Haw. Rev. Stat. § 710-1063 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1063
Unsworn falsification to authorities.
Status: in_force

(1) A person commits the offense of unsworn falsification to authorities if, with an intent to mislead a public servant in the performance of the public servant's duty, the person:

(a) Makes any statement, in written, printed, or electronic form, which the person does not believe to be true, in an application for any pecuniary or other benefit or in a record or report required by law to be submitted to any governmental agency;

(b) Knowingly makes a false statement in written, printed, electronic, or oral form, to a state investigator or a county inspector during an investigation into compliance with any state law, rule, or regulation or any county ordinance, rule, or regulation;

(c) Submits or invites reliance on any statement, document, or record, in written, printed, or electronic form, which the person knows to be falsely made, completed, or altered; or

(d) Submits or invites reliance on any sample, specimen, map, boundary-mark, or other object the person knows to be false.

(2) Unsworn falsification to authorities is a misdemeanor.

(3) As used in this section:

"County inspector" means a person employed, contracted, or appointed by a county or a county department or agency to evaluate or investigate compliance with any county ordinances, rules, or regulations.

"State investigator" means a person employed, contracted, or appointed by the State or a state department or agency to evaluate or investigate compliance with any state laws, rules, or regulations. [L 1972, c 9, pt of §1; gen ch 1993; am L 2014, c 33, §6; am L 2019, c 114, §1]

COMMENTARY ON §§710-1060 TO 710-1063

Efficiency and fairness of governmental operations and public confidence in public administration, in general, and the administration of justice, in particular, require that information which the government relies upon not be falsified. Yet a general, undifferentiated penalty for all falsification to governmental authorities would not reflect contemporary social mores.

False testimony and other misleading information to officials can convert governmental power into an instrument of injustice rather than justice, with unfortunate consequences not only for the individual whose life, freedom or property may be affected, but also for the community's general sense of security and confidence in the state. On the other hand, not all lying to officials can usefully or safely be made criminal. Measures other than punishment are our principal reliance against falsehood in judicial and other proceedings, where cross-examination and the opportunity to produce evidence on both sides of any issue facilitate the process of arriving at truth.[1]

It has been noted that a great difficulty in the law of perjury has been the severity of the penalties specified by the statutes; "in some situations falsification to officials is so widely practiced and tolerated by prevailing moral standards that severe penalties would be unrealistic."[2] For example, a person may claim domicile in a state in order to obtain a divorce when the person's real intent is to satisfy the minimum requirement of physical presence and to leave the state as soon as the decree is obtained. It is essential to distinguish between minor and more aggravated forms of false swearing.

General analysis. These sections divide falsification into four different offenses of three different grades depending on the presence of aggravating circumstances.

The offense of perjury, a class C felony, requires (a) a false statement which the court determines to be "material," (b) made under an oath, (c) in an official proceeding. This is the most serious offense and the only felony in this part. Other forms of falsification, whether under oath or not, are graded as misdemeanors or petty misdemeanors. Falsification before a court, legislative committee, administrative agency, or other official proceeding, as defined in §710-1000(12), is deemed more culpable and more socially dangerous than similar falsity in a report, license application, or like matter, especially when these types of statements are often prepared by a lawyer.[3]

A false statement made under oath may constitute a misdemeanor if (a) it is made in an official proceeding, or (b) it is made with intent to mislead a public servant in the performance of the public servant's official duty. The statement need not be a "materially false statement." The offense is labeled false swearing to authorities.

False swearing, a residual offense, makes all other false statements, made under an oath required or authorized by law, a petty misdemeanor. In addition to other cases, this offense would cover falsification in a written statement which, pursuant to a requirement or authorization of law, has been sworn to before a notary, in a strictly private transaction. It would also cover a false affidavit filed with the government but not in an official proceeding, regardless of materiality or intent to mislead.

The final offense in this quartet does not require that the statement be under oath. Indeed, that statement need not be written; the falsification can be in the form of submission of, or invitation to rely on, false samples, specimens, maps, boundary-marks, or other objects. However, the falsification must be made with intent to mislead a public servant in the performance of the public servant's official duty.

Mens rea with respect to the truth of the statement. Under the offenses in this part, a defendant is not held liable for a false statement made inadvertently or out of ignorance. For penal liability to occur, the defendant's state of mind with regard to the truth of the statement must be a lack of an affirmative belief in the truth of the matter asserted. The defendant need not know the falsity of the statement, it would be sufficient for conviction if the defendant had no belief with regard to the statement's truthfulness. The defendant may have no idea whether or not the defendant's statement is true; but a lack of belief that it is true will support a conviction. The state of mind required is, in effect, a reckless disregard of the truth of the matter asserted. However, the requisite culpability is not expressed with the word "reckless" because applying that word, as defined in §702-206(3), presents certain difficulties when applied to the falsification offenses of this part. As the commentary to the Model Penal Code explains the problem:

We have chosen to specify the mental state of lack of belief, in this section, rather than rely on the general definition of "recklessness" in [Section 702-206(3)], for two reasons. First, it requires considerable mental agility to construe [Section 702-206(3)] as applied to perjury, and second, we are satisfied that once lack of belief is established, no further inquiry into "justification" or "degree of culpability" would be useful.[4]

The nature of the oath requirement. The requirement or authorization of an oath is an implied instruction by the legislature to the individual making the statement that the information requested is of special significance, and that special sanctions will attend any falsifications. Since the oath's significance rests partially upon the legislative directive, it follows that an oath which is attended by penal sanctions ought to be one which is specifically required or authorized by law.[5] A public servant or private individual could not, as a matter of local policy or individual whim, require an oath without any basis in law and thereby make falsifications thereunder subject to these sanctions.

Section 710-1000(10), defining "oath," is specifically designed to provide government agencies with a convenient method of demanding the truth in applications and registrations without resort to cumbersome procedures of requiring oaths before notaries. With regard to the function of these falsification offenses, it should not matter whether the State's special emphasis on receiving truthful information is indicated by a requirement of an oath or affirmation, or by written notice on a government form. The notice of special significance of the requested information and the warning of special sanctions are the same in either case.

Materiality; intent to mislead. Materiality with regard to a false statement (required for a perjury conviction) and an intent to mislead a public servant (required for one form of false swearing in official matters and for all forms of unsworn falsification to authorities) are similar in their functional role: each limits the application of an offense when the falsification is not likely to obstruct justice or which is trivial. On the other hand, the terms are not synonymous. A person may not intend to mislead, yet the person's falsification may be material.

Materiality of the falsification distinguishes perjury, a felony, from the lesser offenses in this part. Given the requisite state of mind with regard to truthfulness of the statement, falsification, in an official proceeding, which is material, constitutes the greatest risk of obstruction of justice. A "materially false statement" means:

any false statement, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of the proceeding.[6]

Section 710-1060 holds the actor strictly liable with regard to the actor's knowledge of a false statement's materiality. Materiality is not made an element of the offense; it is not a fact which the trier of fact must find, but a question of law for the court to determine.[7] Beyond the difficulty of proving a culpable state of mind with regard to this factor, the importance of the examination of witnesses in judicial and quasi-judicial proceedings is such that it is extremely unwise to allow a witness to decide what may or may not be material. Witnesses are usually not qualified to make judgments on materiality in the technical sense in which that concept is here employed. A crucial quality of an official proceeding, as defined in §710-1000(12), is that the hearing presents the "opportunity to test the credibility of witnesses by questioning that may begin, or wander, far from the central theme."[8] As the commentary to the Proposed Michigan Criminal Code states:

A witness who falsifies an answer to a quite distant question he considers irrelevant may be blocking the eventual trial to relevant truth, thereby defeating one of the principal values of the hearing. Where, on the other hand, the false statement is made on a written application or report submitted to the government, there is considerably less likelihood that the actor will be confused about the materiality of the information given.[9]

One form of false swearing to authorities, §710-1061(1)(b), and all forms of unsworn falsification to authorities, §710-1063, require that the actor have an intent to mislead a public servant in the performance of the public servant's official duty. The falsification need not be material, but the actor's intent is crucial. Trivial falsifications which (1) do not impair the examination process of an official proceeding, and (2) are not intended to mislead the public servant, do not warrant the misdemeanor sanction. These falsifications are penalized, if at all, as false swearing (§710-1062), a petty misdemeanor.

The nature of the statement required. "Statement" is defined in §710-1000(16) to mean:

any representation, but includes a representation of opinion, belief, or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.

A prosecution for perjury or other offense defined by this part can be based on a statement of opinion or belief. The definition of "statement" is intended, however, to preclude liability based on the following logic: (1) the declarant states that X is so; (2) the declarant's statement includes, implicitly, a statement that the declarant believes X to be so; (3) although there is no evidence that X is not so, the declarant may be liable because the declarant did not believe X to be so. "The possibility of such prosecutions is disquieting.... [T]he making of true statements which the declarant believes to be false can hardly obstruct justice...."[10]
Haw. Rev. Stat. § 702-216 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-216
Reckless or negligent causation; different result from that within the risk.
Status: in_force

In the following instances, recklessly or negligently causing a particular result shall be deemed to be established even though the actual result caused by the defendant may not have been within the risk of which the defendant was or, in the case of negligence, should have been aware:

(1) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or

(2) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence or too dependent on another's volitional conduct to have a bearing on the defendant's liability or on the gravity of the defendant's offense. [L 1972, c 9, pt of §1; am L 1973, c 136, §3(a); am L 1975, c 163, §2; gen ch 1993]

COMMENTARY ON §702-216

Much of what has been said in the commentary on §§702-214 and 215 applies with equal force to this section. The only difference is that this section deals with reckless and negligent causation. Here the Code is concerned with results which differ from those within the risk of which the defendant was aware or of which the defendant should have been aware. However, the factors which are to be considered are the same: whether the actual harm is more extensive or serious than the probable result and whether the actual result is too remote or accidental in its occurrence or too dependent on another's volitional conduct. For a fuller discussion, the reader is referred to the commentary on §§702-214 and 215.

SUPPLEMENTAL COMMENTARY ON §702-216

Act 136, Session Laws 1973, amended paragraph (1) by deleting the words "intended or contemplated" which followed the word "harm" and amended paragraph (2) by substituting the phrase "probable result" for the phrase "intended or contemplated result." References to the words "intended or contemplated" were eliminated since they "connote an intentional act on the part of the accused which is inconsistent with 'reckless' or 'negligent' as defined in §702-206." Senate Standing Committee Report No. 858, House Standing Committee Report No. 726.

Act 163, Session Laws 1975, amended this section in order to phrase the propositions in positive rather than negative language. It was felt that this change would make these propositions clearer when included in jury instructions. This amendment was not intended to change the section in substance but only in form. Conference Committee Report No. 19.
Haw. Rev. Stat. § 706-647 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-647
Civil enforcement.
Status: in_force

(1) A certified or exemplified copy of an order of any court of this State for payment of a fine or restitution pursuant to section 706-605 may be filed in the office of the clerk of an appropriate court of this State as a special proceeding without the assessment of a filing fee or surcharge. The order, whether as an independent order, as part of a judgment and sentence, or as a condition of probation or deferred plea, shall be enforceable in the same manner as a civil judgment.

(2) In the event the victim has received or applied for reimbursement from any governmental entity, the victim named in the order or the victim's attorney shall also mail notice of the filing to the governmental entity providing reimbursement and shall file proof of mailing with the clerk.

(3) Fees for docketing, transcription, or other enforcement proceedings shall be as provided by law for judgments of a court of this State. [L 1998, c 269, pt of §1; am L 2000, c 113, §1]

COMMENTARY ON §706-647

Act 269, Session Laws 1998, added this section and §706-646 to allow victims of crime to enforce a criminal restitution order in the same manner as a civil judgment. Under current law, a defendant may be required by the court to pay restitution for losses caused to the victim. Collection of the restitution was left to governmental entities such as the judiciary, paroling authority, and department of public safety; these entities often were able to collect only a small fraction of the amount. Moreover, although the criminal injuries compensation commission helped victims by providing some compensation, victims of property crimes and some violent crimes were ineligible for any compensation from the commission. Furthermore, although a victim may bring a civil action against the defendant, the process was costly and time-consuming. The legislature believed that victims should have a "fast track" ability to be compensated for their losses by allowing victims to enforce the criminal restitution order as a civil judgment, using all of the civil collection remedies. Conference Committee Report No. 89.

Act 113, Session Laws 2000, amended this section to authorize the waiver of filing fees when victims of crime seek civil enforcement of court-ordered restitution. Conference Committee Report No. 40.
Haw. Rev. Stat. § 706-672 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-672
Place of imprisonment.
Status: in_force

When a person is sentenced to imprisonment, the court shall commit the person to the custody of the department of corrections and rehabilitation for the term of the person's sentence and until released in accordance with law. The director of corrections and rehabilitation shall determine the proper program of redirection and any place of confinement of the committed person.

COMMENTARY ON §706-672

This section is substantially in accord with prior law. H.R.S. §711-83 (as codified prior to this Code) provided that felons be committed to the custody of the director of the department of social services and housing for placement within the correctional facilities of the department. Although there was no specific statutory direction that persons imprisoned for misdemeanors shall be incarcerated in county jails,[1] this was the usual practice.

SUPPLEMENTAL COMMENTARY ON §706-672

In enacting the Code, the legislature added to §672(1) of the Proposed Draft the last sentence which allows the court to determine the initial place of confinement. The Conference Committee Report states that "the Director of the Department of Social Services and Housing shall determine the proper program of redirection and any subsequent place of confinement best suited to meet the individual needs of the committed person." Conference Committee Report No. 2 (1972) (emphasis added). The committee also put its gloss on the word "institution," appearing in subsection (2), by stating its "intent that 'institution' refers to any detention or correctional facility other than Oahu prison." Id.

Act 182, Session Laws 1983, amended this section to authorize the director of social services to determine a convicted person's place of confinement. Under prior law, courts determined the initial place of confinement for convicted persons with indeterminate prison terms and also determined the permanent place of confinement for convicted persons with definite prison terms. Because of that law, convicted persons were sometimes inappropriately housed due to the court's commitment or the prisoner's subsequent behavior. By amending this section, the director is able to place convicted persons in the most appropriate program and is better able to use the department's resources to provide for the safety of other prisoners and the department's staff. Senate Standing Committee Report No. 722, House Standing Committee Report No. 419.

Act 278, Session Laws 2022, amended this section to replace references to "department of public safety" or "director of public safety" with "department of corrections and rehabilitation" or "director of corrections and rehabilitation", as applicable, 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. § 702-222 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-222
Liability for conduct of another; complicity.
Status: in_force

A person is an accomplice of another person in the commission of an offense if:

(1) With the intention of promoting or facilitating the commission of the offense, the person:

(a) Solicits the other person to commit it;

(b) Aids or agrees or attempts to aid the other person in planning or committing it; or

(c) Having a legal duty to prevent the commission of the offense, fails to make reasonable effort so to do; or

(2) The person's conduct is expressly declared by law to establish the person's complicity. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

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

COMMENTARY ON §702-222

This section sets forth the types and extent of complicity in the penal conduct of another. In subsection (1) the Code sets forth the state of mind that is required--"intention of promoting or facilitating the commission of the offense"--and the nature of action or omission on the part of the defendant which is sufficient to establish complicity in and liability for the conduct of another. The Code avoids the vague concept of conspiracy in basing penal liability on the conduct of another, and focuses instead on the conduct of the accused which is sufficient to establish the accused's complicity.

The Code includes solicitation, aid, agreement and attempt to aid, and the failure to make a proper effort to exercise a legal duty to prevent commission of the offense. Since the intent to promote or facilitate the commission of the offense is present, there is no risk of innocence. Given the intent specified, the inclusion of attempts to aid seems entirely proper. Acquittal should not be had upon a showing of ineffective aid. "Where complicity is based upon agreement or encouragement, one does not ask for evidence that they were actually operative psychologically on the person who committed the offense; there ought to be no difference in the case of aid."[1]

It should be pointed out that approval of the conduct of another is not to be implied from the phrase "with intention of promoting or facilitating the commission of the offense." For example, a landlord who leases premises with intent to facilitate another's establishing an illegal gambling casino or narcotics den would be liable regardless of the landlord's personal predilections.

Subsection (2) preserves the concept that special legislation may declare specific conduct of the accused sufficient to establish the accused's complicity in the conduct of another. Such legislation is an analogue to that declaring particular acts of assistance independent offenses. Thus, for example, being a member of a mob may suffice to establish complicity in a riot or looting or lynching.
Haw. Rev. Stat. § 709-904.5 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-904.5
Compensation by an adult of juveniles for crimes; grade or class of offense increased.
Status: in_force

(1) A person other than a juvenile commits the offense of compensation of a juvenile for a crime if the person intentionally or knowingly compensates, offers to compensate, or agrees to compensate any juvenile for the commission of any criminal offense.

(2) Any person convicted of compensating, offering to compensate, or agreeing to compensate a juvenile for the commission of a:

(a) Petty misdemeanor shall be deemed guilty of a misdemeanor;

(b) Misdemeanor shall be deemed guilty of a class C felony;

(c) Class C felony shall be deemed guilty of a class B felony;

(d) Class B or class A felony shall be deemed guilty of a class A felony.

(3) It is not a defense to a prosecution under subsection (1) that the accused had no knowledge of the juvenile's age. The intent is to impose absolute liability with respect to the element of the other person's being less than eighteen years old.

(4) For the purposes of this section, the following terms have the following meanings:

"Compensate" means to confer any benefit or pecuniary benefit.

"Juvenile" means any person under eighteen years of age. [L 1986, c 314, §72]

Revision Note

Section was enacted as an addition to chapter 710 but was renumbered to this chapter pursuant to §23G-15.

COMMENTARY ON §709-904.5

Act 314, Session Laws 1986, provided for enhanced sentences for an adult offering to pay a juvenile to commit a crime. This offense is aimed at deterring adults from inducing juveniles to engage in criminal activity, a practice frequently used because juveniles are generally given lesser sentences than those for adults for the same crime. Conference Committee Report No. 51-86.
Haw. Rev. Stat. § 711-1106.5 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1106.5
Harassment by stalking.
Status: in_force

(1) A person commits the offense of harassment by stalking if, with intent to harass, annoy, or alarm another person, or in reckless disregard of the risk thereof, that person engages in a course of conduct involving pursuit, surveillance, or nonconsensual contact upon the other person on more than one occasion without legitimate purpose.

(2) A person convicted under this section may be required to undergo a counseling program as ordered by the court.

(3) For purposes of this section, "nonconsensual contact" means any contact that occurs without that individual's consent or in disregard of that person's express desire that the contact be avoided or discontinued. Nonconsensual contact includes direct personal visual or oral contact and contact via telephone, facsimile, or any form of electronic communication, as defined in section 711-1111(2), including electronic mail transmission.

(4) Harassment by stalking is a misdemeanor. [L 1992, c 292, §2; am L 2003, c 68, §2; am L 2009, c 90, §2]
Haw. Rev. Stat. § 708-829 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-829
Criminal littering.
Status: in_force

(1) A person commits the offense of criminal littering if that person knowingly places, throws, or drops litter on any public or private property or in any public or private waters, except:

(a) In a place designated by the department of health or the county for the disposal of garbage and refuse;

(b) Into a litter receptacle;

(c) Into a litter bag; provided that the bag is disposed of properly into a litter receptacle or in a place designated by the department of health or the county for the disposal of garbage and refuse.

(2) "Litter" means rubbish, refuse, waste material, garbage, trash, offal, or debris of whatever kind or description, and whether or not it is of value, and includes improperly discarded paper, metal, plastic, glass, or solid waste.

(3) Criminal littering is a petty misdemeanor.

(4) The court shall sentence any person convicted of committing the offense of criminal littering as follows:

(a) For the first offense, the person shall spend four hours of either picking up litter on public property or performing community service;

(b) For any subsequent offense, the person shall spend eight hours of either picking up litter on public property or performing community service; and

(c) The court shall fine the person convicted of committing the offense of criminal littering at least $500, but not more than $1,000.

(5) It shall be an affirmative defense that the defendant had consent of the owner in control of the property. [L 1972, c 9, pt of §1; am L 1975, c 154, §1; am L 1979, c 60, §5; am L 1985, c 97, §1; am L 1992, c 116, §3; am L 2006, c 158, §4]
Haw. Rev. Stat. § 708-839.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-839.5
Theft of utility services.
Status: in_force

(1) For purposes of this section:

"Customer" means the person in whose name the utility service is provided.

"Divert" means to change the intended course or path of utility services without the authorization or consent of the utility.

"Person" means any individual, partnership, firm, association, corporation, or other legal entity.

"Reconnection" means the reconnection of utility service by a customer or other person after service has been lawfully disconnected by the utility.

"Utility" means any public utility as defined in section 269-1, that provides electricity, gas, or water services.

"Utility service" means the provision of electricity, gas, water, or any other service provided by the utility for compensation.

(2) A person commits the offense of theft of utility services if the person, with intent to obtain utility services for the person's own or another's use without paying the full lawful charge therefor, or with intent to deprive any utility of any part of the full lawful charge for utility services it provides, commits, authorizes, solicits, aids, or abets any of the following:

(a) Diverts, or causes to be diverted utility services, by any means whatsoever;

(b) Prevents any utility meter, or other device used in determining the charge for utility services, from accurately performing its measuring function;

(c) Makes or causes to be made any connection or reconnection with property owned or used by the utility to provide utility services, without the authorization or consent of the utility; or

(d) Uses or receives the direct benefit of all or a portion of utility services with knowledge or reason to believe that a diversion, prevention of accurate measuring function, or unauthorized connection existed at the time of use or that the use or receipt was otherwise without the authorization or consent of the utility.

(3) In any prosecution under this section, the presence of any of the following objects, circumstances, or conditions on premises controlled by the customer, or by the person using or receiving the direct benefit of all or a portion of utility services obtained in violation of this section, shall create a rebuttable presumption that the customer or person intended to and did violate this section:

(a) Any instrument, apparatus, or device primarily designed to be used to obtain utility services without paying the full lawful charge therefor; or

(b) Any meter that has been diverted or prevented from accurately performing its measuring function so as to cause no measurement or inaccurate measurement of utility services.

(4) A person commits the offense of theft of utility services in the first degree in cases where the theft:

(a) Accrues to the benefit of any commercial trade or business, including any commercial trade or business operating in a residence, home, or dwelling;

(b) Is obtained through the services of a person hired to commit the theft of utility services; in which event, both the person hired and the person responsible for the hiring shall be punished under this section as a class C felony; or

(c) Accrues to the benefit of a residence, home, or dwelling where the value of the theft of utility services exceeds $750.

Theft of utility services in the first degree is a class C felony, and shall be sentenced in accordance with chapter 706, except that for a first offense the court shall impose a minimum sentence of a fine of at least $1,000 or two times the value of the theft, whichever is greater.

(5) A person commits theft of utility services in the second degree if the person commits theft of utility services other than as provided in subsection (4). Theft of utility services in the second degree is a misdemeanor and shall be sentenced in accordance with chapter 706, except that for a first offense the court shall impose a minimum sentence of a fine of $500, with an increase of $500 for each succeeding conviction under this subsection. [L 1996, c 256, §2; am L 2016, c 231, §41]

COMMENTARY ON §708-839.5

Act 256, Session Laws 1996, added this section, which establishes and defines the crime of theft of utility services. The legislature recognized that theft of utility services was widespread throughout the utility industry, that utility companies often spread the loss of revenues from the thefts to rate payers, and that attempting to steal utility services can pose a threat of physical injury to innocent persons and the thief. The legislature also acknowledged that current theft statutes do not specifically provide for thefts of utility services. The legislature found that a new type of theft needed to be established to deter the theft of utility services. House Standing Committee Report No. 1519-96, Senate Standing Committee Report No. 2062.

Act 231, Session Laws 2016, amended subsection (4) by raising the monetary threshold for the offense. The amendment implemented recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 708-835 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835
Proof of theft offense.
Status: in_force

A charge of an offense of theft in any degree may be proved by evidence that it was committed in any manner that would be theft under section 708-830, notwithstanding the specification of a different manner in the indictment, information, or other charge, subject only to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

COMMENTARY ON §708-835

As outlined in the commentary on §708-830, one of the principal reasons for the consolidation of various related common-law and statutory offenses under the single theft statute is to eliminate pointless procedural obstacles in prosecution. The possibility of quashing a theft indictment because of variance would substantially pervert the virtue of simplicity which such consolidation seeks to achieve. Subject only to the court's power to ensure a fair trial (e.g., to ensure that the accused has adequate time and information to prepare a defense), any charge of theft may be proved by demonstration, beyond a reasonable doubt, that the accused's actions came within the definition of one of the subsections of §708-830.[1]
Haw. Rev. Stat. § 708-891.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-891.6
[ §708-891.
Status: in_force

[ §708-891.6] Computer fraud in the third degree. (1) A person commits the offense of computer fraud in the third degree if the person knowingly accesses a computer, computer system, or computer network with the intent to commit the offense of theft in the third or fourth degree.

(2) Computer fraud in the third degree is a class C felony. [L 2012, c 293, §1]
Haw. Rev. Stat. § 702-203 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-203
Penal liability based on an omission.
Status: in_force

Penal liability may not be based on an omission unaccompanied by action unless:

(1) The omission is expressly made a sufficient basis for penal liability by the law defining the offense; or

(2) A duty to perform the omitted act is otherwise imposed by law. [L 1972, c 9, pt of §1]

COMMENTARY ON §702-203

Penal liability based on an omission unaccompanied by action is fraught with dangers unless it is limited, as this section does, to those failures to perform a duty imposed by law--civil or penal. A voluntary omission under such circumstances will not alone suffice to establish penal liability, other elements will have to be identified and established according to the definition of, and other laws relating to, the offense charged.
Haw. Rev. Stat. § 708-8101 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-8101
Making a false statement to procure issuance of a credit card.
Status: in_force

(1) A person commits the offense of making a false statement to procure issuance of a credit card if the person makes or causes to be made, either directly or indirectly, any false statement in writing, knowing it to be false and with intent that it be relied on, respecting the person's identity or that of any other person, firm, or corporation, for the purpose of procuring the issuance of a credit card.

(2) Making a false statement to procure issuance of a credit card is a misdemeanor. [L 1986, c 314, pt of §61]
Haw. Rev. Stat. § 711-1125 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1125
Trespass with an unmanned aircraft system.
Status: in_force

(1) A person commits the offense of trespass with an unmanned aircraft system if the person intentionally causes an unmanned aircraft system to:

(a) Cross the property line of another and come within fifty feet of a dwelling to coerce, intimidate, or harass another person or, after having been given actual notice to desist, for any other reason; or

(b) Take off or land in violation of current Federal Aviation Administration special security instructions or unmanned aircraft systems security sensitive airspace restrictions.

(2) This section shall not apply if:

(a) Consent was given to the entry by any person with legal authority to consent or by any person who is lawfully present on the property; or

(b) The person was authorized by federal regulations to operate an unmanned aircraft system and was operating the system in an otherwise lawful manner and consistent with federal regulations.

(3) Trespass with an unmanned aircraft system is a misdemeanor. [L 2023, c 58, §2]
Haw. Rev. Stat. § 710-1016.8 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1016.8
Presumptions.
Status: in_force

Any person other than a law enforcement officer, who wears the uniform or displays the badge or identification card of a law enforcement officer, or who wears a uniform or displays a badge or identification card resembling the uniform, badge or identification card of a law enforcement officer, or a badge or identification card purported to be a law enforcement officer's badge or identification card, shall be presumed to be pretending to be a law enforcement officer.
Haw. Rev. Stat. § 711-1109 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109
Cruelty to animals in the second degree.
Status: in_force

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

(a) Overdrives, overloads, tortures, torments, beats, causes substantial bodily injury to, or starves any animal, or causes the overdriving, overloading, torture, torment, beating, or starving of any animal;

(b) Deprives a pet animal of necessary sustenance or causes that deprivation;

(c) Mutilates, poisons, or kills without need any animal other than insects, vermin, or other pests; provided that the handling or extermination of any insect, vermin, or other pest is conducted in accordance with standard and acceptable pest control practices and all applicable laws and regulations;

(d) Keeps, uses, or in any way is connected with or interested in the management of, or receives money for the admission of any person to, any place kept or used for the purpose of fighting or baiting any bull, bear, cock, or other animal, and includes every person who encourages, aids, or assists therein, or who permits or suffers any place to be so kept or used;

(e) Carries or causes to be carried, in or upon any vehicle or other conveyance, any animal in a cruel or inhumane manner;

(f) Confines or causes to be confined, in a kennel or cage, any pet animal in a cruel or inhumane manner;

(g) Tethers, fastens, ties, or restrains a dog to a doghouse, tree, fence, or any other stationary object, or uses a trolley, trolley with swivels, pulley, cable, running line, or trolley lacking swivels at each end that is designed to attach a dog to two stationary objects in a configuration that endangers the dog, including preventing the dog from obtaining necessary sustenance;

(h) Tethers or restrains a dog under the age of six months unless the dog is engaged in an activity supervised by its owner or an agent of its owner;

(i) Tethers or restrains a dog by a tow or log chain;

(j) Tethers or restrains by means of choke collar, pinch collar, or prong collar unless the dog is engaged in an activity supervised by its owner or an agent of its owner; or

(k) Assists another in the commission of any act specified in paragraphs (a) through (j).

(2) Subsection (1)(a), (b), (c), (e), (f), (g), and (h) shall not apply to:

(a) Accepted veterinary practices;

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

(c) Pest control operations conducted pursuant to chapter 149A by a pest control operator licensed pursuant to chapter 460J, if the pest control is performed under a written contract.

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

(4) Cruelty to animals in the second degree is a misdemeanor, except that if the offense involves ten or more pet animals in any one instance, then cruelty to animals in the second degree is a class C felony. [L 1972, c 9, pt of §1; am L 1986, c 192, §§1, 2; am L 1998, c 173, §2; am L 2007, c 114, §4; am L 2009, c 160, §1; am L 2011, c 226, §1; am L 2013, c 210, §2; am L 2021, c 182, §1]
Haw. Rev. Stat. § 708-815 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-815
Simple trespass.
Status: in_force

(1) A person commits the offense of simple trespass if the person knowingly enters or remains unlawfully in or upon premises.

(2) Simple trespass is a violation. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 710-1072.5 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1072.5
Obstruction of justice.
Status: in_force

(1) A person commits the offense of obstruction of justice if the person intentionally:

(a) When called as a witness and having been granted immunity pursuant to chapters 480 and 621C, before or after having been qualified as a witness, refuses to testify or be qualified as a witness when duly directed to testify or be qualified as a witness; or

(b) Influences; obstructs; impedes; or endeavors to influence, obstruct, or impede, the due administration of justice by means of force, threat of force, coercion, fraud, or deception.

(2) Obstruction of justice shall be a class C felony; provided that if the person engaged in activity under subsection (1)(b), obstruction of justice shall be a class B felony. [L 1978, c 211, §1; am L 1980, c 173, §7; gen ch 1993; am L 2023, c 137, §1]

COMMENTARY ON §710-1072.5

Act 211, Session Laws 1978, added this section to provide for the situation where a person refuses to testify or be qualified as a witness after having been granted immunity, as distinguished from the situation where, under §710-1077(h), a person refuses to testify or be qualified as a witness without a grant of immunity. Senate Conference Committee Report No. 57-78, House Conference Committee Report No. 56.

Act 173, Session Laws 1980, added the reference to chapter 480 in view of the amendments to that chapter regarding immunity.

Act 137, Session Laws 2023, amended this section to establish the class B felony offense of obstruction of justice to include intentionally influencing; obstructing; impeding; or endeavoring to influence, obstruct, or impede, the due administration of justice by means of force, threat of force, coercion, fraud, or deception. The legislature found that to improve the standard of conduct within government and to more effectively combat fraud, waste, and corruption, it was necessary to establish criminal offenses and penalties, including the offense of obstruction of justice. Additionally, the legislature found that making false statements or entries within local government could weaken democracy. As such, the legislature noted that Act 137 would restore public trust in state government and increase the level of transparency in its operations and accountability of individuals. Senate Standing Committee Report No. 1829, Conference Committee Report No. 10, Senate Standing Committee Report No. 1418.
Haw. Rev. Stat. § 701-106 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-106
Territorial applicability.
Status: in_force

(1) Except as otherwise provided in this section, a person may be convicted under the law of this State of an offense committed by the person's own conduct or the conduct of another for which the person is legally accountable if:

(a) Either the conduct or the result which is an element of the offense occurs within this State;

(b) Conduct occurring outside the State is sufficient under the law of this State to constitute an attempt to commit an offense within the State;

(c) Conduct occurring outside the State is sufficient under the law of this State to constitute a conspiracy to commit an offense within the State and an overt act in furtherance of such conspiracy occurs within the State;

(d) Conduct occurring within the State establishes complicity in the commission of, or an attempt, solicitation, or conspiracy to commit, an offense in another jurisdiction which also is an offense under the law of this State;

(e) The offense consists of the omission, while within or outside this State to perform a legal duty imposed by the law of this State with respect to domicile, residence, or a relationship to a person, thing, or transaction in the State; or

(f) The offense is based on a statute of this State which expressly prohibits conduct outside the State, when the conduct bears a reasonable relation to a legitimate interest of this State and the actor knows that the actor's conduct is likely to affect that interest.

(2) Subsection (1)(a) does not apply when a specified result, or conduct creating a risk of such a result, is an element of an offense and the result occurs, or is intended or is likely to occur, only in another jurisdiction where the conduct charged would not constitute an offense, unless a legislative purpose plainly appears to declare that the conduct constitutes an offense regardless of the place of the result.

(3) Subsection (1)(a) does not apply when a particular result is an element of an offense and the result is caused by conduct occurring outside the State which conduct would not constitute an offense if the result had occurred there, unless the actor intentionally or knowingly caused the result within the State.

(4) When the offense involves a homicide, either the death of the victim or the bodily impact causing death constitutes a "result", within the meaning of subsection (1)(a). If the body of a homicide victim is found within the State, it is prima facie evidence that the result occurred within the State.

(5) This State includes the land and water and the air space about the land and water with respect to which the State has legislative jurisdiction. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

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

COMMENTARY ON §701-106

The intent of this section is to expand the penal jurisdiction of Hawaii's courts to the fullest extent possible, within the limits of fundamental fairness and constitutionality. (It does not govern the jurisdiction of individual courts.) The section therefore makes the penal law of this State applicable to conduct or results occurring within the State; to conduct within the State which establishes complicity in, or constitutes an attempt, solicitation, or conspiracy to commit, an offense in another jurisdiction which is also an offense under Hawaii law; and to a penal omission to perform a duty imposed by Hawaii law. Certain kinds of conduct occurring outside the State are also covered: conduct outside the State which is sufficient under this Code to constitute an attempt to commit an offense under the laws of this State, conduct outside the State which is sufficient under this Code to constitute a conspiracy to commit a crime within the State (provided that an overt act in furtherance of the conspiracy occurs within the State), and conduct outside the State expressly prohibited by Hawaii law "when the conduct bears a reasonable relation to a legitimate interest of this State and the actor knows that the actor's conduct is likely to affect that interest."

Subsections (2) and (3) provide exceptions to the coverage of subsection (1). Subsection (2) excepts conduct which causes, or creates the risk of causing, a result in another jurisdiction where the conduct does not constitute an offense in the other jurisdiction, unless the statute clearly indicates a purpose to make the conduct penal regardless of the place of the result. Subsection (3) relieves the actor of criminality for a result occurring in this State if it is a result of conduct outside the State which would not have been an offense there, provided that the actor did not intentionally or knowingly cause the result within this State. Both subsections recognize that culpability does not exist in the situations described, and recognize that the actor probably intended to abide by the law of the other jurisdiction.

Subsection (4) provides a special rule for homicide cases, giving the State jurisdiction either when death occurs within the State or when the bodily impact causing death occurs within the State. It also establishes a rule that evidence that the body of a homicide victim is found within the State is prima facie evidence that either death or bodily impact causing death occurred within the State.

Subsection (5) is intended to encompass the entire territorial area over which the State has legislative jurisdiction.

The territorial applicability of the previous Hawaii penal law was defined by statute.[1] The penal liability of a person outside the State of Hawaii occurred:

Where an act is done or a fact of effect takes place within the State, affecting the welfare of the State, or the personal safety, the property or rights of any of its inhabitants, being within the State, any person causing, procuring, machinating or promoting the same, or instigating another thereto, or aiding or assisting therein, is amenable to the laws of the State, whether he be at the time within or without its limits .[2]

Offenses partly within the State were also covered:

Where the commission of an offense commenced without the State, is consummated within it, the offender is subject to be prosecuted and punished therefor in the State.[3]

The case law pertaining to territorial applicability upholds and supports the above statutes. In Territory v. Hart,[4] it was held that the trial court in Hawaii had jurisdiction over a defendant who cabled from Honolulu to New York directing a broker in New York to sell certain stock which was in the defendant's control for a client, the proceeds of which the defendant had embezzled. The controlling factor in the court's decision was that the crime had been commenced within Hawaii. In The King v. Chock Hoon,[5] it was held that the defendant was guilty of embezzlement within the Kingdom where the defendant received X's money for the purpose of delivering that money to X's mother in China, and having failed to deliver the money, refused to return the money to X after returning to the Kingdom from China.
Haw. Rev. Stat. § 710-1080 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1080
[ §710-1080] Use of false statements or entries; generally.
Status: in_force

[ §710-1080] Use of false statements or entries; generally. (1) Except as otherwise provided in this section, a person commits the offense of use of false statements or entries if, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the State, the person intentionally or knowingly:

(a) Falsifies, conceals, or covers up a material fact by any trick, scheme, or device;

(b) Makes any materially false, fictitious, or fraudulent statement or representation;

(c) Makes any false writing or document knowing the writing or document contains any materially false, fictitious, or fraudulent statement or entry; or

(d) Uses any false writing or document knowing the writing or document contains any materially false, fictitious, or fraudulent statement or entry for the purpose of presenting any statement or entry as true or for the purpose of substantiating any conclusion that is made more likely by any statement or entry.

(2) Subsection (1) shall not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings, or documents submitted by the party or counsel to a judge or magistrate in the proceeding.

(3) With respect to any matter within the jurisdiction of the legislature, subsection (1) shall apply only to:

(a) Administrative matters, including:

(i) A claim for payment;

(ii) A matter related to the procurement of property or services;

(iii) Personnel or employment practices;

(iv) Support services; or

(v) A document required by law or rule to be submitted to the legislature or any office or officer within the legislature; or

(b) Any investigation or review conducted pursuant to the authority of any committee, subcommittee, commission, or office of the legislature, consistent with applicable rules of the senate or house of representatives.

(4) Use of false statements or entries shall be a class C felony. [L 2023, c 131, pt of §3]

COMMENTARY ON §§710-1079 TO 710-1080

Act 131, Session Laws 2023, added §§710-1079 and 710-1080 to: (1) establish the offense of making a false, fictitious, or fraudulent claim against the State or a county as a class C felony; and (2) establish the offense of the use of false statements or entries in matters within the jurisdiction of the executive, legislative, or judicial branches of the State as a class C felony. The legislature found that it was of utmost importance to restore public trust in state government and increase the level of transparency in government operations and accountability of individuals. To improve the standard of conduct within government, and to more effectively combat fraud, waste, and corruption, it was necessary to establish criminal offenses and penalties. Act 131 provided a mechanism to increase the public's trust and confidence in state and local government while providing law enforcement with a tool to adequately deter and commensurately punish acts of public corruption. Conference Committee Report No. 1, Senate Standing Committee Report No. 720.
Haw. Rev. Stat. § 702-233 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-233
Consent; general.
Status: in_force

In any prosecution, the victim's consent to the conduct alleged, or to the result thereof, is a defense if the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

COMMENTARY ON §702-233

This section states the general view that the victim's consent to the defendant's conduct, or to the result of the defendant's conduct, is a defense if it negatives an element of the offense (e.g., consent to sexual intercourse on charge of rape) or precludes the harm or evil sought to be prevented by the law defining the offense (e.g., consent by the victim to allow the defendant to demonstrate a wrestling hold or maneuver upon the victim). It is obvious that this general principle should not be extended to all types of evils or harms and therefore this section is intended to be read in conjunction with §702-234 (consent to bodily injury) and §702-235 (ineffective consent).

Although this general principle has not been previously codified in Hawaii, it has been impliedly recognized.[1]
Haw. Rev. Stat. § 712A-1 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-1
Definitions.
Status: in_force

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

"Attorney general" means the attorney general or deputy attorneys general of the State of Hawaii.

"Contraband" means any property the possession of which is illegal.

"Controlled substances" means a drug, substance, or immediate precursor in schedules I through V of chapter 329, part II.

"Covered offense" means any crime set forth in section 712A-4 or any other offense for which forfeiture is provided by the law relating to a particular offense.

"Enterprise" includes any sole proprietorship, partnership, corporation, association, or any union or group of individuals associated for a particular purpose although not a legal entity.

"Interest-holder" means a person in whose favor there is a security interest or who is the beneficiary of a perfected encumbrance pertaining to an interest in property.

"Law enforcement officer" means any public servant, whether employed by the State or subdivisions thereof or by the United States, vested by law with a duty to maintain public order, to make arrests for offenses, or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses. The attorney general, deputy attorneys general, county prosecuting attorneys, and deputy prosecuting attorneys engaged in the enforcement of criminal laws are included in the definition of the term law enforcement officer.

"Owner" means a person who is not a secured party within the meaning of section 490:9-102 and who has an interest in property, whether legal or equitable. A purported interest which is not in compliance with any statute requiring its recordation or reflection in public records in order to perfect the interest against a bona fide purchaser for value shall not be recognized as an interest against this State in an action pursuant to this chapter. An owner with power to convey property binds other owners, and a spouse binds the person's spouse, by any act or omission.

"Person" includes any individual or entity capable of holding a legal or beneficial interest in property.

"Person known to have an interest" means a person whose interest in property is reflected in the public records in which the person's interest is required by law to be recorded or reflected in order to perfect the person's interest. If a person's interest in property is not required by law to be reflected in public records in order to perfect the person's interest in the property, a person shall be known to have an interest only if such interest can be readily ascertained at the time of the commencement of the forfeiture action pursuant to this chapter.

"Proceeds" means anything of value, derived directly or indirectly from or realized through unlawful activity.

"Property" means real property, including things growing on, affixed to, and found on land; tangible and intangible personal property, including currency, instruments, vehicles, boats, aircraft or any other kind of conveyance; and all rights, privileges, interests, claims, and securities pertaining to such property.

"Prosecuting attorney" means the prosecuting attorney or deputy prosecuting attorneys of the various counties, or the attorney general or deputy attorneys general when engaged in the prosecution of a criminal offense.

"Seizing agency" means any department or agency of this State or its political subdivisions which regularly employs law enforcement officers, and which employed the law enforcement officer who seized property for forfeiture, or such other agency as the seizing agency may designate in a particular case by its chief executive officer or designee.

"Seizure for evidence" means seizure of property by a law enforcement officer.

"Seizure for forfeiture" means seizure of property by a law enforcement officer coupled with an assertion by the seizing agency or by a prosecuting attorney that the property is subject to forfeiture. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1993, c 196, §1; gen ch 1993; am L 1994, c 178, §1; am L 1996, c 104, §6; am L 2000, c 241, §7]

COMMENTARY ON §712A-1

Act 178, Session Laws 1994, amended this section by adding "seizure for evidence" as a new definition. Conference Committee Report No. 27.

Act 241, Session Laws 2000, amended this section by amending the definition of "owner" by changing the section referred to for the meaning of "secured party" from §490:9-105(1) to §490:9-102. This amendment was to make the UCC section referred to consistent with the new article 9, added by this Act.
Haw. Rev. Stat. § 701-119 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-119
REPEALED.
Status: in_force

L 1988, c 260, §§4, 7; L 1996, c 104, §6.
Haw. Rev. Stat. § 709-909 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-909
[ §709-909] Domestic violence intervention.
Status: in_force

[ §709-909] Domestic violence intervention. Notwithstanding chapter 706 or any other law to the contrary, any sentence for domestic violence intervention specified by section 709-906 shall be imposed by the court, with or without probation.
Haw. Rev. Stat. § 706-625 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-625
Revocation, modification of probation conditions.
Status: in_force

(1) The court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke probation except as provided in subsections (6) and (7), reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627.

(2) The prosecuting attorney, the defendant's probation officer, and the defendant shall be notified by the movant in writing of the time, place, and date of any such hearing, and of the grounds upon which action under this section is proposed. The prosecuting attorney, the defendant's probation officer, and the defendant may appear in the hearing to oppose or support the application, and may submit evidence for the court's consideration. The defendant shall have the right to be represented by counsel. For purposes of this section, the court shall not be bound by the Hawaii rules of evidence, except for the rules pertaining to privileges.

(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.

(4) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.

(5) When the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which the defendant was convicted.

(6) The court may require a defendant to undergo and complete a substance abuse treatment program when the defendant has committed a violation of the terms and conditions of probation involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, unlawful methamphetamine trafficking as provided in section 712-1240.6, or involving possession or use of drug paraphernalia under section 329-43.5. If the defendant fails to complete the substance abuse treatment program or the court determines that the defendant cannot benefit from any other suitable substance abuse treatment program, the defendant shall be subject to revocation of probation and incarceration. The court may require the defendant to:

(a) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;

(b) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;

(c) Contribute to the cost of the substance abuse treatment program; and

(d) Comply with any other terms and conditions of probation.

(7) As a condition of continued probation, the court may require a defendant to undergo a mental health evaluation and treatment program when the defendant has committed a violation of the terms and conditions of probation and there is reason to believe that the violation is associated with a mental disease, disorder, or defect of the defendant. The court may require the defendant to:

(a) Be assessed for a mental disease, disorder, or defect by a psychiatrist or psychologist, who shall prepare an appropriate treatment plan;

(b) Present a proposal to receive treatment in accordance with the plan prepared pursuant to paragraph (a) through a mental health treatment program that includes an identified source of payment for the treatment program, as applicable;

(c) Contribute to the cost of the treatment program, as applicable; and

(d) Comply with any other terms and conditions of probation.

If the defendant fails to complete the treatment program or the court determines that the defendant cannot benefit from any other suitable treatment program, the defendant may be subject to revocation of probation and incarceration.

(8) Nothing in subsection (6) or (7) shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider.

(9) For the purposes of this section:

"Conviction" means that a judgment has been pronounced upon the verdict.

"Mental health treatment program" means treatment services addressing a mental disease, disorder, or defect of the defendant, including residential or rehabilitation treatment or any other course or procedure, including diversion into specialized courts.

"Substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors. [L 1972, c 9, pt of §1; am L 1985, c 192, §1; am L 1986, c 314, §27; am L 1989, c 45, §1; gen ch 1993; am L 1994, c 5, §6; am L 2002, c 161, §5; am L 2004, c 44, §12; am L 2024, c 87, §11]
Haw. Rev. Stat. § 709-906 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-906
Abuse of family or household members; penalty.
Status: in_force

[Repeal and reenactment on June 30, 2026. L 2020, c 19, §15; L 2021, c 238, §4.] (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.

(2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof.

(3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.

(4) Any police officer, with or without a warrant, shall take the following course of action, regardless of whether the physical abuse or harm occurred in the officer's presence:

(a) The police officer shall make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;

(b) If the person who the police officer reasonably believes to have inflicted the abuse is eighteen years of age or older, the police officer lawfully shall order the person to leave the premises for a period of separation, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects. The period of separation shall commence when the order is issued and shall expire at 6:00 p.m. on the second business day following the day the order was issued; provided that the day the order is issued shall not be included in the computation of the two business days;

(c) If the person who the police officer reasonably believes to have inflicted the abuse is under the age of eighteen, the police officer may order the person to leave the premises for a period of separation, during which time the person shall not initiate any contact with the family or household member by telephone or in person; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects. The period of separation shall commence when the order is issued and shall expire at 6:00 p.m. on the second business day following the day the order was issued; provided that the day the order is issued shall not be included in the computation of the two business days. The order of separation may be amended at any time by a judge of the family court. In determining whether to order a person under the age of eighteen to leave the premises, the police officer may consider the following factors:

(i) Age of the person;

(ii) Relationship between the person and the family or household member upon whom the police officer reasonably believes the abuse has been inflicted; and

(iii) Ability and willingness of the parent, guardian, or other authorized adult to maintain custody and control over the person;

(d) All persons who are ordered to leave as stated above shall be given a written warning citation stating the date, time, and location of the warning and stating the penalties for violating the warning. A copy of the warning citation shall be retained by the police officer and attached to a written report which shall be submitted in all cases. A third copy of the warning citation shall be given to the abused person;

(e) If the person so ordered refuses to comply with the order to leave the premises or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the abused person, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and

(f) The police officer shall seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this section.

(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For a second offense that occurs within one year of the first conviction, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days.

(6) It shall be a petty misdemeanor for a person to intentionally or knowingly strike, shove, kick, or otherwise touch a family or household member in an offensive manner; subject the family member or household member to offensive physical contact; or exercise coercive control, as defined in section 586-1, over a family or household member and the person shall be sentenced as provided in sections 706-640 and 706-663. Upon conviction and sentencing of the defendant, the court may order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

(7) Whenever a court sentences a person or grants a motion for deferral pursuant to subsections (5) and (6), it shall also require that the offender first complete, within a specified time frame, an assessment at any available domestic violence intervention program, and then complete a domestic violence intervention or anger management course as determined by the domestic violence program, and, if the offense involved the presence or abuse of a minor, any available parenting classes ordered by the court. The court shall revoke the defendant's probation or set aside the defendant's deferred acceptance of guilty plea and enter an adjudication of guilt, if applicable, and sentence or resentence the defendant to the maximum term of incarceration if:

(a) The defendant fails to complete, within the specified time frame, any domestic violence intervention course, anger management course, or parenting classes ordered by the court; or

(b) The defendant violates any other term or condition of the defendant's probation or deferral imposed by the court;

provided that, after a hearing on an order to show cause, the court finds that the defendant has failed to show good cause why the defendant has not timely completed the domestic violence intervention course, anger management course, or parenting classes, if applicable, or why the defendant violated any other term or condition of the defendant's sentence. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court-ordered intervention.

(8) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the offense shall be a class C felony.

(9) Where the physical abuse consists of intentionally or knowingly causing bodily injury by impeding the normal breathing or circulation of the blood by:

(a) Applying pressure on the throat or the neck with any part of the body or a ligature;

(b) Blocking the nose and mouth; or

(c) Applying pressure to the chest,

abuse of a family or household member is a class C felony; provided that infliction of visible bodily injury shall not be required to establish an offense under this subsection.

For the purposes of this subsection, "bodily injury" shall have the same meaning as in section 707-700.

(10) Where physical abuse occurs in the presence of a minor, as defined in section 706-606.4, and the minor is a family or household member less than fourteen years of age, abuse of a family or household member is a class C felony.

(11) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

(12) The family or household member who has been physically abused or harmed by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county.

(13) The defendant shall be taken into custody and brought before the family court at the first possible opportunity. The court may dismiss the petition or hold the defendant in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

(14) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member.

(15) It shall be the duty of the prosecuting attorney of the applicable county to assist any victim under this section in the preparation of the penal summons or arrest warrant.

(16) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.

(17) When a person is ordered by the court to complete any domestic violence intervention course, anger management course, or parenting classes, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention course, anger management course, or parenting classes. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention ordered by the court.

(18) Notwithstanding any provision of law to the contrary, the court may grant a deferred acceptance of guilty plea pursuant to chapter 853 for misdemeanor or petty misdemeanor offenses of abuse of a family or household member when the defendant:

(a) Has no prior conviction; or

(b) Has not been previously granted a deferred acceptance of guilty plea,

for any offense charged in family court under this section regardless of the final plea.

(19) For the purposes of this section:

"Business day" means any calendar day, except Saturday, Sunday, or any state holiday.

"Family or household member":

(a) Means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons in a dating relationship as defined under section 586-1, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit; and

(b) Does not include those who are, or were, adult roommates or cohabitants only by virtue of an economic or contractual affiliation. [L 1973, c 189, §1; am L 1980, c 106, §1 and c 266, §2; am L 1981, c 82, §37; am L 1983, c 248, §1; am L 1985, c 143, §1; am L 1986, c 244, §1; am L 1987, c 360, §1; am L 1991, c 215, §§2, 4 and c 257, §§1, 2; am L 1992, c 290, §7; am L 1994, c 182, §§1, 3; am L 1995, c 116, §1; am L 1996, c 201, §2; am L 1997, c 321, §1, c 323, §1, and c 383, §70; am L 1998, c 172, §8; am L 1999, c 18, §18; am L 2002, c 5, §1; am L 2006, c 230, §46; am L 2012, c 205, §1; am L 2013, c 251, §1; am L 2014, c 117, §1; am L 2015, c 221, §1; am L 2016, c 231, §44; am L 2019, c 175, §1; am L 2020, c 19, §3; am L 2021, c 238, §1; am L 2023, c 23, §4]
Haw. Rev. Stat. § 707-763 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-763
Collection of extensions of credit by extortionate means.
Status: in_force

(1) "Collection of extensions of credit by extortionate means" includes knowingly participating in any way, or conspiring to do so, in the use of any extortionate means:

(a) To collect or attempt to collect any extension of credit; or

(b) To punish any person for the nonrepayment thereof.

(2) In any prosecution under this part, for the purpose of showing an implicit threat as a means of collection, evidence may be introduced tending to show that one or more extensions of credit by the creditor were, to the knowledge of the person against whom the implicit threat was alleged to have been made, collected or attempted to be collected by extortionate means or that the nonrepayment thereof was punished by extortionate means.

(3) In any prosecution under this part, if evidence has been introduced tending to show the existence, at the time the extension of credit in question was made, of the circumstances described in subsection (2)(a) or subsection (2)(b) of section 707-761 and direct evidence of the actual belief of the debtor as to the creditor's collection practices is not available, then for the purpose of showing that words or other means of communication, shown to have been employed as a means of collection, in fact carried an express or implicit threat, the court may in its discretion allow evidence to be introduced tending to show the reputation of the defendant in any community of which the person against whom the alleged threat was made was a member at the time of collection or attempt at collection. [L 1979, c 106, pt of §1; am L 1980, c 232, §39]

COMMENTARY ON §§707-760 TO 707-763

Act 106, Session Laws 1979, established these sections to extend Hawaii's extortion laws to prohibit extortionate credit transactions.
Haw. Rev. Stat. § 704-400 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-400
Physical or mental disease, disorder, or defect excluding penal responsibility.
Status: in_force

(1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's conduct to the requirements of law.

(2) As used in this chapter, the terms "physical or mental disease, disorder, or defect" do not include an abnormality manifested only by repeated penal or otherwise anti-social conduct. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §704-400

I. Physical and Mental Diseases, Disorders, and Defects.

Perhaps the most vexing problem in the penal law is determining when individuals shall not be held responsible for their conduct because at the time of the conduct they suffered from a disease, disorder, or defect which was related in some way to the conduct. The law has traditionally dealt with this problem in two more or less distinct areas.

As chapter 702 has pointed out, a voluntary act or a voluntary omission is the sine qua non of penal liability. In dealing with cases involving physical disease, disorder, or defect, the courts have traditionally held that where such a condition precludes conduct from being voluntary, the defendant will not be held penally liable.

In the classic case of Fain v. Commonwealth,[1] the court recognized that a homicide committed during a state of somnambulism (sleepwalking) or somnolentia (sleep drunkenness) would preclude criminal liability because the defendant was unconscious and therefore the defendant's acts were involuntary. After citing numerous medico-legal treatises, the court said:

These authorities, corroborated as they are by common observation, are sufficient to prove that it is possible for one, either in sleep or between sleeping and waking, to commit homicide, either unconsciously or under influence of hallucination or illusion resulting from an abnormal condition of the physical system.[2]

Following Fain, courts have held that where the physical condition of the defendant precludes or impairs consciousness the acts of the defendant will be regarded as involuntary and, therefore, result in an acquittal. Thus, in cases involving various forms of epilepsy,[3] traumatic injury to the head,[4] sexual assault,[5] and somnambulism,[6] the courts have recognized an absolute defense to penal liability predicated on the defendant's unconscious, but highly animated, action.

On the other hand, if a person's disease, disorder or defect is "mental" (as opposed to "physical"), the issue of the person's "guilt" is said, in the language of the cases, to turn on the person's "responsibility" for the person's conduct. Historically, a defendant will be relieved of responsibility for the defendant's conduct if, at the time of the conduct, the defendant was "labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."[7] This standard, known as the M'Naghten Rule or test, has been widely accepted in the United States. Persistent criticism of the rule has led to recent suggestions that it be modified to reflect current insights and terminology of modern psychiatry.[8] However, all recent suggestions have maintained the dichotomy between physical and mental diseases, disorders, and defects.

In this country, it originally was not of any pragmatic legal consequence whether the excusing condition was classified as "physical" or "mental"; the acquittal was absolute. In more recent years it has become common to qualify an acquittal based on the defendant's "mental" irresponsibility and to provide for commitment of the defendant thus acquitted to an appropriate medical institution. However, a defendant whose "physical" condition precludes voluntariness is still acquitted absolutely.

Medically, the classification of a defendant's (or a patient's) condition as either physical or mental, does not, in many cases, make sense. While it is true that there are many abnormalities of the mind or mental processes for which no biological basis can be found, many diseases, disorders, or defects which affect the behavior of a person have a multiple aetiology.[9]

Broadly speaking, two groups of factors influence the criminal actor in the latter cases: (1) the biological or organic factors, "the individual physical endowment of the criminal actor," the criminal actor's "bio-chemical, physiological, neurological, and anatomical peculiarities"; and (2) the social and psychological factors "emanating from relationships with individuals or groups in the external environment."[10]

[O]ne must keep in mind the basic principle of multiple aetiology. Organic factors are operating synergistically with social and psychological stresses in a particular constitution, all factors contributing in varying degrees to the genesis of the breakdown and to the presenting clinical picture.[11]

The centrality of the brain as a bodily organ means that many physical conditions "may be crucially involved in impaired or aberrant conduct."[12] This is so whether the condition relates to the functioning of the brain directly (e.g., epilepsy, cerebral tumor, head trauma, encephalitis, or arteriosclerosis) or indirectly through a symbiotic relationship of the brain with another organ or system (e.g., glandular disorders, metabolic dysfunctions, and circulatory breakdowns).[13] Moreover, "[t]he number of accused persons whose criminal conduct might be biologically conditioned is probably quite large since the number of physical disorders that are capable of producing criminal behavior is itself extensive."[14]

This brief foray into "hornbook psychiatry"[15] indicates that the propensity of the courts to label a single integrated medical problem as either "physical" or "mental" can only be justified if rational legal consequences turn on this categorizing process. An examination of the cases will indicate that such rational consequences do not, in fact, result from affixing these legalistic labels to defendants with medical problems that constitute conditions which excuse penal liability (or responsibility).

The rationale for providing for acquittal conditioned on commitment (or "hospitalization") in cases involving "mental" disease, disorder, or defect ("insanity") is that commitment is necessary to protect other members of society (and the acquitted defendant) from the consequences of repetition of the prohibited conduct. The rationale is no less applicable or persuasive in cases of "physical" conditions resulting in involuntary movements which threaten harm to others. These people too "may present a public health or safety problem, calling for therapy or even for custodial commitment. ..."[16] While it is true that mandatory commitment bears harshly on a person whose physical condition (or symptom thereof) may be nonrecurrent,[17] it bears no less harshly on the person whose mental condition (or symptom thereof) may be nonrecurrent--although the frequency of the latter instance may be less than that of the former.

The answer does not lie in the black-and-white distinction posed by present law: an excusing mental condition means commitment; an excusing physical condition means an unqualified acquittal. The answer lies, as the Code suggests in later sections, in tailoring the disposition of a defendant, acquitted on the basis of disease, disorder, or defect, to the condition of the defendant and to the needs of society. Commitment need not be mandatory because the defendant's disease, defect, or disorder is labelled "mental," nor should it be precluded because the defendant's excusing condition is labelled "physical."

The unsatisfactory posture of the law has led many courts to dissimilar decisions in substantially similar cases. Thus, while epilepsy has been held to be distinctly different from "insanity" (a mental condition constituting an excuse from criminal responsibility) in some cases,[18] in other cases it has not.[19] Cases of somnambulism, which are usually said to constitute a physical condition precluding voluntariness,[20] have also been classified as "a species of insanity."[21] Moreover, within the same jurisdiction cases involving the same type of disease, disorder, or defect have at one time labelled the condition "mental" and at another time labeled it "physical."[22]

One real danger of the false dichotomy that the law presently draws between mental and physical excusing conditions is that in those cases where the condition of the defendant is not easily categorized as either "mental" or "physical," the defendant might be convicted because the net effect of the evidence is not sufficient to raise a reasonable doubt in the minds of the jury on the issue of voluntariness or on the issue of mental responsibility because of the inability of expert testimony to conform to the "either-or" proposition demanded by the law. Conviction may result in such cases notwithstanding substantial evidence that the defendant suffered from a condition which impaired the defendant's consciousness.[23]

Conversely, the unqualified acquittal, which the law has afforded defendants whose conduct resulted from physical conditions which rendered the action "involuntary," has led some judges to write strained opinions that can only be justified by the result sought to be achieved.

A series of British cases illustrates the dilemma which the state of the law forced upon the Courts. In Regina v. Charlson[24] the defendant was charged with assault for striking his son with a hammer. The defendant offered evidence that at the time of his acts he suffered from a cerebral tumor which impaired his consciousness, causing him to act in a state of automatism, and that he was not suffering from any mental illness. The trial judge instructed the jury:

Therefore... you have to ask yourselves whether the accused knowingly struck his son, or whether he was acting as an automaton without any knowledge or control over his acts.... [Y]ou may consider that he may not have known what he was doing at all, although perhaps he remembered it in a vague sort of a way. If you think it was purely automatic action for which he had no responsibility at all and over which he had no control then the proper verdict would be "not guilty."[25]

The defendant was acquitted.

In Regina v. Kemp[26] the defendant struck his wife with a hammer. He pleaded that he had committed the act in a state of impaired consciousness caused by arteriosclerosis. The medical testimony was in conflict as to whether the condition should be labelled "physical" or "mental." The court held that regardless of the medical testimony concerning the explanation or labelling of the defendant's condition, the description of the condition established that "the accused suffers from... a disease of the mind within the true meaning of the McNaghten [sic] Rules."[27]

The broad submission that was made to me on behalf of the accused was that this is a physical disease and not a mental disease; arteriosclerosis is a physical condition primarily and not a mental condition. But that argument does not go so far as to suggest that for the purpose of the law diseases that affect the mind can be divided into those that are physical in origin and those that are mental in origin. There is such a distinction medically. I think it is recognized by medical men that there are mental diseases which have an organic cause, there are disturbances of the mind which can be traced to some hardening of the arteries, to some degeneration of the brain cells or to some physical condition which accounts for mental derangement. It is also recognized that there are diseases functional in origin where it is not possible to point to any physical cause but simply to say that there has been a derangement of the functioning of the mind, such as melancholia, schizophrenia and many other of those diseases which are usually handled by psychiatrists. This medical distinction is not pressed as part of the argument for the accused in this case, and I think rightly. The distinction between the two categories is quite irrelevant for the purposes of the law, which is not concerned with the origin of the disease or the cause of it but simply with the mental condition which has brought about the act. It does not matter, for the purposes of the law, whether the defect of reason is due to a degeneration of the brain or to some other form of mental derangement. That may be a matter of importance medically, but it is of no importance to the law, which merely has to consider the state of mind in which the accused is, not how he got there.

Hardening of the arteries is a disease which is shown on the evidence to be capable of affecting the mind in such a way as to cause a defect, temporarily or permanently, of its reasoning, understanding and so on, and so is in my judgment a disease of the mind which comes within the meaning of the [M'Naghten] Rules. I shall therefore direct the jury that it matters not whether they accept the evidence of certain testifying doctors, but that on the whole of the medical evidence they ought to find that there is a disease of the mind within the meaning of the [M'Naghten] Rule.[28]

Pursuant to the instructions of the court, the defendant was found "guilty but insane." The full import of the decision is recognized only when it is realized that the defendant pleaded automatism, not insanity, and the court instructed a verdict of guilt based on insanity arising out of an arteriosclerotic condition.

In 1961 the House of Lords decided Bratty v. Attorney-General for Northern Ireland[29] which dealt with the relationship between the defenses of impaired consciousness and "insanity." The defendant, in that case, pleaded: (1) that at the time of the conduct he suffered from psychomotor epilepsy, that as a result thereof he acted in a state of automatism, and that his actions were therefore involuntary; (2) that his psychomotor epilepsy rendered his mental condition confused and impaired, and that because of this he could not form the requisite intent for murder; and (3) that he was guilty-but-insane (at the time the English equivalent of the American verdict of not guilty by reason of insanity) under the M'Naghten test. The trial judge rejected the first two pleas and refused to instruct on them, but submitted the issue of insanity to the jury. The jury rejected insanity and found the defendant guilty. At that time in England, unlike the law in many American jurisdictions, the defendant bore the burden of persuasion (by a preponderance of the evidence) on the issue of the defendant's insanity. The House of Lords upheld the trial judge, relying on the testimony given by doctors at the trial "that psychomotor epilepsy is a defect of reason due to disease of the mind."[30]

In Bratty the House of Lords assimilated the defense based on automatism into the defense of insanity where automatism is based on a "disease of the mind," i.e., where there is no evidentiary showing that the excusing condition is "physical" in nature. The Lord Chancellor said that

Where the possibility of an unconscious act depends on, and only on, the existence of a defect of reason from disease of the mind within the McNaghten [sic] Rules, a rejection of the jury of this defense of insanity necessarily implies that they reject the possibility.[31]

In short, under the posture of the testimony, "there would need to be other evidence on which a jury could find non-insane automatism."[32]

Lord Denning took a somewhat different approach. In an opinion which rejects Charlson and accepts Kemp, he said:

The major mental diseases, which doctors call psychoses, such as schizophrenia, are clearly diseases of the mind. But in Charlson's case, Barry J. seems to have assumed that other diseases such as epilepsy or cerebral tumor are not diseases of the mind, even when they manifest themselves in violence. I do not agree with this. It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in a hospital rather than be given an unqualified acquittal.[33]

It is obvious that Lord Denning's concern is not with language, but result. Lord Denning's primary concern is that a defendant whose condition (1) has caused violence which (2) may recur should be detained. If this requires that the defendant's condition be labelled as a "disease of the mind" for legal purposes, the language of judges is sufficiently flexible for the task. If it requires that the defendant be found guilty but insane, so be it. The inability of a British defendant to meet a burden of persuasion on the issue of insanity (which now includes additional disorders) did not seem to bother the court--indeed, the Lord Chancellor was concerned lest the burden be avoided by a change in nomenclature.

The British experience has led to some anomalous results but at the same time provides some insights into a problem which can be resolved by appropriate legislation. It seems anomalous that conditions such as cerebral tumor or arteriosclerosis should be labelled "mental" or "diseases of the mind" and that defendants suffering from these conditions should be adjudged "insane" in order to achieve the custodial commitment deemed necessary. At the same time, the House of Lords seems eminently wise in attempting to point out the factors which properly call for commitment. (Whether the labelling process is necessary or logical is another matter.)

The Code seeks to avoid the arbitrary, meaningless and strained distinctions which have been made between excusing conditions which have been labelled "mental" and those which have been labelled "physical." Chapter 704 provides for a unified treatment of diseases, disorders, and defects which constitute an excusing condition. The same standards are provided for determining whether the condition of the accused will relieve the accused of responsibility for the accused's acts--it matters not that the condition is labelled "mental" or "physical" or both. At the same time, the Code, in subsequent sections of this chapter, provides for a flexible disposition of defendants acquitted on the basis of a disease, disorder, or defect which excludes responsibility and, therefore, liability. The disposition is tailored to the condition of the accused; if the condition demands custodial commitment, the same will be ordered notwithstanding the fact that the condition is primarily "physical" rather than "mental"; if the condition does not demand commitment and conditional release or discharge are appropriate, the same will be ordered notwithstanding the fact that the condition has been labelled "mental disease or disorder."

II. The Standards of Penal Responsibility.

Preliminarily it must be pointed out that the penal law is not concerned with the physical or mental condition of a defendant at the time of the alleged penal conduct unless the defendant's condition impairs the defendant's capacity not to engage in the prohibited conduct. The interrelationship between choice and guilt has been succinctly stated by the Third Circuit in a case involving the defendant's mental condition.

The concept of mens rea, guilty mind, is based on the assumption that a person has a capacity to control his behavior and to choose between alternative courses of conduct. This assumption, though not unquestioned by theologians, philosophers and scientists, is necessary to the maintenance and administration of social controls. It is only through this assumption that society has found it possible to impose duties and create liabilities designed to safeguard persons and property....

... [T]he fact that a defendant was mentally diseased is not determinative of criminal responsibility in and of itself but is significant only insofar as it indicates the extent to which the particular defendant lacked normal powers of control and choice at the time he committed the criminal conduct with which he is charged....[34]

As pointed out, the M'Naghten Rule, which is the traditional approach, provides that if a defendant did not know what the defendant was doing or did not know that what the defendant was doing was wrong, the defendant will not be held responsible for the defendant's acts.[35] A defendant who does not possess this minimum degree of rationality is said to be "legally insane." Without this minimum degree of cognitive capacity, choice, and therefore control, is clearly absent. Condemnation and punishment of such an individual would be unjust because the individual could not, by hypothesis, have employed reason to restrain the act: the individual did not and the individual could not know the facts essential to bring reason into play.[36] They are also futile because a "madman who believes that he is squeezing lemons when he chokes his wife or thinks that homicide is the command of God is plainly beyond reach of the restraining influence of law; he needs restraint but condemnation is entirely meaningless and ineffective."[37]

The M'Naghten Rule singles out only one factor as a test of responsibility: cognition--the ability of the defendant "to know" what the defendant was doing or "to know" the wrongfulness of the conduct. Fourteen states and the federal jurisdiction have recognized this as a defect in the M'Naghten formulation.[38] Many mental diseases, disorders, or defects may produce an incapacity for self-control without impairing cognition. Thus, these jurisdictions have supplemented the M'Naghten formulation with the "irresistible impulse" test.

Following the suggestion of these states and the Model Penal Code, this Code accepts the view that a defendant whose volitional capacity is impaired as a result of a disease, disorder, or defect should be relieved of penal liability just the same as a defendant whose cognitive capacity is so impaired.

The draft of the M.P.C. accepts the view that any effort to exclude the non-deterrables from strictly penal sanctions, must take account of impairment of volitional capacity no less than impairment of cognition; and this result should be achieved directly in the formulation of the test, rather than left to mitigation in the application of M'Naghten. It also accepts the criticism of the "irresistible impulse" formulation as inept in so far as it may be impliedly restricted to sudden, spontaneous acts as distinguished from insane propulsions that are accompanied by brooding or reflection.[39]

The formulation for the test of volitional capacity is put in terms of whether the defendant lacked substantial capacity to conform the defendant's conduct to the requirements of the law.

Lack of capacity is, of course, distinguishable from a disposition not to conform to the requirements of the law. "The application of the principle will call, of course, for a distinction between incapacity, upon the one hand, and mere indisposition on the other. Such a distinction is inevitable in the application of a standard addressed to impairment of volition."[40]

The defendant's lack of volitional capacity is the same rationale which has precluded penal liability in cases involving physical diseases, disorders, or defects. As pointed out in Part I of this commentary, the defendant's inability to exercise volition while in a state of somnambulism, automatism, or epilepsy is the reason why the courts have found no basis for penal liability in such cases. Although it is true that the defendant's condition also probably precludes cognition, the courts have not dealt fully with this aspect of the question. Acquittals on the basis of involuntary action on the part of the defendant are unqualified (unless the disease, disorder, or defect is assimilated into "insanity"). Since, as pointed out, the reason for providing for a conditional or qualified acquittal in cases involving a mental disease, disorder, or defect is equally applicable to cases involving a physical condition impairing the defendant's volitional capacity (and possibly the defendant's cognitive capacity), there is no reason to provide different standards or different consequences for excusing conditions of the mind or the body or both. The Code provides for unified treatment of physical and mental conditions which impair cognition or volition or both.

A more subtle criticism of the M'Naghten test and the "irresistible impulse" test must be recognized and accepted. M'Naghten requires that the defendant must be completely without cognitive capacity--the defendant must not know the nature and quality of the defendant's act or that what the defendant is doing is wrong. The irresistible impulse test requires a complete lack of capacity for self-control. The legal requirement of total incapacity does not conform to the clinical experience of psychiatrists.[41] Many persons with a mental disease, disorder, or defect may have an extremely limited capacity for self-control or cognition, but their lack of capacity is rarely total.

The schizophrenic, for example, is disoriented from reality; the disorientation is extreme; but it is rarely total. Most psychotics will respond to a command of someone in authority within the mental hospital; they thus have some capacity to conform to a norm. But this is very different from the question of whether they have the capacity to conform to requirements that are not thus immediately symbolized by an attendant or policeman at the elbow. Nothing makes the inquiry into responsibility more unreal for the psychiatrist than limitation of the issue to some ultimate extreme of total incapacity, when clinical experience reveals only a graded scale with marks along the way.[42]

The Code does not demand total incapacity; it requires substantial incapacity. The word "substantial" is, of course, imprecise, but seeking precision in designating the degree of impairment that will preclude responsibility is as foolish as requiring total impairment. As the commentary to the Model Penal Code states: "To identify the degree of impairment with precision, is, of course, impossible both verbally and logically. The recommended formulation is content to rest upon the term 'substantial' to support the weight of judgment; if capacity is greatly impaired, that presumably should be sufficient."[43] An expert witness, called upon to assess a defendant's capacity at a prior time (which, of course, the witness probably did not observe), can hardly be asked for a more definitive statement even in the case of extreme conditions.

The Code has rejected the approach taken in Durham v. United States[44] which puts the test as follows: "an accused is not criminally responsible if his unlawful act was the product of a mental disease or mental defect." The problem with the Durham test is twofold: (1) It leaves the ultimate decision of criminal responsibility to the expert medical witness without any limitation or guide as to which kinds of cases the law seeks to exempt from condemnation and punishment. Once the expert witness has satisfied himself on the issue of causation and that the defendant's condition comes within the categories of "mental disease or mental defect," the defendant must be acquitted. (2) The question of causation or "product" is fraught with difficulties. "[T]he concept of the singleness of personality and unity of mental processes that psychiatry regards as fundamental"[45] makes it almost impossible to divorce the question of whether the defendant would have engaged in the prohibited conduct if the defendant had not been ill from the question of whether the defendant was, at the time of the conduct, in fact ill.

The formulation for the test of criminal responsibility set forth in subsection (1) is derived from the Model Penal Code. That formulation was adopted substantially by the Third[46] and Tenth[47] Circuits and in haec verba by the Second Circuit.[48] The Code has adopted substantially the Model Penal Code formulation. However, the words "physical" and "disorder" have been added. The addition of the word "physical" is explained in Part I of this commentary. The word "disorder" has been added in an attempt to insure that, regardless of any technical distinctions that may be made according to medical usage, all conditions which impair capacity according to the standard set forth in the formulation will be covered.

III. An Abnormality Manifested Only by Repeated Penal

or Otherwise Anti-Social Conduct.

Subsection (2) is designed to exclude from the category of "physical or mental disease, disorder, or defect" an abnormality manifested only by repeated penal or otherwise anti-social conduct. It is not intended that this clause be used to exclude any disease, disorder, or defect which is manifested by symptoms which include repeated penal or otherwise anti-social conduct.

There is considerable disagreement within the medical profession as to the proper definition of the words "psychopathy" and "sociopathy." At times they have been used to identify abnormalities which are manifested only by repeated penal conduct,[49] and at other times they have been used to identify serious mental disorders which are manifested by additional symptoms.[50] The Code cannot hope to resolve the issue of the proper definition of these words; because of this, it is not the intent of subsection (2) to stigmatize the use of the term per se. Rather, the Code points to the factors to be considered, not the label to be used.

We yield to the urge, thus far suppressed, to quote at length from the opinion of Judge Biggs in United States v. Currens:

It is readily apparent that... [the] objection to the inclusion of psychopaths among those entitled to raise the defense of insanity assumes a particular definition of psychopathy; viz., that the term psychopathy comprehends a person who is a habitual criminal but whose mind is functioning normally. Perhaps some laymen and, indeed some psychiatrists, do define the term that broadly; and insofar as the term psychopathy does merely indicate a pattern of recurrent criminal behavior we would certainly agree that it does not describe a disorder which can be considered insanity for purposes of a defense to a criminal action. But, we are aware of the fact that psychopathy, or sociopathy, is a term which means different things to experts in the fields of psychiatry and psychology. Indeed, a confusing welter of literature has grown up about the term causing some authorities to give up its use in dismay, labelling it a "waste basket category." See, e.g., Partridge, C.E., Current Conceptions of Psychopathic Personality, 10 American Journal of Psychiatry, pp. 53-59 (1930).

We have examined much of this literature and have certainly found it no less dismaying than those authorities to which we have just referred. Our study has, however, revealed two very persuasive reasons why this court should not hold that evidence of psychopathy is insufficient, as a matter of law, to put sanity or mental illness in issue. First, it is clear that as the majority of experts use the term, a psychopath is very distinguishable from one who merely demonstrates recurrent criminal behavior.... Moreover, the American Psychiatric Association in 1952 when it published its Diagnostic and Statistical Manual, Mental Disorders (Mental Hospital Service), altered its nomenclature, p. 38, removing sociopathic personality disturbance and psychopathic personality disturbance from a non-disease category and placing them in the category of "Mental Disorders."

Thus, it can be seen that in many cases the adjective "psychopathic" will be applied by experts to persons who are very ill indeed. It would not be proper for this court in this case to deprive a large heterogeneous group of offenders of the defense of insanity by holding blindly and indiscriminately that a person described as psychopathic is always criminally responsible.

Our second reason for not holding that psychopaths are "sane" as a matter of law is based on the vagaries of the term itself. In each individual case all the pertinent symptoms of the accused should be put before the court and jury and the accused's criminal responsibility should be developed from the totality of his symptoms. A court of law is not an appropriate forum for a debate as to the meaning of abstract psychiatric classifications. The criminal law is not concerned with such classifications but with the fundamental issue of criminal responsibility. Testimony and argument should relate primarily to the subject of the criminal responsibility of the accused and specialized terminology should be used only where it is helpful in determining whether a particular defendant should be held to the standards of the criminal law.[51]

Subsection (2) accepts the language of the Model Penal Code,[52] but does not accept the construction or intent placed on the language by the Model Penal Code commentary. That commentary accepted the Royal Commission's view that psychopathy is an abnormality manifested only by repeated deviant conduct and stated that the language "is designed to exclude from the concept of 'mental disease or defect' the case of so-called 'psychopathic personality.'"[53] The language, but not the commentary, is fully consistent with the discussion by Judge Biggs set out above.[54]
Haw. Rev. Stat. § 708-839.7 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-839.7
Identity theft in the second degree.
Status: in_force

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

(2) Identity theft in the second degree is a class B felony. [L 2002, c 224, pt of §1]
Haw. Rev. Stat. § 712-1251 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1251
Possession in a motor vehicle; prima facie evidence.
Status: in_force

(1) Except as provided in subsection (2), the presence of a dangerous drug, harmful drug, or detrimental drug in a motor vehicle, other than a public omnibus, is prima facie evidence of knowing possession thereof by each and every person in the vehicle at the time the drug was found.

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

(a) Other occupants of the motor vehicle if the substance is found upon the person of one of the occupants therein;

(b) All occupants, except the driver or owner of the motor vehicle, if the substance is found in some portion of the vehicle normally accessible only to the driver or owner; or

(c) The driver of a motor vehicle who is at the time operating it for hire in the pursuit of the driver's trade, if the substance is found in a part of the vehicle used or occupied by passengers. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

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

COMMENTARY ON §712-1251

Subsection (1) of this section establishes a rule of prima facie evidence regarding the possession of a dangerous drug, harmful drug, or detrimental drug when it is found in a motor vehicle. Section 701-117 sets forth the definition of "prima facie evidence". Subsection (2) provides that the evidentiary rule does not apply to various occupants of a vehicle under certain circumstances. If the substance is found upon the person of one of the occupants, then the evidentiary rule does not apply to other occupants of the vehicle. If it is found in some area of the vehicle normally accessible only to the driver, the rule applies only to the driver. If a drug is found in the part of a hired or chauffeured vehicle used or occupied by passengers, the evidentiary rule does not apply to the driver but does apply to the passenger or passengers.

When any of the specified substances is found in a vehicle, but not upon the person of one of the occupants, it is almost impossible for the prosecutor to prove actual possession by direct evidence. However, the inference, in the absence of contrary evidence which raises a reasonable doubt in the mind of the trier of fact, is overwhelming that if, for example, the substance is in that portion of the vehicle to which only the driver and owner have access, that the substance is in fact in the possession and under the control of the owner-occupant or driver-occupant. The same holds true for the other provisions of subsections (1) and (2). Therefore, subsections (1) and (2) are designed and provided to let the prosecutor get the case to the jury in situations where direct evidence is difficult to obtain and the weight of a logical inference is sufficient to warrant a special evidentiary rule.
Haw. Rev. Stat. § 706-605 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-605
Authorized disposition of convicted defendants.
Status: in_force

(1) Except as provided in parts II and IV or in section 706-647 and subsections (2), (6), and (7), and subject to the applicable provisions of this Code, the court may sentence a convicted defendant to one or more of the following dispositions:

(a) To be placed on probation as authorized by part II;

(b) To pay a fine as authorized by part III and section 706-624;

(c) To be imprisoned for a term as authorized by part IV;

(d) To perform services for the community under the supervision of a governmental agency or benevolent or charitable organization or other community service group or appropriate supervisor; provided that the convicted person who performs these services shall not be deemed to be an employee of the governmental agency or assigned work site for any purpose. All persons sentenced to perform community service shall be screened and assessed for appropriate placement by a governmental agency coordinating public service work placement as a condition of sentence; or

(e) To undergo domestic violence programs pursuant to chapter 580, 586, or 709 or other applicable law, with or without probation.

(2) The court shall not sentence a defendant to probation and imprisonment except as authorized by part II.

(3) In addition to any disposition authorized in subsection (1), the court may sentence a person convicted of a misdemeanor or petty misdemeanor to a suspended sentence.

(4) The court may sentence a person who has been convicted of a violation to any disposition authorized in subsection (1) except imprisonment.

(5) The court shall sentence a corporation or unincorporated association that has been convicted of an offense in accordance with section 706-608.

(6) The court shall impose a compensation fee upon every person convicted of a criminal offense pursuant to section 351-62.6; provided that the court shall waive the imposition of a compensation fee if it finds that the defendant is unable to pay the compensation fee. When a defendant is ordered to make payments in addition to the compensation fee, payments by the defendant shall be made in the order of priority established in section 706-651.

(7) The court shall order the defendant to make restitution for losses as provided in section 706-646. In ordering restitution, the court shall not consider the defendant's financial ability to make restitution in determining the amount of restitution to order. The court, however, shall consider the defendant's financial ability to make restitution for the purpose of establishing the time and manner of payment.

(8) This chapter does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence. [L 1972, c 9, pt of §1; am L 1975, c 89, §2; am L 1978, c 96, §1; am L 1980, c 93, §1; am L 1986, c 226, §1 and c 314, §14; am L 1990, c 100, §1; am L 1995, c 215, §1; am L 1998, c 206, §4, c 240, §6, and c 269, §4; am L 2005, c 144, §2; am L 2006, c 230, §17; am L 2016, c 231, §18; am L 2022, c 43, §7]

COMMENTARY ON §706-605

This section states the various sentencing alternatives that are available to the court upon conviction of a defendant for an offense. With the exceptions of civil commitment in lieu of sentence and mandatory life imprisonment for murder, the authorized dispositions for crimes are: suspension of sentence, fine, probation, imprisonment, probation with limited imprisonment, fine and probation, and fine and imprisonment. Subsection (2) makes clear that, with respect to violations, only suspension of sentence or a fine are authorized.

The Code departs from previous practice in that it authorizes suspension of the sentence but does not authorize imposition of sentence and suspension of its execution.[1] If suspension of sentence works out badly and the court subsequently determines that a sentence must be imposed upon the defendant, the correct sentence ought to be determined at the time of imposition rather than at the prior time when the court ordered its suspension. The facts which give rise to the need for imposition and execution of sentence should, of course, be made the subject of an up-to-date pre-sentence investigation and report. The judge ordering suspension of sentence (or suspension of execution) cannot be expected at the time of suspension to formulate a contingent sentence which will account for subsequent facts.

Probation is treated as a specific sentence rather than being treated as "the accompaniment of suspension."[2] Previous practice was to suspend either imposition or execution of sentence and to place the defendant on probation. As the Model Penal Code commentary points out: "The matter is of relatively minor moment but may serve in some respects to focus thought upon probation as an independent sanction, a result we think important to achieve."[3]

With the exception of murder (see §706-606), the Code does not exclude the possibility of suspension of sentence or probation in cases of offenses thought to be particularly heinous. This is contrary to previous law which provided mandatory imprisonment in cases of murder in the first or second degree, rape, carnal abuse of a female under the age of twelve, incest between parents and children or stepchildren, arson, kidnapping, robbery in the first degree, burglary in the first degree when armed with a deadly weapon, embezzlement of public moneys, and the giving or accepting of a bribe or extortion by a public officer, agent or employee.[4] Although imprisonment would most likely be warranted upon conviction on these types of serious offenses, the Code takes the position that, with the exception of murder, the legislature should not compel imprisonment for any crime before the circumstances of the crime and facts concerning the defendant are known to the sentencing authority.

This provision rests on the view that no legislative definition or classification of offenses can take account of all contingencies. However right it may be to take the gravest view of an offense in general, there will be cases comprehended in the definition where the circumstances were so unusual, or the mitigations so extreme, that a suspended sentence or probation would be proper. We see no reason to distrust the courts upon this matter or to fear that such authority will be abused.[5]

Subsection (3) indicates that the special problems presented by corporate or associational defendants are dealt with in §706-608.

Subsection (4) reserves for the court the authority which has been conferred upon it by law to declare forfeiture, suspend or cancel licenses, remove persons from office and impose other penalties which are civil in nature. The court in a criminal case retains its power to impose, in addition to authorized penal sanctions, any civil sanction authorized by law which is warranted by the facts of the committed offense.

SUPPLEMENTAL COMMENTARY ON §706-605

Act 89, Session Laws 1975, amended this section by adding subsection (1)(e), empowering the court to order the convicted person to make restitution to the victim of the crime. The purpose of this change was to repay the victim for loss and develop in the convicted person "...a degree of self-respect and pride in knowing that he or she has righted the wrong committed." Senate Standing Committee Report No. 789, House Standing Committee Report No. 425.

Act 96, Session Laws 1978, added subsection (1)(f) to provide an alternative sentence for convicted persons for whom fines or imprisonment may not be deemed appropriate and to remove any doubt as to the authority of the court to impose a sentence requiring community service. Senate Standing Committee Report No. 974-78, House Standing Committee Report No. 586-78.

Act 93, Session Laws 1980, amended subsection (2) to make it clear that the courts have the authority to sentence persons convicted of violations to perform community service. House Standing Committee Report No. 131-80. The Act also substituted sex-neutral words for gender-based terms.

Act 100, Session Laws 1990, amended subsection (1)(e) to require mandatory screening for persons sentenced to perform community service to reduce instances of inappropriate placements which jeopardize the safety of the agency, the public, or the offender. House Standing Committee Report No. 1191-90.

Act 215, Session Laws 1995, amended subsection (1) to authorize the court to order a convicted defendant to pay restitution to the criminal injuries compensation commission if the victim of the crime has been granted a compensation award by the commission. Prior to the amendment, the law was unclear as to whether the court had authority to order that restitution be paid directly to the criminal injuries compensation commission. The amendment also will provide additional revenues for the criminal injuries compensation commission, thus allowing the commission to compensate victims promptly for losses. The legislature found it "appropriate and fiscally responsible" to require a convicted criminal to reimburse the commission when the commission granted an award to the crime victim. Senate Standing Committee Report No. 1356.

Act 206, Session Laws 1998, amended this section to, among other things, require the imposition of a fee against convicted criminals. The monetary assessment of convicted criminal defendants is to fund disbursements made by the criminal injuries compensation commission. The legislature found that state compensation of victims of criminal acts is well-founded in public policy and is the law in every state of the Union. The legislature also found that thirty-four states administered compensation programs that were financially self-sufficient and funded from fees, fines, penalties, civil recoveries, and/or restitution. Adoption of such a program would be prudent and consistent with the legislature's objective of cutting government costs, considering the State's economic situation. Conference Committee Report No. 156.

Act 240, Session Laws 1998, amended this section by changing the name of the criminal injuries compensation commission to the crime victim compensation commission. The legislature found that the purpose of the criminal injuries compensation commission is to aid victims of crime by providing them compensation for their victimization, and further, that the change would more clearly reflect the purpose of the commission to the public. Senate Standing Committee Report No. 726.

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

Act 144, Session Laws 2005, amended this section by establishing the order of priority for a defendant to make payments in addition to the compensation fee. The priority schedule ensures that the victim of a defendant's crime receives the first amount of compensation paid by the defendant. Conference Committee Report No. 161, Senate Standing Committee Report No. 1210.

Act 230, Session Laws 2006, amended this section to, among other things, require that when restitution is ordered, the amount of restitution is not based on the defendant's financial ability to make restitution, but the defendant's financial ability to make restitution [shall] be considered in establishing the time and manner of payment. House Standing Committee Report No. 665-06.

Act 231, Session Laws 2016, amended subsection (6) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 43, Session Laws 2022, made conforming amendments to this section to allow convicted defendants to be sentenced to undergo domestic violence programs pursuant to applicable law, with or without probation. These conforming amendments facilitated other amendments made by Act 43 clarifying that a court is required to impose a sentence for domestic violence intervention, with or without probation, for violations of restraining orders, orders for protection, and abuse of family or household members. The legislature found that §586-4 authorizes a family court to order a violator of a temporary restraining order to undergo mandatory domestic violence intervention. However, the legislature found that the Hawaii Supreme Court misinterpreted §586-4(e) by holding that domestic violence intervention may only be ordered as a condition of probation. The legislature noted that domestic violence intervention, which includes anger management and domestic violence treatment, is an important part of addressing the root causes of domestic violence. Act 43 highlighted the importance of domestic violence intervention and clarified legislative intent by clearly mandating domestic violence intervention regardless of whether persons are sentenced with or without probation for violations of restraining orders, orders for protection, or abuse of family or household members. Senate Standing Committee Report No. 3853, House Standing Committee Report No. 777-22, Senate Standing Committee Report No. 3444.
Haw. Rev. Stat. § 710-1030 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1030
Hindering prosecution in the second degree.
Status: in_force

(1) A person commits the offense of hindering prosecution in the second degree if, with the intent to hinder the apprehension, prosecution, conviction, or punishment of another for a crime, he renders assistance to such person.

(2) Hindering prosecution in the second degree is a misdemeanor. [L 1972, c 9, pt of §1]
Haw. Rev. Stat. § 711-1145 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1145
Impoundment of a dangerous dog.
Status: in_force

(1) If there is probable cause to believe that the dangerous dog poses an imminent threat to a person or another animal, or if there is probable cause to believe that there is a violation of section 711-1142 or 711-1144, a law enforcement officer, after obtaining a search warrant, or in any other manner authorized by law, may enter the premises where the dangerous dog is located to seize and impound the dog. If, after reasonable effort, the owner or person having custody of the dangerous dog cannot be found and notified of the impoundment, an impoundment notice shall be conspicuously posted on the premises and, within seventy-two hours after posting, the notice shall be sent by certified mail to the address, if any, from which the dangerous dog was removed.

A law enforcement officer shall not be liable for any damage resulting from an entry under this subsection, unless the damage was caused by acts beyond the scope of the officer's authority or the officer's negligence, gross negligence, or intentional misconduct.

(2) The owner of a dangerous dog that has been impounded under this section may decline to surrender ownership of the dangerous dog to the animal control authority by paying to the animal control authority impoundment, care, and provision costs in an amount determined by the animal control authority to be sufficient to provide for the dangerous dog's care by the animal control authority for at least thirty days, including the day on which the animal was taken into custody.

(3) If the owner of a dangerous dog that has been impounded under this section cannot be located within five days after the dangerous dog is impounded, ownership of the dangerous dog shall be deemed relinquished.

(4) At the request of the dangerous dog's owner, impoundment under this section may occur at the premises of a licensed veterinarian or a commercial kennel of the dangerous dog owner's choosing; provided that:

(a) The owner shall secure the private boarding placement for the dangerous dog within five days after the dangerous dog has been impounded by the animal control authority; and

(b) All expenses for the dangerous dog's boarding and care shall be borne by the dangerous dog's owner.

(5) If the owner of the dangerous dog does not arrange for private boarding placement, the following requirements shall apply:

(a) The owner of the dangerous dog shall pay the animal control authority within five days after the dangerous dog is impounded; and

(b) At the end of the time for which expenses are covered by an initial or any subsequent impoundment, care, and provision payment:

(i) If the owner of the dangerous dog declines to surrender ownership of the dangerous dog to the animal control authority, the owner shall make an additional payment to the animal control authority at least five days before the expiration of the previous payment; or

(ii) If the owner of the dangerous dog has not made an additional payment in a timely manner to the animal control authority for impoundment, care, and provision costs for the dangerous dog, ownership of the dangerous dog shall be deemed relinquished.

(6) If the owner of a dangerous dog fails to pay impoundment, care, and provision costs for the dangerous dog pursuant to this section, the owner may forfeit the owner's right to contest those costs and any ownership rights to the dangerous dog.

(7) Any dangerous dog that is unclaimed by its owner, within five days after the owner has been notified that the dangerous dog is eligible for release from impoundment, shall be deemed abandoned, and ownership of the dangerous dog shall be deemed relinquished.

(8) If an animal control authority that is impounding a dangerous dog pursuant to this section determines that the dangerous dog is too dangerous for its staff to safely provide basic care, the dangerous dog may be euthanized by the animal control authority.

(9) If a licensed veterinarian determines that an impounded dangerous dog is:

(a) Experiencing extreme pain or suffering;

(b) Severely injured past recovery;

(c) Severely disabled past recovery; or

(d) Severely diseased past recovery,

the dangerous dog may be euthanized by the animal control authority.

(10) The owner of a dangerous dog shall not sell or transfer the ownership or physical custody of the dangerous dog before the time period stated in the court summons, and the citation shall notify the owner of this prohibition; provided that this prohibition shall not apply when the owner transfers ownership of the dangerous dog to an animal control authority.

(11) Any person who refuses to surrender a dangerous dog that is subject to relinquishment pursuant to this section shall be guilty of a petty misdemeanor.

If the owner of a dangerous dog that is seized and impounded pursuant to this section fails to appear in court as required, ownership of the dangerous dog shall be deemed relinquished, and the court may order disposition of the dangerous dog as it deems appropriate.

(12) Notwithstanding any relinquishment of ownership of the dangerous dog, the owner shall remain responsible for all expenses incurred in boarding, caring for, and providing for the dangerous dog and any fees and penalties that may be imposed by the court. [L 2024, c 224, pt of §2; am L 2025, c 21, §21]
Haw. Rev. Stat. § 710-1066 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1066
No prosecution based on previous denial of guilt.
Status: in_force

No prosecution shall be brought:

(1) Under this part, if the substance of the defendant's false statement is the defendant's denial of guilt of an offense for which the defendant has previously been put in jeopardy; or

(2) For a substantive offense, the denial of which was the basis of a former prosecution under this part. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §710-1066

The basic problem with which this section attempts to deal is concisely stated by the commentary to the Model Penal Code:

It has been argued, nearly always unsuccessfully, that a defendant who has once been acquitted of a substantive offense ought not to be tried for perjury committed in defending that prosecution, at least where the perjury was as to the "core" of guilt in the first trial. Double jeopardy does not bar the perjury prosecution, since the offenses are different, and honest testimony under oath must be insisted upon even in the case of persons defending themselves against charges of crime. The doctrine of res judicata does not preclude conviction, even where conviction would seem to require direct contradiction of the acquittal of the original prosecution.[1]

The Model Penal Code goes on to admit that there is "almost no escape from the dilemma of either giving immunity to perjury by defendants or permitting the opportunity for abusive retrials of the original charge."[2]

There are, however, some constitutional grounds for barring such prosecutions. In one case,[3] a prosecution for false unsworn statements to FBI agents was dismissed on the ground, among others, that it would be a violation of due process to abandon the substantive charges against the defendants and subsequently indict them for previously denying their complicity therein.

The Code takes the position that this section will serve the worthwhile purpose of implementing the basic policy underlying our double jeopardy prohibition by forbidding a retrial of a substantive offense through the guise of a falsification charge and by barring a prosecution of a substantive offense the denial of which was the subject of a former falsification prosecution. Both prohibitions are necessary to ensure the desired result. If the section were only to bar a falsification prosecution subsequent to the prosecution of the substantive offense, there would be nothing to prevent the State from merely prosecuting the falsification offense first, and then the substantive offense the denial of which led to the first prosecution.

The section, as drafted, leaves open the possibility of prosecuting for false statements on collateral or subsidiary issues. The prohibition of prosecution only runs where the substance of the alleged false statement is a denial of guilt for an offense.
Haw. Rev. Stat. § 708-816.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-816.5
Entry upon the premises of a facility utilized as a sex, child, or spouse abuse shelter; penalty.
Status: in_force

[(1)] No person shall knowingly enter or remain unlawfully upon the premises of a facility utilized as a sex abuse, child abuse, or spouse abuse shelter after reasonable warning or request to leave by a member of the facility's staff.

[(2)] Violation of this section is a misdemeanor. [L 1993, c 12, §1]

COMMENTARY ON §708-816.5

Act 12, Session Laws 1993, added this section to establish the offense of unlawful entry upon the premises of a facility used as a sex, child, or spouse abuse shelter, by making it a misdemeanor for any person to knowingly enter or unlawfully remain upon the premises after reasonable warning or request to leave by a facility staff member. Since the locations of these shelters are often known, individuals seeking shelter and shelter staff are at potential risk from abusers. This section affords a higher level of legal protection for staff and persons who seek refuge from abuse. House Standing Committee Report No. 692, Senate Standing Committee Report No. 1049.
Haw. Rev. Stat. § 701-102 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-102
All offenses defined by statute; applicability to offenses committed after the effective date.
Status: in_force

(1) No behavior constitutes an offense unless it is a crime or violation under this Code or another statute of this State.

(2) The provisions of this Code govern the construction of and punishment for any offense set forth herein committed after the effective date, as well as the construction and application of any defense to a prosecution for such an offense.

(3) The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless otherwise provided by applicable law. [L 1972, c 9, pt of §1; am L 2022, c 43, §5]

COMMENTARY ON §701-102

There are no common-law offenses in Hawaii, although Hawaii has to some extent adopted the common law of England.

The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided, that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State. [1]

In Territory v. Rogers,[2] the court noted in passing that there are no common-law offenses in Hawaii.

Despite these clear rules, it appears wise to enact specifically that no behavior is penal unless it is made so by this Code or by another statute. That all offenses should be adequately proscribed by statute seems at this point of legal development a dictate of fundamental fairness.

Subsection (2) makes it clear that on the effective date this Code shall become the penal law of this State, and thereafter shall govern both the definitions (construction) and punishment of all offenses defined in the Code, and the defenses to those offenses.

Subsection (3) holds that all of the general provisions (chapters 701 to 706) of the Code are applicable to all offenses defined by other statutes. The purpose is to bring uniformity to the area of non-Code statutory offenses. One result of this rule will be to make defenses defined by the Code generally available. The Code's definitions of state of mind requirements will also be applicable, as will the general principles of construction, time limitations, and res judicata provisions.

SUPPLEMENTAL COMMENTARY ON §701-102

Act 43, Session Laws 2022, made conforming amendments to this section to allow exemptions from chapters 701 to 706 to be established outside of the Penal Code for offenses defined by other statutes. These conforming amendments facilitated other amendments made by Act 43 clarifying that a court is required to impose a sentence for domestic violence intervention, with or without probation, for violations of restraining orders, orders for protection, and abuse of family or household members. The legislature found that §586-4 authorizes a family court to order a violator of a temporary restraining order to undergo mandatory domestic violence intervention. However, the legislature found that the Hawaii Supreme Court misinterpreted §586-4(e) by holding that domestic violence intervention may only be ordered as a condition of probation. The legislature noted that domestic violence intervention, which includes anger management and domestic violence treatment, is an important part of addressing the root causes of domestic violence. Act 43 highlighted the importance of domestic violence intervention and clarified legislative intent by clearly mandating domestic violence intervention regardless of whether persons are sentenced with or without probation for violations of restraining orders, orders for protection, or abuse of family or household members. Senate Standing Committee Report No. 3853, House Standing Committee Report No. 777-22, Senate Standing Committee Report No. 3444.
Haw. Rev. Stat. § 702-217 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-217
Causation in offenses of absolute liability.
Status: in_force

When causing a particular result is an element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the defendant's conduct.

COMMENTARY ON §702-217

The elimination of mens rea or culpability requirements from a penal offense should not make the accused liable for improbable consequences of the accused's conduct. The specter of such liability would be too precarious and capricious to induce an actor to make rational adjustments in the actor's behavior in order to avoid the sanction. The futility of an attempt to impose penal liability for the improbable consequences of conduct has been succinctly expressed by Hart and Honore:

... [S]urely, the elimination of mens rea as... [a requisite for penal] liability does not mean that the accused is to be liable for harm, even if it only occurred through the conjunction of his act with the deliberate act of some independent person or with some quite extraordinary event. The plain man's protest would be that in such cases the accused 'did not do it', even though the harm would not have occurred without what he did.[1]

This section is not repetitive of §702-216 (dealing with negligent causation). There will undoubtedly be situations where a person will fail to perceive a risk of a probable consequence although the person's failure of perception did not involve a "gross deviation from the standard of care that a law-abiding person would observe in the same situation."

__________

§702-217 Commentary:

1. Hart & Honore, Causation in the Law 361 (1959).
Haw. Rev. Stat. § 702-226 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-226
Liability for conduct of another; multiple convictions; different degrees.
Status: in_force

When, pursuant to any section from section 702-221 through section 702-223, two or more persons are liable for an offense which is divided into degrees, each person is guilty of the degree of the offense which is consistent with the person's own state of mind and with the person's own accountability for an aggravating fact or circumstance.

COMMENTARY ON §702-226

This section provides that when, by reason of accountability for conduct, two or more defendants are liable for the same offense, which is divided into degrees, each defendant shall be convicted of the degree which is consistent with the defendant's own state of mind or mental culpability and the defendant's own accountability for aggravating facts and circumstances.

This section is a sorely-needed correction of Hawaii law which has been interpreted to require, in the case of an accomplice, not only that the defendant stand in the same shoes as the person for whose conduct the defendant is accountable, but that the defendant be held to think the same thoughts.[1]

__________

§702-226 Commentary:

1. See State v. Shon, 47 Haw. 158, 385 P.2d 830 (1963), interpreting §252-4 R.L.H. (1955), subsequently H.R.S. §704-4.
Haw. Rev. Stat. § 706-629 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-629
Calculation of multiple dispositions involving probation and imprisonment, or multiple terms of probation.
Status: in_force

(1) When the disposition of a defendant involves more than one crime:

(a) The court shall not impose a sentence of probation and a sentence of imprisonment except as authorized by section 706-624(2)(a); and

(b) Multiple periods of probation shall run concurrently from the date of the first such disposition.

(2) When a defendant, already under sentence, is convicted for another crime committed prior to the former disposition:

(a) The court shall not sentence to probation a defendant who is under sentence of imprisonment with more than six months to run;

(b) Multiple periods of probation shall run concurrently from the date of the first such disposition; and

(c) When a defendant, already under sentence of probation, is sentenced to imprisonment, the service of imprisonment shall not toll the prior sentence of probation.

(3) When a defendant is convicted of a crime committed while on probation and such probation is not revoked:

(a) If the defendant is sentenced to imprisonment, the service of such sentence shall not toll the prior sentence of probation; and

(b) If the defendant is sentenced to probation, the period of such probation shall run concurrently with or consecutively to the remainder of the prior period, as the court determines at the time of disposition. [L 1972, c 9, pt of §1; am L 1986, c 314, §30]

COMMENTARY ON §706-629

This section reflects the Code's preference for concurrent sentences and its disfavor of consecutive sentences.[1]

Subsection (1) deals with the problems presented when the disposition of a defendant involves more than one offense or when a defendant, already under sentence or suspension of sentence, is convicted for an offense committed prior to the former disposition.

Subsection (1)(a) continues the position of the Code that probation and imprisonment are inconsistent dispositions unless imprisonment is limited to a short period of six months or less.[2]

Subsection (1)(b) provides that periods of suspension or probation run concurrently from the date of the first disposition. If imprisonment is not warranted, there hardly seems any justification for providing elongated periods of suspension or probation when the disposition of the defendant involves more than one offense or when a defendant, already under suspension of sentence or on probation, is convicted for a crime committed prior to the former disposition.

Subsection (1)(c) provides that service of an indeterminate term of imprisonment, with its built-in term of parole, shall satisfy a suspended sentence on another count or a prior suspended sentence or a prior sentence to probation. By providing that the indeterminate term of imprisonment satisfies the other dispositions, subsection (1)(c) results in substantial concurrent service of all dispositions.

By providing that periods of suspension or probation run during a period of imprisonment for a definite term, subsection (1)(d) provides concurrent service of dispositions in situations involving suspension or probation and a definite term of imprisonment.

Subsection (2) is addressed to a somewhat different problem: multiple dispositions involving an offense committed while under suspension of sentence or on probation.

Subsection (2)(a) provides that if the defendant is sentenced to imprisonment for an indeterminate term, the service of such sentence shall satisfy the prior unrevoked suspended sentence or sentence to probation. This is in conformity with the concept of concurrent dispositions.

Subsection (2)(b) provides that if the defendant is sentenced to imprisonment for a definite term, the period of the prior suspension or prior probation shall not run during imprisonment. This is a slight departure from the policy of the Code generally favoring concurrent dispositions. However, because definite terms of imprisonment are relatively short, and because the defendant has committed a crime while under suspension or on probation, the situation calls for a departure from the general policy and permits dispositions which are to be served consecutively. This subsection is analogous to §706-668 which permits consecutive terms of imprisonment for crimes committed while in prison. A further consideration for subsection (2)(b) is that, if the period of suspension of probation runs during a definite term of imprisonment (which does not have a built-in term of parole), there might, in some cases, not be sufficient means for court control following discharge of the defendant from imprisonment.

Finally, subsection (2)(c) provides that, where the court has not revoked a prior disposition of suspension or probation and has imposed an additional period of suspension or probation, the multiple periods shall run either concurrently or consecutively as the court determines at the time of sentence. Once again, although this subsection represents a limited departure from the policy of the Code favoring concurrent service of dispositions, it is called for by the defendant's situation. Again, it is analogous to the powers that the Code grants the sentencing court, under §706-668, in cases where a prisoner has committed a crime while in prison or during escape.
Haw. Rev. Stat. § 710-1065 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1065
Inconsistent statements.
Status: in_force

(1) Where a person has made inconsistent statements, each of which if made with the requisite state of mind and under the requisite circumstances would constitute an offense specified in this part, and both statements have been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false; it shall only be necessary for the prosecution to prove:

(a) That one or the other was false and not believed by the defendant to be true; and

(b) The attendant circumstances and states of mind necessary to constitute each statement, if false, as an offense.

(2) The most serious offense of which a person may be convicted in such an instance shall be determined by hypothetically assuming each statement to be false. If offenses of different classes or grades would be established by the making of the two statements, the person may only be convicted of the lesser class or grade. [L 1972, c 9, pt of §1]

COMMENTARY ON §710-1065

At common law, no conviction for perjury could be based upon two contradictory sworn statements, even where one of them was obviously intentionally false, unless the prosecution could prove which was the false statement.[1] The common-law rule has suffered much criticism for its apparent logical inconsistency.[2] Moreover, many recent code revisions have rejected the common-law rule.[3]

Accordingly, the Code adopts §710-1065, allowing prosecution on the basis of the inconsistent statements alone, provided that the requisite circumstances and culpability are also proved. The unwitting maker of contradictory statements will be protected by the requirement that the attendant circumstances and requisite state of mind be proved with regard to each statement. Note also that where two contradictory statements carry different sanctions, the declarant may only be convicted of the lesser offense under this section.
Haw. Rev. Stat. § 710-1026 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1026
Resisting arrest.
Status: in_force

(1) A person commits the offense of resisting arrest if the person intentionally prevents a law enforcement officer acting under color of the law enforcement officer's official authority from effecting an arrest by:

(a) Using or threatening to use physical force against the law enforcement officer or another; or

(b) Using any other means creating a substantial risk of causing bodily injury to the law enforcement officer or another.

(2) Resisting arrest is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4]

COMMENTARY ON §710-1026

Resisting arrest is one of the commonest forms of obstructing government operation. The Code deals specifically with resisting arrest out of a desire to confine the offense to forcible resistance that involves some substantial danger to the person. Mere non-submission ought not to be an offense. One who runs away from an arresting officer or who makes an effort to shake off the officer's detaining arm might be said to obstruct the officer physically,[1] but this type of evasion or minor scuffling is not unusual in an arrest, nor would it be desirable to make it a criminal offense to flee arrest. In this case the proper social course is to authorize police pursuit and use of reasonable force to effect the arrest. If the actor is captured, the actor may be convicted of the underlying offense. If conviction cannot be had, it would be a grave injustice to permit prosecution for an unsuccessful effort, by an innocent person, to evade the police.[2]
Haw. Rev. Stat. § 712A-8 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-8
Notice of forfeiture proceedings.
Status: in_force

Unless otherwise provided, whenever notice is required under this chapter it shall be given in one of the following ways:

(a) If the owner's or interest-holder's name and current address are known:

(i) By personal service; or

(ii) By mail;

(b) If the owner's or interest-holder's interest is required by law to be on record with a state or federal agency in order to perfect an interest in the property, but the person's current address is not known, by mailing a copy of the notice by certified mail to any address on the record; or

(c) If the owner's or interest-holder's address is not known, and is not on record pursuant to paragraph (b), or if the person's interest is not known, by publication in one issue of a newspaper of general circulation in the county in which the seizure occurs. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1991, c 166, §3; am L 1993, c 196, §1; am L 1996, c 104, §6]
Haw. Rev. Stat. § 708-835.9 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.9
Theft of urn.
Status: in_force

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

(a) Obtains an urn through any means described in section 708-830; or

(b) Violates section 445-233 in regard to an urn.

(2) For the purposes of this section, "urn" means a container that is or has been used to hold human ashes.

(3) Theft of urn is a class C felony. [L 2016, c 199, §1]
Haw. Rev. Stat. § 702-237 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-237
Entrapment.
Status: in_force

(1) In any prosecution, it is an affirmative defense that the defendant engaged in the prohibited conduct or caused the prohibited result because the defendant was induced or encouraged to do so by a law enforcement officer, or by a person acting in cooperation with a law enforcement officer, who, for the purpose of obtaining evidence of the commission of an offense, either:

(a) Knowingly made false representations designed to induce the belief that such conduct or result was not prohibited; or

(b) Employed methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it.

(2) The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §702-237

The rationale for providing a defense based on entrapment does not reside in the fact that entrapped defendants are less culpable or dangerous than those who formulate their intent without outside inducement. If that were the case, a defense based on similar inducement and encouragement by private citizens would have to be recognized. The real basis for the defense of entrapment is a purpose to deter improper conduct on the part of law enforcement officials. The harm done by increasing the risk of penal conduct by otherwise innocent persons, the improper utilization of police resources, the suspicion that entrapment tactics are the result of personal malice, and injury to the stature of law enforcement institutions, all contribute to condemn entrapment. Providing a defense to conduct which would otherwise be a basis for penal liability because of improper tactics of law enforcement officials is an extreme measure, but no other, more effective, method presents itself.

Consistent with the reason for the defense, the Code's formulation of the standard of conduct regarded as sufficient to establish entrapment focuses not on the predisposition of the defendant to engage in the prohibited conduct, but rather on the conduct of the law enforcement official (or person acting in cooperation with the official). This distinction is of critical importance in analyzing subsection (1)(b). Regardless of the defendant's past record or present predisposition to engage in a certain type of penal conduct, the defendant will be afforded a defense if the defendant was induced or encouraged to engage in such conduct by methods which create a substantial risk of persuading a person who was not ready to commit the offense. For example, a police informer makes extraordinary appeals of friendship to the defendant, a long-time narcotics peddler, and thereby moves the defendant to sell the informer narcotics. Notwithstanding the defendant's predisposition to peddle narcotics, the defense is available. Conversely, merely because a defendant was not predisposed to committing the offense, prior to the inducement by an official, does not automatically afford the defendant the defense of entrapment. Thus, for example, an undercover narcotics agent offers to buy, at a handsome price, all the narcotics which the defendant can obtain; the defendant, a person without any prior thought of peddling narcotics, on the basis of such inducement obtains narcotics and sells them to the undercover agent; the defense of entrapment should not be available. The offer to buy narcotics is not a method which creates a substantial risk that the offense would be committed by persons other than those ready to commit it.

Subsection (3) limits the defense of entrapment so that it does not apply to offenses causing or threatening bodily harm to a person other than the entrapper. Although "[n]o reported entrapment case has been found involving a criminal act in which great physical damage has taken place," the limitation seems wise.[1] Here, there are other factors which discourage such conduct by law enforcement officials and persons acting in cooperation with them. As the Model Penal Code commentary has pointed out,

in cases of crimes causing or threatening bodily injury to persons other than the entrapper, much of the reason for the defense fails. Public opinion would, in all probability, demand the punishment of the conniving or cooperating officers. The injured persons would have motivation to seek civil redress. It will not seem generally unfair to punish someone who has caused or threatened bodily injury to another although he has been induced to his action by law enforcement officials. A person who can be persuaded to cause such injury presents a danger that the public cannot safely disregard.[2]

Except for the apparent faith in the efficacy of public opinion, these factors seem relevant and persuasive.

Out of an abundance of caution it should be noted that the phrase "person acting in cooperation with a law enforcement officer" is intended to cover both public officials and private citizens.

The Code makes entrapment an affirmative defense. It is not unfair to require a defendant, who desires to escape from penal liability not on the basis of the defendant's own lack of culpability but rather on the basis of the additional culpability of law enforcement officials with respect to their official conduct, to bear the burden of proving by a preponderance of the evidence the excusing condition.

In Hawaii, the standard for entrapment has heretofore focused on whether the defendant had conceived the intent or "criminal design or purpose" to undertake the prohibited conduct or whether the defendant had been "lured" into the conduct by a law enforcement official.[3] The standard did not focus, as the Code does, on the quality of the tactics used by the official. Moreover, unlike the Code provision, previous Hawaii law did not require the defendant to carry the burden of proof on the defense of entrapment; formerly the defendant prevailed if the evidence raised a reasonable doubt on that point.
Haw. Rev. Stat. § 706-627 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-627
Tolling of probation.
Status: in_force

(1) Upon the filing of a motion to revoke a probation or a motion to enlarge the conditions imposed thereby, the period of probation shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court. During the period of tolling of the probation, the defendant shall remain subject to all terms and conditions of the probation except as otherwise provided by this chapter.

(2) In the event the court, following hearing, refuses to revoke the probation or grant the requested enlargement of conditions thereof because the defendant's failure to comply therewith was excusable, the defendant may be granted the period of tolling of the probation for purposes of computation of the remaining probation, if any. [L 1972, c 9, pt of §1; am L 1977, c 106, §1; am L 1980, c 156, §1; am L 1985, c 192, §2; am L 1986, c 314, §29]

COMMENTARY ON §706-627

This section affords the defendant threatened with loss or change of suspension or probation status the same procedural protection afforded a defendant at the time of original disposition.[1] Determinations to revoke suspension or probation, or to change the conditions thereof, are sometimes made with a degree of informality that does not afford to the defendant adequate opportunity to obtain counsel and to be heard upon the evidence.

This is an area where dangers of abuse are real and the normal procedural protection proper. That a defendant has no right to suspension or probation does not justify the alteration of his status by methods that must seem and sometimes be unfair.[2]

Although written notice, the right to be represented by counsel, and the right to controvert and be heard upon the evidence, are provided by this section, it is not contemplated that the court must strictly enforce the rules of evidence. In this type of hearing, where the relevant issues are decided by a court without the presence of a jury, the court should be granted some flexibility in this area.

Act 106, Session Laws 1977, added subsections (2) and (3) to provide for tolling the period of probation or suspension of sentence pending the hearing to revoke the probation or suspension or to increase the conditions thereof. Formerly, with no tolling provisions, it was possible for the period of probation or suspended sentence to run out before termination of the hearing, relieving defendant of any further obligation even though the defendant may have committed acts justifying change in the defendant's probation or suspension status. The amended section is intended to prevent such situations from occurring. Senate Standing Committee Report No. 1105, House Standing Committee Report No. 450.

Act 156, Session Laws 1980, made the granting of the period of tolling discretionary rather than mandatory. The legislature felt that the prior law gave the defendants an unfair advantage by allowing them "credit" on their sentence even while they were not abiding by its terms. Senate Standing Committee Report No. 753-80, House Standing Committee Report No. 434-80.
Haw. Rev. Stat. § 712-1211 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1211
Displaying indecent matter.
Status: in_force

(1) A person commits the offense of displaying indecent matter if the person knowingly or recklessly displays on any sign, billboard, or other object visible from any street, highway, or public sidewalk, a photograph, drawing, sculpture, or similar visual representation of any person of the age of puberty or older:

(a) Which reveals the person with less than a fully opaque covering over his or her genitals, pubic area, or buttocks, or depicting the person in a state of sexual excitement or engaged in an act of sexual conduct or sadomasochistic abuse;

(b) Which is presented in such a manner as to exploit lust; and

(c) Which lacks serious literary, artistic, political, or scientific value.

(2) Displaying indecent material is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1981, c 106, §2; am L 1982, c 147, §26; gen ch 1993]

Revision Note

In subsection (1)(a), "and" deleted pursuant to §23G-15.
Haw. Rev. Stat. § 710-1016.7 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1016.7
Impersonating a law enforcement officer in the second degree.
Status: in_force

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

(2) Impersonating a law enforcement officer in the second degree is a misdemeanor. [L 1987, c 130, pt of §3]
Haw. Rev. Stat. § 708-833.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-833.5
Shoplifting.
Status: in_force

A person convicted of committing theft by means of shoplifting as defined in section 708-830 shall be sentenced to the following minimum fines:

(1) In cases involving a class C felony, the minimum fine shall be four times the value or aggregate value of the property involved;

(2) In cases involving a misdemeanor, the minimum fine shall be three times the value or aggregate value of the property involved;

(3) In cases involving a petty misdemeanor, the minimum fine shall be twice the value or aggregate value of the property involved;

(4) If a person has previously been convicted of committing theft by means of shoplifting as defined in section 708-830, the minimum fine shall be doubled that specified in paragraphs (1), (2), and (3), respectively, as set forth above; provided in the event the convicted person defaults in payment of any fine, and the default was not contumacious, the court may sentence the person to community services as authorized by section 706-605(1)(d). [L 1979, c 202, §2; am L 1982, c 233, §1; am L 1986, c 314, §67; am L 2016, c 231, §40]
Haw. Rev. Stat. § 709-903 — HI Code / Division 5 / Title 37 / Chapter 709 / Section 709-903
Persistent nonsupport.
Status: in_force

(1) A person commits the offense of persistent nonsupport if the person knowingly and persistently fails to provide support which the person can provide and which the person knows the person is legally obliged to provide to a spouse, child, or other dependent.

(2) "Support" includes but is not limited to food, shelter, clothing, education, and other necessary care as determined by law.

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

COMMENTARY ON §709-903

The purpose of laws dealing with nonsupport by a person who owes a duty of support to another is to enforce compliance with the legislative directive setting forth a community standard; yet a policy of strict criminal punishment of offenders would frustrate the purpose of the law by incapacitating (by incarceration or fine) the defendant from providing the support.

Exemplary punishment is of doubtful efficacy in complex family situations, where many forces, psychic, social, and economic, may combine to excuse, if not justify, the behavior. Moreover, imprisonment should be a last resort here, since it incapacitates the defendant from providing the very support which the community seeks to require and frustrates any broader effort to rehabilitate the family situation. Recent thought has favored the development of "family courts" staffed to handle non-support and other intra-family problems primarily through social work, with less concentration on purely fiscal aspects.[1]

The Code adopts the position that intervention of the criminal process ought to take place only as a last resort. The primary resort ought to be to the social and counseling processes of the Family Court. It is only when a record has been established of repeated, persistent failure to provide the support which the defendant can provide and which the defendant knows the defendant is obliged by law to provide that the criminal process ought to be employed.

By focussing on "persistent" defaulters, we express a legislative policy in favor of resort, in the first instance, to non-penal measures....

The concept of "persistent" violation is not unprecedented in penal law.... The term connotes repetition, obstinacy, wilfulness; and it is difficult to formulate a more precise standard to differentiate the aggravated case of continued defiance of the support law, which we wish to penalize, from the simple case of default which may be solved by an official notice or judicial order to pay, or some intelligent social work.[2]

There were a number of provisions in previous law which dealt with the problem of nonsupport, and they were not totally consistent with one another. None of them focused on the concept of persistent default as a condition precedent for a criminal sanction; however, in actual practice, the prosecutor probably required some degree of persistency.

Under Hawaii's adoption, in modified form of the Uniform Desertion and Nonsupport Act:

Any husband who deserts or wilfully neglects his wife, or wilfully fails, neglects, or refuses to provide for her support or maintenance, thereby reducing her to destitute or necessitous circumstances, or any parent who deserts or wilfully neglects his or her child or children under the age of sixteen years, or wilfully fails, neglects or refuses to provide for the support or maintenance of the child or children or wilfully fails, neglects, or refuses to pay amounts awarded for the support and maintenance of such child or children under a decree of divorce, thereby reducing the child or children to destitute or necessitous circumstances, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding $500 or imprisonment not exceeding one year, or both; provided, that instead of imposing the sentence provided in this section the court may release the defendant under suspended sentence for such period as shall be fixed by the court and under such terms as shall be fixed by the court as to the payment weekly or otherwise of money for the support of the wife or child and as to giving security for such payments and for the appearance of the defendant at such time or times as the court shall direct. The terms so fixed by the court shall be subject to change or additional security at any time.[3]

Under the chapter dealing with protection of children, substantially similar conduct, as it related to children, subjected the offender to a sentence with approximately half the severity of that provided under the Uniform Act.

Any person who wilfully abandons ... any child under his legal control or neglects to provide the child with suitable or necessary food or clothing ... shall be fined not more than $200 or imprisoned not more than six months.[4]

The statutes imposing a duty of support are not exactly consistent in defining the extent of the duty. Although an illegitimate child does not have a right to be supported by its father,[5] if an action to establish paternity is brought and paternity is established, the child becomes entitled, with certain exceptions, to "support, maintenance and education" until the child reaches eighteen years of age.[6] Under certain specific circumstances, a step-parent is required to support his or her step-child.[7] The age to which the duty to support one's children continues is not specified, except in the case of illegitimates, although by inference it continues until the child has achieved majority.[8]

The Code attempts to reconcile some of the latent ambiguities which exist in comparing the various sections of prior law. A single section covering penal default of support provides a uniform authorized sentence for similar conduct. By covering "spouse, child or other dependent," the Code provides that the penal sanction may be employed in all cases where the support law establishes a duty of support. The use of the word "child" in this section is intended to cover all persons who have not reached the age of majority. The definition of support ensures that all forms of care which are required by the support law are covered. However, unlike the previous law, which, on its face, would allow resort to prosecution in the first instance of default, the Code requires that the default be persistent before a prosecution can be successfully maintained.

SUPPLEMENTAL COMMENTARY ON §709-903

The Proposed Draft had included "medical attention" as one of the items of "support." However, that was deleted by the legislature in 1972. As stated in Conference Committee Report No. 2 (1972):

Your Committee has agreed to the deletion of the words "medical attention" as a requisite of the term "support" in order to avoid penalizing the free exercise of certain religions.
Haw. Rev. Stat. § 712A-15 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-15
Disposition of claims by court.
Status: in_force

(1) Following the court's disposition of all claims filed under this chapter, or if no such claims are filed, following the expiration of the period provided in this chapter for the filing of such claims, the State has clear title to property that is the subject of the in rem or in personam petition and the court shall so order. Title to the forfeited property and its proceeds is deemed to have vested in the State on the commission of the act or omission giving rise to the forfeiture.

(2) The court, on motion of the prosecuting attorney, may release or convey forfeited personal property to an interest- holder who has satisfied both the prosecuting attorney and the court that all of the following are true:

(a) The interest-holder has an interest which was acquired in the regular course of business as a financial institution and which is not subject to forfeiture pursuant to section 712A-5;

(b) The amount of the interest-holder's encumbrance and the fair market value of the property are readily determinable and both amounts have been reasonably established by proof made available by the attorney for the State to the court;

(c) There are no encumbrances on the property other than encumbrances held by the interest-holder seeking possession; and

(d) The interest-holder has satisfied the State's interest by tendering the fair market value of the property and the expenses of its sale or disposal by the interest- holder.

(3) Upon order of the court forfeiting the subject property the attorney general may transfer good and sufficient title to any subsequent purchaser or transferee, and the title shall be recognized by all courts, by this State, and by all departments and agencies of this State and any political subdivision thereof.

(4) Upon entry of judgment for a claimant or claimants in any proceeding to forfeit property under this chapter such property or interest in property shall be returned or conveyed to the claimant or claimants designated by the court. If it appears that there was reasonable cause for the seizure for forfeiture or the filing of the complaint, the court shall cause a finding to be entered, and the claimant is not, in such case, entitled to costs or damages. Nor, in such case, is the person or seizing agency, or its agents, who made the seizure, or the prosecuting attorney or the attorney general liable to suit or judgment on account of such seizure, suit, or prosecution.

(5) The court shall order any claimant who fails to establish that the claimant's entire interest is exempt from forfeiture under section 712A-5 to pay the costs of any claimant who establishes that the entire interest is exempt from forfeiture under section 712A-5, and the State's costs and expenses of the investigation and prosecution of the matter, including reasonable attorney fees. [L 1988, c 260, pt of §1, §7; am L 1990, §1; am L 1993, c 196, §1; am L 1996, c 104, §6]
Haw. Rev. Stat. § 712-1270.3 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1270.3
Citizen's rights.
Status: in_force

Any citizen who brings a nuisance abatement suit against a place used for the purpose of committing:

(1) Fireworks-related offenses contained in section 132D-14(a)(1); or

(2) Drug offenses under part IV of this chapter or who files a complaint with the local police or drug nuisance abatement unit of the department of the attorney general,

shall be entitled to the same rights and protections of victims and witnesses in criminal proceedings in accordance with chapter 801D. [L 2004, c 44, §25; am L 2010, c 136, §5; am L 2025, c 243, §33]
Haw. Rev. Stat. § 708-835.6 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-835.6
Telemarketing fraud.
Status: in_force

(1) A person commits the offense of telemarketing fraud if, with intent to defraud or misrepresent, that person obtains or attempts to obtain the transfer of possession, control, or ownership of the property of another through communications conducted at least in part by telephone and involving direct or implied claims that the person contacted:

(a) Will or is about to receive anything of value; or

(b) May be able to recover any losses suffered by the person contacted in connection with a prize promotion.

(2) Telemarketing fraud is a class B felony. In addition, any property used or intended for use in the commission of, attempt to commit, or conspiracy to commit telemarketing fraud, or that facilitated or assisted this activity, shall be forfeited subject to chapter 712A.

(3) For purposes of this section, "telemarketing" means a plan, program, or campaign, including a prize promotion or investment opportunity, that:

(a) Is conducted to include the purchase of goods or services or to solicit funds or contributions by use of one or more telephones; and

(b) Involves more than one telephone call. [L 2001, c 277, §1]

COMMENTARY ON §708-835.6

Act 277, Session Laws 2001, added this section to create a criminal offense of telemarketing fraud, involving use at least in part of a telephone and direct or implied claims of receiving anything of value or of recovering losses from a prize promotion. Act 277 also provides for forfeiture of property used in the commission of the crime.

The legislature found telemarketing fraud to be one of the fastest growing forms of fraud in the United States. Telemarketers often target older citizens, knowing many of them have significant assets from a lifetime of saving. Act 277 is part of a larger effort to combat this serious crime and to protect consumers from unscrupulous practices. Act 277 allows Hawaii to increase its efforts and provide greater protection to its citizens from unscrupulous telemarketing practices. Senate Standing Committee Report No. 809, House Standing Committee Report No. 1128.
Haw. Rev. Stat. § 712-1230 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1230
Forfeiture of property used in illegal gambling.
Status: in_force

Any gambling device, paraphernalia used on fighting animals, or birds, implements, furniture, personal property, vehicles, vessels, aircraft, or gambling record possessed or used in violation of this part, or any money or personal property used as a bet or stake in gambling activity in violation of this part, may be ordered forfeited to the State, subject to the requirements of chapter 712A.
Haw. Rev. Stat. § 702-204 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-204
State of mind required.
Status: reserved

Except as provided in section 702-212, a person is not guilty of an offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense. When the state of mind required to establish an element of an offense is not specified by the law, that element is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly.

COMMENTARY ON §702-204

This section commences the Penal Code's consideration of the mental aspect or state of mind which will, in most instances, be required for the imposition of penal liability. It must, of course, be read in conjunction with the following section defining "element" of an offense and in conjunction with §702-212 which provides for those relatively few instances when absolute or strict penal liability will be recognized.

Clear analysis requires that the various distinct ingredients of an offense be separately recognized and that culpability be required as to each. These distinct ingredients are (1) the conduct, (2) the attendant circumstances, and (3) the results of conduct, which are specified in the definition of an offense and which negative a defense on the merits. Section 702-205 denominates these ingredients as "elements." The analytical effect of requiring a culpable state of mind with respect to each element should be obvious. For example, one who intends sexual intercourse with a female whom he has no reason to suspect is not qualified to consent to the behavior should not be held to have committed an offense because he intends the act.[1]

The distinct punitive nature of the penal law dictates that its sanction be reserved for those individuals who can be morally condemned. The penal law does not, in most instances, condemn a person's conduct alone. Rather, it condemns the individual whose state of mind with regard to the individual's conduct, attendant circumstances, and the result of the individual's conduct, exhibits an intent to harm, an indifference to harming, or a gross deviation from reasonable care for protected social values. Thus we have limited penal liability to those individuals who act intentionally, knowingly, recklessly, or negligently contrary to values protected by the Code.

The four types of mental states which the Code recognizes as sufficient for penal liability (intent, knowledge, recklessness, and negligence) are defined in subsequent sections.

When a particular state of mind is required to establish the elements of an offense, it will usually be specified in the definition of the offense, however it may be separately specified by another provision of law. In the absence of any such specification, intent, knowledge or recklessness will suffice. Negligence with respect to the element of an offense will not establish that element unless specifically so provided.

The previous Hawaii law runs the gamut of what has been called, "the variety, disparity and confusion" of attempts to state "the requisite but elusive mental element" of penal offenses.[2] For example, assault required that the defendant act intentionally and maliciously, whereas battery required that the defendant act unlawfully and intentionally. Crimes involving bribery of officials or influencing of jurors required that the defendant act "corruptly." Child stealing required that the defendant act "maliciously by fraud, force or deception." Murder in the first degree required that the defendant act "with deliberate premeditated malice aforethought." Negligent homicide, which was limited to causing death by operation of a vehicle, required "grossly negligent" operation for a first degree (felony) conviction, but only "negligent" operation for a second degree (misdemeanor) conviction.[3] When the courts have dealt with the requisite state of mind, their suggestions have not always been helpful. In a case of extortion where the statutory language read "wilfully and corruptly extorts," the court suggested that a correct indictment should read "unlawfully, wilfully, corruptly, feloniously and extorsively did extort..."[4]

It is safe to say that, for the purpose of the penal law, there are no subtleties of meaning in the language used in the prior law which cannot be achieved in a clear, lucid fashion by limiting the relevant states of mind to intent, knowledge, recklessness, and negligence.

SUPPLEMENTAL COMMENTARY ON §702-204

The legislature adopted §702-204 of the Proposed Draft without change. However, the reader should carefully analyze the changes which the legislature made to part V of chapter 707, dealing with sex offenses, to determine whether the legislature intended to create an exception to the general principle expressed in §702-204. See also, Supplemental Commentaries on §§702-206 and 702-213, and 707-704 and the commentaries thereon.
Haw. Rev. Stat. § 708-836 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-836
Unauthorized control of a propelled vehicle in the first degree.
Status: in_force

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

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

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

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

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

(3) For the purposes of this section:

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

"Propelled vehicle" means an automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle.

(4) Unauthorized control of a propelled vehicle in the first degree is a class C felony. [L 1972, c 9, pt of §1; am L 1974, c 38, §1; gen ch 1993; am L 1996, c 195, §2; am L 1999, c 11, §1; am L 2001, c 87, §2; am L 2021, c 6, §3; am L 2022, c 53, §2]

COMMENTARY ON §708-836

[Section 708-836 was amended by Act 38, Session Laws 1974. See Supplemental Commentary on §708-836. The Commentary below was based on the original version in the Proposed Draft.]

This section is intended to deal with the special case of "joy riding," where the vehicle is returned in undamaged condition, and the temporary borrowing is just for the pleasure (or convenience) of operating the vehicle. The offense is a relatively mild one, and, as it is generally committed by youngsters, the penalty is set at the misdemeanor level. Note that the unauthorized control over the vehicle must be operation of the vehicle: the use of the vehicle as a shelter, for example, ought not to come within the prohibition of this section.[1] The prevalence of "joy riding" predominantly relates to motor-propelled vehicles, and the Code limits this special offense of misappropriation to such property. The misdemeanor sanction is felt too severe to apply to other forms of unauthorized use of personal property unless other aggravating attendant circumstances are present.

The affirmative defense allowed under subsection (3) is felt necessary to "exempt from criminal liability a good deal of informal borrowing of automobiles by members of the same household or friends of the owner."[2]
Haw. Rev. Stat. § 712-1232 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1232
[ §712-1232] Savings promotion or prize-linked savings contest not gambling.
Status: in_force

[ §712-1232] Savings promotion or prize-linked savings contest not gambling. A savings promotion or prize-linked savings contest conducted by a financial institution pursuant to section 412:4-113 is not gambling and shall not constitute a lottery unless the chance to win a prize requires consideration. Consideration shall not include:

(1) The deposit of a specified minimum amount of money into a savings promotion or prize-linked savings account that results in an entry in a savings promotion or prize-linked savings contest;

(2) The interest earned, if any, on the consumer's savings promotion or prize-linked savings account; or

(3) Any fee or amount to administer or maintain the savings promotion or prize-linked savings account. [L 2019, c 253, §3]

COMMENTARY ON §712-1232

Act 253, Session Laws 2019, established this section to exempt from Hawaii's gambling laws any savings promotion or prize-linked savings contest conducted by a financial depository institution pursuant to §412:4-113. The legislature found that Hawaii's prohibition against gambling prevents financial institutions in the State from offering incentives in the form of prizes that can be won by customers depositing funds in savings accounts or participating in other savings promotions. The legislature further found that authorizing savings promotions or prize-linked savings contests would encourage customers to build personal savings. Senate Standing Committee Report No. 1940.