Haw. Rev. Stat. § 701-105 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-105
Effect of commentary.
Status: in_force

The commentary accompanying this Code shall be published and may be used as an aid in understanding the provisions of this Code, but not as evidence of legislative intent.

COMMENTARY ON §701-105

Section 105 of the Proposed Draft of the Code provided: "The commentary accompanying this Code shall be published with the Code and may be used as evidence of legislative intent and as an aid in construing the provisions of this Code in the event of ambiguity."

In considering the initial draft of §105, the legislature concluded that the commentary, as revised to reflect legislative changes, should be published as aid to the bench, bar, and others charged with the administration of justice in criminal cases. However, in view of the strong judicial deference given legislative committee reports and other evidence of legislative intent authored by the legislature or its staff, the legislature refrained from adopting the initial commentary accompanying the Judicial Council's Proposed Draft and according it the same status as a legislative work product.

The Commentary and Supplemental Commentary on the Code are intended to explain the provisions of the Code. The Supplemental Commentary attempts to explain the changes that were made by the legislature to the Proposed Draft of the Hawaii Penal Code (1970) which was prepared under the auspices of the Judicial Council of Hawaii. It also deals with subsequent legislative changes in 1973, 1974 and 1975. The commentaries are designed to give the reader a better understanding of the provisions of the Code. Together they provide an explanation of the considerations involved in the drafting of various sections of the Code. The commentaries also point out the treatment in the Model Penal Code and certain state revisions of provisions the same as or similar to those contained in the Hawaii Penal Code. Finally, the commentaries explain the changes to previous Hawaii law which are brought about by the new Code.

Act 163, Session Laws 1975, amended the section by deleting the requirement that the commentary be published with the Code. The Revisor of Statutes was authorized to publish the commentary in any manner the Revisor deemed would "promote its basic purpose [as an] aid in understanding the provisions of the Code." Conference Committee Report No. 19.
Haw. Rev. Stat. § 712-1209.1 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1209.1
Commercial sexual exploitation of a minor.
Status: in_force

(1) A person eighteen years of age or older commits the offense of commercial sexual exploitation of a minor if the person intentionally, knowingly, or recklessly:

(a) Offers or agrees to provide anything of value to a member of a police department, a sheriff, or a law enforcement officer who represents that person's self as a minor to engage in sexual conduct;

(b) Provides anything of value to a minor or third person as compensation for having engaged in sexual conduct with a minor;

(c) Agrees to provide or offers to provide anything of value to a minor or third person for the purpose of engaging in sexual conduct with a minor; or

(d) Solicits, offers to engage in, or requests to engage in sexual conduct with a minor in return for anything of value.

(2) Commercial sexual exploitation of a minor is a class B felony.

(3) In addition to any other authorized disposition, a person convicted of committing the offense of commercial sexual exploitation of a minor shall be sentenced to pay a fine of no less than $5,000.

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

(5) 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 circumstance that the victim was a minor; provided that the person had a reasonable opportunity to observe the victim.

(6) Consent of a minor to the sexual conduct does not constitute a defense to any offense in this section.

(7) For purposes of this section:

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

"Sexual conduct" has the same meaning as in section 712‑1200(2). [L 2013, c 247, §1; am L 2014, c 114, §4; am L 2021, c 68, §9]

COMMENTARY ON §712-1209.1

Act 247, Session Laws 2013, added this section, establishing the offense of solicitation of a minor for prostitution as a class C felony for offenders eighteen years of age or older. Act 247 also established a mandatory fine for a person convicted of the offense of solicitation of a minor for prostitution. The legislature found that Act 247 strengthened the laws and penalties for crimes that exploit children subjected to prostitution. Conference Committee Report No. 64.

Act 114, Session Laws 2014, amended this section by: (1) clarifying that the offense of solicitation of a minor for prostitution applies to intentional, knowing, or reckless conduct; (2) specifying that the offense applies to solicitation of a person who represents that person's self as a minor only if that person is a member of a police department, a sheriff, or a law enforcement officer; (3) increasing the minimum fine imposed on a person convicted of the offense; (4) providing an exemption for law enforcement acting in the course and scope of duties; and (5) making the offense of solicitation of a minor for prostitution a strict liability offense in regards to age. The legislature unequivocally intended the solicitation of a minor for prostitution to be a strict liability offense with regard to the age of the minor. Any specified state of mind listed therein does not apply to the age of a victim solicited under this section. Therefore, a defendant charged under this section may not defend as to the defendant's state of mind concerning the age of the victim, and will be strictly liable with respect to the age of the victim and the attendant circumstance of the victim's age. Conference Committee Report No. 41-14, Senate Standing Committee Report No. 3249.

Act 68, Session Laws 2021, amended this section to: (1) rename the offense to reference commercial sexual exploitation; (2) amend the elements for commission of the offense to specify the various types of prohibited conduct; (3) increase the grade of the offense to a class B felony; (4) provide that the compensation for engaging in sexual conduct includes anything of value; (5) repeal the requirement that $5,000 of imposed fines be credited to the general fund; (6) clarify that the exemption for law enforcement officers applies to those engaging in undercover operations and that under no circumstances does sexual contact initiated by a law enforcement officer, sexual penetration, or sadomasochistic abuse fall within the course and scope of duties; (7) limit application of the strict liability provision to a person who had a reasonable opportunity to observe the minor; and (8) specify that consent of a minor to the sexual conduct does not constitute a defense to any offense in this section. The legislature found that sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in the community. The legislature further found that protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators, and that amending Hawaii's sex trafficking laws to better reflect the current reality and challenges would improve outcomes for trafficking victims and survivors. Senate Standing Committee Report No. 1654, Conference Committee Report No. 45.
Haw. Rev. Stat. § 710-1069 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1069
Misrepresenting a notarized document in the first degree.
Status: in_force

(1) A person commits the offense of misrepresenting a notarized document in the first degree if the person submits or invites reliance on a document that the person knows has been altered after the document had been notarized by a notary public in this or any other jurisdiction, and:

(a) The offense was committed with intent to mislead a public servant; or

(b) The offense was committed for purpose of commercial or private financial gain.

(2) Misrepresenting a notarized document in the first degree is a class C felony. [L 2008, c 175, pt of §3]
Haw. Rev. Stat. § 711-1108.5 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1108.5
Cruelty to animals in the first degree.
Status: in_force

(1) A person commits the offense of cruelty to animals in the first degree if the person intentionally or knowingly:

(a) Tortures, mutilates, or poisons or causes the torture, mutilation, or poisoning of any pet animal or equine animal resulting in serious bodily injury or death of the pet animal or equine animal; or

(b) Kills or attempts to kill any pet animal belonging to another person, without first obtaining legal authority or the consent of the pet animal's owner.

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

(a) Accepted veterinary practices when the practices are performed by a veterinarian licensed under chapter 471; and

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

(3) Subsection (1)(b) shall not apply to:

(a) Humane euthanasia of any animal by an animal control officer, duly incorporated humane society, duly incorporated society for the prevention of cruelty to animals, or duly authorized governmental agency in accordance with American Veterinary Medical Association accepted standards; or

(b) Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor, another person, or an animal; provided that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by this section and is justifiable as provided in section 703-302 for choice of evils; provided further that, for purposes of this paragraph, as the justification described in section 703‑302 shall also apply to conduct which the actor believes to be necessary to avoid an imminent harm or evil to an animal.

(4) Whenever any pet animal or equine animal is so severely injured that there is no reasonable probability that its life can be saved, the animal may be immediately destroyed without creating any offense under this section.

(5) Cruelty to animals in the first degree is a class C felony. In addition to any fines and imprisonment imposed under this section, any person convicted under this section shall be prohibited from possessing or owning any pet animal or equine animal for a minimum of five years from the date of conviction.

[(6)] For the purposes of this section, "person" means any individual; any firm, partnership, joint venture, association, limited liability company, corporation, estate, trust, receiver, or syndicate; or any other legal entity. [L 2007, c 114, §2; am L 2008, c 111, §2; am L 2011, c 135, §1; am L 2013, c 209, §2; am L 2024, c 221, §3]

COMMENTARY ON §711-1108.5

Act 114, Session Laws 2007, created the offense of cruelty to animals in the first degree, making it a felony to intentionally or knowingly torture, mutilate, or poison or cause the torture, mutilation, or poisoning of any pet animal resulting in serious bodily injury or death of the pet animal. The legislature found that violence, whether against humans or animals, must not be tolerated in our society. Evidence suggests a link between animal abuse and the commission of violent acts against humans. Hawaii is only one of nine states in the United States without a felony offense for domestic animal abuse. The legislature also found that pet animals provide a close emotional bond and relationship with their owners and family members and friends. Violence and harm committed against the animals have a significant emotional impact on their owners and family. The felony provisions of Act 114 protected pet animals. Conference Committee Report No. 29.

Act 111, Session Laws 2008, amended this section by making an offense involving serious bodily injury or death to an equine animal a class C felony, thus extending to equine animals some of the legal protections accorded to pet animals relating to animal cruelty. The legislature believed that horses belong under the protection of law and that adding equine animals to the list of animals protected under the animal cruelty law reflects the fact that companion animals come in all shapes and sizes. House Standing Committee Report No. 1589-08, Senate Standing Committee Report No. 2879, Conference Committee Report No. 20-08.

Act 135, Session Laws 2011, amended this section to include killing or attempting to kill any pet animal belonging to another person without first obtaining legal authority or the consent of the pet animal's owner, except for the humane euthanasia of an animal in accordance with American Veterinary Medical Association accepted standards or conduct that the actor believes necessary to avoid an imminent harm or evil to the actor, another person, or an animal. The legislature found that the existing language of this section did not expressly address any method of killing a pet animal other than torture, mutilation, or poisoning. The legislature believed that the loophole should be closed for several reasons. The killing of a pet animal for sport was not only abhorrent, but this type of aggressive behavior has wider implications. Animal abuse has connections to the abuse of family members and may increase aggressive or violent tendencies in children who witness their pets being abused or killed. There were concerns that animal abuse or killing perpetuates the cycle of violence because people who commit acts of serious animal abuse frequently have histories of, or future tendencies toward, violent crimes against humans. By expressly making the killing of a pet animal a criminal offense, the legislature intended to deter this conduct and its grave effects. Senate Standing Committee Report No. 559, Conference Committee Report No. 29.

Act 209, Session Laws 2013, amended this section to prohibit persons convicted of cruelty to animals in the first degree from possessing or owning any pet animal or equine animal for a minimum of five years from the date of conviction. The legislature found that Act 209 was based on the concept that defendants convicted of cruelty to animals in the first degree should no longer be afforded the privilege of owning a pet animal or equine animal. Conference Committee Report No. 62.

Act 221, Session Laws 2024, amended this section to: (1) clarify that the offense of cruelty to animals in the first degree does not apply to accepted veterinary practices when the practices are performed by a licensed veterinarian; and (2) repeal the exemption of cropping and docking as customarily practiced under the offense of cruelty to animals in the first degree. The legislature found that there was a need for more explicit laws to protect pet animals from significant harm caused by veterinary procedures performed by unlicensed individuals. The legislature also found that existing law exempted non-veterinarians from performing painful surgical procedures on animals, and non-veterinarians often performed these procedures without access to pain medication, antibiotics to prevent infection, and other critical pre- and post-operative care that can only be provided under the supervision of a licensed veterinarian. Accordingly, the legislature noted that Act 221 would reduce unnecessary pain, harm, and suffering to pet animals by closing the loophole allowing owners to operate on or hire unqualified people to operate on their own pet animals. Senate Standing Committee Report No. 3749, Senate Standing Committee Report No. 3291.
Haw. Rev. Stat. § 712-1209.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1209.5
Habitual commercial sexual exploitation.
Status: in_force

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

(2) For the purposes of this section, a person has the status of a "habitual commercial sexual exploitation offender" if the person, at the time of the conduct for which the person is charged, had two or more convictions within ten years of the instant offense for:

(a) Commercial sexual exploitation, in violation of section 712-1200.5;

(b) Street prostitution and commercial sexual exploitation, in violation of section 712-1207(1)(b) or (2)(b);

(c) Habitual commercial sexual exploitation, in violation of this section;

(d) An offense of this jurisdiction or any other jurisdiction that is comparable to one of the offenses in paragraph (a), (b), or (c); or

(e) Any combination of the offenses in paragraph (a), (b), (c), or (d).

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

(3) Habitual commercial sexual exploitation is a class C felony. [L 2008, c 192, §§1, 3; am L 2010, c 95, §1; am L 2011, c 145, §§9, 10; am L 2021, c 68, §10]

COMMENTARY ON §712-1209.5

Act 145, Session Laws 2011, permanently established §712-1209.5, the offense of habitual solicitation of prostitution, by deleting the sunset date of Act 192, Session Laws 2009 [as amended by Act 95, Session Laws 2010]. Act 145 also amended the habitual solicitation of prostitution offense to apply to those who habitually pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct and raised the offense to a class C felony. Conference Committee Report No. 76, Senate Standing Committee Report No. 1137.

Act 68, Session Laws 2021, amended this section to: (1) rename the offense to reference commercial sexual exploitation; (2) provide that the compensation for engaging in sexual conduct includes anything of value; and (3) provide that prior convictions that qualify a person for the status of a habitual offender include those for comparable offenses within Hawaii's jurisdiction. The legislature found that sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in the community. The legislature further found that protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators, and that amending Hawaii's sex trafficking laws to better reflect the current reality and challenges would improve outcomes for trafficking victims and survivors. Senate Standing Committee Report No. 1654, Conference Committee Report No. 45.
Haw. Rev. Stat. § 708-854 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-854
Criminal possession of a forgery device.
Status: in_force

(1) A person commits the offense of criminal possession of a forgery device if:

(a) The person makes or possesses with knowledge of its character any plate, die, or other device, apparatus, equipment, or article specifically designed or adapted for use in forging written instruments; or

(b) The person makes or possesses any device, apparatus, equipment, or article capable of or adaptable to use in forging written instruments with intent to use it oneself, or to aid or permit another to use it, for purposes of forgery.

(2) Criminal possession of a forgery device is a class C felony. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §708-854

This section punishes the making or possession of (a) a device specifically adapted for forgery, which has no other significant use, and the character of which is known to the actor, or (b) a device which may be adapted to forgery, where the actor has an intent so to employ the article (or aid in its employment).

Like the section dealing with possession of burglar's tools, this section provides a basis for police intervention at the inchoate or preparatory stage of criminal activity. Note, however, that in order to establish the offense the prosecution must prove the requisite state of knowledge or intent.
Haw. Rev. Stat. § 706-604 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-604
Opportunity to be heard with respect to sentence; notice of pre-sentence report; opportunity to controvert or supplement; transmission of report to de
Status: in_force

(1) Before imposing sentence, the court shall afford a fair opportunity to the defendant to be heard on the issue of the defendant's disposition.

(2) The court shall furnish to the defendant or the defendant's counsel and to the prosecuting attorney a copy of the report of any pre-sentence diagnosis or psychological, psychiatric, or other medical examination and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them. The court shall amend or order the amendment of the report upon finding that any correction, modification, or addition is needed and, where appropriate, shall require the prompt preparation of an amended report in which material required to be deleted is completely removed or other amendments, including additions, are made.

(3) In all circuit court cases, regardless of whether a pre-sentence report has been prepared or waived, the court shall afford a fair opportunity to the victim to be heard on the issue of the defendant's disposition, before imposing sentence. The court, service center, or agency personnel who prepare the pre-sentence diagnosis and report shall inform the victim of the sentencing date and of the victim's opportunity to be heard. In the case of a homicide or where the victim is a minor or is otherwise unable to appear at the sentencing hearing, the victim's family shall be afforded the fair opportunity to be heard.

(4) If the defendant is sentenced to imprisonment, a copy of the report of any pre-sentence diagnosis or psychological, psychiatric, or other medical examination, which shall incorporate any amendments ordered by the court, shall be transmitted immediately to the department of corrections and rehabilitation. [L 1972, c 9, pt of §1; am L 1986, c 314, §13; am L 1987, c 338, §10; am L 1988, c 305, §10; am L 1989, c 211, §8; gen ch 1992; am L 1993, c 216, §1; am L 2006, c 230, §16; am L 2016, c 231, §17; am L 2022, c 278, §29]

COMMENTARY ON §706-604

Subsection (1) is a restatement of the existing rule of procedure[1] and practice.

Subsection (2) is addressed to one of the most troublesome problems in the area of pre-sentence investigation: the question of whether the pre-sentence investigation report should be disclosed to the defendant. The right of the defendant to controvert the pre-sentence report is meaningless to the extent that the report, or a part thereof, is not made available to the defendant.

The Model Sentencing Act allows the court discretion in making the pre-sentence report available in ordinary felony cases, but with respect to murderers and dangerous offenders the report is made available in its entirety. The Act further provides that "Subject to the control of the court, the defendant shall be entitled to cross-examine those who have rendered reports to the court."[2]

The Model Penal Code provides that "the Court shall advise the defendant or his counsel of the factual contents and the conclusions of any pre-sentence investigation or psychiatric examination and afford fair opportunity, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed."[3]

The applicable Hawaii rule of criminal procedure takes the same position as the Model Penal Code. It reads:

The court shall upon request seasonably made disclose the information contained in the report to the prosecution or to the defendant's attorney or the defendant without disclosing any source of information which was received in confidence, and in such event the court shall make the same disclosure to the other party.[4]

The right to controvert is meaningless unless the report itself, rather than the factual contents and conclusions, is made available to the defendant. Even more ludicrous would be the insertion into the report of information the source of which is regarded as confidential. The defendant, under such circumstances could not be expected to controvert such information by showing, for example, that the source was unreliable or biased. The question of whether the defendant should be sentenced to imprisonment or to probation is no less significant than the question of guilt and the defendant should not have this decision made on the basis of information which the defendant is not allowed an opportunity to challenge.

The A.B.A. Standards have, for the most part, accepted this approach.[5] In rejecting the M.S.A. and M.P.C. positions, the commentary to the A.B.A. Standards states:

The view which is reflected in subsection (b) [of 4.4] is based upon both an assessment of the values which are served by non-disclosure and a balance of these values against basic fairness to the defendant. Specifically, the argument that sources of information will dry up if the defendant's attorney is permitted to examine the report falters on two grounds.

The first is based on the experience of those members of the Committee who have lived under a system in which disclosure is routine, and is supplemented by the Committee's examination of sample reports produced under such a system. The conclusion is that there is little factual basis for the fear that information will become unavailable if the report is disclosed. The quality and value of a pre-sentence report will turn to an infinitely greater extent on the skill of the probation service and the availability of adequate supporting facilities than it will on whether its contents remain a secret....

The second reason is more fundamental. One of the basic values underlying the manner in which the guilt phase of a criminal case proceeds is that the defendant is entitled to know the details of the charge against him and is entitled to an opportunity to respond. It is believed that this value is subverted by a system which does not require disclosure of the information contained in the pre-sentence report.[6]

The Code takes the position that full disclosure is necessary to protect the defendant and the court from inaccuracies which secret reports breed. Anything less than full disclosure is inconsistent with the truth-seeking function of the judicial process and the rehabilitative function of penal sentences. "Long since exploded is the theory that a defendant who has been convicted of crime no longer has any rights, or that any sentence less than the maximum is the result of an act of grace."[7]

The A.B.A. Standards include the following provision for nondisclosure in certain "extraordinary cases":

In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.[8]

The Code rejects this exception, even in its limited form. The Code takes the position that it would be better to delete such information from the pre-sentence report--information which by its very nature is questionable because of its secrecy--than to allow the information to be included in the report and not be made available to the defendant. Although not dealt with specifically in the A.B.A. Standards, the decision to except a part of the pre-sentence report from disclosure would be essentially an ex parte proceeding, thus further excluding the defendant from participation in the resolution of issues which affect the defendant's rights. The entire exception, and its attendant procedure, seems at best to be a compromise solution on the part of A.B.A.'s Advisory Committee whose commentary reads in part:

By endorsing a general policy in favor of disclosure, by making non-disclosure of specific items a burdensome task to be justified as an exception, and by providing for review to determine whether non-disclosure was justified, the majority believes that the danger will be minimized, but that an outlet will be available to accommodate justifiable fears in particular cases. In a very few cases, this position will result in disclosure of information which the advocates of secrecy would prefer not to disclose. Such is the price of a system which derives value from the fairness with which it operates.[9]

In Honolulu a copy of the pre-sentence investigation report when ordered by the court is routinely furnished to defense counsel. It does not appear from current practice that the untoward results feared by the advocates of secrecy result from full disclosure. Furthermore, the Office of Adult Probation, as a matter of administrative practice, excepts from its reports information given by an informant who seeks to remain anonymous. Even when the probation authorities were charged with investigating custody matters in domestic relations cases, a practice which no longer obtains, they refrained from this utilization of confidential information. The actual procedure in Hawaii appears to be more advanced than its laws in this area. The Code brings the law into step with current practice.

SUPPLEMENTAL COMMENTARY ON §706-604

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.

Act 216, Session Laws 1993, amended this section to afford a fair opportunity to a victim, or in certain cases, the victim's family, to be heard on the issue of the defendant's disposition before sentence is imposed. The legislature anticipated that, in those instances in which the victim or family may be unable to personally attend a hearing, the court would accept and consider written statements for the purpose of allowing an opportunity to be heard. Conference Committee Report No. 60.

Act 230, Session Laws 2006, amended this section to require the court to amend an examiner's report upon finding that any correction, modification, or addition is needed. House Standing Committee Report No. 665-06.

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 278, Session Laws 2022, amended this section to replace references to "department of public safety" with "department of corrections and rehabilitation" to reflect the provisions in Act 278 that: (1) reestablished the department of public safety as an independent department of corrections and rehabilitation to administer the corrections, rehabilitation, and reentry of the inmate population; and (2) established a department of law enforcement to consolidate and administer certain criminal law enforcement and investigative functions of the department of public safety, department of transportation, department of the attorney general, and office of homeland security. The legislature found that the goals and functions of corrections and law enforcement are distinct, and separating the functions of the department of public safety into two departments would advance these distinct goals and objectives while allowing the corrections arm to more fully integrate strategies for rehabilitation. The legislature further found that reorganizing certain state law enforcement functions into a single entity with consistent training opportunities would allow for the efficient use of resources in administering correctional programs and improve decision making, promote accountability, streamline communication, decrease costs, reduce duplication of efforts, provide uniform training and standards, and promote uniform standards of law enforcement services. House Standing Committee Report No. 200-22, Senate Standing Committee Report No. 3292.
Haw. Rev. Stat. § 706-643 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-643
Disposition of funds.
Status: in_force

(1) The defendant shall pay a fine or any installment thereof to the cashier or clerk of the district or circuit court. In the event of default in payment, the clerk shall notify the prosecuting attorney and, if the defendant is on probation, the probation officer.

(2) [Repeal and reenactment on June 30, 2028. L 2023, c 148, §8(2).] All fines and other final payments received by a clerk or other officer of a court shall be accounted for, with the names of persons making payment, and the amount and date thereof, being recorded. All such funds shall be deposited with the director of finance to the credit of the general fund of the State. With respect to fines and bail forfeitures that are proceeds of the wildlife revolving fund under section 183D-10.5; fines that are proceeds of the drug and alcohol toxicology testing laboratory special fund under sections 291E-61(b)(2)(E), 291E-61.5(c)(2)(C), and 291E-62(c); and fines that are proceeds of the compliance resolution fund under sections 26-9(o) and 431:2-410, the director of finance shall transmit the fines and forfeitures to the respective funds. [L 1972, c 9, pt of §1; am L 1986, c 314, §35; am L 1990, c 83, §2; am L 2006, c 230, §21; am L 2009, c 149, §7; am L 2021, c 196, §§7, 11; am L 2023, c 148, §7]

COMMENTARY ON §706-643

This section provides for payment to the clerk of the sentencing court and incorporates previous provisions of law with respect to disposition of collected funds. Out of an abundance of caution, subsection (2) deals with all funds collected in civil as well as penal cases. This broad scope is made necessary by previous provisions of former Title 37 (Criminal Law) dealing with funds collected in civil cases. See H.R.S. §§712-8 and 712-9 as codified prior to this Code.

SUPPLEMENTAL COMMENTARY ON §706-643

Act 83, Session Laws 1990, required the deposit of hunting fines and bail forfeitures to the wildlife revolving fund creating additional funds for wildlife programs. Senate Standing Committee Report No. 2085.

Act 230, Session Laws 2006, amended subsection (1) to require the defendant to pay a fine to the cashier or clerk of the district or circuit court, instead of the clerk of the sentencing court.

Act 149, Session Laws 2009, established an insurance fraud investigations branch to replace the insurance fraud investigations unit, with expanded authority to prevent, investigate, and prosecute insurance fraud to include all lines of insurance except workers' compensation. Act 149 amended subsection (2), requiring the deposit of fines and settlements resulting from insurance fraud prosecutions into the compliance resolution fund to help the insurance fraud investigations branch cover the cost of preventing, investigating, and prosecuting insurance fraud. The legislature found that because insurance fraud occurs in every line of insurance, the State's insurance fraud law should be expanded accordingly. Conference Committee Report No. 26, Senate Standing Committee Report No. 1338.

Act 196, Session Laws 2021, amended this section to clarify that the director of finance shall transmit the fines imposed on offenders convicted of certain offenses involving operation of a vehicle under the influence of an intoxicant to the state drug and alcohol toxicology testing laboratory special fund. The legislature found that driving under the influence of drugs and alcohol continues to be a major safety issue in the State. However, the prosecution of arrested and suspected drivers impaired by drugs and alcohol was costly because blood and urine samples for drug analyses were sent to mainland laboratories for analysis. The legislature further found that in addition to being costly, this process was lengthy and could result in case dismissals. Accordingly, Act 196 established the state drug and alcohol toxicology testing laboratory special fund to sustain a drug and alcohol laboratory in the State. Senate Standing Committee Report No. 1158, House Standing Committee Report No. 750.

Act 148, Session Laws 2023, amended this section to replace references to: (1) "state drug and alcohol toxicology testing laboratory special fund" with "drug and alcohol toxicology testing laboratory special fund" to reflect the expanded scope of the laboratory; and (2) "section 291E-61(b)(2)(C)" with "section 291E-61(b)(2)(E)." Act 148 also extended to June 30, 2028, the sunset date of section 7 of Act 196, Session Laws 2021, which amended this section by requiring the director of finance to transmit fines to the drug and alcohol toxicology testing laboratory special fund. The legislature found that the safety of all roadway users was of paramount importance. The Department of Health did not have enough resources to fulfill the increased need for blood alcohol testing across the State. Additionally, the emergency services department of the city and county of Honolulu processed all alcohol blood level tests for the entire State, including tests for suspected cases of driving under the influence. As such, the legislature noted that establishing a drug and alcohol toxicology testing laboratory would provide law enforcement personnel and adjudicators with the resources necessary to protect the public from impaired drivers. Senate Standing Committee Report No. 1275, Senate Standing Committee Report No. 1887, House Standing Committee Report No. 399.
Haw. Rev. Stat. § 712-1213 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1213
Displaying indecent material; prima facie evidence.
Status: in_force

The fact that a person engaged in the conduct specified by section 712-1211 is prima facie evidence that the person engaged in that conduct with knowledge of or in reckless disregard of the character, content, or connotation of the material which is displayed.
Haw. Rev. Stat. § 708-8102 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8102
Theft, forgery, etc.
Status: in_force

[§708-8102] Theft, forgery, etc., of credit cards. (1) A person who takes a credit card from the person, possession, custody, or control of another without the cardholder's consent or who, with knowledge that it has been so taken, receives the credit card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder commits the offense of credit card theft. If a person has in the person's possession or under the person's control credit cards issued in the names of two or more other persons, which have been taken or obtained in violation of this subsection, it is prima facie evidence that the person knew that the credit cards had been taken or obtained without the cardholder's consent.

(2) A person who receives a credit card that the person knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder commits the offense of credit card theft.

(3) A person, other than the issuer, who sells a credit card or a person who buys a credit card from a person other than the issuer commits the offense of credit card theft.

(4) A person who, with intent to defraud the issuer, a person or organization providing money, goods, services, or anything else of value, or any other person, obtains control over a credit card as security for a debt commits the offense of credit card theft.

(5) A person, other than the issuer, who during any twelve-month period, receives credit cards issued in the names of two or more persons which the person has reason to know were taken or retained under circumstances which constitute credit card theft or a violation of section 708-8101, commits the offense of credit card theft.

(6) A person who, with intent to defraud a purported issuer, a person or organization providing money, goods, services, or anything else of value, or any other person, falsely makes or falsely embosses a purported credit card or utters such a credit card, or possesses such a credit card with knowledge that the same has been falsely made or falsely embossed commits the offense of credit card forgery. If a person other than the purported issuer possesses two or more credit cards which have been made or embossed in violation of this subsection, it is prima facie evidence that the person intended to defraud or that the person knew the credit cards had been so made or embossed. A person falsely makes a credit card when the person makes or draws, in whole or in part, a device or instrument which purports to be the credit card of a named issuer but which is not such a credit card because the issuer did not authorize the making or drawing, or alters a credit card which was validly issued. A person falsely embosses a credit card who, without authorization of the named issuer, completes a credit card by adding any of the matter, other than the signature of the cardholder, which an issuer requires to appear on the credit card before it can be used by a cardholder.

(7) A person other than the cardholder or a person authorized by the cardholder who, with intent to defraud the issuer, or a person or organization providing money, goods, services, or anything else of value, or any other person, signs a credit card, commits the offense of credit card forgery.

(8) Credit card theft is a class C felony.

(9) Credit card forgery is a class C felony. [L 1986, c 314, pt of §61]
Haw. Rev. Stat. § 711-1103 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1103
Riot.
Status: in_force

(1) A person commits the offense of riot if the person participates with five or more other persons in a course of disorderly conduct:

(a) With intent to commit or facilitate the commission of a felony; or

(b) When the person or any other participant to the person's knowledge uses or intends to use a firearm or other dangerous instrument in the course of the disorderly conduct.

(2) Riot is a class C felony. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §711-1103

In light of recent demonstrations by students and other militants, the importance of well-drafted statutes relating to riot, unlawful assembly, and disorderly conduct is self-evident. The goal is, on the one hand, not to curtail legitimate exercise of the rights of free speech and free assembly and, on the other hand, to give the police a useful tool to employ against conduct which involves crime or physical danger and which is no longer afforded constitutional protection.

Riot is the most serious of the offenses against public order. It is made a class C felony both because of the greater number of participants and because of the unlawful objectives. At least six persons must be involved (the defendant and five others) in "disorderly conduct," as that conduct is defined by §711-1101. This number of participants is taken from the previous Hawaii law and the Proposed Michigan Revised Criminal Code in preference to the Model Penal Code's smaller number of participants (three). Because §711-1103 defines riot in terms of aggravated disorderly conduct, it is necessary to prove the elements of disorderly conduct specified in §711-1101. In addition, there must be proof of one of two specified aggravating circumstances. Under subsection (1)(a) the accused must intend to commit or facilitate the commission of a felony. Subsection (1)(b) makes disorderly conduct riot when the accused or any other participant to the accused's knowledge uses or intends to use a dangerous instrument.

Section 711-1103 is restrictively worded to prevent the use of the section to break up orderly demonstrations, meetings, or processions which happen to attract a hostile crowd, perhaps because unpopular views are being expressed. On the other hand, the section will be useful in breaking up disorderly demonstrations which threaten harm in one of the specified ways.

In the prior Hawaii law, riot was defined as:

Any use of force or violence disturbing the public peace, or any threat or attempt to use such force or violence, if accompanied by immediate power of execution, by six or more persons acting together, and without authority or justification by law....[1]

The penalty for participating in any riot was a fine of not more than $1,000 or imprisonment of not more than two years or both.[2] There is no case law existing under this particular statute.
Haw. Rev. Stat. § 706-603 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-603
DNA analysis monetary assessment; DNA registry special fund.
Status: in_force

(1) In addition to any disposition authorized by chapter 706 or 853, every defendant convicted of a felony offense shall be ordered to pay a monetary assessment of $500 or the actual cost of the DNA analysis, whichever is less. The court may reduce the monetary assessment if the court finds, based on evidence presented by the defendant and not rebutted by the State, that the defendant is not and will not be able to pay the full monetary assessment and, based on the finding, shall instead order the defendant to pay an assessment that the defendant will be able to pay within five years.

(2) Notwithstanding any other law to the contrary, the assessment and penalty provided by this section shall be in addition to, and not in lieu of, and shall not be used to offset or reduce, any fine or restitution authorized or required by law. All assessments and penalties shall be paid into the DNA registry special fund established in subsection (3).

(3) There is established a special fund to be known as the DNA registry special fund which shall be administered by the attorney general. The fund shall consist of:

(a) All assessments and penalties ordered pursuant to subsection (1);

(b) All other moneys received by the fund from any other source; and

(c) Interest earned on any moneys in the fund.

Moneys in the DNA registry special fund shall be used for the Hawaii sexual assault response and training program established pursuant to chapter 844G; costs related to testing and storage of sexual assault evidence collection kits pursuant to chapter 844G; and DNA collection, DNA testing, and related costs of recording, preserving, and disseminating DNA information pursuant to chapter 844D.

(4) Restitution shall be made before payment of the monetary assessment pursuant to section 706-651. [L 1972, c 9, pt of §1; am L 1973, c 179, §24; am L 1974, c 54, §4; am L 1979, c 3, §4 and c 105, §65; am L 1980, c 232, §37; am L 1986, c 314, §12; am L 1987, c 145, §4; am L 1991, c 231, §2; am L 1998, c 271, §1; am L 2001, c 157, §35; am L 2005, c 112, §4; am L 2016, c 231, §16; am L 2018, c 113, §3]

COMMENTARY ON §706-603

This section recognizes that in some, if not many, cases the court will need medical and psychiatric information not normally found within the scope of the pre-sentence investigation and report. It is clear that in deciding which of numerous sentencing alternatives should be employed--e.g., fine, suspended sentence, probation (and the conditions thereof), or imprisonment--the court will need and should be allowed to call upon the professional insights of medical experts. The need for such professional help has been well stated in the A.B.A. Standards:

Reliance on the trial court for such significant correctional decisions suggests the imperative need for informational services beyond the normal pre-sentence report. There will inevitably be instances in which the pre-sentence report together with other information acquired during the trial will either leave the court short of desired information or will have raised additional questions which can only be answered by an examination of the defendant's physical, emotional or mental condition. The lack of access to facilities which can supply such information will force the court to an uninformed guess as to the proper disposition.

Too much is at stake to place the court in such a position. On occasion the simple correction of a physical defect has altered the course of a seemingly incorrigible offender. The use of prison in such a context could reinforce the offender's anti-social tendencies. Similarly, the pattern of psychiatric study followed by appropriate treatment offers significant advantages over the simple detention which characterizes so many of our prisons. The system needs the ability to discover the cases where unusual factors may indicate the desirability of an unusual disposition. The availability of facilities such as are contemplated by this section is one step in providing that capability.[1]

The Code does not deal with the question of whether the State should establish one or more reception and diagnostic centers to meet the needs of sentencing courts or whether the court's needs should be met by the employment on a case-by-case basis of local physicians and psychiatrists.[2] That decision will have to be made eventually, however, the Code is formulated in a manner which allows for future expansion of facilities in this area.

This section represents a needed addition to Hawaii law.

SUPPLEMENTAL COMMENTARY ON §706-603

Act 179, Session Laws 1973, amended this section to permit a convicted defendant to be remanded to an intake service center or community correctional center in addition to a clinic or hospital. This amendment was part of the implementation of the Hawaii Correctional Master Plan. (See Supplemental Commentary on §706-602.)

Act 54, Session Laws 1974, amended this section to permit the use of a certified clinical psychologist in making a pre-sentence diagnosis or evaluation. (Cf. Supplemental Commentary on §§704-404, 411, and 414.)

Act 3, Session Laws 1979, amended this section by providing for a three member examination panel (to be appointed in the same manner as the examination panels in §§704-404, 411, and 414) as the sole alternative to a single examiner. This was done to allow greater flexibility in appointing mental health professionals to the panels. Act 105 amended this section to restore language inadvertently deleted by Act 54, Session Laws 1974.

Act 232, Session Laws 1980, amended this section to restore amendments made by Act 3, §4, Session Laws 1979, which were superseded by Act 105, Session Laws 1979, under a general supersession clause.

Act 314, Session Laws 1986, amended "certified clinical psychologists" to "licensed psychologists." This change was made because psychologists are licensed and not certified and the term "clinical" does not accurately describe psychologists qualified to determine penal responsibility and fitness to proceed. Act 314 also provided an exception to the licensure requirement which recognizes that under §465-3(4), psychologists employed under government certification or civil service rules are exempt from the licensure requirement. Conference Committee Report No. 51-86.

Act 145, Session Laws 1987, permitted the department of health to set minimum standards for participation and appointment of a sanity examiner. The legislature felt this change would allow additional assurances of higher quality testimony by these examiners. Senate Standing Committee Report No. 691, House Standing Committee Report No. 1217.

Act 231, Session Laws 1991, required the court to order a defendant convicted of a sexual offense, a violent crime, or the attempt of either, to submit to blood and saliva testing to be used for a DNA identification profile which will allow law enforcement officials to identify reoffenders. The legislature weighed the balance between the defendant's right to privacy and the needs of society, and found that the needs of society to deter sexual and violent crimes outweighed the defendant's right to privacy. House Standing Committee Report No. 1018.

Act 271, Session Laws 1998, amended this section to require defendants convicted of sexual or violent offenses to provide blood samples for DNA analysis. The court is allowed to order convicted defendants to pay a monetary assessment of $500 or the actual cost of DNA analysis, whichever is less, to defray the costs of obtaining, storing, and testing the blood sample. Act 271 created a DNA registry special fund, administered by the attorney general, into which the monetary assessments are to be deposited. A person who negligently or recklessly fails to provide blood samples is guilty of a misdemeanor, and a person who intentionally or knowingly fails to provide blood samples is guilty of a class C felony.

The legislature recognized that DNA information is an increasingly valuable tool for investigating, prosecuting, and defending criminal cases. The legislature found that the development of a DNA registry is important to protect the public from further criminal acts committed by the offenders, but that the cost of the DNA sampling process is borne by police departments without state funding. The legislature agreed that convicted defendants who are required to provide DNA samples should be assessed a fee to defray the costs of testing. Conference Committee Report No. 110, Senate Standing Committee Report No. 3009.

Act 157, Session Laws 2001, amended this section, among others, to conform amendments relating to revocation of motor vehicle registrations under administrative revocation proceedings with the comprehensive law regarding driving under the influence which is to take effect on January 1, 2002. Act 157 conformed and consolidated the provisions of Act 189, Session Laws 2000, to existing law regarding driving while under the influence of alcohol or drugs, and suspension and revocation of licenses. Senate Standing Committee Report No. 1406.

Act 112, Session Laws 2005, established a statewide DNA database and data bank identification program for all convicted felons. Conference Committee Report No. 184. Act 112 amended this section by deleting the provisions regarding blood samples for DNA analysis and by requiring every convicted felon to pay a monetary assessment of $500 or the actual cost of the DNA analysis, whichever is less.

Act 231, Session Laws 2016, amended subsection (4) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 113, Session Laws 2018, amended this section to authorize use of the DNA registry special fund for the Hawaii sexual assault response and training program established pursuant to chapter 844G and the associated costs for testing and storage of sexual assault evidence collection kits. Act 113 established a Hawaii sexual assault response and training program to address the manner in which sexual assault evidence collection kits are processed and tracked and ensure that victims of sexual assault are informed of their rights under the law. The legislature found that deoxyribonucleic acid (DNA) evidence is a powerful law enforcement tool that can identify unknown suspects, connect crimes to known perpetrators, and exonerate the innocent. The legislature further found that DNA evidence is especially vital in cases of sexual assault and that Act 113 would help ensure that sexual assault evidence collection kits are tested in a timely manner. Senate Standing Committee Report No. 3038, Senate Standing Committee Report No. 3693.
Haw. Rev. Stat. § 712-1215.6 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1215.6
Promoting minor-produced sexual images in the second degree.
Status: in_force

(1) A minor commits the offense of promoting minor-produced sexual images in the second degree if the minor:

(a) Knowingly uses a computer, cell phone, or any other device capable of electronic data transmission or distribution, to transmit or distribute to another person a nude photograph or video of a minor or the minor's self; or

(b) Intentionally or knowingly commands, requests, or encourages another minor to use a computer, cell phone, or any other device capable of electronic data transmission or distribution, to transmit to any person a nude photograph or video of a minor or the minor's self.

(2) A person, of any age, commits the offense of promoting minor-produced sexual images in the second degree if the person knowingly possesses a nude photograph or video of a minor transmitted or distributed in violation of subsection (1). It is an affirmative defense under this subsection that the person took reasonable steps to destroy or eliminate the nude photograph or video of a minor.

(3) For purposes of this section, a "minor" means any person under eighteen years of age.

(4) Promoting minor-produced sexual images in the second degree is a petty misdemeanor. [L 2012, c 213, pt of §1]

COMMENTARY ON §§712-1215.5 AND 712-1215.6

Act 213, Session Laws 2012, added §§712-1215.5 and 712-1215.6 to address the problem of "sexting," which involved minors taking nude pictures and videos of themselves or other minors, and transmitting the nude images to others by use of a cell phone or other form of electronic communication. Specifically, Act 213 prohibited: (1) adults from soliciting minors to electronically transmit nude images of minors by making such conduct a misdemeanor [(§712-1215.5)]; (2) minors from electronically transmitting nude images of themselves or other minors, or soliciting other minors to do so by making such conduct a petty misdemeanor [(§712-1215.6)]; and (3)a person from possessing a nude image transmitted by a minor, but making it an affirmative defense that the recipient made reasonable efforts to destroy the transmitted nude image [(§712-1215.6)]. The legislature found that the electronic transmission of youth-produced sexual pictures and videos was a growing problem, particularly because the images can be shared with many people almost instantaneously. Once transmitted, the original transmitter had very limited ability to control or prevent further dissemination. The legislature further found that the images may be used as a commodity for exchange, and the threatened dissemination of these images may be used as leverage against the subject to force the subject to engage in behaviors that may cause embarrassment, at minimum, and possible mental or emotional harm. Conference Committee Report No. 25-12.
Haw. Rev. Stat. § 708-822 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-822
Criminal property damage in the third degree.
Status: in_force

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

(a) The person recklessly damages the property of another, without the other's consent, by the use of widely dangerous means;

(b) The person intentionally or knowingly damages the property of another, without the other's consent, in an amount exceeding $500; or

(c) The person intentionally damages the agricultural equipment, supplies, or products or aquacultural equipment, supplies, or products of another, including trees, bushes, or any other plant and livestock of another, without the other's consent, in an amount exceeding $100. In calculating the amount of damages to agricultural products, the amount of damages includes future losses and the loss of future production.

(2) Criminal property damage in the third degree is a misdemeanor; provided that any person convicted of violating subsection (1)(c) shall be sentenced to a term of imprisonment of not less than ninety days, without possibility of probation or suspension of sentence. [L 1972, c 9, pt of §1; am L 1973, c 136, §7(c); am L 1986, c 314, §62; gen ch 1993; am L 1996, c 170, §3; am L 2006, c 156, §5, c 181, §5, and c 230, §35; am L 2007, c 98, §3; am L 2025, c 235, §42]
Haw. Rev. Stat. § 701-117 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-117
Prima facie evidence.
Status: in_force

Prima facie evidence of a fact is evidence which, if accepted in its entirety by the trier of fact, is sufficient to prove the fact. Prima facie evidence provisions in this Code are governed by section 626-1, rule 306.

COMMENTARY ON §701-117

In drafting the Code, we have substituted the concept of prima facie evidence for presumptions, which appear to create insurmountable difficulties for lawyers, courts, and juries. Often it is desirable to enable the prosecution to get to the jury on something less than positive proof of a fact which may be almost solely within the knowledge of the defendant. As an example, §701-106(4) makes proof of the finding of a body of a homicide victim within the State prima facie evidence that the bodily impact causing death or the death itself occurred within the State, giving Hawaii's courts jurisdiction. Obviously it may be very difficult to prove where the criminal result occurred, and the presence of the body is a good indication that the result occurred here. On the other hand, although the prosecution's case gets to the jury on this point, the defendant can win by suggesting a reasonable doubt that the death or bodily impact did occur within the State. Thus, the prima facie evidence rule helps the prosecution to get its case to the jury without necessarily meeting its burden of persuasion. This is consistent with modern rules of evidence. See California Evidence Code §§601-02, 604.
Haw. Rev. Stat. § 707-702.5 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-702.5
Negligent homicide in the first degree.
Status: in_force

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

(a) Another person by the operation of a vehicle in a negligent manner while under the influence of drugs or alcohol; or

(b) A vulnerable user by the operation of a vehicle in a negligent manner.

(2) A person who violates subsection (1)(a) shall be guilty of a class B felony; provided that the person shall be guilty of a class A felony when the person:

(a) Has been convicted one or more times for the offense of operating a vehicle under the influence within fifteen years of the instant offense;

(b) Is, at the time of the instant offense, engaging in conduct that would constitute a violation of section 291E-62; or

(c) Is a highly intoxicated driver as defined by section 291E-1.

(3) A person who violates subsection (1)(b) shall be guilty of a class B felony.

(4) Notwithstanding sections 706-620(2), 706-640, 706-641, 706-659, and any other law to the contrary, the sentencing court may impose a lesser sentence for a person convicted of a class A felony under this section if the court finds that strong mitigating circumstances warrant the action. Strong mitigating circumstances shall include but 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.

(5) For the purposes of this section, a person "has been convicted one or more times for the offense of operating a vehicle under the influence" if the person has one or more:

(a) Convictions under section 291E-4(a), 291E-61, 291E-61.5, or 291E-64;

(b) Convictions in any other state or federal jurisdiction for an offense that is comparable to operating or being in physical control of a vehicle while having either an unlawful alcohol concentration or an unlawful drug content in the blood or urine or while under the influence of an intoxicant or habitually operating a vehicle under the influence of an intoxicant; or

(c) Adjudications of a minor for a law violation that, if committed by an adult, would constitute a violation of section 291E-4(a), 291E-61, or 291E-61.5,

that , at the time of the instant offense, had not been expunged by pardon, reversed, or set aside. All convictions that have been expunged by pardon, reversed, or set aside before the instant offense shall not be deemed prior convictions for the purposes of this section. [L 1988, c 292, pt of §1; am L 2012, c 316, §2; am L 2022, c 48, §2]

COMMENTARY ON §707-702.5

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

Act 316, Session Laws 2012, amended this section to include a provision for incidents involving a vulnerable highway user. Hawaii's roadways have often been called dangerous for pedestrians, cyclists, and others who legally use the public right of way without being in a motor vehicle. Unfortunately, when collisions occur between motor vehicles and these individuals, the outcome is often catastrophic. Amending the offense of negligent homicide in the first degree to include a provision for incidents in which vulnerable highway users are involved may, at the very least, increase driver awareness of these individuals. Conference Committee Report No. 33-12.

Act 48, Session Laws 2022, amended this section to elevate the penalty of negligent homicide in the first degree from a class B felony to a class A felony when certain conditions are met. The legislature found that heightened penalties were necessary to deter persons from repeatedly driving while under the influence of an intoxicant or driving at increased blood or breath alcohol levels. The legislature further found that any driver who operates a vehicle as a highly intoxicated driver poses a serious danger to anyone on or near a roadway. Most fatal crashes in the State involve drivers impaired by intoxicating substances. Act 48 was intended to prevent traffic fatalities and hold offenders accountable for their negligent actions. Conference Committee Report No. 2-22, House Standing Committee Report No. 1834-22, Senate Standing Committee Report No. 2720.
Haw. Rev. Stat. § 708-8252 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8252
Arson in the second degree.
Status: in_force

(1) A person commits the offense of arson in the second degree if the person intentionally or knowingly sets fire to or causes to be burned property and:

(a) Recklessly places another person in danger of death or bodily injury; or

(b) Knowingly or recklessly damages the property of another, without the other's consent, in an amount exceeding $1,500.

(2) Arson in the second degree is a class B felony. [L 2006, c 181, pt of §1]
Haw. Rev. Stat. § 703-306 — HI Code / Division 5 / Title 37 / Chapter 703 / Section 703-306
Use of force for the protection of property.
Status: in_force

(1) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:

(a) To prevent the commission of criminal trespass or burglary in a building or upon real property in the actor's possession or in the possession of another person for whose protection the actor acts;

(b) To prevent unlawful entry upon real property in the actor's possession or in the possession of another person for whose protection the actor acts; or

(c) To prevent theft, criminal mischief, or any trespassory taking of tangible, movable property in the actor's possession or in the possession of another person for whose protection the actor acts.

(2) The actor may in the circumstances specified in subsection (1) use such force as the actor believes is necessary to protect the threatened property, provided that the actor first requests the person against whom force is used to desist from the person's interference with the property, unless the actor believes that:

(a) Such a request would be useless;

(b) It would be dangerous to the actor or another person to make the request; or

(c) Substantial harm would be done to the physical condition of the property which is sought to be protected before the request could effectively be made.

(3) The use of deadly force for the protection of property is justifiable only if:

(a) The person against whom the force is used is attempting to dispossess the actor of the actor's dwelling otherwise than under a claim of right to its possession; or

(b) The person against whom the deadly force is used is attempting to commit felonious property damage, burglary, robbery, or felonious theft and either:

(i) Has employed or threatened deadly force against or in the presence of the actor; or

(ii) The use of force other than deadly force to prevent the commission of the crime would expose the actor or another person in the actor's presence to substantial danger of serious bodily injury.

(4) The justification afforded by this section extends to the use of a device for the purpose of protecting property only if:

(a) The device is not designed to cause or known to create a substantial risk of causing death or serious bodily injury;

(b) The use of the particular device to protect the property from entry or trespass is reasonable under the circumstances, as the defendant believes them to be; and

(c) The device is one customarily used for such a purpose or reasonable care is taken to make known to probable intruders the fact that it is used.

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

Revision Note

In subsections (1)(a) and (2)(a), "or" deleted and in subsection (4)(a), "and" deleted pursuant to §23G-15.

COMMENTARY ON §703-306

This section establishes the rules for the use of force upon or toward the person of another which has as its purpose the protection of property. The standard of justification is the actor's own belief in the necessity of using physical force to prevent certain specified kinds of harm. Force may be used to prevent criminal trespass and burglary, unlawful entry upon real property, theft, criminal mischief, and other trespassory taking of tangible, movable property, so long as in each case the property protected is in the possession of the actor or of one for whose protection the actor is acting. (Note that in any case in which the actor fears bodily injury to the actor or another, §§703-304, 305 would apply rather than §703-306. Thus, robbery may be covered by those sections rather than this, if the robber places the actor in fear of bodily injury or death.)

Subsection (2) permits the actor to use such force as the actor believes is necessary to protect the property, short of deadly force, after making a request to desist from interfering with the property. The request is required because of the high value to be placed upon prevention of human suffering. Infliction of physical force on another cannot be justified if the desired end can be achieved without the danger of injury. A request to desist does not, however, have to be made if the actor believes that it would be useless, dangerous to the actor, or likely to give the wrongdoer time to do substantial harm to the physical condition of the property.

Deadly force is ordinarily not permitted. It may be used if the assailant is attempting to dispossess the actor of the actor's dwelling otherwise than under a claim of right. This recognizes an important tradition in the common law which places a high value on the sanctity of the home and recognizes that a person will take extraordinary means to preserve it. Deadly force may also be used to prevent felonious property damage, burglary, robbery, or felonious theft, if: (1) the person against whom the force is used has employed or threatened deadly force against or in the presence of the actor, or (2) use of force short of deadly force would expose the actor or another person in the actor's presence to the danger of serious bodily injury. Both of these cases are covered, in any event, by the self-defense provisions of §§703-304, 305, but it seems wise to spell them out here in light of the general prohibition on use of deadly force.

Subsection (4) permits the use of certain property protection devices which may cause bodily discomfort or injury, subject to strict limitations. Subsection (5) mirrors a similar subsection in §703-304 and regulates the use of confinement as a protective force. As in §703-304, use of confinement is permitted, but it must be terminated as soon as possible consistent with safety to the property, unless the person confined has been arrested.

An attempt has been made to simplify the Model Penal Code scheme by omitting a few overly complicated concepts. In addition, the elaborate M.P.C. rules on recaption or re-entry are eliminated. This Code treats re-entry upon property and recaption of property under the same principles as other forms of property defense. As a matter of policy, it does not seem wise to encourage resort to self-help when property has been seized in any circumstances in which self-help would not have been permissible to protect the property from seizure. The M.P.C. rules have not generally been followed in other states.[1]

Hawaii case law is substantially in accord with the Code's position on the use of deadly force.[2] However, Hawaii has permitted the use of devices to accomplish what the defendant could do were the defendant present;[3] on this point the Code, clearly forbidding the use of deadly devices under any circumstances, represents a change from the prior law. Subsection (2), on request, is an important addition to Hawaii law. The subsection on confinement is also new.

__________

§703-306 Commentary:

1. See e.g., N.Y.R.P.L. §§35.20-35.25.

2. Territory v. Warren, 35 Haw. 232, 245, rehearing denied, 35 Haw. 252 (1939).

3. Id.
Haw. Rev. Stat. § 712A-11 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-11
Judicial forfeiture proceedings; general.
Status: in_force

(1) In any judicial or administrative proceeding pursuant to this chapter, the court, on application of the State, may enter any restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, appraisers, accountants or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to forfeiture under this chapter, including a warrant for its seizure, whether before or after the filing of a petition for forfeiture, complaint, or indictment.

(2) If property is seized for forfeiture without a seizure warrant, a prior judicial order of forfeiture, or a hearing pursuant to section 712A-13, a court, on an application filed by an owner or interest-holder within fifteen days after notice of its seizure for forfeiture or actual knowledge of it, whichever is earlier, and complying with the requirements for claims in section 712A-12, may issue an order to show cause to the seizing agency, with thirty days' notice to the prosecuting attorney, for a hearing on the issue of whether probable cause for forfeiture of the applicant's interest then exists, provided that, the order to show cause shall be set aside upon the filing of a petition for either administrative or judicial forfeiture prior to the hearing, in which event forfeiture proceedings shall be in accordance with this chapter.

(3) There shall be a rebuttable presumption that any property of a person is subject to forfeiture under this chapter if the State establishes, by the standard of proof applicable to that proceeding, all of the following:

(a) That the person has engaged in criminal conduct for which property is subject to forfeiture;

(b) That the property was acquired by the person during the period of the criminal conduct or within a reasonable time after that period; and

(c) That there was no likely source for the property other than the criminal conduct giving rise to forfeiture.

(4) A finding that property is the proceeds of criminal conduct giving rise to forfeiture does not require proof that the property is the proceeds [of] any particular exchange or transaction.

(5) A defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding pursuant to this chapter. For the purposes of this chapter, a conviction may result from a verdict or plea, including a no contest plea, or deferred acceptance of guilty plea, or no contest plea.

(6) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this chapter.

(7) In any judicial forfeiture proceeding pursuant to this chapter, if a defense is based on an exemption provided for in this chapter, the burden of proving the existence of the exemption is on the claimant or party raising the defense, and it is not necessary to negate the exemption in any petition, application, complaint, or indictment.

(8) For good cause shown, on motion by the prosecuting attorney, the court may stay discovery against the State in civil forfeiture proceedings prior to trial on a criminal complaint or indictment arising from the same conduct and against a claimant who is a defendant in the criminal proceeding after making provision to prevent loss to any party resulting from the delay. The stay provided by this subsection shall not be available pending appeal of any order or judgment in the criminal proceeding.

(9) The court shall receive and consider, at any hearing held pursuant to this chapter, except the hearing on claims pursuant to sections 712A-12(4) through (8) and 712A-13(7), evidence and information which would be admissible under the rules of penal procedure relating to preliminary hearings.

(10) All property, including all interest in such property, declared forfeited under this chapter vests in this State on the commission of the act or omission giving rise to forfeiture under this chapter together with the proceeds of the property after the act or omission. Any property or proceeds transferred to any person after the act or omission are subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing pursuant to this chapter the showings set out in section 712A-5(2) and (3). [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1991, c 166, §6; am L 1993, c 196, §1; am L 1996, c 104, §6; am L 2025, c 288, §4]

COMMENTARY ON §712A-11

Act 288, Session Laws 2025, amended this section by conforming a reference to §712A-5. This conforming amendment facilitated other amendments made by Act 288 that: (1) restricted civil asset forfeiture to cases where the owner has received a charge for the offense; and (2) required 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. § 708-8254 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8254
Arson in the fourth degree.
Status: in_force

(1) A person commits the offense of arson in the fourth degree if the person intentionally, knowingly, or recklessly sets fire to, or causes to be burned, property and thereby damages the property of another without the other's consent.

(2) Except as provided in subsection (3), arson in the fourth degree shall be a misdemeanor.

(3) Arson in the fourth degree shall be a class C felony if the act was committed during the time period and within the geographic area in which a red flag warning was in effect. The state of mind requirement for the offense shall not be applicable to the fact that the red flag warning was in effect at the time and within the geographic area in which the act was committed. The state of mind requirement applicable to the attendant circumstance that the red flag warning was in effect at the time and within the geographic area in which the act was committed shall be negligence.

For purposes of this subsection, "red flag warning" means the weather warning issued by the National Weather Service to indicate that warm temperatures, very low humidities, and stronger winds are expected to combine to produce an increased risk of fire danger. [L 2006, c 181, pt of §1; am L 2007, c 11, §2; am L 2024, c 201, §3]

COMMENTARY ON §§708-8251 TO 708-8254

Act 181, Session Laws 2006, added this part, establishing the crime of arson in the first, second, third, and fourth degrees, as property damage offenses. The legislature found that fires that are intentionally set cause extensive damage to public and private properties and threaten lives. Conference Committee Report No. 50-06.

Act 11, Session Laws 2007, amended §708-8254(1) to include recklessness in the state of mind requirement for arson in the fourth degree. Senate Standing Committee Report No. 1128, House Standing Committee Report No. 773.

Act 201, Session Laws 2024, amended §708-8254 to: (1) raise the criminal penalty for the offense of arson in the fourth degree to a class C felony if the offense was committed during the time period and within the geographic area in which a red flag warning was in effect; and (2) provide that the state of mind requirement is not applicable to the fact that the red flag warning was in effect and that the state of mind requirement applicable to the attendant circumstance that the red flag warning was in effect is negligence. The legislature found that following the August 2023 Maui wildfires, six working groups were established to evaluate the aftermath of the wildfires and make recommendations for appropriate legislative action. The joint final report of the working groups, which was released in December 2023, contained recommendations including but not limited to penalties for violations of state fire protection laws and criminal penalties for arson during red flag warnings. Accordingly, the legislature noted that Act 201 would ensure the safety and protection of the State's communities, rangelands, and forested watersheds by deterring certain actions that lead to a heightened risk of wildfires. Senate Standing Committee Report No. 3085, Senate Standing Committee Report No. 3649.
Haw. Rev. Stat. § 707-733 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-733
Sexual assault in the fourth degree.
Status: in_force

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

(a) The person knowingly subjects another person, not married to the actor, to sexual contact by compulsion or causes another person, not married to the actor, to have sexual contact with the actor by compulsion;

(b) The person knowingly exposes the person's genitals to another person under circumstances in which the actor's conduct is likely to alarm the other person or put the other person in fear of bodily injury;

(c) The person knowingly trespasses on property for the purpose of subjecting another person to surreptitious surveillance for the sexual gratification of the actor; or

(d) The person knowingly engages in or causes sexual contact with a minor who is at least sixteen years old and the person is contemporaneously acting in a professional capacity to instruct, advise, or supervise the minor; provided that:

(i) The person is not less than five years older than the minor; and

(ii) The person is not legally married to the minor.

(2) Sexual assault in the fourth degree is a misdemeanor.

(3) Whenever a court sentences a defendant for an offense under this section, the court may order the defendant to submit to a pre-sentence mental and medical examination pursuant to section 706-603. [L 1986, c 314, pt of §57; am L 1991, c 214, §1; am L 2016, c 153, §2 and c 231, §34]
Haw. Rev. Stat. § 710-1075 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1075
Jury tampering.
Status: in_force

(1) A person commits the offense of jury tampering if, with intent to influence a juror's vote, opinion, decision, or other action in a case, the person attempts directly or indirectly to communicate with a juror other than as part of the proceedings in the trial of the case.

(2) Jury tampering is a class C felony. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §§710-1073 TO 710-1075

These three sections parallel closely §§710-1070, 1071, and 1072 dealing with witness bribery, intimidation, and tampering. The only significant difference from the preceding sections lies in the fact that the integrity of a slightly different part of the judicial process is being protected. It is, however, readily apparent that the juror plays a part in the judicial process of equal importance with that of the witness; the integrity of the juror's function must be protected equally. Since it is the juror's function to decide the facts according to the evidence without any external influences or considerations, it is the imposition of such external influences which is penalized by these three sections. Both the structure of the sections and the sanctions imposed are similar to those described in the preceding witness offenses.
Haw. Rev. Stat. § 704-416 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-416
Statements for purposes of examination or treatment inadmissible except on issue of physical or mental condition.
Status: in_force

A statement made by a person subjected to examination or treatment pursuant to this chapter for the purposes of such examination or treatment shall not be admissible in evidence against the person in any penal proceeding on any issue other than that of the person's physical or mental condition, but it shall be admissible upon that issue, whether or not it would otherwise be deemed a privileged communication, unless such statement constitutes an admission of guilt of the offense charged.
Haw. Rev. Stat. § 708-839.9 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-839.9
[ §708-839.
Status: in_force

[ §708-839.9] Theft of mail. (1) A person commits the offense of theft of mail if the person intentionally obtains or exerts unauthorized control over mail from another person's mailbox or premises without the effective consent of the addressee and with the intent to deprive that addressee of the mail.

(2) For purposes of this section, "mail" means an envelope, a package, a bag, or a box that:

(a) Is delivered by a common carrier or delivery service to an addressee; or

(b) Has been left to be collected for delivery by a common carrier or delivery service.

(3) Theft of mail is a misdemeanor. [L 2022, c 112, §2]

COMMENTARY ON §708-839.9

Act 112, Session Laws 2022, added this section to establish the offense of theft of mail. The legislature found that the coronavirus disease 2019 pandemic had changed the way many families relied on delivery services. There had been a major increase in the amount of online orders being placed and subsequently fulfilled by shipping items through the mail. Most packages sent through the mail are left outside the door at their intended destination if there is no mail receptacle large enough for the package on site. The legislature further found that reports of mail theft were on the rise. When mail carriers leave packages by doors or in otherwise unsecured mail receptacles, the packages are susceptible to theft, leading to frustration for senders and intended recipients. The legislature noted that Act 112 provided necessary protection to the property of the State's residents and facilitated the prosecution of theft of mail at the state level. Senate Standing Committee Report No. 3559, House Standing Committee Report No. 792-22.
Haw. Rev. Stat. § 707-718 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-718
[ §707-718] Torture.
Status: in_force

[ §707-718] Torture. (1) Any person who knowingly:

(a) Causes serious bodily injury to another person within the actor's custody or physical control;

(b) Causes serious bodily injury or substantial bodily injury to another person, and the actor has previously engaged in a pattern or practice of physically abusing the other person; or

(c) Subjects a minor or vulnerable person to any of the following acts, or to any substantially similar act, on three or more occasions within a period of two years:

(i) Strangling the minor or vulnerable person;

(ii) Biting, branding, burning, cutting, or electrocuting the minor or vulnerable person;

(iii) Suspending the minor or vulnerable person by the wrists, ankles, arms, legs, hair, or other part of the body;

(iv) Depriving the minor or vulnerable person of necessary food, water, or clothing;

(v) Restricting basic and necessary bodily functions required for the personal hygiene of the minor or vulnerable person;

(vi) Forcing the minor or vulnerable person to remain in an area unsuitable for human habitation, such as areas where urine or feces are actively present;

(vii) Forcing the minor or vulnerable person to ingest mind-altering drugs that have not been prescribed by a physician for the minor or vulnerable person, non-potable water, urine, excrement, or poison; or

(viii) Exposing the minor or vulnerable person to extreme temperatures without adequate clothing,

shall be guilty of the offense of torture.

(2) Proof that the victim suffered pain is not an element of a violation of subsection (1)(c).

(3) For purposes of this section:

"Custody or physical control" means the forcible restriction of a person's movements or the forcible confinement of the person so as to interfere with that person's liberty, without that person's consent or without lawful authority.

"Deprives" or "restricts" means to withhold in a manner that materially endangers the physical or mental health of a minor or vulnerable person.

"Minor" means a person under the age of eighteen years.

"Pattern or practice" means two or more acts within a period of two years with a common state of mind.

"Vulnerable person" means a family or household member as defined in section 709-906, an incompetent person as defined in section 709-905, or a person who has a status as described in section 706-662(5)(b)(ii).

(4) Torture is a class A felony.

(5) Where the conduct consists of depriving the minor or vulnerable person of necessary food, water, or clothing, it shall be a defense that the deprivation was caused solely by poverty, destitution, or lack of financial means. [L 2025, c 147, §2]

COMMENTARY ON §707-718

Act 147, Session Laws 2025, added this section to establish the offense of torture as a class A felony in the State. The legislature found that existing law did not clearly define torture and only punished torture as an aggravating circumstance for murder. Even application of that sentence had been substantially weakened because the prosecution must prove that the torture inflicted was "unnecessary." The legislature believed that it was essential to distinguish between abuse and torture because they differ in severity, and the penalties should reflect that distinction. Accordingly, Act 147 would establish charges that accurately reflected the severity of these acts and ensure that offenders were held accountable for the magnitude of their crimes. House Standing Committee Report No. 2034, Conference Committee Report No. 27.
Haw. Rev. Stat. § 712A-21 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-21
Records of seized or forfeited property.
Status: in_force

(1) Each seizing agency shall maintain the following records for all property seized for purposes of forfeiture:

(a) The authority under which the property was seized or forfeited;

(b) The date on which each item of property was seized or forfeited;

(c) The department or agency that has possession of the seized or forfeited property;

(d) A description of each item of seized or forfeited property; and

(e) The estimated value of each item of seized or forfeited property.

(2) The seizing agency shall:

(a) Maintain all records of seized or forfeited property;

(b) Make the records open to inspection; and

(c) Post the records on a publicly accessible website. [L 2025, c 288, pt of §2]

COMMENTARY ON §712A-21

Act 288, Session Laws 2025, added this section to establish public recordkeeping requirements for seized or forfeited property. The legislature found that the State's existing property forfeiture process required reform to ensure greater fairness, transparency, and accountability. 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.
Haw. Rev. Stat. § 708-851 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-851
Forgery in the first degree.
Status: in_force

(1) A person commits the offense of forgery in the first degree if, with intent to defraud, the person falsely makes, completes, endorses, or alters a written instrument, or utters a forged instrument, or fraudulently encodes the magnetic ink character recognition numbers, which is or purports to be, or which is calculated to become or to represent if completed:

(a) Part of an issue of stamps, securities, or other valuable instruments issued by a government or governmental agency;

(b) Part of an issue of stock, bonds, or other instruments representing interests in or claims against a corporate or other organization or its property; or

(c) All or part of a deed, will, codicil, contract, assignment, commercial instrument, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status and:

(i) The purported maker or drawer of the written instrument or forged instrument is a person who is sixty years of age or older; and

(ii) The age of the purported maker or drawer of the written instrument or forged instrument is known or reasonably should be known to the person who falsely makes, completes, endorses, or alters the instrument; utters the forged instrument; or fraudulently encodes the magnetic ink character recognition numbers of the instrument.

(2) Forgery in the first degree is a class B felony. [L 1972, c 9, pt of §1; am L 1988, c 155, §2; gen ch 1992; am L 1997, c 243, §2; am L 2021, c 147, §6]
Haw. Rev. Stat. § 708-833 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-833
Theft in the fourth degree.
Status: in_force

(1) A person commits the offense of theft in the fourth degree if the person commits theft of property or services of any value not in excess of $250.

(2) Theft in the fourth degree is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1986, c 314, §66; am L 2016, c 231, §39]

SUPPLEMENTAL COMMENTARY ON §§708-830 TO 708-833

Act 231, Session Laws 2016, amended §§708-831(1), 708-832(1), and 708-833(1) by raising the monetary thresholds for the offenses. The amendments implemented recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 5, Session Laws 2021, amended §708-831 to provide that the offense of theft in the second degree includes theft of property commonly used to store items of monetary value, including any purse, handbag, or wallet. The legislature found that the Penal Code did not adequately address situations in which an offender takes the property of another that is commonly used to store items of personal or monetary value, including purses, handbags, or wallets. Under existing law, the prosecution was required to prove beyond a reasonable doubt that an accused offender intended to steal real property, such as a purse or wallet, valued in excess of $750 to convict a defendant of theft in the second degree. Commonly, purses and wallets are not valued at more than $750. However, these items often contain personal information of the victim as well as the victim's family, friends, and acquaintances; sensitive medical and financial information; workplace information; photos; and other personal items of sentimental value that may be irreplaceable. Therefore, theft of a purse or wallet can result in mental and emotional hardship beyond any loss of monetary value. The legislature further found that inclusion of the theft of purses, handbags, and wallets under the offense of theft in the second degree could deter potential offenders from committing these acts, thereby increasing public safety. Senate Standing Committee Report No. 1205.

Act 147, Session Laws 2021, amended §708-830.5 to provide that the offense of theft in the first degree includes theft of: (1) property from the person of another who is sixty years of age or older; or (2) property or services, the value of which exceeds $750, from a person who is sixty years of age or older; provided that in either case, the age of the property owner is known or reasonably should be known to the person who commits theft. Act 147 also amended §708-831 to provide that the offense of theft in the second degree includes theft of property or services, the value of which exceeds $250, from a person who is sixty years of age or older where the age of the property owner is known or reasonably should be known to the person who commits theft. The legislature found that the rate of crimes targeting seniors in the State had increased in recent years. The legislature further found that senior citizens are especially vulnerable to long-term physical, emotional, and financial harm from criminal acts and that there was a lack of adequate protection against exploitation of senior citizens under existing law. Act 147 more closely aligned certain Penal Code statutes with common elder abuse scenarios to facilitate appropriate responses by law enforcement and prosecutors. Senate Standing Committee Report No. 1212.

Act 52, Session Laws 2022, amended §708-831 to include theft of an electric gun, regardless of its monetary value, within the offense of theft in the second degree. The legislature found that the Penal Code did not adequately address the theft of electric guns, which became legal for members of the public on January 1, 2022. The legislature further found that criminals might seek out electric guns since these devices can cause severe pain and completely incapacitate a person and may be used to facilitate a multitude of crimes, including robberies, assaults, sexual assaults, human trafficking, and domestic abuse. The legislature noted that designating the theft of an electric gun, regardless of its value, as a higher degree of theft could have a long-term deterrent effect and create a safer environment for the community. Senate Standing Committee Report No. 3303, House Standing Committee Report No. 779-22.

Act 54, Session Laws 2022, amended §708-830.5 to specifically include theft of a motor vehicle or motorcycle in the offense of theft in the first degree. The legislature found that most motor vehicle thefts were previously prosecuted under the class C felonies of unauthorized control of a propelled vehicle or theft in the second degree for property the value of which exceeds $750, with a maximum penalty of up to $10,000 and five years of imprisonment for either offense. The legislature further found that there was growing public support for increased penalties for motor vehicle theft to ensure that offenders receive an appropriate sentence that reflects the seriousness of the offense while providing adequate deterrence for future criminal activity. Accordingly, Act 54 elevated the offense of theft of a motor vehicle to a class B felony, with a maximum penalty of up to $25,000 and ten years of imprisonment. Senate Standing Committee Report No. 3560, House Standing Committee Report No. 237-22.
Haw. Rev. Stat. § 704-411 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-411
Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; 
Status: in_force

§704-411 Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; discharge; procedure for separate post-acquittal hearing. ( 1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall order that:

(a) The defendant shall be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant:

(i) Is affected by a physical or mental disease, disorder, or defect;

(ii) Presents a risk of danger to self or others; and

(iii) Is not a proper subject for conditional release;

provided that the director of health shall place defendants charged with misdemeanors or felonies not involving violence or attempted violence in the least restrictive environment appropriate in light of the defendant's treatment needs and the need to prevent harm to the person confined and others. The county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853; provided that the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided further that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law;

(b) The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition; or

(c) The defendant shall be discharged if the court finds that the defendant is no longer affected by physical or mental disease, disorder, or defect or, if so affected, that the defendant no longer presents a danger to self or others and is not in need of care, supervision, or treatment.

(2) The court, upon its own motion or on the motion of the prosecuting attorney or the defendant, shall order a separate post-acquittal hearing for the purpose of taking evidence on the issue of physical or mental disease, disorder, or defect and the risk of danger that the defendant presents to self or others.

(3) When ordering a hearing pursuant to subsection (2):

(a) In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners; and

(b) In felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant. In each case, the court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The three examiners shall be appointed from a list of certified examiners as determined by the department of health.

To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination for a period not exceeding thirty days or a longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accordance with section 704-404(3), (5)(a), (b), (d), and (e), (7), (8), (9), (10), and (11). As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered.

(4) Whether the court's order under subsection (1) is made on the basis of the medical or psychological evidence given at the trial, or on the basis of the report made pursuant to section 704-404, or the medical or psychological evidence given at a separate hearing, the burden shall be upon the State to prove, by a preponderance of the evidence, that the defendant is affected by a physical or mental disease, disorder, or defect and may not safely be discharged and that the defendant should be either committed or conditionally released as provided in subsection (1).

(5) In any proceeding governed by this section, the defendant's fitness shall not be an issue. [L 1972, c 9, pt of §1; am L 1974, c 54, §2; am L 1979, c 3, §2; am L 1983, c 281, §1; am L 1986, c 314, §8; am L 1987, c 145, §2; am L 1988, c 305, §7; am L 1992, c 88, §2; gen ch 1992; am L 1997, c 306, §3; am L 2006, c 230, §10; am L 2008, c 99, §3 and c 100, §3; am L 2009, c 127, §2; am L 2011, c 99, §2; am L 2016, c 198, §5 and c 231, §§8, 9; am L 2020, c 26, §4]

COMMENTARY ON §704-411

This section rejects the concept of mandatory commitment following a qualified acquittal on the basis of a physical or mental disease, disorder, or defect which precluded defendant's responsibility.[1] The Code instead authorizes a flexible mode of disposition of defendants thus acquitted, which depends on (1) the restraint necessary to protect other members of society and the defendant from the consequences of a recurrence of the prohibited conduct, and (2) the conditions necessary to afford the defendant proper care and supervision.

The Code recognizes three types of dispositions: commitment, conditional release, and discharge. The Code utilizes the concept of conditional release, which is presently recognized in the field of civil commitment, but leaves the ultimate determination of the conditions of release with the court, rather than with the medical authority to whom the defendant is entrusted.

Since the defendant has been detained for a substantial period of time for purposes of examination prior to the determination of the defendant's lack of responsibility, the examiners, in an appropriate case, may be able to indicate, at the trial or at a separate hearing, that commitment is not called for. In such a case, mandatory commitment followed by an application for release or discharge would be abusive and wasteful. Furthermore, a disease, disorder, or defect excluding responsibility which is influenced by biological or organic factors may be susceptible to adequate treatment (by means of drugs or otherwise) on an out-patient basis without danger to other members of society or may be such that repetition of the prohibited conduct is foreclosed. In such cases commitment should not be made mandatory.

Proof of penally prohibited conduct at the time of the alleged offense cannot be used as a justification for automatic commitment following an acquittal based on lack of responsibility.[2] A determination by the court will have to be made as to whether the defendant's condition at the time of disposition requires commitment, conditional release, or discharge. While proof of the commission of prohibited conduct and an acquittal predicated on lack of responsibility at the time of the conduct are relevant to and probative of present dangerousness, they are not substitutes for such a finding. Although the evidence at trial will be primarily devoted to a determination of the defendant's physical and mental condition at the time of the alleged offense, in certain cases the examiners may be able to indicate the risks which the defendant presents. In some cases a defendant, seeking to avoid penal liability on the basis of physical or mental disease, disorder, or defect excluding responsibility, may be quite willing to stipulate to the need for commitment or conditional release following acquittal. In such cases, it should not be necessary to require that the court hold a separate hearing for the purpose of determining the defendant's present condition and the risks the defendant presents.

The Code, therefore, provides in subsection (1) that the disposition order may be made on the basis of medical evidence given either at the trial or at a separate hearing. In those instances where the court believes that the evidence at trial is not sufficiently addressed to the risk of danger which the defendant presents to allow a determination of that issue, the court may order a separate hearing. Where either the prosecution or the defense believes that the evidence at the trial (including stipulations) is not dispositive of the issue of present danger, each is free to move for a separate post-acquittal hearing on that issue.

Subsection (3) provides that the procedure to be followed with respect to a separate post-acquittal hearing shall conform to §704-404 to the extent applicable.

Subsection (4) provides that the burden of proof with respect to the issue of present danger is on the government and that proof shall be by a preponderance of the evidence. This section is consistent with the burden the government must bear under §704-415 with respect to applications for discharge, conditional release, or modification of conditions of release.
Haw. Rev. Stat. § 706-606.2 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-606.2
Special sentencing considerations for arson; other actions not prohibited.
Status: in_force

(1) In addition to any other penalty imposed, a person convicted of arson involving fire set to brush, grass, vegetation on the land resulting in damage to ten thousand square feet or more of property, may be required to:

(a) Pay any costs associated with extinguishing the fire, which shall include, but are not limited to:

(i) Personnel salary, benefits, and overtime;

(ii) The operation, maintenance, and repair of apparatus, aircraft, and equipment;

(iii) Supplies expended, damaged, or lost; and

(iv) Rehabilitation supplies during firefighting operations; and

(b) Perform community service work in the region in which the property damage occurred.

With regard to any fine or monetary penalty that may be imposed on a minor convicted or adjudicated for an offense of arson, the parents or legal guardians of the minor shall be liable for the percentage of costs associated with extinguishing the fire based upon the apportionment of fire damage to real or personal property caused by the minor as a result of committing the offense of arson, regardless of whether the property is publicly or privately owned.

(2) Nothing in this section shall prohibit a separate criminal action being brought by the State or a civil action being brought by the State or a third party for conduct that constitutes an offense of arson. [L 2006, c 182, §1; am L 2007, c 9, §18 and c 11, §1; am L 2008, c 17, §1]
Haw. Rev. Stat. § 712A-6 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-6
Seizure of property.
Status: in_force

(1) Personal property subject to forfeiture under this chapter may be seized for forfeiture by a law enforcement officer:

(a) On process issued pursuant to the rules of civil procedure or the provisions of this chapter including a seizure warrant;

(b) By making a seizure for forfeiture on property seized on process issued pursuant to law; or

(c) By making a seizure for forfeiture without court process as follows:

(i) The seizure for forfeiture is of property seized incident to an arrest or search;

(ii) The property subject to seizure for forfeiture has been the subject of a prior judgment in favor of the State or any other state or the federal government in forfeiture proceeding;

(iii) The law enforcement officer has probable cause to believe that the property seized for forfeiture is directly or indirectly dangerous to health or safety;

(iv) The law enforcement officer has probable cause to believe that the property is subject to forfeiture; or

(v) The seizure for forfeiture is of perishable natural resources seized and sold, pursuant to section 199-7, prior to forfeiture proceeding.

(2) Real property subject to forfeiture under this chapter may be seized for forfeiture by a law enforcement officer pursuant to court order following a pre-seizure hearing in the circuit court in the circuit in which the property is located with notice of the pre-seizure hearing to be made to the owners and interest-holders pursuant to section 712A-8. The court shall order the real property in question to be seized for forfeiture if it finds probable cause that the real property is subject to forfeiture under any provision of the Hawaii Revised Statutes.

(3) In determining probable cause for seizure, the fact that a firearm, money, or any negotiable instrument was found in proximity to contraband or to instrumentalities of an offense gives rise to an inference that the money, or instrument was the proceeds of contraband or that the firearm, money or instrument was used or intended to be used to facilitate commission of the offense. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1993, c 196, §1; am L 1994, c 178, §3; am L 1996, c 104, §6; am L 1999, c 233, §2]

COMMENTARY ON §712A-6

Act 178, Session Laws 1994, amended this section to allow real property subject to forfeiture to be seized pursuant to a court order following a pre-seizure hearing, with notice of the pre- seizure hearing given to owners and interest-holders. The purpose of the amendment was to codify due process requirements in regard to forfeiture pursuant to United States v. Good. Conference Committee Report No. 27.
Haw. Rev. Stat. § 712A-13 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-13
Judicial in personam forfeiture proceedings.
Status: repealed

(1) If a forfeiture is authorized by law, it shall be ordered by a court on a petition for forfeiture filed by the prosecuting attorney in an in personam civil or criminal action. In any civil in personam action brought under this section, the owner or interest-holder may testify, present evidence and witnesses on the owner or interest-holder'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 owner or interest-holder's interest in the property is subject to forfeiture. On such a showing by the State, the owner or interest-holder has the burden of showing by a preponderance of the evidence that the owner or interest-holder's interest in the property is not subject to forfeiture.

(2) In any proceeding pursuant to this section, the court, on application of the prosecuting attorney, may enter any order authorized by section 712A-11 or take any other action to seize, secure, maintain or preserve the availability of property subject to forfeiture under this chapter, including a warrant for its seizure, whether before or after the filing of a petition for forfeiture, complaint, or indictment.

(3) A temporary restraining order under this section may be entered on petition of the State without notice or an opportunity for a hearing if the State demonstrates that:

(a) There is probable cause to believe that the property with respect to which the order is sought would, in the event of final judgment or conviction, be subject to forfeiture; and

(b) Provision of notice will jeopardize the availability of the property subject to forfeiture.

A temporary restraining order expires within ten days after the date on which it is entered unless the party against whom it is entered consents to an extension for a longer period or unless after commencing a hearing the court enters or is considering a preliminary injunction.

(4) Notice of the issuance of the temporary restraining order and an opportunity for a hearing shall be afforded to persons known to have an interest in the property. The hearing, however, is limited to the issues required to be demonstrated in subsection 3(a) and (b) of this section.

(5) A hearing requested by any owner or interest-holder concerning a temporary restraining order entered under this section shall be held at the earliest practicable time and before the expiration of a temporary order.

(6) On a determination of liability or the conviction of a person for conduct giving rise to forfeiture under this title, the court shall enter a judgment of forfeiture of the property described in the petition for forfeiture, and shall also authorize the prosecuting attorney or attorney general, their agents or any other law enforcement officer to seize all property ordered forfeited that was not previously seized or is not then under seizure. Following the entry of an order declaring the property forfeited, the court, on application of the State, may enter any order authorized by section 712A-11 or take any other action to protect the interest of the State or a political subdivision in the property ordered forfeited. The filing of the order of forfeiture in the appropriate public records perfects the interest of the State in the property described in the order as of the date that a notice of pending forfeiture or racketeering lien was first filed in the records, which entitles the State to all rights of a secured party as to that property in addition to any other rights or remedies of the State in relation to the property. Any income accruing to, or derived from, an enterprise or any interest in an enterprise or other property interest that is forfeited under this chapter is also forfeited from the time of the conduct giving rise to forfeiture. Such income may be used pending procedures subsequent to a verdict or finding of liability to offset ordinary and necessary expenses of the enterprise or property as required by law or that are necessary to protect the interests of the State or a political subdivision.

(7) Procedures subsequent to the verdict or finding of liability and order of forfeiture shall be as follows:

(a) Following the entry of an order of forfeiture, the clerk of the court shall give notice of pending forfeiture to owners and interest-holders who have not previously been given notice, if any, in the manner provided in section 712A-8;

(b) Any owner or interest-holder, other than a party or a defendant in the underlying in personam action, asserting an interest in property that has been ordered forfeited pursuant to such action, within thirty days after initial notice of pending forfeiture or after notice under paragraph (a) of this subsection, whichever is earlier, may file a claim as described in section 712A-12(5), in the court for a hearing to adjudicate the validity of the person's claimed interest in the property;

(c) The hearing on the claim, to the extent practicable and consistent with the interest of justice, shall be held within sixty days after the order of forfeiture. The court may consolidate the hearing on the claim with a hearing on any other claim filed by a person other than a party or defendant in the underlying action and concerning the same property;

(d) The hearing shall be conducted in the manner provided for in rem judicial forfeiture actions including the provisions of section 712A-12(7) and (8). In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the underlying civil or criminal action that resulted in the order of forfeiture; and

(e) In accordance with its findings at the hearing, the court may amend the order of forfeiture if it determines that any claimant has established by a preponderance of the evidence that the claimant has a legal interest in the property, and the claimant's interest is property designated as not subject to forfeiture by section 712A-5.

(8) Except as provided in section 712A-11(2) and subsection (7)(b) of this section, a person claiming an interest in property subject to forfeiture under this section may not:

(a) Intervene in a trial or an appeal of a criminal or in personam civil case involving the forfeiture of such property; or

(b) Commence or maintain any action against the State concerning the validity of the alleged interest other than as provided in this chapter.

(9) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of filed or subsequent claims pursuant to this section the court, on application of the State, may order that the testimony of any witness relating to the property forfeited or alleged to be subject to forfeiture be taken by deposition and that any designated book, paper, document, record, recording, electronic or otherwise, or other material which is not privileged be produced at the same time and place and in the same manner as that provided for the taking of depositions under the rules of civil procedure. [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, §§5, 6]

Revision Note

Throughout this section, "section" or "subsection" substituted for "§" or "paragraph".

COMMENTARY ON §712A-13

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. § 712A-5.5 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-5.5
Excessive forfeitures.
Status: in_force

The court shall limit the scope of a forfeiture judgment issued pursuant to section [712A-5(1)(b)] to the extent the court finds the effect of the forfeiture is grossly disproportionate to the nature and severity of the owner's conduct. In determining whether a forfeiture is grossly disproportionate, the court may consider:

(1) The degree to which the property was used to facilitate the conduct that subjects property to forfeiture and the importance of the property to the conduct;

(2) The gain received or expected by an owner from the conduct that subjects property to forfeiture and the value of the property subject to forfeiture;

(3) The nature and extent of the owner's culpability; and

(4) The owner's effort to prevent the conduct or assist in prosecution. [L 1996, c 104, §2]

COMMENTARY ON §712A-5.5

Act 104, Session Laws 1996, added this section which specifies the criteria that the court may consider in determining whether a forfeiture is grossly disproportionate to the nature and severity of the owner's conduct. The section applies only to forfeitures instituted under §712A-5(1)(b) dealing with property used to facilitate an offense or an instrumentality used in an offense. If property were the derivatives or the proceeds of an offense, the property would be tainted and consequently would be forfeited. House Standing Committee Report No. 409-96.
Haw. Rev. Stat. § 708-802 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-802
Property recovered in offenses against property rights.
Status: in_force

Identification of an item of property recovered for violation of chapter 708, may be made by photographing the item and authentication of the content of the photograph. Such photograph shall be deemed competent evidence of the item photographed and admissible in any proceeding, hearing, or trial for violation of the chapter.

Provided, however, that nothing in this section shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence. [L 1981, c 124, §1; am L 1990, c 194, §1]

COMMENTARY ON §708-802

Act 124, Session Laws 1981, added this section to enable victims of burglary, theft, and related offenses to obtain the quick return of their property recovered by the police and at the same time to insure the availability of competent evidence at trial.

Act 194, Session Laws 1990, amended this section to expand the type of property which may be photographed for evidence in a court proceeding. The legislature felt this amendment would allow victims of property crimes, not previously covered, to obtain their property quickly from the police. House Standing Committee Report No. 1186-90.
Haw. Rev. Stat. § 706-610 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-610
Classes of felonies.
Status: in_force

(1) Apart from first and second degree murder and attempted first and second degree murder, felonies defined by this Code are classified, for the purpose of sentence, into three classes, as follows:

(a) Class A felonies;

(b) Class B felonies; and

(c) Class C felonies.

A felony is a class A, class B, or class C felony when it is so designated by this Code. Except for first and second degree murder and attempted first and second degree murder, a crime declared to be a felony, without specification of class, is a class C felony.

(2) A felony defined by any statute of this State other than this Code shall constitute for the purpose of sentence a class C felony, except if another provision of law specifically defines a felony to be of a specified class as defined by this Code, such felony shall be treated for the purpose of sentence as provided by this chapter for that class of felony. [L 1972, c 9, pt of §1; am L 1986, c 314, §19; am L 1987, c 181, §4]

COMMENTARY ON §706-610

The chapter takes the general position that authorized sentences must take into consideration two things: (1) the seriousness of the crime, and (2) the character of the defendant. The Penal Code divides crime into three grades--felonies, misdemeanors, and petty misdemeanors--according to their seriousness. This section further subdivides felonies into three classes. With the exception of special provisions calling for the possibility of lifetime imprisonment for the offense of murder, the Code thus provides five categories of crimes "which should exhaust the possibilities of reasonable, legislative discrimination."[1]

The prior Hawaii criminal law provided for two categories of crimes: felonies and misdemeanors.[2] However, within each category, the legislature had fixed a multitude of different sentences which are not necessarily consistent with one another or adequately correlated to the relative seriousness of the offense.[3]

The number and variety of the distinctions of this order found in most existing systems is one of the main causes of the anarchy in sentencing that is so widely deplored. Any effort to rationalize the situation must result in the reduction of distinctions to a relatively few important categories.[4]

Subsection (2) reduces to a class C felony, those felonies defined by a statute not within this Code. This reflects the "judgment that the [Penal] Code should deal at least with any area of criminality involving crimes so serious that classification as a [class A or class B] felony for sentence purposes is justified."[5]

SUPPLEMENTAL COMMENTARY ON §706-610

Act 314, Session Laws 1986, amended this section so that non-Code statutes enacted since 1973 may designate felonies as class A or B felonies, rather than automatically being deemed class C felonies under present law. Conference Committee Report No. 51-86.

Act 181, Session Laws 1987, added language to this section to reflect the recently created statutory murder and attempted murder crimes. These crimes are murder in the first and second degree and attempted murder in the first and second degree. Senate Standing Committee Report No. 1130.
Haw. Rev. Stat. § 706-670.5 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-670.5
Notice of parole or final unconditional release.
Status: in_force

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

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

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

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

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

(2) The Hawaii paroling authority shall give written notice of the parole or release from parole of a prisoner or parolee to each victim who has submitted a written request for notice or to a surviving immediate family member who has submitted a written request for notice.

(3) The department of corrections and rehabilitation shall give written notice of the final unconditional release of a prisoner or parolee, who has not been previously paroled or discharged, to each victim who has submitted a written request for notice or to a surviving immediate family member who has submitted a written request for notice.

(4) The authority or department, as the case may be, shall provide written notice to the victim or surviving immediate family member at the address given on the written request for notice or such other address as may be provided by the victim or surviving immediate family member, not less than ten days prior to parole or final unconditional release. The authority or department, in its discretion, may instead give written notice to the witness or victim counselor programs in the prosecuting attorney's office in the county where the victim or the surviving immediate family member resides.

(5) Neither the failure of any state officer or employee to carry out the requirements of this section nor compliance with it shall subject the State, the officer, or employee to liability in any civil action. However, such failure may provide a basis for such disciplinary action as may be deemed appropriate by a competent authority. [L 1983, c 184, §2(2); am L 1985, c 227, §1; am L 1987, c 338, §10; am L 1989, c 211, §8; am L 1997, c 383, §66; am L 2022, c 278, §29]
Haw. Rev. Stat. § 710-1012 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1012
Refusing to assist in fire control.
Status: in_force

(1) A person commits the offense of refusing to assist in fire control when:

(a) Upon a reasonable command by a person known to him to be a firefighter, he intentionally refuses to aid in extinguishing a fire or in protecting property at the scene of a fire; or

(b) Upon command by a person known to him to be a firefighter or law enforcement officer, he intentionally disobeys an order or regulation relating to the conduct of persons in the vicinity of a fire.

(2) "Firefighter" means any officer of a fire department or any other person vested by law with the duty to extinguish fires.

(3) Refusing to assist in fire control is a petty misdemeanor.

(4) A person who complies with this section by assisting in fire control shall not be held liable to any person for damages resulting therefrom, provided he acted reasonably under the circumstances known to him at the time. [L 1972, c 9, pt of §1; am L 1977, c 191, §2; am L 1983, c 124, §15; am L 2001, c 91, §4]

COMMENTARY ON §710-1012

Subsection (1)(a) of this section is intended to place obligations upon the citizen in aiding fire control similar to those which §710-1011 places upon the citizen with regard to law enforcement. Again, the request for aid need not be obeyed unless it is reasonable under the circumstances.

Subsection (1)(b) is related to the control of crowds and vehicles in the vicinity of a fire, under circumstances where disorderly conduct and riot-dispersal statutes would not apply.

The waiver of civil liability in subsection (4) is explained in the commentary to §710-1011.
Haw. Rev. Stat. § 710-1078 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1078
Disrespect of a house of the legislature.
Status: in_force

(1) A person who is not a member of either house of the legislature commits the offense of disrespect of a house of the legislature if, while the person is present at a legislative session of either house or at a hearing of any committee of either house, the person creates a breach of peace or disturbance with intent to interrupt the proceeding.

(2) Whenever there is probable cause to believe that a person has violated subsection (1), the person shall be subject to arrest and removal from the presence of the legislature or either house or any committee of a house, by the sergeant-at-arms of the affected house or by any other law enforcement officer of the State, as directed by the sergeant-at-arms.

(3) Disrespect of a house of the legislature is a petty misdemeanor. [L 2012, c 204, §1]

COMMENTARY ON §710-1078

Act 204, Session Laws 2012, added this section to establish the petty misdemeanor offense of disrespect of a house of the legislature. While instances of contemptuous behavior are rare, the legislature believed that the law needed to be updated to address such possible behavior that can occur at any time. Senate Standing Committee Report No. 2998.
Haw. Rev. Stat. § 706-606.3 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-606.3
Expedited sentencing program.
Status: in_force

(1) A person who has committed intra-family sexual assault may be considered for the expedited sentencing program in accordance with this section. As used in this section, "intra-family" sexual assault means any criminal offense of felony sexual assault under section 707-730, 707-731, or 707-732, or incest, as defined in section 707-741, in which the victim of the offense is related to the defendant by consanguinity or marriage, or resides in the same dwelling unit as the defendant, and the victim was, at the time of the sexual assault, under the age of eighteen.

(2) The police department of the county in which the sexual assault took place or any other appropriate investigative law enforcement agency shall confer with the appropriate prosecuting authority. If the prosecuting authority determines that it is appropriate to provide notice of the expedited sentencing program to the defendant, the police department or other appropriate investigative law enforcement agency shall give the defendant written notice of the existence of the expedited sentencing program provided in this section. The notice provision shall not be a prerequisite to questioning the defendant. The notice provision shall not obligate the prosecuting authority to issue a statement of "no objection" when considering the defendant for the expedited sentencing program.

(3) The written notice shall state:

"YOU ARE ADVISED TO SEEK LEGAL COUNSEL IMMEDIATELY. IF YOU CANNOT AFFORD PRIVATE COUNSEL, CONTACT THE OFFICE OF THE PUBLIC DEFENDER. FAILURE TO CONTACT AN ATTORNEY MAY DISQUALIFY YOU FROM THIS PROGRAM. A copy of section 706-606.3, Hawaii Revised Statutes, is attached to this notice. You are under investigation for a felony sexual assault against a minor. Upon completion of this investigation, if there is sufficient basis to believe that you have committed a sexual assault, the case will be referred to the appropriate prosecuting authority for review and possible institution of criminal charges. Hawaii law provides for a range of ordinary prison sentences for felony sexual assault ranging from five years up to twenty years, or life imprisonment, depending upon the offense. However, section 706-606.3, Hawaii Revised Statutes, provides that a person who commits a sexual assault upon a minor but who admits guilt, cooperates with the prosecuting authority, and participates in appropriate assessment and treatment may be considered for the expedited sentencing program. A person who is sentenced in accordance with the expedited sentencing program may be sentenced to a term of probation. Probation may be revoked, however, for failure to comply with the terms of the probation pursuant to section 706-625. To qualify for consideration for the expedited sentencing program, your legal counsel first must request from the office of the prosecuting authority named in this notice a written statement as to whether that office has any objection to your being considered for the expedited sentencing program. THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS YOUR LEGAL COUNSEL HAS RECEIVED A WRITTEN STATEMENT THAT THE APPROPRIATE PROSECUTING AUTHORITY HAS NO OBJECTION TO YOUR BEING CONSIDERED FOR THE EXPEDITED SENTENCING PROGRAM AND THE REQUEST FOR THAT WRITTEN STATEMENT WAS MADE WITHIN FOURTEEN DAYS OF YOUR RECEIPT OF THIS NOTICE. FURTHER, THE COURT WILL NOT CONSIDER YOU FOR THE EXPEDITED SENTENCING PROGRAM UNDER SECTION 706-606.3, HAWAII REVISED STATUTES, UNLESS, ONCE YOUR LEGAL COUNSEL HAS RECEIVED THIS NOTICE, YOU HAVE MADE A GOOD FAITH EFFORT TO AVOID THE NECESSITY OF THE CHILD BEING REMOVED FROM THE FAMILY HOME, INCLUDING BUT NOT LIMITED TO MOVING AND REMAINING OUT OF THE FAMILY HOME UNTIL OTHERWISE ORDERED BY THE COURT."

The written notice also shall provide:

(a) Instructions on how to contact the appropriate prosecuting authority, including any necessary addresses and telephone numbers; and

(b) The name of the person delivering the notice and the date it was given to the alleged offender.

(4) A defendant shall not be considered by the court for the expedited sentencing program under this section unless the defendant's legal counsel requests within fourteen days of the defendant's receipt of the written notice, that the defendant be considered for the expedited sentencing program, and defendant's counsel subsequently receives a written statement from the appropriate prosecuting authority stating that it has no objection to the defendant being considered for the expedited sentencing program in accordance with this section. Additionally, each of the following criteria shall be met:

(a) After receiving the required written notice, the defendant made a good faith effort to avoid the necessity of the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;

(b) The victim of the sexual assault was under the age of eighteen when the sexual assault was committed;

(c) The defendant was never previously sentenced under this section and has never been convicted of felony sexual assault under section 707-730, 707-731, or 707-732, or incest under section 707-741;

(d) A guardian ad litem appointed in a family court proceeding, or a person assigned by the Children's Advocacy Center to serve as guardian ad litem, agreed that it would be in the best interest of the child for the defendant to be considered for the expedited sentencing program. No prosecuting authority shall issue a statement of no objection without this prior agreement; and

(e) The defendant has complied with the requirements for consideration for the expedited sentencing program as established in subsection (6); provided that at sentencing the prosecuting authority may oppose the defendant's participation in the expedited sentencing program if the prosecuting authority determines that the defendant has failed to satisfy the criteria under subsection (6).

(5) The prosecuting authority and the child's guardian ad litem may consult with any other appropriate agency or individual to assist in a decision whether to provide a written statement of "no objection" prior to the defendant being considered for sentencing under the expedited sentencing program.

(6) Within seven business days of receipt of the written notice stating that the appropriate prosecuting authority has no objection to the defendant being considered for the expedited sentencing program in accordance with this section, unless the prosecuting authority waives compliance with the time limit, the defendant shall:

(a) Continue to make a good faith effort to avoid the necessity of the child being removed from the family home, including but not limited to moving and remaining out of the family home until otherwise ordered by the court;

(b) Admit to commission of the sexual assault to the police department of the county in which the assault took place or other appropriate investigative law enforcement agency;

(c) Provide to the appropriate prosecuting authority a written waiver of indictment and preliminary hearing for any criminal charges arising from the sexual assault; and

(d) Enter a voluntary plea of guilty to the charge or charges alleged upon or following arraignment.

(7) Notwithstanding sections 706-606.5, 706-620, 706-659, 706-660, and 706-660.2, a defendant considered for the expedited sentencing program under this section when sentence is imposed may be sentenced to a term of probation pursuant to section 706-624; provided that if the defendant is sentenced to a term of imprisonment as a condition of probation, the term of imprisonment may allow for the defendant's retention of employment.

(8) The term of probation under this section shall be as follows:

(a) For an offense under section 707-730 or 707-731, twenty years; and

(b) For an offense under section 707-732 or 707-741, ten years.

(9) In addition to the conditions of probation provided under section 706-624, a sentence under this section shall include that the defendant shall:

(a) Participate in court approved, appropriate sex offender assessment and treatment that shall conform to the guidelines developed by the adult probation division of the appropriate circuit court, until clinically discharged; provided that:

(i) The prosecuting authority shall be provided notice and the opportunity for a hearing prior to any authorization for treatment discontinuance by the court or the adult probation division;

(ii) The defendant shall pay for the cost of the assessment and treatment to the extent that the defendant has the ability to do so; and

(iii) A lack of assessment and treatment resources shall result in the defendant not being considered for the expedited sentencing program;

(b) Provide a written waiver of confidentiality for any assessment, treatment, counseling, therapy, or other program ordered as a condition of probation;

(c) Comply with all orders entered in a proceeding pursuant to chapter 587A; and

(d) Comply with other condition deemed by the court to be reasonably necessary for the protection of the victim of the sexual assault or the rehabilitation of the defendant.

(10) There shall be a rebuttable presumption in favor of the court imposing a sentence in accordance with this section when a defendant qualifies for the expedited sentencing program, and written notice of "no objection" is issued by the prosecuting authority. The court shall provide written findings of fact setting forth specific reasons justifying imposition of a sentence that is not in accordance with this section. [L 1993, c 316, §§1, 6; am L 1995, c 157, §1; am L 2001, c 127, §§2, 3; am L 2010, c 135, §7]
Haw. Rev. Stat. § 707-714.5 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-714.5
Criminally negligent storage of a firearm.
Status: in_force

(1) A person commits the offense of criminally negligent storage of a firearm if:

(a) The person violates section 134-10.5;

(b) The person knows or reasonably should know that a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor; and

(c) A minor obtains the firearm.

(2) This section shall not apply if the minor obtains the firearm as a result of an unlawful entry to any premises by any person.

(3) Criminally negligent storage of a firearm shall be a misdemeanor.

(4) For purposes of this section, "minor" means any person under the age of eighteen years. [L 1992, c 288, §2; am L 2021, c 148, §3; am L 2025, c 22, §4]

COMMENTARY ON §707-714.5

Act 288, Session Laws 1992, added this section to establish that a person can be found criminally negligent for storage of a firearm if a person keeps a firearm on the premises and the person knows or reasonably should know that a minor can gain access to the firearm without the permission of the parent or guardian and that the minor does obtain the firearm. Conference Committee Report No. 119.

Act 148, Session Laws 2021, amended this section to raise from sixteen to eighteen years the maximum age of minors for which safe storage of firearms is required. The legislature found that an estimated 4,600,000 children and adolescents in the United States lived in homes with at least one unsecured firearm and that the presence of unsecured firearms in the home increases the risk of unintentional and intentional shootings. Further, the United States Secret Service and the United States Department of Education reported that in 68 per cent of deadly school shootings, the attacker obtained the firearm from the attacker's home or that of a relative. In addition, over 75 per cent of firearms used in suicide attempts and unintentional firearm injuries among children and adolescents were stored in the residence of the victim, a relative, or a friend. Act 148 raised the age for which safe storage of firearms is required in a home to prevent minors from having access to firearms and possibly causing injury to themselves or others. Senate Standing Committee Report No. 1558.

Act 22, Session Laws 2025, amended this section to clarify the offense of criminally negligent storage of a firearm by specifying that the person commits the offense if the person knows or reasonably should know that a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor. The legislature found that unsecured or improperly stored firearms pose a significant risk to public safety, contributing to accidental injuries, deaths, suicides, theft, and increased lethality in violent situations. Improper firearm storage is especially dangerous to children due to its role in firearm-related accidents and school shootings. The legislature further found that there is a large body of academic research showing that laws requiring secure storage of firearms are associated with significant reductions in rates of suicide and unintentional firearms deaths and injuries among children and teens. Accordingly, Act 22 aimed to reduce firearm-related accidents and crimes by instituting additional storage requirements to reduce unauthorized access to firearms. Senate Standing Committee Report No. 1722, Senate Standing Committee Report No. 1227, House Standing Committee Report No. 818.
Haw. Rev. Stat. § 704-414 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-414
Procedure upon application for discharge, conditional release, or modification of conditions of release.
Status: in_force

(1) Upon filing of an application pursuant to section 704-412 for discharge or conditional release, or upon the filing of an application pursuant to section 704-413 for discharge, the court shall appoint three qualified examiners in felony cases, and one qualified examiner in nonfelony cases, to examine and report upon the physical and mental condition of the defendant. In felony cases, the court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The examiners shall be appointed from a list of certified examiners as determined by the department of health. To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of the examination and may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accordance with section 704-404(3), (5)(a), (b), (d), and (e), (7), (8), (9), (10), and (11). As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered.

(2) Upon the filing of an application pursuant to section 704-413 for modification of conditions of release, the court may proceed as provided in subsection (1). [L 1972, c 9, pt of §1; am L 1974, c 54, §3; am L 1979, c 3, §3; am L 1986, c 314, §9; am L 1987, c 145, §3; am L 1988, c 305, §9; am L 1992, c 88, §3; am L 1997, c 306, §5; am L 2006, c 230, §13; am L 2016, c 198, §6 and c 231, §§11, 12; am L 2020, c 26, §5]

COMMENTARY ON §704-414

This section provides for the appointment of independent examiners for the purpose of reporting and possibly testifying on the former defendant's condition prior to action on an application for discharge, conditional release, or modification of conditions of release. The procedure for examination is substantially similar to that prescribed for the initial determination of the issues of fitness to proceed and penal responsibility; however, the relevant condition is the person's present condition and the relevant criterion is whether the application can be granted without danger to the person himself, or to the person or property of others.

Prior Hawaii law merely required "proof of termination of... [the committed person's] insanity."[1] The mandatory requirement of an independent review before change in commitment or conditional release status is an addition to the law. It affords the defendant and the public a more deliberate determination of the application.

SUPPLEMENTAL COMMENTARY ON §704-414

In conformity with the changes made in §§704-404 and 411, Act 54, Session Laws 1974, also changed §704-414 to permit the use of one certified clinical psychologist as part of the examination panel.

Act 3, Session Laws 1979, modified the requirements for the composition of examination panels to allow the courts greater flexibility in appointing mental health professionals.

Act 314, Session Laws 1986, amended "certified clinical psychologists" to "licensed psychologists." This change was made because psychologists are licensed and not certified and the term "clinical" does not accurately describe psychologists qualified to determine penal responsibility and fitness to proceed. Act 314 also provided an exception to the licensure requirement which recognizes that under §465-3(4), psychologists employed under government certification or civil service rules are exempt from the licensure requirement. Conference Committee Report No. 51-86.

Act 145, Session Laws 1987, permitted the department of health to set minimum standards for participation and appointment of a sanity examiner. The legislature felt this change would allow additional assurances of higher quality testimony by these examiners. Senate Standing Committee Report No. 691, House Standing Committee Report No. 1217.

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.

Act 88, Session Laws 1992, made technical amendments to the section for purposes of clarity, consistency, and style. Senate Standing Committee Report No. 2579.

Act 306, Session Laws 1997, amended this section to allow mental health examinations to be conducted by one rather than three examiners in nonfelony cases, and to require three examiners, which include at least one psychiatrist and one psychologist, in felony cases. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Conference Committee Report No. 64.

Act 230, Session Laws 2006, amended this section by omitting in the sixth sentence, the words "and participate in" from the phrase that formerly read "to witness and participate in the examination."

Act 198, Session Laws 2016, amended this section by making conforming amendments. Senate Standing Committee Report No. 2261. Act 198 also amended this section by adding the definition of "qualified physician."

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

Act 26, Session Laws 2020, amended this section to: (1) repeal the requirement that the three qualified examiners appointed to examine and report on the physical and mental condition of the defendant in a felony case include at least one psychiatrist and one licensed psychologist, and instead allow the appointment of any combination of psychiatrists, licensed psychologists, or qualified physicians, so long as one examiner is a psychiatrist or licensed psychologist designated by the director of health from within the department of health; and (2) amend the requisite contents of examination reports. The legislature noted significant increases in the number of individuals with mental illness that were arrested and remained in custody while awaiting a psychiatric evaluation of competency. If determined to be legally unfit to proceed with their cases, these individuals continued to remain in custody until restoration of their legal fitness to proceed. The legislature found that the mental health core steering committee, a collaboration of the department of health and the judiciary, published a Joint Report on January 9, 2020, proposing legislation to divert nonviolent petty misdemeanants living with mental illness from the criminal justice system within days of their arrest, rather than months, to further the goal of crime prevention, ensure appropriate diversion to community treatment, and further the goal of rehabilitation, among other amendments to existing statute. The legislature further found that Act 26 reflected the recommendations of the steering committee to achieve a more efficient and just response in the treatment of individuals with mental disorders within the criminal justice system. Senate Standing Committee Report No. 3757.

__________

§704-414 Commentary:

1. H.R.S. §711-94.
Haw. Rev. Stat. § 712-1246.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1246.5
Promoting a harmful drug in the fourth degree.
Status: in_force

(1) A person commits the offense of promoting a harmful drug in the fourth degree if the person knowingly possesses any harmful drug in any amount.

(2) Promoting a harmful drug in the fourth degree is a misdemeanor. [L 1989, c 163, §6]
Haw. Rev. Stat. § 709-904 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-904
Endangering the welfare of a minor in the second degree.
Status: in_force

(1) Except as provided in section 709-903.5(2), a person commits the offense of endangering the welfare of a minor in the second degree if, having care or custody of a minor, the person:

(a) Recklessly allows another person to inflict serious or substantial bodily injury on the minor; or

(b) Recklessly causes or permits the minor to inject, ingest, inhale, or otherwise introduce into the minor's body any controlled substance listed in sections 329-14, 329-16, 329-18, and 329-20 that has not been prescribed by a physician for the minor, except as permitted under section 329-122. This subsection shall not apply to nursing mothers who may cause the ingestion or introduction of detectable amounts of any controlled substance listed in sections 329-14, 329-16, 329-18, and 329-20 to their minor children through breastfeeding.

(2) A person commits the offense of endangering the welfare of a minor in the second degree if, being a parent, guardian, or other person whether or not charged with the care or custody of a minor, the person knowingly endangers the minor's physical or mental welfare by violating or interfering with any legal duty of care or protection owed such minor.

(3) Endangering the welfare of a minor in the second degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1974, c 198, §1; am L 1986, c 314, §71; am L 2006, c 230, §45 and c 249, §2; am L 2008, c 81, §2]

COMMENTARY ON §709-904

[The Proposed Draft as well as the Code as adopted had limited this offense to a parent, guardian, or other person charged with the care or custody of the minor. In 1974, this was broadened to include persons who were not charged with the care or custody of the minor. (See Supplemental Commentary on §709-904.) This Commentary is based on the original wording prior to the 1974 amendment.]

This section provides a penal sanction for the violation of a duty of care and protection which the civil law relating to minors places upon parents, guardians, and other persons charged with the care or custody of a minor. In a sense this offense is residual. Specific types of conduct which may endanger the welfare of minors are treated separately in §709-902 (abandonment) and §709-903 (persistent nonsupport). However, prosecutions for abandonment and persistent nonsupport do not depend upon a showing that the abandonment or nonsupport actually endangered the welfare of the child. For example, abandonment of a child in a police station or an orphanage may, if the parent is not suitable and beyond rehabilitation, be in the interest of the child. Yet, under such circumstances, a prosecution for abandonment could be maintained. Similarly, an exceedingly poor parent may refuse to support his child and thereby cause a more wealthy relative to furnish support beyond the means of the parent; even so, the persistent refusal would constitute an offense. Section 709-904 involves violations of legal duties which do in fact endanger the welfare of the child. If a person knowingly endangers the welfare of a minor by violating a legal duty of support or non-desertion, it matters not that the nonsupport was sporadic or that the desertion was not with intent to abandon.

The Model Penal Code commentary, in discussing the section of that Code from which this section is derived, observed that

its significance lies as much in what it does not make criminal as in what it does penalize. Notably, it will not be an offense under this or any other Section of the Code to "contribute to the delinquency" or "corrupt the morals" of a child, although nearly all American jurisdictions now have laws couched in these terms, often incorporated in the juvenile court acts.

Authorities concerned with the welfare of children have disavowed the loosely drawn statutes against contributing to delinquency. Experience has shown that such statutes are almost always invoked in situations specifically dealt with by other Sections of the Code, especially those concerned with sexual offenses. To the extent of the overlap, there is no need for the contributing statute. More important, the existence of this overlapping catch-all has been, and would under this Code continue to be, a means of avoiding legislative judgments, made in other sections dealing with specific offenses on such matters as mens rea, punishability of consensual intercourse, proper grading of offenses, corroboration of complaining witnesses, and adequacy of proof generally. Finally, the contributing legislation embraces such a vast range of behavior as to make it completely meaningless as a criminologic category, treating as one class, for example, a rapist, a dealer who buys stolen junk from a fifteen-year-old boy, a narcotics peddler who lures high school children into drug addiction, and a parent who keeps his child out of schools where flag saluting is required.

The basic error that appears to account for the prevalence of the legislation here disapproved is the assumption that the comprehensive terms in which jurisdiction is commonly conferred upon juvenile courts over "delinquent, dependent or neglected" children are also appropriate to define a criminal offense. It is one thing to give broad scope to an authority to promote the welfare of children, but quite another thing to give a criminal court equivalent latitude in defining crimes for which adults shall be punished. The vagueness of current statutes in this field presents serious constitutional problems in the light of the decision in Musser v. Utah.[1]

The definition of this offense limits its application to cases where the victim is under 18 years of age. This limit is set on the theory that in modern society persons 18 and 19 years of age are not, by virtue of their minority status, especially susceptible to the adverse effects which result from breaches of civil duties relating to the welfare of minors. If the behavior of the parent or guardian presents a serious danger to the minor, another offense, addressed specifically to the danger, can be employed, e.g., assault, reckless endangering, etc.
Haw. Rev. Stat. § 711-1106.4 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1106.4
Aggravated harassment by stalking.
Status: in_force

(1) A person commits the offense of aggravated harassment by stalking if that person commits the offense of harassment by stalking as provided in section 711-1106.5 and has been convicted previously of harassment by stalking under section 711-1106.5 within five years of the instant offense.

(2) Aggravated harassment by stalking is a class C felony. [L 1995, c 159, §1; am L 2003, c 68, §1]
Haw. Rev. Stat. § 706-662 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-662
Criteria for extended terms of imprisonment.
Status: in_force

A defendant who has been convicted of a felony may be subject to an extended term of imprisonment under section 706-661 if it is proven beyond a reasonable doubt that an extended term of imprisonment is necessary for the protection of the public and that the convicted defendant satisfies one or more of the following criteria:

(1) The defendant is a persistent offender in that the defendant has previously been convicted of two or more felonies committed at different times when the defendant was twenty-one years of age or older;

(2) The defendant is a professional criminal in that:

(a) The circumstances of the crime show that the defendant has knowingly engaged in criminal activity as a major source of livelihood; or

(b) The defendant has substantial income or resources not explained to be derived from a source other than criminal activity;

(3) The defendant is a dangerous person in that the defendant has been subjected to a psychiatric or psychological evaluation that documents a significant history of dangerousness to others resulting in criminally violent conduct, and this history makes the defendant a serious danger to others. Nothing in this section precludes the introduction of victim-related data to establish dangerousness in accord with the Hawaii rules of evidence;

(4) The defendant is a multiple offender in that:

(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for any felony; or

(b) The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively, would equal or exceed in length the maximum of the extended term imposed or would equal or exceed forty years if the extended term imposed is for a class A felony;

(5) The defendant is an offender against the elderly, the handicapped, or a minor eight years of age or younger in that:

(a) The defendant attempts or commits any of the following crimes: murder, manslaughter, a sexual offense that constitutes a felony under chapter 707, robbery, felonious assault, burglary, or kidnapping; and

(b) The defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who has the status of being:

(i) Sixty years of age or older;

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

(iii) Eight years of age or younger; and

the person's status is known or reasonably should be known to the defendant;

(6) The defendant is a hate crime offender in that:

(a) The defendant is convicted of a crime under chapter 707, 708, or 711; and

(b) The defendant intentionally selected a victim or, in the case of a property crime, the property that was the object of a crime, because of hostility toward the actual or perceived race, religion, disability, ethnicity, national origin, gender identity or expression, or sexual orientation of any person. For purposes of this subsection, "gender identity or expression" includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth; or

(7) The defendant is convicted under section 707-702.5 and the defendant did not remain at the scene of the crime and render reasonable assistance to an injured person, including acts and omissions in violation of section 291C-12. [L 1972, c 9, pt of §1; am L 1978, c 210, §1; am L 1981, c 166, §1; am L 1985, c 280, §1; am L 1986, c 314, §40; am L 1988, c 305, §11; am L 1990, c 67, §8; gen ch 1992; am L 1996, c 3, §1; am L 2001, c 240, §3; am L 2003, c 33, §2; am L 2006, c 230, §§24, 54; am L Sp 2007 2d, c 1, §3; am L 2018, c 40, §2; am L 2025, c 152, §5]

Applicability of Act 1, Second Special Session of 2007

L Sp 2007 2d, c 1, §5 provides:

"SECTION 5. This Act shall apply to all sentencing or resentencing proceedings pending on or commenced after the effective date of this Act [October 31, 2007], whether the offense was committed prior to, on, or after the effective date of this Act [October 31, 2007]. A defendant whose extended term of imprisonment is set aside or invalidated shall be resentenced pursuant to this Act upon request of the prosecutor. This Act shall not entitle a defendant who has previously been sentenced to an extended term to be resentenced pursuant to the procedures set forth in this Act unless the defendant is otherwise legally entitled to be resentenced."
Haw. Rev. Stat. § 708-894 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-894
Forfeiture of property used in computer crimes.
Status: in_force

Any property used or intended for use in the commission of, attempt to commit, or conspiracy to commit an offense under this part, or which facilitated or assisted such activity, shall be forfeited subject to the requirements of chapter 712A; provided that the court shall have the discretion to require forfeiture of the property pursuant to this section if the perpetrator of the offense was a person under the age of eighteen , regardless of whether the person owned the property .
Haw. Rev. Stat. § 711-1148 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1148
[ §711-1148] Civil action not precluded.
Status: in_force

[ §711-1148] Civil action not precluded. Nothing in this part shall preclude any person injured by a dangerous dog from bringing a civil action against the owner of the dangerous dog pursuant to law.

COMMENTARY ON §§711-1140 TO 711-1148

Act 224, Session Laws 2024, added this part to: (1) define what constitutes a dangerous dog; and (2) establish requirements and penalties for owners of dangerous dogs. The legislature found that the State struggled with the problem of loose dogs that behave aggressively. Despite the passage of ordinance no. 36 by the county of Hawaii in 2022 to establish fines, penalties, and other regulations for individuals who own dangerous dogs, dog attacks continued to occur, demonstrating the need for stronger laws and enforcement. The legislature also found that existing state law preempted the enactment of felony offenses through county ordinance. Accordingly, the legislature noted that Act 224 would protect the public by addressing dangerous conditions caused by dogs and their owners in local communities and imposing appropriate penalties. Senate Standing Committee Report No. 3641, Conference Committee Report No. 3-24.

Act 21, Session Laws 2025, amended §§711-1141, 711-1142, 711-1143, 711-1144, and 711-1145 by making technical nonsubstantive amendments.
Haw. Rev. Stat. § 710-1062 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1062
False swearing.
Status: in_force

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

(2) False swearing is a petty misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 706-671 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-671
Credit for time of detention prior to sentence; credit for imprisonment under earlier sentence for same crime.
Status: in_force

(1) When a defendant who is sentenced to imprisonment has previously been detained in any State or local correctional or other institution following the defendant's arrest for the crime for which sentence is imposed, such period of detention following the defendant's arrest shall be deducted from the minimum and maximum terms of such sentence. The officer having custody of the defendant shall furnish a certificate to the court at the time of sentence, showing the length of such detention of the defendant prior to sentence in any State or local correctional or other institution, and the certificate shall be annexed to the official records of the defendant's commitment.

(2) When a judgment of conviction or a sentence is vacated and a new sentence is thereafter imposed upon the defendant for the same crime, the period of detention and imprisonment theretofore served shall be deducted from the minimum and maximum terms of the new sentence. The officer having custody of the defendant shall furnish a certificate to the court at the time of sentence, showing the period of imprisonment served under the original sentence, and the certificate shall be annexed to the official records of the defendant's new commitment.

(3) Notwithstanding subsection (1) and any other law to the contrary, when a defendant is sentenced for a crime committed while serving a sentence of imprisonment on a separate unrelated felony conviction, and the defendant was detained in any state or local correctional or other institution following the defendant's arrest for the crime for which a sentence is imposed, any periods of detention following the defendant's arrest that took place while the defendant was also serving a sentence of imprisonment for the separate unrelated felony conviction shall not be deducted from the minimum and maximum terms of the sentence imposed on the later crime. [L 1972, c 9, pt of §1; gen ch 1993; am L 2012, c 50, §1; am L 2022, c 110, §2]
Haw. Rev. Stat. § 701-113 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-113
Former prosecution before court lacking jurisdiction or when fraudulently procured by the defendant.
Status: in_force

A prosecution is not a bar within the meaning of sections 701-110, 701-111, and 701-112 under any of the following circumstances:

(1) The former prosecution was before a court which lacked jurisdiction over the defendant or the offense.

(2) The former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting officer and with the purpose of avoiding the sentence which might otherwise be imposed.

(3) The former prosecution resulted in a judgment of conviction which was held invalid on appeal or in a subsequent proceeding on a writ of habeas corpus, coram nobis, or similar process. [L 1972, c 9, pt of §1]

COMMENTARY ON §701-113

A subsequent prosecution should not be barred when the former prosecution was before a court lacking jurisdiction over the defendant or the offense. A prosecution by a court without jurisdiction is a nullity, and reprosecuting the defendant does not place the defendant twice in jeopardy because the defendant never in fact was in jeopardy. Likewise, if the defendant improperly procured the former prosecution without the knowledge of the appropriate prosecuting officer and with the intention of avoiding the sentence which might otherwise be imposed, the former prosecution is not a bar. Finally, if defendant succeeds in having the former proceeding held invalid by means of habeas corpus or coram nobis, a reprosecution should not be barred.
Haw. Rev. Stat. § 708-892.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-892.6
Computer damage in the third degree.
Status: in_force

(1) A person commits the offense of computer damage in the third degree if the person knowingly accesses a computer, computer system, or computer network without authorization and thereby recklessly causes damage.

(2) Computer damage in the third degree is a class C felony. [L 2014, c 213, §1]
Haw. Rev. Stat. § 705-502 — HI Code / Division 5 / Title 37 / Chapter 705 / Section 705-502
Grading of criminal attempt.
Status: in_force

An attempt to commit a crime is an offense of the same class and grade as the most serious offense which is attempted.

COMMENTARY ON §705-502

For purposes of sentencing, the Code equates the criminal attempt with the most serious substantive offense attempted. Only in the case where the crime attempted is murder does the Code authorize a different sentence for the substantive offense than for the attempt. This is because §706-606 provides a special sentence for murder. Attempted murder is treated as an ordinary class A felony.

The dispositions[1] (suspension of sentence, probation, imprisonment, etc.) authorized by chapter 706 of the Code are intended to provide primarily a flexible and corrective process. The court's order should be determined by the need for correction as demonstrated by the anti-social disposition (propensities) of the defendant. This being the case, there is generally no difference in the sanctions which ought to be available to the court when a crime is attempted but not consummated. However, where the offense attempted is murder, the unique sentence authorized for that crime is not imposed. Instead, the attempt is treated as any other class A felony. Because §706-606 requires mandatory imprisonment, possibly for life, there is room to economize on sentencing for attempted murder. The various modes of disposition available for a class A felony ought to suffice for correctional needs.

Under previous Hawaii law, the sentencing of attempts is structurally similar to that provided in the Code, except that Hawaii law formerly provided a maximum term of imprisonment of twenty years,[2] whereas the Code, in making the most serious attempt a class A felony, provides for an extended term in cases presenting aggravating circumstances.[3]
Haw. Rev. Stat. § 706-660.5 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-660.5
[ §706-660.
Status: in_force

[ §706-660.5] Sentence of imprisonment for use of a ghost gun in a felony. (1) A person convicted of a felony, where the person had a ghost gun in the person's possession or threatened its use or used the ghost gun while engaged in the commission of the felony, whether the ghost gun was loaded or not, may in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

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

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

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

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

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

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

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

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

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

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

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

(3) Any person convicted of a ghost gun felony offense as provided in subsection (1) who has previously been convicted of a felony offense involving the use of a firearm under section 706-660.1, shall in addition to the indeterminate term of imprisonment provided for the grade of offense be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

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

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

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

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

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

(4) In this section:

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

"Ghost gun" has the same meaning defined in section 134-1. [L 2025, c 18, §2]

COMMENTARY ON §706-660.5

Act 18, Session Laws 2025, added this section to establish mandatory minimum sentencing for use of a ghost gun in the commission of a felony. The legislature found that ghost guns posed a significant threat to public safety in the State. Ghost guns are firearms that lack serial numbers and can be assembled from kits or created using 3D printers, making them virtually untraceable by law enforcement. Without serial numbers or registration requirements, ghost guns allow individuals who would otherwise be prohibited from legally purchasing firearms to circumvent background checks and obtain firearms that cannot be traced. The legislature further found that the existence of unregistered ghost guns created a dangerous gap in firearms regulations in the State and that additional legal mechanisms were necessary to address this emerging threat to public safety. Accordingly, the establishment of mandatory minimum sentences for using ghost guns in felony offenses would serve as both a deterrent and an appropriate punishment for those who use these weapons to commit serious crimes. Senate Standing Committee Report No. 1370.
Haw. Rev. Stat. § 707-752 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-752
Promoting child abuse in the third degree.
Status: in_force

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

(a) Child pornography;

(b) Any book, magazine, periodical, film, videotape, computer disk, electronically stored data, or any other material that contains an image of child pornography; or

(c) Any pornographic material that employs, uses, or otherwise contains a minor engaging in or assisting others to engage in sexual conduct.

(2) As used in this section:

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

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

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

"Community standards" means the standards of the State.

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

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

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

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

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

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

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

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

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

(4) Promoting child abuse in the third degree is a class C felony. [L 2002, c 200, pt of §1; am L 2016, c 16, §3]

COMMENTARY ON §§707-752 AND 707-753

Act 16, Session Laws 2016, amended §707-752 by amending the definition of the term "sexual conduct" as that term is used in the Penal Code for the offense of promoting child abuse in the third degree. The amendments made by Act 16 aligned the term, as used in state law, more closely with the terminology used in federal law by expanding the definition of "sexual conduct" to include specific types of conduct. Act 16 also removed unnecessary and archaic language regarding sexual orientation. House Standing Committee Report No. 1124-16.
Haw. Rev. Stat. § 709-903.5 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-903.5
Endangering the welfare of a minor in the first degree.
Status: in_force

(1) Except as provided in subsection (2), a person commits the offense of endangering the welfare of a minor in the first degree if, having care or custody of a minor, the person:

(a) Intentionally or knowingly allows another person to inflict serious or substantial bodily injury on the minor; or

(b) Intentionally or knowingly causes or permits the minor to inject, ingest, inhale, or otherwise introduce into the minor's body any controlled substance listed in sections 329-14, 329-16, 329-18, and 329-20 that has not been prescribed by a physician for the minor, except as permitted under section 329-122.

(2) It shall be a defense to prosecution under sections 709-903.5(1) and 709-904(1) if, at the time the person allowed another to inflict serious or substantial bodily injury on a minor, the person reasonably believed the person would incur serious or substantial bodily injury in acting to prevent the infliction of serious or substantial bodily injury on the minor.

(3) Endangering the welfare of a minor in the first degree is a class C felony. [L 1986, c 314, §70; am L 2006, c 249, §1; am L 2008, c 81, §1]

Revision Note

In subsection (2), "709-904(1)" substituted for "709-704(1)".

COMMENTARY ON §709-903.5

Act 314, Session Laws 1986, provided that a person is criminally liable for intentionally or knowingly allowing another person to inflict serious or substantial bodily harm on a minor. Persons charged with this offense may defend on the ground that they reasonably believed they would incur serious or substantial bodily injury by acting to prevent the harm to the minor. Conference Committee Report No. 51-86.

Act 249, Session Laws 2006, expanded the crime of endangering the welfare of a minor in the first degree to include causing or permitting a minor to ingest methamphetamine. Conference Committee Report No. 84-06.

Act 81, Session Laws 2008, amended subsection (1) to include in the offense causing or permitting a minor to inject, ingest, inhale, or otherwise introduce into the minor's body, any controlled substance listed in schedules I through IV not prescribed by a physician, excluding the medical use of marijuana. The legislature found that the Act would provide greater protection for the health and safety of the children of Hawaii, and was necessary because of the high risk of injury caused by the ingestion of schedule I, II, III, and IV controlled substances. Conference Committee Report No. 55-08, Senate Standing Committee Report No. 3415.
Haw. Rev. Stat. § 708-814.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-814.5
Criminal trespass onto public parks and recreational grounds.
Status: in_force

(1) A person commits the offense of criminal trespass onto public parks and recreational grounds if the person remains unlawfully in or upon a public park or recreational ground after a request to leave is made by any law enforcement officer, when the request is based upon violation by the person of any term of use specified on a sign or notice posted on the property, or based on violation of any term of use contained in, or the expiration of, any permit relating to the person's presence on the property.

(2) For the purposes of this section, unless the context requires otherwise:

"Law enforcement officer" has the same meaning as in section 710-1000.

"Public park or recreational ground" means any park, park roadway, playground, athletic field, beach, shore, beach or shore right-of-way, tennis court, golf course, swimming pool, or other recreational area or facility under control, maintenance, and management of the State or any of the counties.

(3) Criminal trespass onto public parks and recreational grounds is a petty misdemeanor. [L 2005, c 212, §2]
Haw. Rev. Stat. § 712-1250 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1250
Promoting intoxicating compounds.
Status: in_force

(1) A person commits the offense of promoting intoxicating compounds if the person knowingly:

(a) Breathes, inhales, or drinks any compound, liquid, or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance for the purpose of inducing a condition of intoxication, stupefaction, depression, giddiness, paralysis or irrational behavior, or in any manner changing, distorting or disturbing the auditory, visual or mental processes.

(b) Sells or offers for sale, delivers or gives to any person under eighteen years of age, unless upon written order of such person's parent or guardian, any compound liquid or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance which will induce an intoxicated condition, as defined herein, when the seller, offeror or deliveror knows or has reason to know that such compound is intended for use to induce such condition.

(2) Promoting intoxicating compounds is a misdemeanor.

(3) This section shall not apply to any person who commits any act described herein pursuant to the direction or prescription of a practitioner, as defined in the "Hawaii Food, Drug and Cosmetic Act" (section 328-16). [L 1972, c 9, pt of §1; am L 1975, c 163, §6(1); gen ch 1993]
Haw. Rev. Stat. § 706-664 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-664
Procedure for imposing extended terms of imprisonment.
Status: in_force

(1) Hearings to determine the grounds for imposing extended terms of imprisonment may be initiated by the prosecutor or by the court on its own motion. The court shall not impose an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and written notice of the ground proposed was given to the defendant pursuant to subsection (2). Subject to the provisions of section 706-604, the defendant shall have the right to hear and controvert the evidence against the defendant and to offer evidence upon the issue before a jury; provided that the defendant may waive the right to a jury determination under this subsection, in which case the determination shall be made by the court.

(2) Notice of intention to seek an extended term of imprisonment under section 706-662 shall be given to the defendant within thirty days of the defendant's arraignment. However, the thirty-day period may be waived by the defendant, modified by stipulation of the parties, or extended upon a showing of good cause by the prosecutor. A defendant previously sentenced to an extended term under a prior version of this chapter shall be deemed to have received notice of an intention to seek an extended term of imprisonment.

(3) If the jury, or the court if the defendant has waived the right to a jury determination, finds that the facts necessary for the imposition of an extended term of imprisonment under section 706-662 have been proven beyond a reasonable doubt, the court may impose an indeterminate term of imprisonment as provided in section 706-661. [L 1972, c 9, pt of §1; am L 1986, c 314, §42; gen ch 1992; am L Sp 2007 2d, c 1, §4]

Applicability of Act 1, Second Special Session of 2007

L Sp 2007 2d, c 1, §5 provides:

"SECTION 5. This Act shall apply to all sentencing or resentencing proceedings pending on or commenced after the effective date of this Act [October 31, 2007], whether the offense was committed prior to, on, or after the effective date of this Act [October 31, 2007]. A defendant whose extended term of imprisonment is set aside or invalidated shall be resentenced pursuant to this Act upon request of the prosecutor. This Act shall not entitle a defendant who has previously been sentenced to an extended term to be resentenced pursuant to the procedures set forth in this Act unless the defendant is otherwise legally entitled to be resentenced."

COMMENTARY ON §706-664

This section sets forth the procedure when the court has before it a motion in favor of sentencing the defendant to imprisonment for an extended term. Fairness to the defendant demands that the defendant receive notice of the ground upon which an extended term is proposed and that the hearing focus on this issue. In other respects the hearing will be the same as that provided for in cases involving the possibility of imprisonment within the ordinary limits.

SUPPLEMENTAL COMMENTARY ON §706-664

Act 1, Second Special Session Laws 2007, amended this section and other extended sentencing statutes (§§706-661 and 706-662) to ensure that the procedures used to impose extended terms of imprisonment comply with the requirements of the United States Supreme Court and the Hawaii supreme court. Act 1 required that a jury determine the facts necessary to impose an extended term of imprisonment, unless the defendant waives the right to a jury determination, and that facts necessary to impose an extended term of imprisonment are proven beyond a reasonable doubt. The legislature found that Hawaii's current extended sentencing procedure had been deemed unconstitutional because a judge, rather than a jury, was required to find facts, other than those of prior or concurrent convictions, necessary to enhance a defendant's sentence beyond the ordinary or standard term authorized by the jury's verdict. Act 1's amendments conformed the State's enhanced sentencing law to the requirements of the United States Supreme Court and the Hawaii supreme court. Act 1 applied retroactively to sentencing or resentencing proceedings that were pending on or commenced after its effective date [October 31, 2007], whether the offense was committed prior to, on, or after that date. However, the Act did not entitle a defendant who was previously sentenced to an extended term of imprisonment to resentencing pursuant to the procedures set forth in the Act, unless the defendant was otherwise legally entitled to be resentenced. Senate Standing Committee Report No. 7, House Standing Committee Report No. 1.
Haw. Rev. Stat. § 706-600.6 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-600.6
Time of release.
Status: in_force

A person imprisoned whose term of imprisonment ends between the hours of 9:00 p.m. to 12:00 midnight, may be released at 9:00 p.m. A person imprisoned whose term of imprisonment ends between the hours of 12:00 midnight to 7:00 a.m. may be released at 9:00 p.m. the day before the person's scheduled release.

COMMENTARY ON §706-600.6

Act 202, Session Laws 1987, clarified the "time of release" for prisoners. House Standing Committee Report No. 556.