(a) For an offense under section 707-701.5, 707-702, 707‑730, 707-733.6, 707-750, 708-840, 712-1202, 712-1203, or 712-1209.1, within the past twenty years from the date of the instant offense;

(b) For an offense under section 707-710 or 707-731, within the past ten years from the date of the instant offense;

(c) For an offense under section 707-711 or 707-732, within the past five years from the date of the instant offense; or

(d) For an offense under federal law or the laws of another state that is comparable to an offense under section 707-701.5, 707-702, 707-710, 707-711, 707-730, 707-731, 707-732, 707-733.6, 707-750, 708-840, 712-1202, 712-1203, or 712-1209.1, within the maximum term of imprisonment possible under the appropriate jurisdiction. [L 1999, c 286, §1; am L 2006, c 60, §4; am L 2014, c 114, §2]

COMMENTARY ON §706-606.6

Act 286, Session Laws 1999, added this section, mandating an extended term of imprisonment for multiple offenses, to heighten penalties for habitual violent and sexual offenders. The legislature found that repeat violent and sexual offenders deserve some degree of enhanced sentencing. Conference Committee Report No. 89.

Act 60, Session Laws 2006, amended this section by deleting the references to §707-733.5, repealed by Act 60, and substituting references to §707-733.6, added by Act 60. Act 60 reenacted provisions that define the behavior that constitutes the crime of continuous sexual assault of a minor under the age of fourteen years and the unanimity that is required to convict a person of the crime. House Standing Committee Report No. 150-06.

Act 114, Session Laws 2014, amended this section to include the offenses of promoting prostitution in the first and second degrees, and solicitation of a minor for prostitution. Senate Standing Committee Report No. 3249, Conference Committee Report No. 41-14.
Haw. Rev. Stat. § 708-836.1 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-836.1
Unauthorized control of a propelled vehicle in the second degree.
Status: in_force

(1) A person commits the offense of unauthorized control of a propelled vehicle in the second degree if the person recklessly or negligently exerts unauthorized control over another's propelled vehicle by operating the propelled vehicle without the owner's consent or by changing the identity of the propelled vehicle without the owner's consent.

(2) It is an affirmative defense to a prosecution under this section that the defendant:

(a) Received authorization to use the propelled vehicle from an agent of the owner where the agent had actual or apparent authority to authorize the use;

(b) Is a lien holder or legal owner of the propelled vehicle, or an authorized agent of the lien holder or legal owner, engaged in the lawful repossession of the propelled vehicle; or

(c) Purchased the vehicle and reasonably believed oneself to be the actual owner of the vehicle.

(3) For the purposes of this section:

"Owner" means the registered owner of the propelled vehicle or the unrecorded owner of the propelled vehicle pending transfer of ownership; provided that if there is no registered owner of the propelled vehicle or unrecorded owner of the propelled vehicle pending transfer of ownership, "owner" means the legal owner.

"Propelled vehicle" shall have the same meaning as in section 708-836.

(4) Unauthorized control of a propelled vehicle in the second degree is a misdemeanor. [L 2021, c 6, §2; am L 2022, c 53, §3]

COMMENTARY ON §708-836.1

Act 6, Session Laws 2021, added this section to establish the offense of unauthorized control of a propelled vehicle in the second degree. The legislature found that there were a number of statutory provisions enacted to address the high number of vehicle thefts in the State, especially on the island of Oahu. Frequently, a stolen vehicle is recovered during the commission of a crime or after it has been used to commit other crimes. The legislature found that court rulings on prior law aimed at punishing or deterring the theft of propelled vehicles required the prosecution to prove that a defendant knew the propelled vehicle was stolen. This could be difficult to prove and had hindered efforts to prosecute persons operating stolen vehicles. The legislature further found that Act 6 would provide law enforcement with the flexibility to prosecute persons who recklessly or negligently exert unauthorized control of another's propelled vehicle by operating the vehicle without the owner's consent or by changing the identity of the vehicle without the owner's consent. House Standing Committee Report No. 765, Senate Standing Committee Report No. 1206.

Act 53, Session Laws 2022, amended this section to create an affirmative defense for anyone charged with unauthorized control of a propelled vehicle, where the defendant purchased the vehicle and reasonably believed themselves to be the actual owner of the vehicle. The legislature found that in cases involving unauthorized control of a propelled vehicle, the prosecution is often blindsided at trial when a defendant makes an inference during questioning of a witness, or personally testifies, that the defendant purchased the vehicle. When this occurs, the trial has already commenced and the prosecution is learning of this defense for the first time. At that point, the prosecution and police are unable to investigate these claims mid-trial, jeopardy has already been attached, and jurors are potentially left to question whether the State has in fact proven the case beyond a reasonable doubt. The legislature noted that if a defendant has in fact purchased the vehicle, that information should be relayed to the prosecution for proper investigation to ensure that the defendant is not wrongfully prosecuted and resources are not wasted. Accordingly, Act 53 codified an affirmative defense for these types of cases to place the burden on the defendant to prove the particular defense by a preponderance of the evidence while still requiring the prosecution to prove their case beyond a reasonable doubt. Senate Standing Committee Report No. 3408, House Standing Committee Report No. 780-22.
Haw. Rev. Stat. § 701-110 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-110
When prosecution is barred by former prosecution for the same offense.
Status: in_force

When a prosecution is for an offense under the same statutory provision and is based on the same facts as a former prosecution, it is barred by the former prosecution under any of the following circumstances:

(1) The former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside on appeal by the defendant.

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

(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court.

(4) The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict. Termination under any of the following circumstances is not improper:

(a) The defendant consents to the termination or waives, by motion to dismiss or otherwise, the defendant's right to object to the termination.

(b) The trial court finds the termination is necessary because:

(i) It is physically impossible to proceed with the trial in conformity with law;

(ii) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;

(iii) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the State;

(iv) The jury is unable to agree on a verdict; or

(v) False statements of a juror on voir dire prevent a fair trial. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

In paragraph (4)(b)(i), (ii), and (iii), "or" deleted pursuant to §23G-15.

COMMENTARY ON §701-110

Section 701-110 bars a new prosecution for an offense under the same statutory provision and based upon the same facts as a former prosecution when there is an acquittal, when there is an unreversed conviction, or when there is a termination by final order or judgment for the defendant which is necessarily conclusive of a fact which must be established for conviction. An improper termination is also conclusive, because the defendant has a right not to be harassed by repeated prosecutions. Subsection (4) sets forth the circumstances under which a termination is not improper. These are the situations in which the defendant consents to termination or in which under preexisting law the court would declare a mistrial. Subsection (1) is written to reflect the possibility that the legislature may give certain appeal rights to the prosecution as part of a revision of penal procedural law.

Subsection (1) states an important rule as to which there is some variance of opinion among the states. If the accused is found guilty of a lesser included offense, that is an automatic acquittal on the greater inclusive offense, and the accused may not later be tried or convicted for that greater offense, despite reversal of the accused's conviction for the lesser offense.[1] This seems to follow from the fact that the jury has been unable to agree, for whatever reason, on the defendant's guilt of the more serious offense. At that point, the defendant should be free from the threat of a renewed prosecution for that offense. If the defendant faces reprosecution for an offense of which the defendant has been acquitted, the defendant may be unfairly hampered in the defendant's decision about whether to contest the validity of the conviction for the lesser offense. An appeal by the State, if permissible, may of course have the effect of reversing this rule in individual cases.
Haw. Rev. Stat. § 712-1240.1 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1240.1
Defense to promoting.
Status: in_force

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

(2) It is an affirmative defense to prosecution for any marijuana-related offense defined in this part that the person who possessed or distributed the marijuana was authorized to possess or distribute the marijuana for medical purposes pursuant to part IX of chapter 329. [L 1977, c 137, §1; am L 2000, c 228, §4]

COMMENTARY ON §712-1240.1

Act 137, Session Laws 1977, added this section to provide a defense for the lawful possession or distribution of drugs by authorized persons. In enacting the section, the legislature found that the law as then worded made any possession or distribution of drugs criminal. Senate Standing Committee Report No. 1127, House Standing Committee Report No. 683.

Act 228, Session Laws 2000, in permitting the medical use of marijuana by persons with certain medical conditions, amended this section to include an affirmative defense for the medical use of marijuana. Senate Standing Committee Report No. 2760.
Haw. Rev. Stat. § 712A-5 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-5
Property subject to forfeiture; exemption.
Status: in_force

(1) The following shall be subject to forfeiture:

(a) Property described in a statute authorizing forfeiture;

(b) Property used or intended for use in the commission of, attempt to commit, or conspiracy to commit a covered offense, or that facilitated or assisted the activity;

(c) Any firearm that is subject to forfeiture under any other subsection of this section or that is carried during, visible, or used in furtherance of the commission, attempt to commit, or conspiracy to commit a covered offense, or any firearm found in proximity to contraband or to instrumentalities of an offense;

(d) Contraband or untaxed cigarettes in violation of chapter 245, shall be seized and summarily forfeited to the State without regard to the procedures set forth in this chapter;

(e) Any proceeds or other property acquired, maintained, or produced by means of or as a result of the commission of the covered offense;

(f) Any property derived from any proceeds that were obtained directly or indirectly from the commission of a covered offense;

(g) Any interest in, security of, claim against, or property or contractual right of any kind affording a source of influence over any enterprise that has been established, participated in, operated, controlled, or conducted in order to commit a covered offense; and

(h) All books, records, bank statements, accounting records, microfilms, tapes, computer data, or other data that are used, intended for use, or that facilitated or assisted in the commission of a covered offense, or that document the use of the proceeds of a covered offense.

(2) Real property, or an interest therein, may be forfeited under the provisions of this chapter only in cases in which the covered offense is chargeable as a felony offense under state law.

(3) The following limitations shall apply to the forfeiture of property under this chapter; provided that nothing in this subsection shall be construed to prevent the seizure of property before conviction pursuant to section 712A-6:

(a) No property shall be forfeited under this chapter by reason of the commission of any covered offense unless the owner has received a charge for the covered offense. If no such charge is filed within one year from the date of seizure, all property seized shall be returned to the legal owner, as determined by the department or agency in possession of the property, one year from the date of seizure; provided that property that is contraband or otherwise unlawful shall not be returned and shall be disposed of pursuant to rules adopted by the attorney general; provided further that if the legal owner cannot be determined or located, the department or agency in possession of the property shall follow procedures set forth in rules adopted by the attorney general to determine or locate the owner;

(b) No property shall be forfeited under this chapter by reason of any act or omission established by the owner to have been committed or omitted without the knowledge and consent of the owner;

(c) No conveyance used by any person as a common carrier in the transaction of a business as a common carrier shall be subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;

(d) No conveyance shall be subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; and

(e) A forfeiture of a conveyance encumbered by a bona fide security interest shall be subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.

(4) This chapter shall not apply to the forfeiture of an animal pursuant to section 711-1109.2.

(5) This section shall not prohibit or restrict forfeitures authorized by law other than this chapter. [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; am L 2000, c 249, §§11, 20(2); am L 2002, c 94, §3; am L 2025, c 288, §3]

COMMENTARY ON §712A-5

Act 249, Session Laws 2000, amended this section by adding to the list of property subject to seizure and summary forfeiture any untaxed cigarettes violating the cigarette tax and tobacco tax law under chapter 245.

Act 94, Session Laws 2002, by making the cigarette tax stamp law permanent, amended this and other sections. The legislature sought to ensure compliance with and enforcement of the cigarette tax stamp laws. House Standing Committee Report No. 502-02.

Act 288, Session Laws 2025, amended this section to: (1) restrict civil asset forfeiture to cases where the owner has received a charge for the offense; and (2) require seized property to be returned to the legal owner if a charge is not filed within one year from the date of seizure. The legislature found that the State's existing property forfeiture process required reform to ensure greater fairness, transparency, and accountability. The State's civil asset forfeiture process allowed law enforcement agencies to seize and keep property based on suspicion that the property was connected to criminal activity. Property, such as vehicles, houses, cash, and jewelry, could be taken without the property owner having been convicted of a crime or even being formally accused of one, and the burden of proof to recover the seized property was shifted from the State to the property owner. Additionally, there was a potential incentive to improperly seize property for forfeiture, as state and county law enforcement agencies were permitted to retain all proceeds from the sale of forfeited property. Accordingly, Act 288 would make the State's civil asset forfeiture process more fair and just. Senate Standing Committee Report No. 1238, House Standing Committee Report No. 618, Conference Committee Report No. 231.
Haw. Rev. Stat. § 706-606.5 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-606.5
Sentencing of repeat offenders.
Status: in_force

(1) Notwithstanding section 706-669 and any other law to the contrary, any person convicted of murder in the second degree, any class A felony, any class B felony, or any of the following class C felonies:

(a) Section 134-7 relating to persons prohibited from owning, possessing, or controlling firearms or ammunition;

(b) Section 134-8 relating to ownership, etc., of certain prohibited weapons;

(c) Section 134-17 only as it relates to providing false information or evidence to obtain a permit under section 134-9;

(d) Section 188-23 relating to possession or use of explosives, electrofishing devices, and poisonous substances in state waters;

(e) Section 386-98(d)(1) relating to fraud violations and penalties;

(f) Section 431:2-403(b)(2) relating to insurance fraud;

(g) Section 707-703 relating to negligent homicide in the second degree;

(h) Section 707-711 relating to assault in the second degree;

(i) Section 707-713 relating to reckless endangering in the first degree;

(j) Section 707-716 relating to terroristic threatening in the first degree;

(k) Section 707-721 relating to unlawful imprisonment in the first degree;

(l) Section 707-732 relating to sexual assault in the third degree;

(m) Section 707-752 relating to promoting child abuse in the third degree;

(n) Section 707-757 relating to electronic enticement of a child in the second degree;

(o) Section 707-766 relating to extortion in the second degree;

(p) Section 708-811 relating to burglary in the second degree;

(q) Section 708-821 relating to criminal property damage in the second degree;

(r) Section 708-831 relating to theft in the second degree;

(s) Section 708-835.5 relating to theft of livestock;

(t) Section 708-836 relating to unauthorized control of a propelled vehicle in the first degree;

(u) Section 708-839.55 relating to unauthorized possession of confidential personal information;

(v) Section 708-839.8 relating to identity theft in the third degree;

(w) Section 708-852 relating to forgery in the second degree;

(x) Section 708-854 relating to criminal possession of a forgery device;

(y) Section 708-875 relating to trademark counterfeiting;

(z) Section 709-906(8), (9), or (10) relating to abuse of family or household members;

(aa) Section 710-1071 relating to intimidating a witness;

(bb) Section 711-1103 relating to riot;

[(cc)] Section 712-1224 relating to possession of gambling records in the first degree;

[(dd)] Section 712-1247 relating to promoting a detrimental drug in the first degree; or

[(ee)] Section 846E-9 relating to failure to comply with covered offender registration requirements,

or who is convicted of attempting to commit murder in the second degree, any class A felony, any class B felony, or any of the class C felony offenses enumerated above and who has a prior conviction or prior convictions for the following felonies, including an attempt to commit the same: murder, murder in the first or second degree, a class A felony, a class B felony, any of the class C felony offenses enumerated above, or any felony conviction of another jurisdiction, shall be sentenced to a mandatory minimum period of imprisonment without possibility of parole as provided in subsection (2).

(2) A mandatory minimum period of imprisonment without possibility of parole during that period shall be imposed pursuant to subsection (1), as follows:

(a) One prior felony conviction:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--ten years;

(ii) Where the instant conviction is for a class A felony--six years, eight months;

(iii) Where the instant conviction is for a class B felony--three years, four months; and

(iv) Where the instant conviction is for a class C felony offense enumerated above--one year, eight months;

(b) Two prior felony convictions:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--twenty years;

(ii) Where the instant conviction is for a class A felony--thirteen years, four months;

(iii) Where the instant conviction is for a class B felony--six years, eight months; and

(iv) Where the instant conviction is for a class C felony offense enumerated above--three years, four months; and

(c) Three or more prior felony convictions:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--thirty years;

(ii) Where the instant conviction is for a class A felony--twenty years;

(iii) Where the instant conviction is for a class B felony--ten years; and

(iv) Where the instant conviction is for a class C felony offense enumerated above--five years.

(3) Except as provided in subsection (4), a person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during the period as follows:

(a) Within twenty years after a prior felony conviction where the prior felony conviction was for murder in the first degree or attempted murder in the first degree;

(b) Within twenty years after a prior felony conviction where the prior felony conviction was for murder in the second degree or attempted murder in the second degree;

(c) Within twenty years after a prior felony conviction where the prior felony conviction was for a class A felony;

(d) Within ten years after a prior felony conviction where the prior felony conviction was for a class B felony;

(e) Within five years after a prior felony conviction where the prior felony conviction was for a class C felony offense enumerated above;

(f) Within the maximum term of imprisonment possible after a prior felony conviction of another jurisdiction.

(4) If a person was sentenced for a prior felony conviction to a special term under section 706-667, then the person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during that period as follows:

(a) Within eight years after a prior felony conviction where the prior felony conviction was for a class A felony;

(b) Within five years after the prior felony conviction where the prior felony conviction was for a class B felony;

(c) Within four years after the prior felony conviction where the prior felony conviction was for a class C felony offense enumerated above.

(5) Notwithstanding any other law to the contrary, any person convicted of any of the following misdemeanor offenses:

(a) Section 707-712 relating to assault in the third degree;

(b) Section 707-717 relating to terroristic threatening in the second degree;

(c) Section 707-733 relating to sexual assault in the fourth degree;

(d) Section 708-822 relating to criminal property damage in the third degree;

(e) Section 708-832 relating to theft in the third degree; and

(f) Section 708-833.5(2) relating to misdemeanor shoplifting,

and who has been convicted of any of the offenses enumerated above on at least three prior and separate occasions within three years of the date of the commission of the present offense, shall be sentenced to no less than nine months of imprisonment. Whenever a court sentences a defendant under this subsection for an offense under section 707-733, the court shall order the defendant to participate in a sex offender assessment and, if recommended based on the assessment, participate in the sex offender treatment program established by chapter 353E.

(6) The sentencing court may impose the above sentences consecutive to any sentence imposed on the defendant for a prior conviction, but the sentence shall be imposed concurrent to the sentence imposed for the instant conviction. The court may impose a lesser mandatory minimum period of imprisonment without possibility of parole than that mandated by this section where the court finds that strong mitigating circumstances warrant the action. Strong mitigating circumstances shall include, but shall not be limited to the provisions of section 706-621. The court shall provide a written opinion stating its reasons for imposing the lesser sentence.

(7) A person who is imprisoned in a correctional institution pursuant to subsection (1) shall not be paroled prior to the expiration of the mandatory minimum term of imprisonment imposed pursuant to subsection (1).

(8) For purposes of this section:

(a) Convictions under two or more counts of an indictment or complaint shall be considered a single conviction without regard to when the convictions occur;

(b) A prior conviction in this or another jurisdiction shall be deemed a felony conviction if it was punishable by a sentence of death or of imprisonment in excess of one year; and

(c) A conviction occurs on the date judgment is entered. [L 1976, c 181, §1; am L 1979, c 98, §1; am L 1980, c 284, §1; am L 1981, c 69, §1; am L 1986, c 314, §17; am L 1987, c 181, §3; am L 1990, c 28, §2; am L 1996, c 87, §1; am L 1997, c 277, §2; am L 1999, c 195, §10 and c 244, §1; am L 2006, c 80, §1 and c 139, §4; am L 2007, c 49, §2; am L 2008, c 80, §2; am L 2009, c 149, §6; am L 2014, c 114, §1; am L 2016, c 231, §20; am L 2022, c 18, §1, c 53, §1, c 109, §13, and c 111, §2]
Haw. Rev. Stat. § 706-624 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-624
Conditions of probation.
Status: in_force

(1) Mandatory conditions. The court shall provide, as an explicit condition of a sentence of probation:

(a) That the defendant not commit another federal or state crime or engage in criminal conduct in any foreign jurisdiction or under military jurisdiction that would constitute a crime under Hawaii law during the term of probation;

(b) That the defendant report to a probation officer as directed by the court or the probation officer;

(c) That the defendant remain within the jurisdiction of the court, unless granted permission to leave by the court or a probation officer;

(d) That the defendant notify a probation officer prior to any change in address or employment;

(e) That the defendant notify a probation officer promptly if arrested or questioned by a law enforcement officer;

(f) That the defendant permit a probation officer to visit the defendant at the defendant's home or elsewhere as specified by the court; and

(g) That the defendant make restitution for losses suffered by the victim or victims if the court has ordered restitution pursuant to section 706-646.

(2) Discretionary conditions. The court may provide, as further conditions of a sentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706-606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706-606(2), that the defendant:

(a) Serve a term of imprisonment to be determined by the court at sentencing in class A felony cases under section 707-702, not exceeding two years in class A felony cases under part IV of chapter 712, not exceeding eighteen months in class B felony cases, not exceeding one year in class C felony cases, not exceeding six months in misdemeanor cases, and not exceeding five days in petty misdemeanor cases; provided that notwithstanding any other provision of law, any order of imprisonment under this subsection that provides for prison work release shall require the defendant to pay thirty per cent of the defendant's gross pay earned during the prison work release period to satisfy any restitution order. The payment shall be handled by the adult probation division and shall be paid to the victim on a monthly basis;

(b) Perform a specified number of hours of services to the community as described in section 706-605(1)(d);

(c) Support the defendant's dependents and meet other family responsibilities;

(d) Pay a fine imposed pursuant to section 706-605(1)(b);

(e) Work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip the defendant for suitable employment;

(f) Refrain from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the crime or engage in the specified occupation, business, or profession only to a stated degree or under stated circumstances;

(g) Refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons, including the victim of the crime, any witnesses, regardless of whether they actually testified in the prosecution, law enforcement officers, co-defendants, or other individuals with whom contact may adversely affect the rehabilitation or reformation of the person convicted;

(h) Refrain from use of alcohol or any use of narcotic drugs or controlled substances without a prescription;

(i) Refrain from possessing a firearm, ammunition, destructive device, or other dangerous weapon;

(j) Undergo available medical or mental health assessment and treatment, including assessment and treatment for substance abuse dependency, and remain in a specified facility if required for that purpose;

(k) Reside in a specified place or area or refrain from residing in a specified place or area;

(l) Submit to periodic urinalysis or other similar testing procedure;

(m) Refrain from entering specified geographical areas without the court's permission;

(n) Refrain from leaving the person's dwelling place except to go to and from the person's place of employment, the office of the person's physician or dentist, the probation office, or any other location as may be approved by the person's probation officer pursuant to court order. As used in this paragraph, "dwelling place" includes the person's yard or, in the case of condominiums, the common elements;

(o) Comply with a specified curfew;

(p) Submit to monitoring by an electronic monitoring device;

(q) Submit to a search by any probation officer, with or without a warrant, of the defendant's person, residence, vehicle, or other sites or property under the defendant's control, based upon the probation officer's reasonable suspicion that illicit substances or contraband may be found on the person or in the place to be searched;

(r) Sign a waiver of extradition and pay extradition costs as determined and ordered by the court;

(s) Comply with a service plan developed using current assessment tools; and

(t) Satisfy other reasonable conditions as the court may impose.

(3) Written statement of conditions. The court shall order the defendant at the time of sentencing to sign a written acknowledgment of receipt of conditions of probation. The defendant shall be given a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity to enable the defendant to comply with the conditions accordingly. [L 1972, c 9, pt of §1; am L 1973, c 136, §5; am L 1978, c 224, §1; am L 1984, c 257, §2; am L 1986, c 314, §25; am L 1987, c 262, §1; am L 1989, c 48, §1; am L 2006, c 230, §20; am L 2012, c 292, §3; am L 2016, c 231, §23]

COMMENTARY ON §706-624
Haw. Rev. Stat. § 708-8103 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8103
Credit card fraud by a provider of goods or services.
Status: in_force

(1) A person who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit card by the cardholder, or any agent or employees of such person, who, with intent to defraud the issuer or cardholder, furnishes money, goods, services, or anything else of value upon presentation of a credit card obtained or retained in violation of section 708-8102 or a credit card which the person knows is forged, expired, or revoked commits the offense of credit card fraud by a provider of goods or services.

(2) A person who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit card by the cardholder, or any agent or employee of such person, who, with intent to defraud the issuer or the cardholder, fails to furnish money, goods, services, or anything else of value which the person represents in writing to the issuer that the person has furnished commits the offense of credit card fraud by a provider of goods or services.

(3) Credit card fraud by a provider of goods or services is a class C felony. [L 1986, c 314, pt of §61]
Haw. Rev. Stat. § 707-712.2 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-712.2
Habitual violent crime.
Status: repealed

[Section repealed June 30, 2027. L 2024, c 213, §6.] (1) A person commits the offense of habitual violent crime if the person is a habitual violent crime perpetrator and commits:

(a) Assault in the third degree under section 707-712 that is categorized as a misdemeanor;

(b) Assault against a law enforcement officer in the second degree under section 707-712.6;

(c) Sexual assault in the fourth degree under section 707-733; or

(d) Abuse of a family or household member under section 709-906(1).

(2) For the purposes of this section, "habitual violent crime perpetrator" means a person who, within five years of the instant offense, has convictions for any combination of three or more of the following offenses set forth in sections 707-710, 707-711, 707-712, 707-712.5, 707-712.6, 707-730, 707-731, 707-732, 707-733, and 709-906; provided that the convictions were not for offenses categorized as petty misdemeanors. The convictions shall be for separate incidents on separate dates. The prosecution shall not be required to prove any state of mind with respect to the person's status as a habitual violent crime perpetrator. Proof that the person has the requisite minimum prior convictions shall be sufficient to establish this element.

(3) Habitual violent misdemeanor crime is a class C felony.

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

(a) An indeterminate term of imprisonment of five years; provided that the minimum term of imprisonment shall be no less than one year; or

(b) A term of probation of five years, with conditions to include but not be limited to one year of imprisonment; provided that probation shall only be available for a first conviction under this section. [L 2024, c 213, §2]
Haw. Rev. Stat. § 708-839 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-839
Unlawful possession.
Status: in_force

It shall be unlawful for any person to possess any bicycle, movable construction tool or equipment, appliance, merchandise, or other article, or any part thereof

(1) Where the serial number or identification mark placed on the same by the manufacturer for the purpose of identification, or

(2) Knowing the serial number or identification mark placed on the same for the purpose of identification,

has been erased, altered, changed or removed for the purpose of changing the identity of the foregoing items.

Unlawful possession is a misdemeanor. [L 1973, c 72, pt of §2; am L 1977, c 27, §2]

COMMENTARY ON §§708-838 AND 708-839

Act 72, Session Laws 1973, added these two new sections to the Code. These sections prohibit the defacing, removal, or alteration of any factory or owner identification mark or serial number from any merchandise on which the same has been inscribed or marked, and thereby provide more effective protection to the public from theft and traffic of stolen merchandise.

The Senate Consumer Protection Committee in Standing Committee Report No. 802 stated:

Police are hampered many times in their efforts to identify and recover stolen merchandise because the serial numbers or the identification marks are removed or obliterated. These marks are removed to frustrate the police and so that the thieves can resell the items. The resale of untraceable firearms is a practice which directly contributes to violent crimes in the community.

SUPPLEMENTAL COMMENTARY ON §§708-838 AND 708-839

Act 27, Session Laws 1977, amended these sections to provide for two classes of identification marks--those placed by manufacturers and those affixed by others--and to differentiate the mental aspect required for the imposition of liability as to each class. Section 708-838, as amended, thus seeks to impose liability for altering manufacturer's marks without requiring any specific intent. But for altering other marks, it requires acting "knowingly, to conceal the true ownership of the property of another." Similarly §708-839, as now amended, intends to impose liability for the mere possession of the merchandise where merchandise with altered manufacturer's marks are involved, but to require possession with knowledge of the alteration where other marks are concerned. House Standing Committee Report No. 873.

In addition, Act 27 deleted all references to firearms from these sections, the offense of removing identification marks from firearms being covered by §134-10.
Haw. Rev. Stat. § 710-1010.5 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1010.5
Interference with reporting an emergency or crime.
Status: in_force

(1) A person commits the offense of interference with reporting an emergency or crime if the person intentionally or knowingly prevents a victim or witness to a criminal act from calling a 911-emergency telephone system, obtaining medical assistance, or making a report to a law enforcement officer.

(2) Interference with the reporting of an emergency or crime is a petty misdemeanor. [L 2001, c 294, §1]

COMMENTARY ON §710-1010.5

Act 294, Session Laws 2001, established interference with the reporting of an emergency or crime as a petty misdemeanor. The legislature found that perpetrators of domestic violence should not prevent victims and witnesses from contacting authorities for assistance in preventing domestic violence. House Standing Committee Report No. 1222.
Haw. Rev. Stat. § 712-1280 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1280
Place.
Status: in_force

"Place" as used in this part means any building, structure, or place, or any separate part or portion thereof, whether permanent or not, or the ground itself.
Haw. Rev. Stat. § 712-1271.6 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1271.6
Protective order.
Status: in_force

If proof of the existence of the nuisance depends, in whole or in part, upon the affidavits or testimony of witnesses who are not law enforcement officers, the court, upon a showing of prior threats of violence or acts of violence by any defendant may issue orders to protect those witnesses including, but not limited to, the nondisclosure of the name, address, or any other information that may identify those witnesses.
Haw. Rev. Stat. § 710-1013 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1013
Compounding.
Status: in_force

(1) A person commits the offense of compounding if the person intentionally accepts or agrees to accept any pecuniary benefit as consideration for:

(a) Refraining from seeking prosecution of an offense; or

(b) Refraining from reporting to law-enforcement authorities the commission or suspected commission of any offense or information relating to the offense.

(2) It is an affirmative defense to a prosecution under subsection (1) that the pecuniary benefit did not exceed an amount which the defendant believed to be due as restitution or indemnification for harm caused by the offense.

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

COMMENTARY ON §710-1013

The harm in allowing the reporting or prosecution of any offense to be "bought off" need hardly be developed at length. The very functioning of any effective system for penalizing criminal behavior depends upon the unhampered reporting and prosecution of offenses. The traditional question is whether the offense of "compounding" shall apply to one who receives no pecuniary benefit, but nonetheless refrains from reporting an offense. When the offense was a felony, the common law recognized the crime of misprision of a felony, even if no pecuniary benefit was conferred. Most jurisdictions which have codified their penal law have rejected the crime of misprision,[1] as have most modern attempts at penal law revision.[2]

Subsection (2) excludes cases where the consideration accepted is believed to be due as restitution or indemnification, and it does not require judicial approval. The commentary to the Model Penal Code, from which this section is derived, states the reason for the exception as follows:

Our society does not, in general, impose penal sanctions to compel persons to inform authorities of crime. A person who refrains from reporting a crime of which he was the victim, because his loss has been made good, is no more derelict in his social duty than one who, out of indifference or friendship to the offender, fails to report a known offense. The threat of prosecution for compounding is, in any event, ineffective to promote reporting of offenses by victims who are willing to "settle" with the offender, since compounding laws can easily be evaded by accepting restitution or indemnification without explicit "agreement" to drop prosecution. Finally, compounding laws impugn the widespread practice of prosecutors, who are frequently content to drop prosecution when restitution has been made by the offender.[3]
Haw. Rev. Stat. § 711-1110.9 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1110.9
Violation of privacy in the first degree.
Status: in_force

(1) A person commits the offense of violation of privacy in the first degree if, except in the execution of a public duty or as authorized by law:

(a) The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein , any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place;

(b) The person knowingly discloses or threatens to disclose an image or video of another identifiable person either in the nude, as defined in section 712‑1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person's health, safety, business, calling, career, education, financial condition, reputation, or personal relationships or as an act of revenge or retribution; or

(c) The person intentionally creates or discloses or threatens to disclose an image or video of a composite fictitious person depicted in the nude as defined in section 712-1210, or engaged in sexual conduct as defined in section 712-1210, that includes the recognizable physical characteristics of a known person so that the image or video appears to depict the known person and not a composite fictitious person, with intent to substantially harm the depicted person with respect to that person's health, safety, business, calling, career, education, financial condition, reputation, or personal relationships, or as an act of revenge or retribution.

(2) Other than as prohibited in paragraph (1)(c), this section shall not apply to images or videos of the depicted person made:

(a) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or

(b) Pursuant to a voluntary commercial transaction.

(3) Nothing in this section shall be construed to impose liability on a provider of "electronic communication service" or "remote computing service" as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person.

(4) Violation of privacy in the first degree is a class C felony. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section.

(5) Any recording or image made or disclosed in violation of this section and not destroyed pursuant to subsection (4) shall be sealed and remain confidential. [L 1999, c 278, §1; am L 2003, c 48, §3; am L 2004, c 83, §2; am L 2014, c 116, §1; am L 2018, c 114, §1; am L 2021, c 59, §2]

COMMENTARY ON §711-1110.9

Act 278, Session Laws 1999, added this section to make it a felony to take sexual photographs or videotapes of a person without that person's consent and when the person expects privacy. The legislature found that current laws criminalizing a violation of privacy do not distinguish between surreptitious recording of any events and sounds in a private place, and the more egregious offense of installing a hidden device to surreptitiously record or observe persons while they are undressed or engaging in sexual activity. The legislature believed that using a hidden device to record someone while engaged in very personal acts merits a higher penalty than simply using a hidden device to record any events in a private place. Senate Standing Committee Report No. 1579, Conference Committee Report No. 87.

Act 48, Session Laws 2003, amended this section to update the crime of violation of privacy in the first degree to punish "video voyeurism" in public places. The legislature found that through technological advancements, recording and broadcasting devices are easily concealed. Incidents of "video voyeurism" in public places have occurred but are not chargeable under existing laws. Changing the offense of violation of privacy would address the growing concern for the offensive practice of "upskirt photography." Senate Standing Committee Report No. 637, House Standing Committee Report No. 1316.

Act 83, Session Laws 2004, amended this section to clarify that the offense of violation of privacy in the first degree included the use or installation, or both, in any private place and without the consent of the person or persons entitled to privacy therein, of any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place. House Standing Committee Report No. 1174-04.

Act 116, Session Laws 2014, expanded the offense of violation of privacy in the first degree to include knowingly disclosing an image or video of another identifiable person either in the nude or engaging in sexual conduct without the consent of the depicted person with intent to harm substantially the depicted person. Act 116 also provided immunity for: (1) the distribution of images or videos made of the depicted person while voluntarily nude or voluntarily engaging in sexual conduct in public, or pursuant to a voluntary commercial transaction; and (2) the providers of electronic communication service or remote computing service for images or videos disclosed through the service by another person. The legislature found that California legislation that was signed into law in 2013 prohibited a "revenge porn" perpetrator from distributing sexually explicit pictures that were intended to be private. A number of other states have since considered similar legislation. Advancements in cellular and internet technology have made it easy to disseminate and access intimate images, videos, and recordings that depict an individual in the nude or engaged in sexual activity. These images and recordings can be used to retaliate against the depicted individual. Act 116 addressed the concerns and ramifications of the dissemination of a representation of nude person or, of a person engaging in sexual conduct without the depicted person's consent by making the dissemination a criminal offense. Conference Committee Report No. 29-14, Senate Standing Committee Report No. 3162.

Act 114, Session Laws 2018, amended the offense of violation of privacy in the first degree to: (1) prohibit threats to disclose an image or video of a person in the nude or engaging in sexual conduct; (2) specifically include disclosures that are acts of revenge or retribution; and (3) require that any recording or image that is the subject of the offense be sealed and remain confidential. The legislature found that the increasing prominence and ubiquity of personal electronics and social media has created conditions that are easily exploited by persons with the intention to violate the privacy of others. "Revenge pornography," or the nonconsensual disclosure of images or videos of individuals engaged in a sex act or in the nude, is a serious issue that disproportionately affects women. Revenge pornography has a broad spectrum of consequences ranging from embarrassment and humiliation to forced sex trafficking. Accordingly, Act 114 explicitly included acts of revenge pornography within the offense of violation of privacy in the first degree. Senate Standing Committee Report No. 3083.

Act 59, Session Laws 2021, amended this section to add the intentional creation, disclosure, or threat of disclosure of certain types of deep fake images or videos to the offense of violation of privacy in the first degree. The legislature found that one of the recommendations made by the twenty-first century privacy task force was that the State protect the privacy of a person's likeness by adopting laws that prohibit the unauthorized use of deep fake technology, which had been advancing rapidly and is easily sharable on social media. The legislature further found that deep fake technology enables the creation of synthetic media in which a person in an existing image or video is replaced with the likeness of another person. Act 59 protected the privacy of a person's likeness by prohibiting the unauthorized use of deep fake technology. Conference Committee Report No. 70.
Haw. Rev. Stat. § 708-812.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-812.5
Burglary offenses; intent to commit therein a crime against a person or against property rights.
Status: in_force

A person engages in conduct "with intent to commit therein a crime against a person or against property rights" if the person formed the intent to commit within the building a crime against a person or property rights before, during, or after unlawful entry into the building.

COMMENTARY ON §708-812.5

Act 230, Session Laws 2006, added this section, defining the phrase "with intent to commit therein a crime against a person or against property rights."
Haw. Rev. Stat. § 712-1257 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1257
Prohibited cigarette sales of less than twenty.
Status: in_force

(1) It shall be unlawful to sell single cigarettes or packs of cigarettes containing less than twenty cigarettes. It further shall be unlawful to sell cigarettes other than in sealed packages originating with the manufacturer and bearing the health warning required by law.

(2) As used in this section, "to sell" includes: to solicit and receive an order for; to have, or keep, or offer, or expose for sale; to deliver for value or in any other way than purely gratuitously; to peddle; to keep with intent to sell; and to traffic in.

(3) "Sale" includes every act of selling as defined in [subsection (2)].

(4) Any person who violates subsection (1), shall be fined not more than $2,500 for the first offense. Any subsequent offense shall subject the person to a fine of not less than $100 and not more than $5,000. Any person who knowingly violates subsection (1) shall be guilty of a class C felony. [L 1996, c 53, §1; am L 2000, c 201, §2]
Haw. Rev. Stat. § 701-118 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-118
General definitions.
Status: in_force

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

"Act" or "action" means a bodily movement whether voluntary or involuntary.

"Acted" includes, where relevant, "omitted to act".

"Actor" includes, a person who acts, or, where relevant, a person guilty of omission.

"Another" means any other person and includes, where relevant, the United States, this State and any of its political subdivisions, and any other state and any of its political subdivisions.

"Conduct" means an act or omission, or, where relevant, a series of acts or a series of omissions, or a series of acts and omissions.

"Law enforcement officer" means any public servant, whether employed by the State or county or by the United States, vested by law with a duty to maintain public order or, to make arrests for offenses or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses.

"Omission" means a failure to act.

"Person", "he", "him", "actor", and "defendant" include any natural person, including any natural person whose identity can be established by means of scientific analysis, including but not limited to scientific analysis of deoxyribonucleic acid and fingerprints, whether or not the natural person's name is known, and, where relevant, a corporation or an unincorporated association.

"State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

"Statute" includes the Constitution of the State and a local law or ordinance of a political subdivision of the State. [L 1972, c 9, pt of §1; am L 2001, c 91, §2; am L 2005, c 112, §3]

Revision Note

Numeric designations deleted and definitions rearranged pursuant to §23G-15.
Haw. Rev. Stat. § 712-1250.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1250.5
Promoting intoxicating liquor to a person under the age of twenty-one.
Status: in_force

(1) A person, including any licensee as defined in section 281-1, commits the offense of promoting intoxicating liquor to a person under the age of twenty-one if the person recklessly:

(a) Sells or offers for sale, influences the sale, serves, delivers, or gives to a person intoxicating liquor, and the person receiving the intoxicating liquor is a person under the age of twenty-one; or

(b) Permits a person to possess intoxicating liquor while on property under his control, and the person possessing the intoxicating liquor is a person under the age of twenty-one.

(2) It is a defense to a prosecution for promoting intoxicating liquor to a person under the age of twenty-one that:

(a) The intoxicating liquor provided to the person under the age of twenty-one was an ingredient in a medicine prescribed by a licensed physician for medical treatment of the person under the age of twenty-one;

(b) The intoxicating liquor was provided to the person under the age of twenty-one as part of a ceremony of a recognized religion;

(c) The defendant provided the intoxicating liquor to the person under the age of twenty-one with the belief, which was reasonable under the circumstances, that the person under the age of twenty-one had attained the age of twenty-one;

(d) The defendant provided the intoxicating liquor to the person under the age of twenty-one with the express consent of the parent or legal guardian and with the belief, which was reasonable under the circumstances, that the person under the age of twenty-one would not consume any portion of the substance;

(e) The defendant provided the intoxicating liquor to the person under the age of twenty-one with the express consent of the parent or legal guardian and with the belief, which was reasonable under the circumstances, that the person under the age of twenty-one would consume the substance only in the presence of the parent or legal guardian; or

(f) The intoxicating liquor was possessed by the person under the age of twenty-one to be sold or served as allowed by law.

(3) The fact that a person engaged in the conduct specified by this section is prima facie evidence that the person engaged in that conduct with knowledge of the character, nature, and quantity of the intoxicating liquor possessed, distributed, or sold.

The fact that the defendant distributed or sold intoxicating liquor to a person under the age of twenty-one is prima facie evidence that the defendant knew the transferee was a person under the age of twenty-one, except as provided in subsection (2)(c).

(4) Promoting intoxicating liquor to a person under the age of twenty-one is a misdemeanor. [L 1984, c 122, §1; am L 1986, c 342, §4; am L 1987, c 283, §70; am L 1991, c 206, §2; am L 1992, c 207, §2; am L 2006, c 203, §2; am L 2013, c 54, §1]
Haw. Rev. Stat. § 706-622.9 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-622.9
Sentencing for first-time property offenders; expungement.
Status: in_force

(1) Notwithstanding section 706-620(3), a person convicted for the first time of any class C felony property offense under chapter 708 who has not previously been sentenced under section 706-606.5, section 706-622.5, or this section shall be eligible to be sentenced to probation under subsection (2) if the person meets the following criteria:

(a) The court has determined that the person is nonviolent after reviewing the person's criminal history, the factual circumstances of the offense for which the person is being sentenced, and any other relevant information;

(b) The person has been assessed by a certified substance abuse counselor to be in need of substance abuse treatment due to dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;

(c) The court has determined that the offense for which the person is being sentenced is related to the person's substance abuse dependency or addiction;

(d) The court has determined that the person is genuinely motivated to obtain and maintain substance abuse treatment, based upon consideration of the person's history, including whether substance abuse treatment has previously been afforded to the person, and an appraisal of the person's current circumstances and attitude; and

(e) Except for those persons directed to substance abuse treatment under the supervision of the drug court, the person presents a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program.

(2) A person eligible under subsection (1) may be sentenced to probation to undergo and complete a substance abuse treatment program if the court determines that the person can benefit from substance abuse treatment and, notwithstanding that the person would be subject to sentencing as a repeat offender under section 706-606.5, the person should not be incarcerated to protect the public. If the person fails to complete the substance abuse treatment program and the court determines that the person cannot benefit from any other suitable substance abuse treatment program, the person shall be sentenced as provided in this part. As a condition of probation under this subsection, the court may direct the person to undergo and complete substance abuse treatment under the supervision of the drug court if the person has a history or relapse in treatment programs. The court may require other terms and conditions of probation, including requiring that the person contribute to the cost of the substance abuse treatment program, comply with deadlines for entering into the substance abuse treatment program, and reside in a secure drug treatment facility.

(3) Upon written application from a person sentenced under this part or a probation officer, the court shall issue a court order to expunge the record of conviction for that particular offense; provided that a person has successfully completed the substance abuse treatment program and complied with other terms and conditions of probation. A person sentenced to probation under this section shall be eligible for expungement under this subsection only if the person has not been previously convicted of a felony offense in this or another jurisdiction.

(4) A person sentenced before June 22, 2006, for any class C felony property offense under chapter 708, and who would have qualified for sentencing pursuant to this section had that person been sentenced after the enactment of this section, and who otherwise meets all the requirements of this section for expungement, may apply to a court for expungement of the record of conviction for the property offense.

The court, upon written application from the person, shall issue a court order to expunge the record of conviction for the property offense; provided that:

(a) The person has complied with the terms of the sentence imposed by the court;

(b) The court finds that the person would in fact have qualified for expungement pursuant to this section;

(c) The person has not been convicted of a felony offense in this or another jurisdiction before or after the conviction for which the person is applying for expungement; and

(d) The court makes the finding that the person is currently nonviolent, based upon the court's review of the person's current criminal history, the factual circumstances of the offense for which the person is seeking expungement, and any other relevant information.

If the court cannot make the finding that the person fulfilled the criteria required in paragraph (b) at the time of sentencing, the court may nevertheless issue an order to expunge the record of conviction for the property offense; provided that the court finds that the person has successfully completed a substance abuse treatment program.

A person granted an expungement of conviction under this subsection shall not be eligible for another expungement of conviction under this section.

(5) Nothing in this section shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider.

(6) For the purposes of this section, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors. [L 2006, c 230, §1; am L Sp 2009, c 4, §4; am L 2016, c 231, §22; am L 2024, c 168, §3]

COMMENTARY ON §706-622.9

Act 230, Session Laws 2006, added §706-622.9, to provide guidelines for the sentencing of first-time property offenders and the expungement of records. House Standing Committee Report No. 665-06.

Act 4, Special Session Laws 2009, amended subsection (2) authorizing the placement of certain drug offenders in secure drug treatment facilities, to promote the rehabilitation of convicted drug offenders through alternatives to incarceration. The legislature found that providing convicted drug offenders with drug rehabilitation programs in a secure drug treatment facility would reduce the offenders' rate of recidivism upon release and help the offenders develop an important and meaningful role in society. Senate Standing Committee Report No. 1285, Conference Committee Report No. 25.

Act 231, Session Laws 2016, amended subsection (3) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 168, Session Laws 2024, amended this section to expand expungement eligibility to persons whose convictions for first-time property offenses predated current expungement provisions. The legislature found that persons who qualified for sentencing under this section for a first-time property offense were able to expunge their conviction and arrest record. However, persons who were convicted before the laws explicitly permitting expungement for these offenses were enacted were unable to receive the same benefits of expunging their conviction and arrest record afforded by existing law. Accordingly, Act 168 allowed persons convicted under the previous version of this section to receive eligibility for expungement by applying existing expungement opportunities retroactively to persons previously convicted. Senate Standing Committee Report No. 3418.
Haw. Rev. Stat. § 706-644 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-644
Consequences of nonpayment; imprisonment for contumacious nonpayment; summary collection.
Status: in_force

(1) When a defendant is sentenced pursuant to section 706-605, granted a conditional discharge pursuant to section 712-1255, or granted a deferred plea pursuant to chapter 853, and the defendant is ordered to pay a fee, fine, or restitution, whether as an independent order, as part of a judgment and sentence, or as a condition of probation or deferred plea, and the defendant defaults in the payment thereof or of any installment, the court, upon the motion of the prosecuting attorney or upon its own motion, may require the defendant to show cause why the defendant's default should not be treated as contumacious and may issue a summons or a warrant of arrest for the defendant's appearance. Unless the defendant shows that the defendant's default was not attributable to an intentional refusal to obey the order of the court, or to a failure on the defendant's part to make a good faith effort to obtain the funds required for the payment, the court shall find that the defendant's default was contumacious and may order the defendant committed until the fee, fine, restitution, or a specified part thereof is paid.

(2) When a fee, fine, or restitution is imposed on a corporation or unincorporated association, it is the duty of the person or persons authorized to make disbursement from the assets of the corporation or association to pay it from those assets, and their failure to do so may be held contumacious unless they make the showing required in subsection (1).

(3) The term of imprisonment for nonpayment of fee, fine, or restitution shall be specified in the order of commitment, and shall not exceed one day for each $250 of the fee or fine, thirty days if the fee or fine was imposed upon conviction of a violation or a petty misdemeanor, or one year in any other case, whichever is the shorter period. A person committed for nonpayment of a fee or fine shall be given credit toward payment of the fee or fine for each day of imprisonment, at the rate of $250 per day.

(4) If it appears that the defendant's default in the payment of a fee, fine, or restitution is not contumacious, the court may make an order allowing the defendant additional time for payment, reducing the amount of each installment, or revoking the fee, fine, or the unpaid portion thereof in whole or in part, or converting the unpaid portion of the fee or fine to community service. A defendant shall not be discharged from an order to pay restitution until the full amount of the restitution has actually been collected or accounted for.

(5) Unless discharged by payment or, in the case of a fee or fine, service of imprisonment pursuant to subsection (3), an order to pay a fee, fine, or restitution, whether as an independent order, as a part of a judgment and sentence, or as a condition of probation or deferred plea pursuant to chapter 853, may be collected in the same manner as a judgment in a civil action. The State or the victim named in the order may collect the restitution, including costs, interest, and attorney's fees, pursuant to section 706-646. The State may collect the fee or fine, including costs, interest, and attorney's fees pursuant to section 706-647.

(6) Attorney's fees, costs, and interest shall not be deemed part of the penalty, and no person shall be imprisoned under this section in default of payment of attorney's fees, costs, and interest. [L 1972, c 9, pt of §1; am L 1986, c 314, §36; gen ch 1992; am L 1996, c 137, §2; am L 1998, c 269, §6; am L 2000, c 205, §6; am L 2021, c 81, §4]

COMMENTARY ON §706-644

The Code equates a fine with a court-imposed civil obligation in favor of the State. Thus the contempt power is utilized to enforce that obligation. Subsection (1) provides that the court may summon the defendant, or issue a warrant for the defendant's arrest, and order the defendant to show cause why the defendant's failure to pay the fine should not be regarded by the court as contumacious. If the defendant cannot, the defendant will be imprisoned as in the cases of civil contempt.

In the case of convicted corporations or unincorporated associations, subsection (2) places a similar duty to pay, or to justify default of payment, on the officer or agent of a corporation or unincorporated association authorized to distribute its assets.

Subsection (3) sets the limit on the period of imprisonment for contumacious nonpayment of fines. The terms are intended to be coercive, but not debilitating. The credit allowed is the same as that under previous law.[1]

Subsection (4) permits the court to take a flexible approach to noncontumacious default. The court may lower the amount of each payment or may revoke the fine in whole or in part.

Subsection (5) makes clear that all the processes for collection of an unpaid civil judgment are available for collection of a fine. This subsection is in accord with prior law.[2]

SUPPLEMENTAL COMMENTARY ON §706-644

Act 137, Session Laws 1996, amended this section to provide that fines and costs may be collected in the same manner as a civil judgment, and that the state attorney general may institute proceedings to collect the fine and costs, including interest and attorney's fees, as a civil judgment in the court of appropriate jurisdiction. The legislature found that the Act (which also amended the traffic code by enacting a new section with similar provisions) would assist the judiciary in collecting fines and costs imposed in traffic and criminal cases. The Act also deleted the first sentence of subsection (5) to remove potential conflict between existing law and the provisions of the Act. House Standing Committee Report No. 379-96, Senate Standing Committee Report No. 2987.

Act 269, Session Laws 1998, amended this section by, among other things, allowing victims of crime to enforce a criminal restitution order in the same manner as a civil judgment. Conference Committee Report No. 89.

Act 205, Session Laws 2000, amended this section by adding that the nonpayment of any fees, in addition to the nonpayment of any fine or restitution ordered by a court, would be subject to the penalties and consequences imposed under this section.

Act 81, Session Laws 2021, amended this section to: (1) modify the ratio of imprisonment term to contumacious nonpayment, from a maximum of one day for each $25 of a fee or fine, to a maximum of one day for each $250 of a fee or fine; and (2) increase the amount of credit given to a person committed for contumacious nonpayment, from $25 per day to $250 per day. The legislature found that the financial hardship task force, established pursuant to Act 112, Session Laws 2019, made several recommendations to address the needs of traffic offenders who are experiencing financial hardship. Act 81 implemented several recommendations from the task force. Conference Committee Report No. 76, Senate Standing Committee Report No. 1091.
Haw. Rev. Stat. § 710-1071 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1071
Intimidating a witness.
Status: in_force

(1) A person commits the offense of intimidating a witness if he uses force upon or a threat directed to a witness or a person he believes is about to be called as a witness in any official proceeding, with intent to:

(a) Influence the testimony of that person;

(b) Induce that person to avoid legal process summoning him to testify; or

(c) Induce that person to absent himself from an official proceeding to which he has been legally summoned.

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

(3) Intimidating a witness is a class C felony. [L 1972, c 9, pt of §1; am L 1980, c 267, §2]

COMMENTARY ON §710-1071

The potential for harm involved in witness intimidation is essentially similar to that involved in the offense of bribery of a witness, e.g., the undermining of the integrity of an extremely important part of the judicial process. The definition of the offense also parallels that of bribery of a witness, and the sanctions are identical. Note, however, that only the person who directs the force or threat against the witness is guilty of a crime. "Threat," as used in this section is any threat proscribed by the offense of criminal coercion under §707-724. To some extent, it would seem that the section on criminal coercion might suffice to deal with witness intimidation, but since the intimidation of a witness carries the additional harm of interfering with an official proceeding, it seems appropriate to impose a more severe sanction for the present offense.
Haw. Rev. Stat. § 701-104 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-104
Principles of construction.
Status: in_force

The provisions of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

COMMENTARY ON §701-104

This section, read in conjunction with §701-103, is intended to assure that this Code will be construed by the courts in such a way as to effectuate the declared purposes of the law.

SUPPLEMENTAL COMMENTARY ON §701-104

Section 104 of the Proposed Draft of the Code read: "The rule that a penal statute is to be strictly construed does not apply to this Code, but the provisions herein must be construed according to the fair import of their terms." The legislature found that such broad wording would subject the Code to unwarranted argument and attempted to avoid this possibility by revising the entire section. Through the section, as enacted, the legislature sought to limit the scope of the fair import principle. See Conference Committee Report No. 2 (1972). The committee report also states: "It is the intent of the Committee that definitions of crimes are to be strictly construed."
Haw. Rev. Stat. § 708-812 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-812
Possession of burglar's tools.
Status: in_force

(1) A person commits the offense of possession of burglar's tools if:

(a) The person knowingly possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking, and the person intends to use the explosive, tool, instrument, or article, or knows some person intends ultimately to use it, in the commission of the offense of the nature described aforesaid; or

(b) The person knowingly possesses any master key, unless authorized, and the person intends to use the master key or knows some person intends ultimately to use it, in the commission of an offense involving entry into premises or theft by a physical taking.

(2) Possession of burglar's tools is a misdemeanor.

(3) A master key taken in evidence shall be impounded by the court and returned to the owner of the locks or premises which the key operates. [L 1972, c 9, pt of §1; am L 1978, c 221, §2; gen ch 1993]

COMMENTARY ON §708-812

This offense is largely inchoate in nature and as such it might have been rationally grouped with other anticipatory offenses in chapter 705. However, because it is closely related to burglary, we have placed it here for related treatment in matters such as language and sentence.

This section provides a vehicle for punishing those who possess or traffic in devices adapted, designed or commonly used in the commission of offenses involving forcible entry or theft by physical taking. The person who possesses the designated type of device with intent to use the same in the proscribed manner is covered--and so is the manufacturer, distributor, and transporter who deals in such devices if he possesses the same with knowledge "that some person intends ultimately to use it" in the commission of one or more of the offenses for which it is adapted, designed, or commonly used.
Haw. Rev. Stat. § 708-873 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-873
Defrauding secured creditors.
Status: in_force

(1) A person commits the offense of defrauding secured creditors if the person destroys, removes, conceals, encumbers, transfers, or otherwise deals with property subject to a security interest with intent to hinder enforcement of that interest.

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

COMMENTARY ON §708-873

The sections dealing with theft are framed in terms of appropriation of property of another; however, a security interest does not make the secured party an owner and the property, by reason of the security interest alone, is not the property of another.[1] It is necessary, therefore, to provide separate penalties for "debtors or conditional vendees who dispose of property subject to a security interest in ways that may prejudice the secured creditor."[2] The requisite culpability is intent to hinder enforcement of the security interest; innocent potential hindering of such interest, such as the temporary removal of a secured chattel from the County or State, ought not to be made subject to criminal sanctions.[3]

The penalty provided is a misdemeanor, regardless of the amount involved. This differs somewhat from the theft offenses. This difference reflects the fact that generally offenders against a secured interest "are less dangerously deviated from social norms than outright thieves who take property to which they have no claim."[4] Moreover, in those cases where the actor intended, at the time the actor undertook the security obligation, to violate the terms thereof, felony penalties will be available under the theft provisions.[5]
Haw. Rev. Stat. § 703-302 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-302
Choice of evils.
Status: in_force

(1) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

(b) Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

(3) In a prosecution for escape under section 710-1020 or 710-1021, the defense available under this section is limited to an affirmative defense consisting of the following elements:

(a) The actor receives a threat, express or implied, of death, substantial bodily injury, or forcible sexual attack;

(b) Complaint to the proper prison authorities is either impossible under the circumstances or there exists a history of futile complaints;

(c) Under the circumstances there is no time or opportunity to resort to the courts;

(d) No force or violence is used against prison personnel or other innocent persons; and

(e) The actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat. [L 1972, c 9, pt of §1; am L 1986, c 314, §6; gen ch 1993]

Revision Note

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

COMMENTARY ON §703-302

This section defines what is often called the defense of "necessity." It permits the actor, in certain limited situations, to justify disobedience to criminal law if the harm the actor sought to avert by the actor's disobedience far outweighed the harm sought to be prevented by the law. Necessity has been accepted as a defense at common law in some cases, and has been given statutory recognition in a number of enacted codes.

The section may be used, first, to justify only slightly harmful acts which are necessary to avoid a far greater harm. For instance, a court would hardly wish to punish a person for driving at night without the proper lights when the person did so only to summon help to extinguish a fire. The section also provides a justification for more serious acts. For example, it could be used to justify the taking of life to avoid a far greater loss of life. In a classic case, a ship's crew threw certain passengers overboard to lighten an overloaded boat, which would otherwise have sunk with much greater loss of life. This section would justify the action if all of its conditions are met.

There are numerous reasons supporting the defense of necessity. First, because an individual will probably kill one person, or a few, to avoid the deaths of many others regardless of what the law may say, punishment in such situations would fail to attain its objective of deterrence and would not reflect widely held views about what would be the moral thing to do in such a situation. Second, the life of every individual is assumed to be of equal value, and therefore a numerical preponderance in lives saved over those sacrificed establishes an ethical and legal justification for the otherwise criminal act. Third, there are numerous safeguards built into §703-302. The danger causing the necessity of choosing between evils must be imminent. Moreover, subsection (2) provides that if the necessity of choosing between harms or evils results from the defendant's recklessness or negligence, the defense is not available in a prosecution of any offense for which recklessness or negligence, as the case may be, suffices for conviction.

It is no defense under this section that the defendant thought compliance with a statute immoral or unwise; the legislative decision to make particular conduct criminal is to be given great weight. However, this defense is probably in accord with normal legislative intentions, because blind obedience is unlikely to be required in the face of an emergency. The whole matter, with all of its ramifications is to be weighed by the court and the jury in the same manner as in any criminal proceeding. If the defendant's conduct was not necessary, if one evil was not greater than the other, if the defendant exceeded the reasonable bounds of intelligence and morality, the defendant may be convicted for the defendant's conduct notwithstanding the defendant's attempts to justify the defendant's actions.

Finally, many commentators have had difficulty with the concept of necessity because of the possibility of unforeseeable changes in the perilous situation. For instance, if a number of passengers are thrown overboard from a ship to save a much larger number of persons, there is really no way for the actors to foresee the exact moment when a rescue ship may arrive. There is always the chance that help will arrive in time to make the emergency action unnecessary. Such objections, however, fail to take account of the fact that other defenses which are predicated on a threat to person or property can take account only of the probability of harm. One can never guarantee that the uplifted knife will be plunged into the victim. "If necessity is not admitted where there is a high degree of probability of disastrous consequences if action is not taken, then it can never be admitted."[1] A person faced with such seeming necessity is and will remain in a personal moral quandary because of the person's uncertainty. Our only point is that the threat of criminal punishment is unneeded here.

There has been no previous statutory provision or case law development in Hawaii on the defense of necessity; this section represents a needed addition to the law.

SUPPLEMENTAL COMMENTARY ON §703-302

The legislature accepted §302 of the Proposed Draft without modification. Subsection (2) provides that the defense of justification based on a choice of evils is unavailable where recklessness or negligence suffices to establish culpability when the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct. However, in light of the legislature's introduction of the "reasonable man standard" in §703-300, it appears that negligence on the actor's part in bringing about the situation or in appraising the necessity for the actor's conduct will be sufficient to eliminate the defense in cases which otherwise require intent, knowledge, or recklessness to establish culpability.
Haw. Rev. Stat. § 712-1219 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1219
Failure to affix information disclosing location of age verification records of sexual performers.
Status: in_force

(1) A person commits the offense of failure to affix information disclosing location of age verification records of sexual performers if the person knowingly produces any pornographic book, magazine, periodical, film, videotape, computer image, or other matter that contains one or more pornographic visual depictions made after June 30, 2002, of sexual conduct and fails to affix to each copy a statement describing where any records required by section 712-1218 with respect to all performers depicted in that copy of the matter may be located, including the current address and telephone number of the custodian of those records.

(2) If the person to whom any recordkeeping requirement of section 712-1218 applies is an organization, the affixed information required under subsection (1) shall include the name, title, and business address of the individual employed by the organization who is responsible for maintaining the records required by section 712-1218.

(3) Failure to affix information disclosing the location of age verification records of sexual performers is a class C felony. [L 2002, c 240, pt of §3]

COMMENTARY ON §712-1219

Act 240, Session Laws 2002, added this section to establish criminal penalties against those who participate in or profit from the sexual exploitation of a minor.
Haw. Rev. Stat. § 711-1144 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1144
Negligent failure to control a dangerous dog; penalties.
Status: in_force

(1) The owner of a dangerous dog commits the offense of negligent failure to control a dangerous dog if:

(a) A bite injury occurs due to the failure of the owner of a dangerous dog to comply with the requirements of this part; or

(b) The owner of a dangerous dog negligently fails to take reasonable measures to prevent the dangerous dog from causing a bite injury, without provocation, to a person or another animal and the attack results in:

(i) The serious injury to any animal or maiming or death of another animal;

(ii) Bodily injury to a person other than the owner; or

(iii) Substantial bodily injury to, serious bodily injury to, or the death of, a person other than the owner.

(2) An offense under subsection (1)(a), (1)(b)(i), or (1)(b)(ii) shall be a misdemeanor for which the owner of the dangerous dog shall be sentenced to:

(a) A fine of no less than $1,000 but no more than $2,000;

(b) A term of imprisonment of up to six months or a period of probation of no more than one year;

(c) The payment of restitution to any person who has suffered bodily injury or property damage as a result of an attack by the dangerous dog if the person suffers financial losses or medical expenses due to the attack. As used in this paragraph, "medical expenses" may include the costs of necessary counseling or rehabilitative services; and

(d) The payment of all expenses for the boarding and retention of the dangerous dog if the dog is seized and impounded pursuant to this part;

provided that no sentence under this subsection shall be suspended.

(3) Unless the dangerous dog has been or is ordered to be euthanized, an owner who has negligently failed to control a dangerous dog shall also be required to:

(a) Meet all conditions imposed on the owner of a dangerous dog pursuant to this part;

(b) Obtain liability insurance or post bond of no less than $50,000, or in a higher amount, if the court finds that a higher amount is appropriate to cover medical or veterinary costs, or both, resulting from potential future actions of the dangerous dog; and

(c) Follow any other condition that the court deems necessary to restrain or control the dangerous dog.

(4) An offense under subsection (1)(b)(iii) shall be a class C felony for which the owner of a dangerous dog shall be sentenced to:

(a) A fine of no less than $1,000 but no more than $10,000;

(b) A term of imprisonment of no less than one year but no more than five years, pursuant to chapter 706; and

(c) The euthanasia of the dangerous dog;

provided that no sentence under this subsection shall be suspended. [L 2024, c 224, pt of §2; am L 2025, c 21, §20]
Haw. Rev. Stat. § 712-1216 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1216
Promoting pornography; prima facie evidence.
Status: in_force

(1) The fact that a person engaged in the conduct specified by section 712-1215 is prima facie evidence that the person engaged in that conduct with knowledge of the character and content of the material disseminated or the performance produced, presented, directed, participated in, exhibited, or to be exhibited.

(2) In a prosecution under section 712-1215, the fact that the person:

(a) To whom material pornographic for minors was disseminated;

(b) To whom a performance pornographic for minors was exhibited;

(c) To whom an admission ticket or pass was sold to premises where there was or was to have been exhibited such performance; or

(d) Who was admitted to premises where there was or was to have been such performance,

was at that time, a minor, is prima facie evidence that the defendant knew the person to be a minor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2015, c 35, §30]

Revision Note

In subsection (2)(a) and (b), "or" deleted and punctuation changed and in subsection (2)(c), punctuation changed pursuant to §23G-15.
Haw. Rev. Stat. § 707-722 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-722
Unlawful imprisonment in the second degree.
Status: in_force

(1) A person commits the offense of unlawful imprisonment in the second degree if the person knowingly restrains another person.

(2) In any prosecution under this section, it is an affirmative defense that:

(a) The person restrained was less than eighteen years old;

(b) The defendant was a relative of the victim; and

(c) The defendant's sole purpose was to assume custody over the victim.

In that case, the liability of the defendant, if any, is governed by section 707-727, and the defendant may be convicted under section 707-727, although charged under this section.

(3) In any prosecution under this section, it is an affirmative defense that:

(a) The person restrained was:

(i) On or in the immediate vicinity of the premises of a retail mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise;

(ii) Restrained in a reasonable manner and for not more than a reasonable time; and

(iii) Restrained to permit the investigation or questioning by a police officer or by the owner of the retail mercantile establishment, the owner's authorized employee, or the owner's agent; and

(b) The police officer, owner, employee, or agent had reasonable grounds to believe that the person detained was committing or attempting to commit theft of merchandise on the premises.

(4) Unlawful imprisonment in the second degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1981, c 171, §2; gen ch 1993; am L 2015, c 35, §24]
Haw. Rev. Stat. § 708-893 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-893
Use of a computer in the commission of a separate crime.
Status: in_force

(1) [Repeal and reenactment on July 1, 2027. L 2024, c 239, §4.] A person commits the offense of use of a computer in the commission of a separate crime if the person knowingly uses a computer to identify, select, solicit, persuade, coerce, entice, induce, procure, pursue, surveil, contact, harass, annoy, or alarm the victim or intended victim of the following offenses:

(a) Section 707-726, relating to custodial interference in the first degree;

(b) Section 707-727, relating to custodial interference in the second degree;

(c) Section 707-731, relating to sexual assault in the second degree;

(d) Section 707-732, relating to sexual assault in the third degree;

(e) Section 707-733, relating to sexual assault in the fourth degree;

(f) Section 707-751, relating to promoting child abuse in the second degree;

(g) Section 711-1106, relating to harassment;

(h) Section 711-1106.4, relating to aggravated harassment by stalking;

(i) Section 711-1106.5, relating to harassment by stalking;

(j) Section 711-1110.9, violation of privacy in the first degree;

(k) Section 711-1111, violation of privacy in the second degree; or

(l) Section 712-1215, relating to promoting pornography for minors.

(2) Use of a computer in the commission of a separate crime is an offense one class or grade, as the case may be, greater than the offense facilitated. Notwithstanding any other law to the contrary, a conviction under this section shall not merge with a conviction for the separate crime. [L 2001, c 33, pt of §1; am L 2006, c 141, §1; am L 2012, c 192, §1; am L 2016, c 231, §42; am L 2021, c 184, §2; am L 2024, c 239, §1]
Haw. Rev. Stat. § 703-309 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-309
Use of force by persons with special responsibility for care, discipline, or safety of others.
Status: in_force

The use of force upon or toward the person of another is justifiable under the following circumstances:

(1) The actor is the parent, guardian, or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:

(a) The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; provided that there shall be a rebuttable presumption that the following types of force are not justifiable for purposes of this [paragraph]: throwing, kicking, burning, biting, cutting, striking with a closed fist, shaking a minor under three years of age, interfering with breathing, or threatening with a deadly weapon; and

(b) The force used does not intentionally, knowingly, recklessly, or negligently create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.

(2) The actor is a principal, the principal's agent, a teacher, or a person otherwise entrusted with the care or supervision for a special purpose of a minor, and:

(a) The actor believes that the force used is necessary to further that special purpose, including maintenance of reasonable discipline in a school, class, other group, or at activities supervised by the department of education held on or off school property and that the use of force is consistent with the welfare of the minor; and

(b) The degree of force, if it had been used by the parent or guardian of the minor, would not be unjustifiable under paragraph (1).

(3) The actor is the guardian or other person similarly responsible for the general care and supervision of an incompetent person, and:

(a) The force is employed with due regard for the age and size of the incompetent person and is reasonably related to the purpose of safeguarding or promoting the welfare of the incompetent person, including the prevention of the incompetent person's misconduct, or, when such incompetent person is in a hospital or other institution for the incompetent person's care and custody, for the maintenance of reasonable discipline in the institution; and

(b) The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.

(4) The actor is a doctor or other therapist or a person assisting the doctor or therapist at the doctor's or therapist's direction, and:

(a) The force is used for the purpose of administering a recognized form of treatment which the actor believes to be adapted to promoting the physical or mental health of the patient; and

(b) The treatment is administered with the consent of the patient, or, if the patient is a minor or an incompetent person, with the consent of the minor's or incompetent person's parent or guardian or other person legally competent to consent in the minor's or incompetent person's behalf, or the treatment is administered in an emergency when the actor believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

(5) The actor is a warden or other authorized official of a correctional institution, and:

(a) The actor believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution;

(b) The nature or degree of force used is not forbidden by other provisions of the law governing the conduct of correctional institutions; and

(c) If deadly force is used, its use is otherwise justifiable under this chapter.

(6) The actor is a person responsible for the safety of a vessel or an aircraft or a person acting at the direction of the person responsible for the safety of a vessel or an aircraft, and:

(a) The actor believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order, unless the actor's belief in the lawfulness of the order is erroneous and the actor's error is due to ignorance or mistake as to the law defining authority; and

(b) If deadly force is used, its use is otherwise justifiable under this chapter.

(7) The actor is a person who is authorized or required by law to maintain order or decorum in a vehicle, train, or other carrier, or in a place where others are assembled, and:

(a) The actor believes that the force used is necessary for that purpose; and

(b) The force used is not designed to cause or known to create a substantial risk of causing death, bodily injury or extreme mental distress. [L 1972, c 9, pt of §1; am L 1992, c 210, §1; am L 2001, c 94, §1; am L 2013, c 31, §1]

Revision Note

In paragraph (5)(a), "and" deleted pursuant to §23G-15.

COMMENTARY ON §703-309

Subsection (1) justifies the use of force against minors by a parent or other person in loco parentis, subject to two limitations: (1) the force must be employed for safeguarding or promoting the welfare of the minor, and (2) it must not be designed to cause or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress, or gross degradation. Thus the subsection sets a fairly simple and unexceptionable standard; the right of parents to use force to discipline their children is recognized, subject to clear requirements not to cause permanent injury.

Subsection (2) permits a teacher or other person entrusted with care for a special purpose (e.g., a camp counsellor) to use such force as believed necessary to further that purpose, including the maintenance of discipline, subject to the limitations of subsection (1) relating to death and injury. This subsection recognizes that a teacher will not ordinarily need to have the full scope of parental authority, but will have certain special needs, such as maintenance of class discipline, which are peculiar to the teaching situation. The intent of the Code in allowing this limited justification is not however, to encourage corporal punishment.

Subsection (3) justifies the use of force by a guardian responsible for the care and supervision of an incompetent person, but only to promote the welfare of the incompetent or to maintain discipline. Force may not, therefore, be used as punishment, as distinct from prevention of misconduct, except for the maintenance of institutional discipline. Force may not cause death, serious bodily injury, or the like, nor may it cause humiliation--a lesser amount of harm than countenanced for children in subsection (1).

Subsection (4) permits the use of force by a doctor or other therapist to administer a recognized form of treatment which the doctor or other therapist believes to be adapted to promoting the physical or mental health of the patient. Ordinarily such treatment would be administered with consent, but it may be administered without consent in an emergency. Under the wording of the section, if consent is in fact denied by the patient or a person competent to give consent, the use of force would no longer be justified.

Subsection (5) justifies force used by a warden or other authorized prison official to enforce prison rules and discipline. The force used must not be in excess of that permitted by statutes relating to prisons, and deadly force may be used only when justified under other sections of this Code.

Subsection (6) permits the use of force by a person responsible for the safety of a vessel or airplane to prevent interference with its operation or obstruction of the execution of a lawful order (unless the person is erroneous in the person's belief in the lawfulness of the order). Deadly force may be used if justified under this Code.

Subsection (7) permits force by a person authorized by law to maintain public order in public conveyances and public places. The person may not use force creating a substantial risk of death, bodily injury, or extreme mental distress.

The section is substantially in accord with preexisting Hawaii law. Hawaii law permits parents "to chastise [their children] moderately for their good."[1] Under prior law, any corporal punishment was permitted if reasonable.[2] To the extent that Hawaii case law suggests that the parents have uncontrolled discretion to discipline their children,[3] the Code represents a change. Similarly, teachers have had authority under Hawaii case and statutory law to use force to maintain discipline in the schools.[4] The punishment must have been reasonable,[5] and the teachers' discretion was considered less extensive than that of parents.[6] Prison officials under prior Hawaii law were permitted to use force to maintain discipline in the prisons;[7] and ship captains had the right to employ force to keep order on their vessels.[8] In all the above situations, the Code states with greater clarity than existing law when, for what purposes, and to what extent force may be used by persons with special responsibility for the care, discipline, or safety of others. Also, subsections (3), (4), and (7) represent additions to Hawaii law.

SUPPLEMENTAL COMMENTARY ON §703-309

Act 210, Session Laws 1992, amended this section to clarify the permitted level of force that a person responsible for the care of a minor, or an incompetent person, may use. In determining whether the level of force used is permitted, a court must consider the age and size of the recipient and whether a reasonable relationship exists between the force used and a legitimate purpose as specified in the statute. Conference Committee Report No. 103.

Act 94, Session Laws 2001, amended this section to clarify that the use of force upon another person is justified when the actor is a principal or principal's agent, when necessary, during school events or at a departmentally supervised function on or off school property. Current law allowed the use of force by teachers or other persons entrusted with the care or supervision for a special purpose of a minor, if the teacher or person believed the force used was necessary to further the special purpose, including maintenance of reasonable discipline. The legislature found it necessary that school personnel be authorized to take reasonable, appropriate, and expeditious action when confronted with potentially dangerous situations or serious disciplinary situations, on campus and off-campus at authorized school functions. School officials must be allowed to take immediate action to preserve order and discipline without having to wait for the police to arrive. Senate Standing Committee Report No. 1400.

Act 31, Session Laws 2013, amended §703-309 to clarify the parental discipline defense by: (1) establishing a rebuttable presumption that specified types of physical force when used to discipline minors are not justified; and (2) expanding the state of mind element required to establish that the force used is justified by requiring that the force used does not intentionally, knowingly, recklessly, or negligently create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage. Act 31 placed limitations on the parental discipline defense while preserving a parent's general right to safeguard and promote the welfare of a child through the use of disciplinary force . Senate Standing Committee Report No. 322, House Standing Committee Report No. 1223.
Haw. Rev. Stat. § 702-207 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-207
Specified state of mind applies to all elements.
Status: in_force

When the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears.

COMMENTARY ON §702-207

This section makes it clear that the specified state of mind requirement applies to all elements of an offense. This resolves a latent ambiguity found in many penal statutes. If, for example, a statute were to make it an offense to intentionally or knowingly break and enter the dwelling of another, it is probably clear that the specified state of mind applies to entering as well as breaking, however it should also be made clear that it applies to the attendant circumstances "dwelling of another."

The phrase "unless a contrary purpose plainly appears" is intended to allow the courts to avoid an improper result when the language of a statute fails to indicate that the specified state of mind applies to less than all elements and legislative history indicates that this was intended.

Prior Hawaii law did not recognize the principle that culpability must be proven as to each element of an offense. This stems in part from the fact that the concept of "elements of an offense" had not been fully explored. A case involving a charge of contributing to the delinquency of a minor stated by way of dictum that culpability with respect to the age of the victim did not have to be proven.[1] To the extent that this section modifies the previous law, it merely rejects those few instances where absolute penal liability was imposed indirectly.

__________

§702-207 Commentary:

1. Territory v. Delos Santos, 42 Haw. 102 (1957).
Haw. Rev. Stat. § 706-609 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-609
Resentence for the same offense or for offense based on the same conduct not to be more severe than prior sentence.
Status: in_force

When a conviction or sentence is set aside on direct or collateral attack, the court shall not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence.

COMMENTARY ON §706-609

This section is derived from the American Bar Association's Standards Relating to Sentencing Alternatives and Procedures.[1] The section is self-explanatory. The reasons which compelled the American Bar Association Project to recommend this section have been well stated in the commentary to the Standards. We yield to the temptation to quote that commentary at length:

There are three reasons which have led the Advisory Committee to this view. The first relates to the selection process which leads to the possibility of an increased sentence. The only argument which can justify an increase following a re-trial is that the original sentence was too light, either because the first judge was too lenient or because new facts have been presented. However, the only class of persons who are vulnerable to this argument consists of those who have exercised the right to challenge their convictions. There is no basis for believing that there exists any rational correspondence between this group and those offenders who may indeed deserve an increase....

The second argument is closely related. The risk of a greater sentence as the result of the assertion of the right of review necessarily acts as a deterrent to the exercise of the right. The issue thus posed is whether this is a desirable result. The Advisory Committee believes that it is not. The extent of the pressure placed on an individual defendant bears no relation to the degree of injustice which may have been perpetrated. A system which fears the assertion of error to a degree that it must place artificial deterrents in the path which leads to review is not a healthy system. There can also be adverse effects on the rehabilitative effort of the individual defendant who believes that he was wronged but is told that he may have to subject himself to the possibility of a greater wrong in order to assert any error.

The third reason which leads the Advisory Committee to this view begins with the difficulties which a contrary position would invite. It is a matter of record that some judges have imposed harsher sentences because of lack of sympathy with the constitutional rights asserted by some defendants, and in a frank attempt to minimize the numbers who will assert such rights in the future. Yet it is at least clear that greater punishment should not be inflicted on the defendant because he has asserted his right to appeal. The only justification for an increased sentence, as noted above, is either that the first judge was too lenient or that new facts have been discovered. A position contrary to the standard proposed here would thus necessitate in every case a factual inquiry to determine the motivation of the judge who imposed the new sentence. As the Fourth Circuit recently pointed out, it is "impossible, and most distasteful" for other courts to be required to make that kind of inquiry. Patton v. North Carolina, 381 F.2d 636, 641 (4th Cir. 1967). If the system can avoid such a result at a cost which is not prohibitive, it most certainly should do so. In the Advisory Committee's view, the cost in this instance particularly in light of the other reasons advanced above is not significant.

Finally, it should also be noted that there are substantial constitutional arguments which can be made against a practice contrary to the proposed standard. The First and Fourth Circuits have recently held an increased sentence after a re-trial to be unconstitutional. See Marano v. United States, 374 F.2d 583 (1st Cir. 1967); Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967). The Third Circuit has disagreed. See United States ex rel. Starner v. Russell, 378 F.2d 808 (3d Cir. 1967), cert. denied, 36 U.S. Law Week 3148 (Oct. 9, 1967)....[2]

The Code finds the reasoning of the commentary to the Standards persuasive and accordingly, in this section, accepts the recommendation purposed.
Haw. Rev. Stat. § 703-307 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-307
Use of force in law enforcement.
Status: in_force

(1) Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.

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

(a) The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and

(b) When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.

(3) The use of deadly force is not justifiable under this section unless:

(a) The arrest is for a felony;

(b) The person effecting the arrest is authorized to act as a law enforcement officer or is assisting a person whom he believes to be authorized to act as a law enforcement officer;

(c) The actor believes that the force employed creates no substantial risk of injury to innocent persons; and

(d) The actor believes that:

(i) The crimes for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.

(4) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a law enforcement officer is justified in using force which he believes to be immediately necessary to prevent the escape from a detention facility.

(5) A private person who is summoned by a law enforcement officer to assist in effecting an unlawful arrest is justified in using any force which he would be justified in using if the arrest were lawful, provided that he does not believe the arrest is unlawful. A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a law enforcement officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, provided that he believes the arrest is lawful, and the arrest would be lawful if the facts were as he believes them to be. [L 1972, c 9, pt of §1; am L 2001, c 91, §4]

Revision Note

In subsection (3)(a) and (b), "and" deleted pursuant to §23G-15.

COMMENTARY ON §703-307

Subsection (1) covers all persons (not just peace officers) making an arrest. Force upon or toward the person of another is justifiable if the actor believes the amount of force the actor is using is immediately necessary to effect the arrest and if the actor believes that the arrest is lawful. It is immaterial that the arrest is unlawful if the actor believes it to be lawful. The justification also covers a person who is assisting in making an arrest.

Subsection (2) requires an announcement of the purpose of the arrest, unless the actor believes that the purpose is otherwise known (as in cases of hot pursuit) or cannot reasonably be made known. Further, the actor, if acting under a warrant, must either have a valid warrant or believe the warrant to be valid.

Subsection (3) restricts the use of deadly force to felony arrests by peace officers or persons who believe they are assisting peace officers. Even when these requirements are met, the actor must further believe that there is no substantial risk of injury to innocent persons and that the crime for which the arrest is made involved conduct including the use or threatened use of deadly force or that there is a substantial risk that the person to be arrested will cause death or serious bodily injury if the person's apprehension is delayed. It seems advisable to limit the situations in which deadly force can be used by a peace officer while at the same time recognizing that in some cases it is desirable to allow the peace officer to use deadly force in order to avert far greater harm. Note that the restrictions on deadly force to effect an arrest are supplemented by the general provisions on use of force in self-protection which would permit anyone to use deadly force if the person feared death or serious bodily harm to oneself or another. (See §§703-304, 305.)

Subsection (4) recognizes a justification for the use of force to prevent the escape of an arrested person from custody. Deadly force may be used to prevent escape from a jail, prison, or similar institution. When the subject is not incarcerated, the subject's escape may be prevented by force if force could justifiably have been employed to effect the arrest under which the subject is in custody. In addition, the Code contains a substantive crime of escape, and rights to use force to arrest for that crime will frequently arise. The distinction in permissible force is based on the greater social disruption and dismay which may arise from the escape of a person from a prison or a similar institution.

Subsection (5) gives protection to a private person who is assisting in an arrest. A person who assists a peace officer at the peace officer's command is justified, though the arrest be unlawful (and possibly even known by the officer to be unlawful), so long as the actor does not believe the arrest is unlawful. A higher standard is imposed when a private person assists another private person or volunteers aid to a peace officer. Here the person must believe the arrest to be lawful, and must believe in the existence of facts which would have made the arrest lawful if the facts were as the person believes them to be.
Haw. Rev. Stat. § 702-218 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-218
Ignorance or mistake as a defense.
Status: in_force

In any prosecution for an offense, it is a defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if:

(1) The ignorance or mistake negatives the state of mind required to establish an element of the offense; or

(2) The law defining the offense or a law related thereto provides that the state of mind established by such ignorance or mistake constitutes a defense. [L 1972, c 9, pt of §1]

COMMENTARY ON §702-218

[Section 218, as contained in the Proposed Draft of the Code provided that ignorance or mistake of fact or law was a defense under the conditions stated above. The following commentary is based on this initial proposal for §218.]

This section states the logical concomitant of the requirement that to establish each element of an offense a certain state of mind with respect thereto must be proven. Thus, if a person is ignorant or mistaken as to a matter of fact or law, the person's ignorance or mistake will, in appropriate circumstances, prevent the person from having the requisite culpability with respect to the fact or law as it actually exists. For example, a person who is mistaken (either reasonably, negligently, or recklessly) as to which one of a number of similar umbrellas on a rack is the person's and who takes another's umbrella should be afforded a defense to a charge of theft predicated on either intentionally or knowingly taking the property of another. Also, a person, mistaken as to the effect of a divorce decree erroneously purporting to sever the marital ties of his wife, who marries another woman should not be convicted of bigamy if bigamy requires knowledge by the defendant of the defendant's existing marital status. A reckless mistake would afford a defense to a charge requiring intent or knowledge--but not to an offense which required only recklessness or negligence. Similarly, a negligent mistake would afford a defense to a charge predicated on intent, knowledge, or recklessness--but not to an offense based on negligence.

This section of the Code deals with ignorance or mistake of fact or law, but it is not intended to deal with the limited problem of the defense afforded a person who engaged in conduct under the mistaken belief that the conduct itself was not legally prohibited. That problem is dealt with exclusively by §702-220.
Haw. Rev. Stat. § 711-1109.1 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109.1
Authority to enter premises; notice of impoundment of animal; damage resulting from entry.
Status: in_force

(1) If there is probable cause to believe that a pet animal or equine animal is being subjected to treatment in violation of section 711-1108.5, 711-1109, 711-1109.3, or 711-1109.35, as applicable, a law enforcement officer, after obtaining a search warrant, or in any other manner authorized by law, may enter the premises where the pet animal or equine animal is located to provide the pet animal or equine animal with food, water, and emergency medical treatment or to impound the pet animal or equine animal. If after reasonable effort, the owner or person having custody of the pet animal or equine animal cannot be found and notified of the impoundment, an impoundment notice shall be conspicuously posted on the premises and within seventy-two hours after posting, the notice shall be sent by certified mail to the address, if any, from which the pet animal or equine animal was removed.

(2) A law enforcement officer is not liable for any damage resulting from an entry under subsection (1), unless the damage resulted from intentional or reckless behavior on behalf of the law enforcement officer.

(3) A court may order a pet animal or equine animal impounded under subsection (1) to be held at a duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals. A facility receiving the pet animal or equine animal shall provide adequate food and water and may provide veterinary care.

(4) For purposes of this section, "law enforcement officer" shall have the same meaning as [in] section 710-1000. [L 2006, c 239, pt of §1; am L 2007, c 114, §5; am L 2008, c 128, §§2, 7; am L 2009, c 11, §15 as superseded by c 160, §3; am L 2011, c 149, §§2, 6; am L 2012, c 25, §1]
Haw. Rev. Stat. § 711-1107 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1107
Desecration.
Status: in_force

(1) A person commits the offense of desecration if the person intentionally or knowingly desecrates:

(a) Any public monument or structure;

(b) A place of worship or burial; or

(c) In a public place, the national flag or any other object of veneration by a substantial segment of the public.

(2) As used in this section, "desecrate" means defacing, damaging, polluting, or otherwise physically mistreating any monument, structure, place, or object described in subsection (1).

(3) Any person convicted of committing the offense of desecration shall be sentenced to a term of imprisonment of not more than one year, a fine of not more than $10,000, or both. [L 1972, c 9, pt of §1; gen ch 1993; am L 2002, c 198, §1; am L 2023, c 196, §2]

Revision Note

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

COMMENTARY ON §711-1107
Haw. Rev. Stat. § 712-1249.7 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1249.7
Promoting a controlled substance through a minor.
Status: in_force

(1) A person age eighteen or over commits the offense of promoting a controlled substance through a minor if the person knowingly employs, hires, uses, persuades, induces, entices, or coerces a minor to facilitate the illegal distribution of a controlled substance.

(2) The offense of promoting a controlled substance through a minor is a class B felony unless the offense occurs in, on, or near the real property comprising a school, school vehicles, or public parks as prohibited under section 712-1249.6, in which case it is a class A felony. [L 2004, c 44, pt of §3]
Haw. Rev. Stat. § 702-206 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-206
Definitions of states of mind.
Status: in_force

(1) "Intentionally."

(a) A person acts intentionally with respect to his conduct when it is his conscious object to engage in such conduct.

(b) A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes or hopes that they exist.

(c) A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result.

(2) "Knowingly."

(a) A person acts knowingly with respect to his conduct when he is aware that his conduct is of that nature.

(b) A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.

(c) A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

(3) "Recklessly."

(a) A person acts recklessly with respect to his conduct when he consciously disregards a substantial and unjustifiable risk that the person's conduct is of the specified nature.

(b) A person acts recklessly with respect to attendant circumstances when he consciously disregards a substantial and unjustifiable risk that such circumstances exist.

(c) A person acts recklessly with respect to a result of his conduct when he consciously disregards a substantial and unjustifiable risk that his conduct will cause such a result.

(d) A risk is substantial and unjustifiable within the meaning of this section if, considering the nature and purpose of the person's conduct and the circumstances known to him, the disregard of the risk involves a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation.

(4) "Negligently."

(a) A person acts negligently with respect to his conduct when he should be aware of a substantial and unjustifiable risk taken that the person's conduct is of the specified nature.

(b) A person acts negligently with respect to attendant circumstances when he should be aware of a substantial and unjustifiable risk that such circumstances exist.

(c) A person acts negligently with respect to a result of his conduct when he should be aware of a substantial and unjustifiable risk that his conduct will cause such a result.

(d) A risk is substantial and unjustifiable within the meaning of this subsection if the person's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a law- abiding person would observe in the same situation. [L 1972, c 9, pt of §1; am L 1983, c 132, §1; am L 1986, c 314, §4]

COMMENTARY ON §702-206

This section attempts to define the four states of mind which the Code recognizes as sufficient to establish penal liability and to indicate by definition the manner in which each state of mind is related to conduct, attendant circumstances, and the results of conduct.

The difference between acting intentionally, according to subsection (1), and knowingly, according to subsection (2), is narrow but nonetheless distinct. The distinction lies in the fact that intent is characterized by a conscious object to engage in certain conduct or cause a certain result whereas knowledge is characterized by an awareness that conduct is of a certain type or that a certain result will almost certainly obtain. While knowledge will in most instances suffice to establish penal liability, there are a limited number of offenses which require an intent to effect a particular result.

Recklessness in subsection (3) deals not with the conscious object of conduct or the relative certainty of conduct but rather with disregard of certain probabilities. Recklessness is the conscious disregard of a known risk. It goes without saying that the conscious disregard of every risk of harm to a protected social interest should not, in every instance, be sufficient to impose penal liability for an untoward eventuality. Precision in defining which risks the penal law will not let a defendant ignore is impossible. Following the lead of the Model Penal Code, the Code has labeled the relevant risks as "substantial and unjustifiable" and in subsection (3)(d) states the factors which ought to be considered in determining whether the disregard of the risk should be condemned. The Reporter to the Model Penal Code has stated the issue concisely:

The draft requires, however, that the risk thus consciously disregarded by the actor be "substantial" and "unjustifiable"; even substantial risks may be created without recklessness when the actor seeks to serve a proper purpose, as when a surgeon performs an operation which he knows is very likely to be fatal but reasonably thinks the patient has no other, safer chance. Accordingly, to aid the ultimate determination, the draft points expressly to the factors to be weighed in judgment: the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct and the circumstances known to him in acting.

Some principle must be articulated, however, to indicate what final judgment is demanded after everything is weighed. There is no way to state this value judgment that does not beg the question in the last analysis; the point is that the jury must evaluate the conduct and determine whether it should be condemned.[1]

The fourth type of culpability which the Code recognizes is negligence. It is distinguished from the other three types of culpability (intent, knowledge, and recklessness) in that it does not involve a state of awareness on the part of the defendant. Rather, negligence involves the inadvertent creation by the defendant of a risk of which the defendant would have been aware had the defendant not deviated grossly from the standard of care that a law-abiding person would have observed in the same situation. As in the case of recklessness, the risk which the negligent defendant failed to perceive must be "substantial and unjustifiable." In the final analysis the jury will have to address themselves to the factors listed in subsection (4)(d)--i.e., the nature and degree of the risk, the defendant's purpose, the circumstances known to the defendant, and the degree of deviation from a standard of ordinary care, and determine whether the behavior of the defendant should be condemned.

Of the four states of mind which this Code recognizes as sufficient for penal liability, negligence is the least condemnable because, by hypothesis, the defendant was inadvertent.[2] It has been argued that negligence is not a proper subject of penal--as opposed to civil--law.[3] The Code, however, adopts the position that:

Knowledge that conviction and sentence, not to speak of punishment, may follow conduct that inadvertently creates improper risk supplies men with an additional motive to take care before acting, to use their faculties and draw on their experience in gauging the potentialities of contemplated conduct. To some extent, at least, this motive may promote awareness and thus be effective as a measure of control.... Accordingly, we think that negligence, as here defined, cannot be wholly rejected as a ground of culpability which may suffice for purposes of penal law, though we agree that it should not be generally deemed sufficient in the definition of specific crimes, and that it often will be right to differentiate such conduct for the purposes of sentence.[4]

In the definitions of "recklessly" and "negligently" the Code refers to the "standard of conduct" or "standard of care that a law-abiding person would observe in the same situation." The reference to the defendant's situation is not entirely clear. If the actor received a blow to the head or was blind, certainly these factors would be considered in assessing the actor's situation. On the other hand, factors such as "heredity, intelligence or temperament" could not be considered "without depriving the criterion of all of its objectivity."[5] Further discriminations of this sort must, of necessity, be left to the courts.
Haw. Rev. Stat. § 712-1216.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1216.5
[ §712-1216.
Status: in_force

[ §712-1216.5] Importation, sale, or possession of a childlike sex doll. (1) A person commits the offense of importation, sale, or possession of a childlike sex doll if the person intentionally, knowingly, or recklessly:

(a) Imports or causes to be imported into the State one or more childlike sex dolls;

(b) Sells, offers to sell, distributes, or otherwise provides to another person one or more childlike sex dolls; or

(c) Possesses one or more childlike sex dolls.

(2) The importation, sale, or possession of one childlike sex doll is a misdemeanor.

(3) The importation, sale, or possession of two to five childlike sex dolls is a class C felony.

(4) The importation, sale, or possession of more than five childlike sex dolls is a class B felony.

(5) For purposes of this section, "childlike sex doll" means a doll, mannequin, or robot that is intended for sexual stimulation, gratification, or perversion and that has the features of, or features that resemble those of, a person below the age of puberty. [L 2021, c 67, §2]

COMMENTARY ON §712-1216.5

Act 67, Session Laws 2021, added this section to establish the offense of importation, sale, or possession of a childlike sex doll. The legislature found that the widespread availability of childlike sex dolls, which are designed to look and feel as lifelike as possible, contributes to the exploitation, objectification, abuse, and sexual assault of minors. The legislature further found that the possession of a childlike sex doll correlates with other offenses perpetrated against children and may reinforce pedophilic thoughts and cause those thoughts to be acted upon with greater urgency. The legislature found that Act 67 would help protect minors from the harm associated with childlike sex dolls. Conference Committee Report No. 27.
Haw. Rev. Stat. § 707-766 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-766
Extortion in the second degree.
Status: in_force

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

(a) Of property, labor, or services the value of which exceeds $50 during any twelve-month period; or

(b) As set forth in section 707-764(2).

(2) Extortion in the second degree is a class C felony. [L 1979, c 106, pt of §1; am L 1993, c 28, §1; am L 2008, c 147, §6]
Haw. Rev. Stat. § 708-835.4 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.4
Unauthorized operation of a recording device in a motion picture theater.
Status: in_force

(1) A person commits the offense of unauthorized operation of a recording device in a motion picture theater if the person knowingly operates the audiovisual recording function of any device in a motion picture theater while a motion picture is being exhibited, without the consent of the motion picture theater owner.

(2) This section shall not prevent any lawfully authorized investigative, protective, law enforcement, or intelligence-gathering employee or agent of the local, state, or federal government, from operating any audiovisual recording device in a motion picture theater as part of lawfully authorized investigative, protective, law enforcement, or intelligence-gathering activities.

(3) Unauthorized operation of a recording device in a motion picture theater is a misdemeanor.

(4) For the purposes of this section:

"Audiovisual recording function" means the capability of a device to record or transmit a motion picture or any part thereof by means of any technology.

"Motion picture theater" means a movie theater, screening room, or other venue in use primarily for the exhibition of a motion picture at the time of the offense. [L 2005, c 59, §1]

COMMENTARY ON §708-835.4

Act 59, Session Laws 2005, created the misdemeanor offense of unauthorized operation of a recording device in a motion picture theater. An exception is made for legitimate uses of audiovisual recording devices for a lawfully authorized investigative, protective, law enforcement, or intelligence-gathering employee or agent of the local, state, or federal government. The legislature found that movie piracy through unauthorized audiovisual recordings made in movie theaters has resulted in losses to the motion picture industry, including actors, producers, and distributors of motion pictures. Illicitly copied movies are illegally duplicated, packaged, and distributed across the country and abroad, further aggravating industry losses. Conference Committee Report No. 71, House Standing Committee Report No. 827.
Haw. Rev. Stat. § 711-1112 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1112
Interference with the operator of a public transit vehicle.
Status: in_force

(1) A person commits the offense of interference with the operator of a public transit vehicle if the person interferes with or lessens the ability of the operator to operate the public transit vehicle by:

(a) Intentionally, knowingly, or recklessly causing bodily injury to the operator of the public transit vehicle; or

(b) Threatening, by word or conduct, to cause bodily injury to the operator of the public transit vehicle with the intent to terrorize, or in reckless disregard of the risk of terrorizing the operator of the public transit vehicle.

(2) For the purposes of this section, "public transit vehicle" means:

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

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

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

(3) Interference with the operator of a public transit vehicle is a class C felony. [L 1996, c 87, §3; am L 2023, c 191, §2]
Haw. Rev. Stat. § 707-732 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-732
Sexual assault in the third degree.
Status: in_force

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

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

(b) Knowingly subjects to sexual contact a person who is less than fourteen years old or causes such a person to have sexual contact with the actor;

(c) Knowingly engages in sexual contact with a person who is at least fourteen years old but less than sixteen years old or causes such a person to have sexual contact with the actor; provided that the actor is:

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

(ii) Not legally married to the minor;

(d) Knowingly subjects to sexual contact a person who is mentally incapacitated or physically helpless, or causes such a person to have sexual contact with the actor;

(e) Knowingly subjects to sexual contact a person who is mentally defective, or causes such a person to have sexual contact with the actor; provided that the actor is negligent in not knowing of the mental defect of the victim;

(f) While employed:

(i) In a state correctional facility;

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

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

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

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

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

(g) Knowingly, by strong compulsion, has sexual contact with another person or causes another person to have sexual contact with the actor.

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

(2) Sexual assault in the third degree is a class C felony. [L 1986, c 314, pt of §57; am L 1987, c 181, §11; am L Sp 2001 2d, c 1, §§2, 7; am L 2002, c 36, §§2, 3; am L 2003, c 62, §1; am L 2004, c 10, §15 and c 61, §5; am L 2009, c 11, §74; am L 2021, c 22, §3 and c 239, §3; am L 2022, c 278, §29]
Haw. Rev. Stat. § 712-1202 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1202
Sex trafficking.
Status: in_force

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

(a) Advances prostitution by compelling or inducing a person by force, threat, fraud, coercion, or intimidation to engage in prostitution, or profits from such conduct by another; or

(b) Advances prostitution or profits from prostitution of a minor.

(2) Sex trafficking is a class A felony.

(3) As used in this section:

"Fraud" means making material false statements, misstatements, or omissions.

"Minor" means a person who is less than eighteen years of age.

"Threat" means any of the actions listed in section 707‑764(1).

(4) The state of mind requirement for the offense under subsection (1)(b) is not applicable to the fact that the victim was a minor. A person is strictly liable with respect to the attendant circumstances that the victim was a minor. [L 1972, c 9, pt of §1; am L 1993, c 130, §2; am L 2008, c 147, §8; am L 2011, c 145, §3; am L 2016, c 206, §14; am L 2021, c 68, §6]
Haw. Rev. Stat. § 712-1249.6 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1249.6
Promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes.
Status: in_force

(1) A person commits the offense of promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes if the person knowingly:

(a) Distributes or possesses with intent to distribute a controlled substance in any amount in or on the real property comprising a school, public park, or public housing project or complex;

(b) Distributes or possesses with intent to distribute a controlled substance in any amount within seven hundred and fifty feet of the real property comprising a school, public park, or public housing project or complex;

(c) Distributes or possesses with intent to distribute a controlled substance in any amount while on any school vehicle, or within ten feet of a parked school vehicle during the time that the vehicle is in service for or waiting to transport school children; or

(d) Manufactures methamphetamine or any of its salts, isomers, and salts of isomers, within seven hundred and fifty feet of the real property comprising a school, public park, or public housing project or complex.

(2) A person who violates subsection (1)(a), (b), or (c) is guilty of a class C felony. A person who violates subsection (1)(d) is guilty of a class A felony.

(3) Any person with prior conviction or convictions under subsection (1)(a), (b), or (c) is punishable by a term of imprisonment of not less than two years and not more than ten years.

(4) Any individual convicted under subsection (3) of this section shall not be eligible for parole until the individual has served the minimum sentence required by such subsection.

(5) For the purposes of this section, "school vehicle" means every school vehicle as defined in section 286-181 and any regulations adopted pursuant to that section.

(6) For purposes of this section, "school" means any public or private preschool, kindergarten, elementary, intermediate, middle secondary, or high school.

(7) For purposes of this section, "public housing project or complex" means a housing project directly controlled, owned, developed, or managed by the Hawaii public housing authority pursuant to the federal or state low-rent public housing program. [L 1988, c 284, §1; am L 1991, c 11, §1; am L 2003, c 70, §1; am L 2004, c 44, §8; am L 2012, c 23, §1]
Haw. Rev. Stat. § 707-764 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-764
Extortion.
Status: in_force

A person commits extortion if the person does any of the following:

(1) Obtains, or exerts control over, the property, labor, or services of another with intent to deprive another of property, labor, or services by threatening by word or conduct to:

(a) Cause bodily injury in the future to the person threatened or to any other person;

(b) Cause damage to property or cause damage, as defined in section 708-890, to a computer, computer system, or computer network;

(c) Subject the person threatened or any other person to physical confinement or restraint;

(d) Commit a penal offense;

(e) Accuse some person of any offense or cause a penal charge to be instituted against some person;

(f) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule, or to impair the threatened person's credit or business repute;

(g) Reveal any information sought to be concealed by the person threatened or any other person;

(h) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense;

(i) Take or withhold action as a public servant, or cause a public servant to take or withhold such action;

(j) Bring about or continue a strike, boycott, or other similar collective action, to obtain property that is not demanded or received for the benefit of the group that the defendant purports to represent;

(k) Destroy, conceal, remove, confiscate, or possess any actual or purported passport, or any other actual or purported government identification document, or other immigration document, of another person; or

(l) Do any other act that would not in itself substantially benefit the defendant but that is calculated to harm substantially some person with respect to the threatened person's health, safety, business, calling, career, financial condition, reputation, or personal relationships;

(2) Intentionally compels or induces another person to engage in conduct from which another has a legal right to abstain or to abstain from conduct in which another has a legal right to engage by threatening by word or conduct to do any of the actions set forth in paragraph (1)(a) through (l); or

(3) Makes or finances any extortionate extension of credit, or collects any extension of credit by extortionate means. [L 1979, c 106, pt of §1; am L 2001, c 33, §3; am L 2008, c 147, §4]
Haw. Rev. Stat. § 704-410 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-410
Form of expert testimony regarding physical or mental disease, disorder, or defect.
Status: in_force

(1) At the hearing pursuant to section 704-405 or upon the trial, the examiners who reported pursuant to section 704-404 may be called as witnesses by the prosecution, the defendant, or the court. If the issue is being tried before a jury, the jury may be informed that the examiners or any of them were designated by the court or by the director of health at the request of the court, as the case may be. If called by the court, the witness shall be subject to cross-examination by the prosecution and the defendant. Both the prosecution and the defendant may summon any other qualified physician or licensed psychologist or other expert to testify, but no one who has not examined the defendant shall be competent to testify to an expert opinion with respect to the physical or mental condition of the defendant, as distinguished from the validity of the procedure followed by, or the general scientific propositions stated by, another witness.

(2) When an examiner testifies on the issue of the defendant's fitness to proceed, the examiner shall be permitted to make a statement as to the nature of the examiner's examination, the examiner's diagnosis of the physical or mental condition of the defendant, and the examiner's opinion of the extent, if any, to which the capacity of the defendant to understand the proceedings against the defendant or to assist in the defendant's own defense is impaired as a result of physical or mental disease, disorder, or defect.

(3) When an examiner testifies on the issue of the defendant's responsibility for conduct alleged or the issue of the defendant's capacity to have a particular state of mind which is necessary to establish an element of the offense charged, the examiner shall be permitted to make a statement as to the nature of the examiner's examination, the examiner's diagnosis of the physical or mental condition of the defendant at the time of the conduct alleged, and the examiner's opinion of the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law or to have a particular state of mind which is necessary to establish an element of the offense charged was impaired as a result of physical or mental disease, disorder, or defect at that time.

(4) When an examiner testifies, the examiner shall be permitted to make any explanation reasonably serving to clarify the examiner's diagnosis and opinion and may be cross-examined as to any matter bearing on the examiner's competency or credibility or the validity of the examiner's diagnosis or opinion. [L 1972, c 9, pt of §1; am L 1980, c 222, §1(4); am L 1988, c 305, §6; gen ch 1993]

COMMENTARY ON §704-410

This section sets forth the form in which expert testimony shall proceed at a hearing on the issue of fitness to proceed, at a hearing or trial on the issue of defendant's responsibility, or at a trial on the issue of defendant's capacity to have a particular state of mind.

Subsection (1) allows the court somewhat greater freedom than that which existed under the prior law by permitting it to call an examiner, who has reported pursuant to §704-404, as a witness. If the court does call an examiner, cross-examination is permitted by both parties. Subsection (1) also precludes opinion testimony as to the defendant's condition by an expert who has not examined the defendant. The intent of the Code is to eliminate testimony in this area based solely on a hypothetical question or an observation in a courtroom or both.

Subsections (2), (3) and (4) assure that an expert who has examined the defendant will have an adequate opportunity to state and explain the expert's diagnosis of the defendant's relevant physical or mental condition and to state and explain the expert's opinion as to the impairment of the defendant's relevant capacities without being restricted to examination by means of the hypothetical question. The expert is, of course, subject to cross-examination on any statement which the expert makes by way of diagnosis, opinion, or explanation and on any other matter bearing on the expert's competency or credibility.

SUPPLEMENTAL COMMENTARY ON §704-410

Act 305, Session Laws 1988, included licensed psychologists among the professionals which may provide offender examination services to the Hawaii criminal justice system. The legislature stated that the present laws, which permit only psychiatric evaluation, are inconsistent with the many and varied uses the court has found for the services of licensed psychologists. Senate Standing Committee Report No. 2153.
Haw. Rev. Stat. § 711-1111 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1111
Violation of privacy in the second degree.
Status: in_force

(1) A person commits the offense of violation of privacy in the second degree if, except in the execution of a public duty or as authorized by law, the person intentionally:

(a) Trespasses on property for the purpose of subjecting anyone to eavesdropping or other surveillance in a private place;

(b) Peers or peeps into a window or other opening of a dwelling or other structure adapted for sojourn or overnight accommodations for the purpose of spying on the occupant thereof or invading the privacy of another person with a lewd or unlawful purpose, under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed;

(c) Trespasses on property for the sexual gratification of the actor;

(d) Installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any means or device for observing, recording, amplifying, or broadcasting sounds or events in that place other than another person in a stage of undress or sexual activity; provided that this paragraph shall not prohibit a person from making a video or audio recording or taking a photograph of a law enforcement officer while the officer is in the performance of the officer's duties in a public place or under circumstances in which the officer has no reasonable expectation of privacy and the person is not interfering with the officer's ability to maintain safety and control, secure crime scenes and accident sites, protect the integrity and confidentiality of investigations, and protect the public safety and order;

(e) Installs or uses outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein;

(f) Covertly records or broadcasts an image of another person's intimate area underneath clothing, by use of any device, and that image is taken while that person is in a public place and without that person's consent;

(g) Intercepts, without the consent of the sender or receiver, a message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately; but this paragraph does not apply to:

(i) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension; or

(ii) Interception by the telephone company, electronic mail account provider, or telephone or electronic mail subscriber incident to enforcement of regulations limiting use of the facilities or incident to other operation and use;

(h) Divulges, without the consent of the sender or the receiver, the existence or contents of any message or photographic image by telephone, telegraph, letter, electronic transmission, or other means of communicating privately, if the accused knows that the message or photographic image was unlawfully intercepted or if the accused learned of the message or photographic image in the course of employment with an agency engaged in transmitting it; or

(i) Knowingly possesses materials created under circumstances prohibited in section 711-1110.9.

(2) This section shall not apply to any dissemination, distribution, or transfer of images subject to this section by an electronic communication service provider or remote storage service in the ordinary course of its business. For the purpose of this subsection:

"Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

"Electronic communication service" means any service that provides to users thereof the ability to send or receive wire or electronic communications.

"Electronic communication service provider" means any person engaged in the offering or sale of electronic communication services to the public.

"Electronic communication system" means any wire, radio, electromagnetic, photo-optical, or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications, including e-mail, web hosting, multimedia messaging services, and remote storage services offered by an electronic communication service provider.

"Remote storage service" means the provision to the public of computer storage or processing services by means of an electronic communication system.

(3) For the purposes of this section:

"Intimate areas" means any portion of a person's underwear, pubic area, anus, buttocks, vulva, genitals, or female breast.

"Intimate areas underneath clothing" does not include intimate areas visible through a person's clothing or intimate areas exposed in public.

"Public place" means an area generally open to the public, regardless of whether it is privately owned, and includes but is not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, buses, tunnels, buildings, stores, and restaurants.

(4) Violation of privacy in the second degree is a misdemeanor. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section. [L 1972, c 9, pt of §1; gen ch 1993; am L 1999, c 278, §2; am L 2003, c 48, §4; am L 2004, c 83, §3; am L 2006, c 230, §48; am L 2012, c 59, §1; am L 2016, c 164, §2]

Revision Note

In subsection (2), definitions rearranged pursuant to §23G-15.
Haw. Rev. Stat. § 710-1031 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1031
Intimidating a correctional worker.
Status: in_force

(1) A person commits the offense of intimidation of a correctional worker if the person uses force upon or a threat of force directed to a correctional worker, or the correctional worker's immediate family, with intent to influence such worker's conduct, decision, action or abstention from action as a correctional worker.

(2) "Correctional worker", as used in this section means any employee of the State or any county who works in a correctional or detention facility, a court, a paroling authority or who by law has jurisdiction over any legally committed offender or any person placed on probation or parole.

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

(4) Intimidation of a correctional worker is a class B felony. [L 1974, c 196, §1; am L 1980, c 267, §1; gen ch 1993]

COMMENTARY ON §710-1031

Act 196, Session Laws 1974, added this section "to provide class B felony sanctions against those persons who, by threat of harm directed to a correctional worker or his immediate family, intend to influence or deter the correctional worker in performing his duties." House Standing Committee Report No. 731-74.

The Committee Report further states: "Your Committee notes that under the present law, threatening correctional personnel would be a violation of §707-715 of the Penal Code entitled 'Terroristic threatening', a misdemeanor, or §707-724 of the Penal Code entitled 'Criminal coercion', a class C felony. Your Committee believes that the nature of the crime is such that it should be classified as a class B felony."
Haw. Rev. Stat. § 708-823.2 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-823.2
[ §708-823.
Status: in_force

[ §708-823.2] Criminal trespass on agricultural land. (1) A person commits the offense of criminal trespass on agricultural land if the person enters or remains unlawfully on agricultural land without the permission of the owner of the land, the owner's agent who is authorized by the owner to give the permission, or the person in lawful possession of the land, and the agricultural land:

(a) Is fenced, enclosed, or secured in a manner designed to exclude intruders or marked by a structure or barrier, including a cattle grid, cattle grate, or other obstacle, used to secure livestock; or

(b) At the time of entry, is fallow or has a visible presence of livestock-raising, such as cattle, horses, water troughs, shelters, or paddocks, or a crop:

(i) Under cultivation;

(ii) In the process of being harvested; or

(iii) That has been harvested.

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

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

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

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

(iii) A lessee of the land or premises.

For the purposes of this paragraph, "process server" means any person authorized under the Hawaii rules of civil procedure, district court rules of civil procedure, Hawaii family court rules, or section 353C-11 to serve process; or

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

(3) Except as provided in subsection (4), criminal trespass on agricultural land shall be a misdemeanor, and any person who violates this section shall be sentenced as follows, without possibility of probation or suspension of sentence:

(a) For a first offense, or any offense not preceded within five years of a previous conviction for an offense under this section:

(i) A term of imprisonment of not less than three consecutive days; and

(ii) A fine of not less than $500;

(b) For an offense that occurs within five years of a previous conviction for an offense under this section:

(i) A term of imprisonment of not less than thirty days; and

(ii) A fine of not less than $1,000; and

(c) For an offense that occurs within five years of two or more previous convictions for offenses under this section:

(i) A term of imprisonment of not less than ninety days; and

(ii) A fine of $2,000.

(4) Any person who violates this section while in possession of a dangerous instrument shall be guilty of a class C felony.

(5) Any fines imposed in connection with the offense under this section shall be deposited with the director of finance who shall deposit the fines into the animal industry special fund established pursuant to section 142-3.6.

(6) For the purposes of this section:

"Agricultural land" means any land used primarily for a farming operation. "Agricultural land" includes state- or county-owned agricultural land, privately owned agricultural land, and land used for farm buildings and dwellings and roads and irrigation infrastructure associated with these lands.

"Dangerous instrument" has the same meaning as defined in section 707-700.

"Fallow" means land associated with agricultural production that is left unseeded or unplanted for one or more growing seasons.

"Farming operation" means a commercial agricultural or aquacultural facility or pursuit conducted, in whole or in part, including the care and production of livestock and livestock products, poultry and poultry products, apiary products, and plant and animal production for nonfood uses; the planting, cultivating, harvesting, and processing of crops; and the farming or ranching of any plant or animal species in a controlled salt, brackish, or freshwater environment. [L 2025, c 235, §38]

COMMENTARY ON §708-823.2

Act 235, Session Laws 2025, added this section to establish the offense of criminal trespass on agricultural land. 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. § 702-221 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-221
Liability for conduct of another.
Status: in_force

(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

(2) A person is legally accountable for the conduct of another person when:

(a) Acting with the state of mind that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;

(b) He is made accountable for the conduct of such other person by this Code or by the law defining the offense; or

(c) He is an accomplice of such other person in the commission of the offense. [L 1972, c 9, pt of §1]

Revision Note

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

COMMENTARY ON §702-221

Subsection (1) of this section states the general principle that penal liability, in the first analysis, rests on conduct; the conduct in most instances is that of the accused but, as the Code states, the relevant conduct may be that of a person for whose conduct the accused is legally accountable. Distinctions between principals and accessories are dispensed with and a defendant may be convicted directly of an offense committed by another for whose conduct the defendant is accountable.

Subsection (2) states those instances when a defendant will be held legally accountable for another's conduct.

Subsection (2)(a) deals with the problem of the innocent or irresponsible agent. When the defendant intentionally or knowingly causes an innocent person to engage in prohibited conduct, there is little difficulty in holding the defendant accountable for such conduct. Where the commission of an offense requires recklessness or negligence on the part of the defendant, it is sufficient that the defendant recklessly or negligently caused an innocent or irresponsible person to engage in the conduct prohibited by the offense. In short, the Code couples the state of mind of the defendant with the conduct the defendant has caused another to perform and determines the defendant's liability accordingly.

Subsection (2)(b) is intended to leave undisturbed those pieces of legislation either within or outside of this Code which impose a special measure of accountability for the behavior of another. This type of legislation usually involves the liability of a principal for acts of an agent. Thus, for example, the legislature may deem it appropriate to impose on a liquor licensee an absolute duty not to sell liquor to a minor. If the duty is nondelegable, a sale by an employee would result in the licensee's penal liability. Similarly, where strict liability is imposed it is "no more unjust to hold the innocent master than his innocent servant, acting in the course of his employment."[1]

Subsection (2)(b) does not support the concept of strict penal liability. As this chapter makes clear, such liability is rejected as a matter of general principle. However, in extraordinary cases, especially in the regulatory area, the legislature may deem such liability necessary. Subsection (2)(b) is intended only to accommodate that determination.

Subsection (2)(c) provides for legal accountability for penal complicity. The term "accomplice" is developed in following sections. Prior Hawaii law did not deal with the problem posed by subsection (2)(a). The court has held that a breach of a legal duty by an employee renders the master liable. The court said: "The delegation of the duty of supervising [publication of a newspaper], by the master to the servant, does not free the master. He is to be holden for the neglect or indiscretion of the servant."[2] What the court in effect did was to make the duty nondelegable by case law. Subsection (2)(b) would recognize such decisions if predicated on legislation which either specifically or by construction imposed this measure of accountability. The subsection would also cover accountability based on strict penal liability. The previous Hawaii provisions with respect to complicity, as they related to subsection (2)(c) and following sections, are explained in the commentary on following sections.
Haw. Rev. Stat. § 707-706 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-706
Negligent injury in the second degree.
Status: in_force

(1) A person is guilty of the offense of negligent injury in the second degree if that person causes substantial bodily injury to another person by the operation of a vehicle in a negligent manner.

(2) Negligent injury in the second degree is a misdemeanor. [L 1988, c 292, pt of §1; am L 2012, c 21, §3]

COMMENTARY ON §707-706

Act 292, Session Laws 1988, added this section which defines negligent injury in the second 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.
Haw. Rev. Stat. § 708-895.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-895.6
Unauthorized computer access in the second degree.
Status: in_force

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

(2) Unauthorized computer access in the second degree is a class B felony. [L 2001, c 33, pt of §1; am L 2012, c 293, §5]
Haw. Rev. Stat. § 708-823 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-823
Criminal property damage in the fourth degree.
Status: in_force

(1) A person commits the offense of criminal property damage in the fourth degree if by means other than fire, the person intentionally or knowingly damages the property of another without the other's consent.

(2) Criminal property damage in the fourth degree is a petty misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2006, c 181, §6 and c 230, §36]
Haw. Rev. Stat. § 710-1017.5 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1017.5
Sale or manufacture of deceptive identification document; penalties.
Status: in_force

(1) A person commits the offense of sale or manufacture of deceptive identification document if the person intentionally or knowingly manufactures, sells, offers for sale, furnishes, offers to be furnished, transports, offers to be transported, or imports or offers to be imported into this State a deceptive identification document.

(2) As used in this section, "deceptive identification document" means any identification document not issued by a governmental agency that purports to be, or that might deceive a reasonable person into believing that it is, an identification document issued by a governmental agency, including a driver's license, identification card, birth certificate, passport, or social security card.

(3) The sale or manufacture of a deceptive identification document is a class C felony.

(4) Any property used or intended for use in the commission of, attempt to commit, or conspiracy to commit an offense under this section, or that facilitated or assisted such activity, shall be subject to forfeiture under chapter 712A. [L 2001, c 230, §1]