Haw. Rev. Stat. § 710-1077 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1077
Criminal contempt of court.
Status: in_force

(1) A person commits the offense of criminal contempt of court if:

(a) The person recklessly engages in disorderly or contemptuous behavior, committed during the sitting of a court in its immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due to its authority;

(b) The person creates a breach of peace or a disturbance with intent to interrupt a court's proceedings;

(c) As an attorney, clerk, or other officer of the court, the person knowingly fails to perform or violates a duty of the person's office, or knowingly disobeys a lawful directive or order of a court;

(d) The person knowingly publishes a false report of a court's proceedings;

(e) Knowing that the person is not authorized to practice law, the person represents the person's self to be an attorney and acts as such in a court proceeding;

(f) The person intentionally records or attempts to record the deliberation of a jury;

(g) The person knowingly disobeys or resists the process, injunction, or other mandate of a court;

(h) The person intentionally refuses to be qualified as a witness in any court or, after being qualified, to answer any proper interrogatory without a privilege to refuse to answer;

(i) Being a juror, the person intentionally, without permission of the court, fails to attend a trial or official proceeding to which the person has been summoned or at which the person has been chosen to serve; or

(j) The person is in violation or disobedience of any injunction or order expressly provided for in part V of chapter 712.

(2) Except as provided in subsections (3) and (7), criminal contempt of court is a misdemeanor.

(3) The court may treat the commission of an offense under subsection (1) as a petty misdemeanor, in which case:

(a) If the offense was committed in the immediate view and presence of the court, or under such circumstances that the court has knowledge of all of the facts constituting the offense, the court may order summary conviction and disposition; and

(b) If the offense was not committed in the immediate view and presence of the court, nor under such circumstances that the court has knowledge of all of the facts constituting the offense, the court shall order the defendant to appear before it to answer a charge of criminal contempt of court; the trial, if any, upon the charge shall be by the court without a jury; and proof of guilt beyond a reasonable doubt shall be required for conviction.

(4) When the contempt under subsection (1) also constitutes another offense, the contemnor may be charged with and convicted of the other offense notwithstanding the fact that the contemnor has been charged with or convicted of the contempt.

(5) Whenever any person is convicted of criminal contempt of court or sentenced therefor, the particular circumstances of the offense shall be fully set forth in the judgment and in the order or warrant of commitment. In any proceeding for review of the judgment, sentence, or commitment, no presumption of law shall be made in support of the jurisdiction to render the judgment, pronounce the sentence, or order the commitment. A judgment, sentence, or commitment under subsection (3)(a) shall not be subject to review by appeal, but shall be subject to review in an appropriate proceeding for an extraordinary writ or in a special proceeding for review.

All other judgments, sentences, or commitments for criminal contempt of court shall be subject to review by appeal, in a proceeding for an appropriate extraordinary writ, or in a special proceeding for review.

(6) Nothing in this section shall be construed to alter the court's power to punish civil contempt. When the contempt consists of the refusal to perform an act which the contemnor has the power to perform, the contemnor may be imprisoned until the contemnor has performed it. In such a case the act shall be specified in the warrant of commitment. In any proceeding for review of the judgment or commitment, no presumption of law shall be made in support of the jurisdiction to render the judgment or order the commitment. When a court of competent jurisdiction issues an order compelling a parent to furnish support, including child support, medical support, or other remedial care, for the parent's child, it shall constitute prima facie evidence of a civil contempt of court upon proof that:

(a) The order was made, filed, and served on the parent or proof that the parent was present in court at the time the order was pronounced; and

(b) The parent did not comply with the order.

An order of civil contempt of court based on prima facie evidence under this subsection shall clearly state that the failure to comply with the order of civil contempt of court may subject the parent to a penalty that may include imprisonment or, if imprisonment is immediately ordered, the conditions that must be met for release from imprisonment. A party may also prove civil contempt of court by means other than prima facie evidence under this subsection.

(7) Any violation or disobedience of any injunction or order expressly provided for in part V of chapter 712 is punishable by:

(a) A fine of not less than $400 nor more than $5,000;

(b) Imprisonment for not less than one nor more than six months; or

(c) Both a fine and imprisonment pursuant to paragraphs (a) and (b). [L 1972, c 9, pt of §1; am L 1973, c 136, §8(a); am L 1979, c 181, §3; am L 1987, c 176, §3; am L 1988, c 141, §60; gen ch 1993; am L 2008, c 157, §3; am L 2015, c 35, §27]

Revision Note

In subsection (7)(a), "or" deleted and punctuation changed and in subsection (7)(b), punctuation changed pursuant to §23G-15.

COMMENTARY ON §710-1077

Contempt of court is, perhaps, one of the least understood areas of the law. Perkins has said "a large part of it is clearly outside the area of criminal law and much of the rest hardly more than 'quasi-criminal.'"[1] The contempt proceeding has been called "'an anomaly,' a mixture of the attributes of the criminal process and those of the equity proceeding."[2]

Not the least source of confusion is the various classifications of contempt depending on (1) the type of penalty imposed (civil or criminal), and (2) the proximity of behavior penalized to the judicial proceeding with which it interferes (direct or constructive).

Civil contempt is disobedience to a court order; it is punished by a penalty which is coercive and corrective in nature; the penalty can be avoided by compliance with the court order. For example, for refusal of a witness to answer a proper question, the court may order the witness imprisoned until the witness answers. Criminal contempt is conduct which brings the court into disrespect or which interferes with the administration of justice. The penalty for criminal contempt is a sentence or order which the defendant cannot avoid. Insulting behavior toward the court or an assault on a bailiff would constitute two modes of criminal contempt, for which a court might impose a sentence of imprisonment for a certain period of time. Certain contempt may be both civil and criminal if both types of dispositions are appropriate. Refusal to answer a proper question may be penalized as both criminal and civil contempt; the court may, e.g., order the contemnor to be imprisoned for one day and to be imprisoned thereafter until the contemnor answers the question.

It is often said that a direct contempt is one which takes place in the presence of the court or so near the court as to interfere with judicial proceedings. An indirect or constructive contempt is contempt committed at a distance from the court or proceedings but which degrades the court or interferes with its proceedings. Although couched in substantive terms, the consequences of the distinction are largely procedural. If the contempt is direct, the court may impose punishment summarily, whereas if the contempt is constructive, due process requires that the court issue an order to show cause and hold a hearing thereon before punishment is imposed. This being the case, a more rational "determinant insofar as procedure is concerned is whether or not the contempt was committed under such circumstances that the judge has knowledge of all the facts and hence has no need to hear evidence."[3]

Although often challenged, the United States Supreme Court had held, until recently, mostly on historical grounds,[4] that contempt proceedings were not intended by the framers of the Constitution to be within the constitutional guarantees of trial by jury,[5] and that "it has always been the law of the land, both state and federal, that the courts--except where specifically precluded by statute--have the power to proceed summarily in contempt matters."[6]

In a recent series of opinions, the Court has redefined the nature of contempt and its relation to constitutional procedural guarantees. In United States v. Barnett (1964),[7] Cheff v. Schnackenburg (1966),[8] Bloom v. Illinois (1968),[9] and Dyke v. Taylor Implement Mfg. Co. (1968)[10] the Court has gradually, and in increments, adopted the position that: (1) the Constitution's criminal jury trial provisions apply to serious offenses and not to petty offenses;[11] (2) criminal contempt "is a crime in every fundamental respect" and, for purposes of the constitutional guarantees to trial by jury in criminal cases, it will be treated the same as other criminal offenses;[12] and (3) where the criminal contempt constitutes a serious offense, the Constitution guarantees the right to trial by jury, where the criminal contempt constitutes a petty offense, it does not.[13]

The Court has distinguished the severity of the penalty authorized or imposed from the seriousness of the offense committed.[14] However, this appears to be a distinction without a difference, because a majority of the Court appear to accept as the best, if not the only, evidence of the seriousness of the offense the penalty authorized or imposed.[15] Although "the exact location of the line between petty offenses and serious crimes" is not settled,[16] a majority of the Court appear to accept the position that where the maximum term of imprisonment may not exceed six months a jury trial is not guaranteed by the Federal Constitution in criminal contempt cases.[17]

Justices Black and Douglas have taken the position that a defendant charged with criminal contempt is entitled, under the Federal Constitution, to a trial by jury.[18] Whether this position results from their characterization of criminal contempt as a serious crime, or from the belief that any imprisonment is a severe penalty which cannot be imposed without trial by jury, is not clear.[19]

The procedural right to trial by jury in cases of criminal contempt, where "severe" punishment is authorized and the offense therefore regarded as "serious," which the Supreme Court has imposed on the states as a matter of constitutional law, has long been recognized by statute in Hawaii.[20] Previous Hawaii law limited the punishment which may be imposed if the Court proceeded summarily without a jury.[21]

Section 710-1077 attempts to preserve as much of the framework of the previous chapter on contempts[22] as is possible, and at the same time, to clarify and, in some instances, expand the statutory law.

Subsection (1) spells out more clearly than the previous code the types of conduct regarded as contumacious. Subsections (1)(a), (1)(b), (1)(g), and (1)(h) are clarifications of former law. Each subsection states specifically the mental culpability required for conviction. Contempt in open court under subsection (1)(a) may be committed recklessly; however, under subsection (1)(b) [breach of the peace], (1)(g) [disobedience or resistance to process, injunction, or mandate], and (1)(h) [refusal to be qualified as a witness or answer proper interrogatory] the actor must act intentionally.

Subsection (1)(d) limits contempt by publication to one who "knowingly publishes a false report of a court's proceedings." The Code eliminates language contained in the previous codification which could be interpreted to penalize as contemptuous constitutionally protected publications.[23]

Subsections (1)(c) [violation of duty or order by officer of court], (1)(e) [unauthorized practice before a court], (1)(f) [recording deliberation of a jury], and (1)(i) [failure of juror to attend trial or official proceeding] are additions to statutory law. Although similar types of behavior have been held to constitute criminal contempt under case law development,[24] the Code proposes codification of conduct regarded as contempt of court. The policy against common-law crimes also weighs heavily against the unrestrained common-law development of loose statutory standards.

Subsection (2) makes the offense a misdemeanor; a slight reduction in the two years' imprisonment previously authorized.[25] As in the case of all misdemeanors the offense is triable as a criminal offense, i.e., by a jury unless jury trial is waived.

Subsection (3) preserves the court's power to dispose of criminal contempts without a jury trial; however, in such cases, the offense must be treated as a petty misdemeanor. The Code makes no distinction, as does the prior law,[26] in the summary punishment which may be imposed by State Supreme, Circuit, and District Courts. The Code's lowest grade of criminal offense, petty misdemeanor, seems easily within the Supreme Court's concept of "petty offense." Disposition of an offense under subsection (3) would not, therefore, violate the defendant's constitutional right to trial by jury. Moreover, the division of subsection (3) into two parts provides due process in another respect. Subsection (3)(b) assures that where the contempt is not direct, i.e., not in the immediate view and presence of the court, nor under such circumstances that the court has knowledge of all the facts constituting the offense, the defendant must be charged, and, if tried, proved guilty beyond a reasonable doubt.

A majority of the United States Supreme Court has rejected, repeatedly, the position taken by Black and Douglas, JJ., in their dissents in Barnett, Cheff, and Dyke, that a jury trial is guaranteed by the Federal Constitution in all criminal contempt cases. We have considered implementing by statute this policy in favor of jury trials. However, it seems to us that, on the balance, the value in permitting the court to proceed without a jury, in cases where the offense is treated as a petty misdemeanor, outweighs the value of enlarging the defendant's right to jury trial. A contrary decision would force the court, in some instances, to be a witness in its own behalf--a status it would be ill-suited and loath to assume.

Subsection (4) provides that contempts which constitute both contempt and another offense do not relieve the defendant of liability for the other offense merely because its commission was contemptuous of the court. For example, if a person were to cause disorder in a courtroom, during the course of proceedings, by assaulting another person, the person would be guilty of contempt. The person would also be guilty of an assault. The fact that the court imposed summary punishment for the contempt, or the fact that the person was put in jeopardy for the misdemeanor offense of criminal contempt of court, would not allow the defendant to plead double jeopardy to a charge of assault based on the same conduct. Any danger presented by the possibility of multiplicity of convictions is obviated somewhat by the limitation in chapter 706 against ordering that sentences be served consecutively.

Subsection (5) is a concise restatement of former law,[27] with the exception that it eliminates the restriction against district courts trying cases of constructive contempt.

Subsection (6) explicitly preserves the court's power to deal with cases of civil contempt and is otherwise a restatement of prior law.[28]

SUPPLEMENTAL COMMENTARY ON §710-1077

Act 136, Session Laws 1973, amended subsection (5) by amending the last sentence of the first paragraph and by adding the second paragraph. Prior to amendment, the last sentence of the first paragraph read: "A conviction under subsection (3)(a) shall not be subject to review by direct appeal."

Act 181, Session Laws 1979, amended subsection (1) and added subsection (7) as part of an effort to provide a remedy to abate as nuisances, certain offenses against public health and morals.

Act 157, Session Laws 2008, amended subsection (6) to provide that when a court of competent jurisdiction issues an order compelling a parent to furnish the parent's child with support, proof that the order was made, filed, and served on the parent or that the parent was present in court at the time the order was pronounced, and that the parent did not comply with the order, shall constitute prima facie evidence of a civil contempt of court. Act 157 clarified that if an order of civil contempt based on prima facie evidence imposes immediate imprisonment, the order shall set forth the conditions that must be met for release from imprisonment. The Act also clarified that civil contempt of court may be established by means other than by prima facie evidence. Act 157 facilitated the proof of civil contempt of court in proceedings involving enforcement of a court order compelling a parent to pay child support, medical support, or other remedial care for the parent's child. Conference Committee Report No. 21-08, Senate Standing Committee Report No. 873.

Act 35, Session Laws 2015, amended subsection (6) by changing the paragraph designations and subsection (7) by making technical nonsubstantive amendments.
Haw. Rev. Stat. § 711-1106.6 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1106.6
Harassment by impersonation.
Status: in_force

(1) A person commits the offense of harassment by impersonation if that person poses as another person, without the express authorization of that person, and makes or causes to be made, either directly or indirectly, a transmission of any personal information of the person to another by any oral statement, any written statement, or any statement conveyed by any electronic means, with the intent to harass, annoy, or alarm any person.

(2) Harassment by impersonation is a misdemeanor.

(3) For the purposes of this section:

"Personal information" means information associated with an actual person that is a name, an address, a telephone number, or an electronic mail address.

"Pose" means to falsely represent oneself, directly or indirectly, as another person or persons. [L 2008, c 133, §1]
Haw. Rev. Stat. § 706-650.5 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-650.5
Human trafficking victim services fund.
Status: in_force

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

(a) Convicted of an offense under part VIII of chapter 707; or

(b) Convicted of an offense under part I of chapter 712;

shall be ordered to pay a fee under subsection (2).

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

(a) $5,000 when the offense is a class A felony;

(b) $2,500 when the offense is a class B felony;

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

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

(e) $250 when the offense is a petty misdemeanor.

(3) There is established within the state treasury a special fund to be known as the human trafficking victim services fund to be administered by the department of labor and industrial relations. The disbursement of money from the human trafficking victim services fund shall be used to supplement programs, grants, or purchase of service contracts that support or provide comprehensive services to victims of labor trafficking crimes under part VIII of chapter 707, or victims of trafficking related to crimes under part I of chapter 712. Moneys in the special fund shall be used for new or existing programs, grants, or purchase of service contracts and shall not supplant any other moneys previously allocated to these programs, grants, or purchase of service contracts.

(4) All fees paid and interest accrued on funds collected pursuant to this section shall be deposited into the human trafficking victim services fund.

(5) When a defendant is ordered to make payments in addition to the human trafficking victim services fee authorized under subsection (2), payments by the defendant shall be made pursuant to section 706-651.

(6) The department of labor and industrial relations shall submit to the legislature no later than twenty days prior to the convening of each regular session a written annual report that provides the following:

(a) An accounting of the receipts of and expenditures from the human trafficking victim services fund; and

(b) Any recommendations to improve support of and services to victims of labor trafficking crimes under part VIII of chapter 707, or victims of trafficking related to crimes under part I of chapter 712. [L 2014, c 119, §1; am L 2016, c 231, §28]

COMMENTARY ON §706-650.5

Act 119, Session Laws 2014, added this section to impose a human trafficking victim services fee upon individuals who are convicted of certain trafficking offenses and to establish the human trafficking victim services fund, to provide support and services to human trafficking victims. The legislature found that existing law did not provide a source of revenue to support and provide services to human trafficking victims who often require access to basic and life-sustaining services, including toiletries and food, and may require long-term access to stable and supportive environments, such as licensed residential treatment facilities. Senate Standing Committee Report No. 3043, Conference Committee Report No. 97-14.

Act 231, Session Laws 2016, amended subsection (5) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 704-407.5 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-407.5
Examination of defendant with respect to physical or mental disease, disorder, or defect excluding penal responsibility.
Status: in_force

(1) Whenever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding penal responsibility, or there is reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may order an examination as to the defendant's physical or mental disease, disorder, or defect at the time of the conduct alleged.

Whenever there is reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may enter into an agreement with the parties at any stage of the proceeding to divert the case into an evaluation of the defendant, treatment of the defendant, including residential or rehabilitation treatment; or any other course or procedure, including diversion into specialized courts. Such agreements may include in-court clinical evaluations.

(2) For those cases not diverted by an agreement pursuant to subsection (1), the court shall appoint three qualified examiners for class A and class B felonies, as well as for class C felonies involving violence or attempted violence, and one qualified examiner in nonfelony cases to examine and report upon the physical or mental disease, disorder, or defect of the defendant at the time of the conduct. For class C felonies not involving violence or attempted violence, the court may appoint one or three qualified examiners to examine and report upon the physical or mental disease, disorder, or defect of the defendant at the time of the conduct. In cases where the court appoints three examiners, the court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases and class C felonies not involving violence or attempted violence where one examiner is appointed, the court may appoint as examiners either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered.

(3) An examination performed under this section may employ any method that is accepted by the professions of medicine or psychology for the examination of those alleged to be affected by a physical or mental disease, disorder, or defect; provided that each examiner shall form and render diagnoses and opinions upon the physical and mental condition of the defendant independently from the other examiners, and the examiners, upon approval of the court, may secure the services of clinical psychologists and other medical or paramedical specialists to assist in the examination and diagnosis.

(4) For defendants charged with felonies, the examinations for fitness to proceed under section 704-404 and penal responsibility under this section shall be conducted separately unless a combined examination has been ordered by the court upon a request by the defendant or upon a showing of good cause to combine the examinations. The report of the examination for fitness to proceed shall be separate from the report of the examination for penal responsibility unless a combined examination has been ordered. For defendants charged with offenses other than felonies, a combined examination is permissible when ordered by the court.

(5) The court may order the examination to occur no sooner than one hundred twenty days of a finding of unfit to proceed under section 704-404 upon a showing of good cause.

(6) The report of the examination for penal responsibility shall include the following:

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

(b) A diagnosis of the physical or mental condition of the defendant;

(c) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was impaired at the time of the conduct alleged;

(d) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind that is required to establish an element of the offense charged; and

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

(7) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.

(8) Three copies of the report of the examination, including any supporting documents, shall be filed with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.

(9) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's diagnosis or opinion.

(10) The court shall obtain all existing relevant medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies, notwithstanding any other statute, and make the records available for inspection by the examiners in hard copy or digital format. The court may order that the records so obtained be made available to the prosecuting attorney and counsel for the defendant in either format, subject to conditions the court determines appropriate; provided that juvenile records shall not be made available unless constitutionally required. No further disclosure of records shall be made except as permitted by law.

(11) All public agencies in possession of relevant medical, mental health, social, police, and juvenile records, and any other pertinent records of a defendant ordered to be examined under this chapter, shall provide those records to the court, notwithstanding any other state statute.

(12) The compensation of persons making or assisting in the examination, other than those retained by a nonindigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the judiciary in the amount of $2,000, which amount includes compensation for the examination, the drafting of the report, and any consultation, preparation, testimony, and attendance in court.

(13) The time during which completion of an examination pursuant to this section is pending shall be excluded in computing the time for trial commencement. [L 2016, c 198, §2; am L 2020, c 26, §7; am L 2025, c 274, §2]

COMMENTARY ON §704-407.5

Act 198, Session Laws 2016, added this section when it separated the examination for fitness to proceed of a defendant with respect to physical or mental disease, disorder, or defect, from the examination for penal responsibility of the defendant with respect to physical or mental disease, disorder, or defect, with certain exceptions, in criminal prosecutions where the defendant's capacity is at issue. The legislature found that under §704-404, when a defendant's fitness to proceed comes into question, the criminal proceedings are stopped, and the court must order a physical or mental examination of the defendant to determine the defendant's fitness to proceed and whether the defendant was penally responsible for the alleged crime. The legislature further found that it is in the best interest of the defendants for the examination process to proceed in a timely, expedient manner by separating the fitness to stand trial and the penal responsibility components of examinations. Conference Committee Report No. 153-16.

Act 26, Session Laws 2020, amended this section to: (1) authorize the courts to enter into agreements to divert into residential, rehabilitative, and other treatment those defendants whose physical or mental disease, disorder, or defect is believed to have become or will become an issue in a judicial case; (2) for class C felonies not involving violence or attempted violence, authorize the appointment of one or three qualified examiners to examine and report on the physical or mental disease, disorder, or defect of the defendant at the time of the conduct; (3) repeal the requirement that the three qualified examiners appointed for felony cases include at least one psychiatrist and one licensed psychologist, and instead allow the appointment of any combination of psychiatrists, licensed psychologists, or qualified physicians, so long as one examiner is a psychiatrist or licensed psychologist designated by the director of health from within the department of health; (4) provide that in nonfelony cases and class C felonies not involving violence or attempted violence where one examiner is appointed, the examiner may be designated by the director of health from within the department of health; and (5) repeal the timing requirement that an order for a penal responsibility examination be made within thirty days after a finding of fitness to proceed. The legislature found that the recommendations of the Hawaii Summit on Improving the Governmental Response to Community Mental Illness hosted by the State Justice Institute, National Center for State Courts, Conference of Chief Justices, and Conference of State Court Administrators on November 6, 2019, as well as studies such as the 2016-2017 Policy Paper by the Conference of State Court Administrators' "Decriminalization of Mental Illness: Fixing a Broken System," demonstrated that jails nationwide had become the default mental health method of treatment for numerous low-level defendants whose needs could be far more effectively addressed by diversion into behavioral health treatment. These studies demonstrated that because of the high cost of incarceration and the high rate of recidivism because of the lack of treatment, the parties to the case should be allowed to opt out of judicial proceedings by entering into agreements at any stage of the process to reduce expenditures of time and money and increase community results. Senate Standing Committee Report No. 3757.

Act 274, Session Laws 2025, amended this section to establish the amount of compensation for private-sector examiners who evaluate a criminal defendant's penal responsibility in a legal case. The legislature found that the existing fee structure for the compensation for court-appointed forensic examiners providing services to the judiciary made it challenging to recruit and retain professionals with the necessary expertise. The fee paid to private-sector examiners, who evaluate a criminal defendant's penal responsibility or fitness to proceed, had not been increased since approximately 2008 when it was raised from $500 (with additional fees outlined for out-of-court work and testimony) to $1,000 with no allocation of funds for out-of-court work or testimony. The legislature further found that there were currently only six examiners willing to accept court appointments from the First Circuit and, as a result, some examiners asked the court to cap their monthly appointments or requested extensions so that they could complete their examinations and reports. Accordingly, Act 274 would ensure that the State was able to maintain a pool of qualified and available examiners capable and willing to provide essential services for documenting and reporting their findings to the court. House Standing Committee Report No. 1292, Conference Committee Report No. 120.
Haw. Rev. Stat. § 711-1110 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1110
Relating to agent of society.
Status: in_force

The agent of any society which is formed or incorporated for the prevention of cruelty to animals, upon being appointed thereto by the president of such society in any district in the State, may within such district make arrests and bring before any district judge thereof offenders found violating the provisions of section 711-1109 to be dealt with according to law.

COMMENTARY ON §§711-1109 TO 711-1110

When the legislature adopted the Code in 1972, it declined to accept the Proposed Draft's treatment of the offense of cruelty to animals. Section 711-1109 as adopted clarifies the existing law relating to the offense of "cruelty to animals." It makes it a crime to "knowingly or recklessly" overdrive, overload, torture, torment, deprive of necessary sustenance, cruelly beat, or needlessly mutilate or kill any living creature. The section prohibits the keeping, using, management, or receipt of money for admission for fighting or baiting any "bull, bear, dog, cock, or other creature." It also bars the carrying of any creature in a cruel or inhumane manner, and bars any other act towards the furtherance of any act of cruelty to animals.

The section provides that if a domestic 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.

The section also states that the provisions do not apply to "accepted veterinary practices" and "scientific research" activities.

Section 711-1110 is a new section which was not contained in the Proposed Draft. It authorizes agents of any society for the prevention of cruelty to animals to make arrests for violations of §711-1109.

The Code basically retains the prior existing Hawaii law relating to this subject. Thus the provisions set forth in HRS chapter 722, with updating, appear to be restated in substantial part in the Code. The Code treatment thus differs from the brief provision recommended by the Proposed Draft. The legislature felt that the provision was too vague to prevent some types of mistreatment of animals. Conference Committee Report No. 2 (1972).

SUPPLEMENTAL COMMENTARY ON §§711-1109 TO 711-1110

Act 192, Session Laws 1986, amended §711-1109 to provide that the intentional, knowing, or reckless poisoning of an animal, except insects and vermin, constitutes the offense of cruelty to animals. The prohibition was enacted in light of the increasing incidences of paraquat poisoning of animals and because of the uncertainty of whether the present law applied to such acts. House Conference Committee Report No. 37-86, Senate Conference Committee Report No. 27-86, House Standing Committee Report No. 392.

Section 711-1109.3 was added by Act 129, Session Laws 1983, to prohibit the practice of dog fighting and its related activities. While those activities could be prosecuted under §711-1109, the legislature felt the need to impose a more severe sanction than the misdemeanor penalty imposed in that section. Senate Standing Committee Report No. 347, House Standing Committee Report No. 1054.

Act 173, Session Laws 1998, amended §711-1109 to provide that depriving pet animals of necessary sustenance constitutes the crime of cruelty to animals. The legislature noted that the statute identified only those acts which were the most heinous and extreme, such as beating, mutilation, poisoning, starvation, and torture. However, on a daily basis, other less overt acts such as daily neglect also resulted in the inhumane treatment of animals. Thus, the legislature agreed that pet animals deserved a minimum level of care including adequate food, water, and shelter. Senate Standing Committee Report No. 3222, Conference Committee Report No. 87.

Act 259, Session Laws 2002, added §§711-1109.4 and 711-1109.5, creating criminal offenses for causing injury or death to a guide dog, signal dog, or service animal, and for intentional interference with the use of a guide dog, signal dog, or service animal. Act 259 recognized the unique skills of guide dogs, signal dogs, and service animals that have completed lengthy and specialized training to serve their owners with disabilities. The dogs have become the object of taunting and injury from people or from other dogs. Conference Committee Report No. 58-02.

Act 239, Session Laws 2006, added §§711-1109.1 and 711-1109.2, allowing: (1) law enforcement officers to enter premises and impound a pet animal when there is probable cause to believe the pet animal is being subjected to cruel treatment; and (2) a court to order the forfeiture of an impounded pet animal prior to the disposition of a criminal action against the pet animal's owner. The forfeiture was intended to pay for the animal's care, not to punish the owner. Act 239 provided a way to implement the legal principle that, despite the impoundment, the obligation to provide adequate care for the pet animal remains with the owner. Conference Committee Report No. 6-06, Senate Standing Committee Report No. 2592.

Act 114, Session Laws 2007, strengthened Hawaii's animal cruelty laws. Act 114 amended §711-1109 by making conduct against any animal resulting in substantial bodily injury a misdemeanor. Act 114 also amended §§711-1109.1 and 711-1109.2 by conforming the forfeiture provisions to apply to the felony prohibitions of the Act. Act 114 created the offense of cruelty to animals in the first degree, making it a felony to intentionally or knowingly torture, mutilate, or poison or cause the torture, mutilation, or poisoning of any pet animal resulting in serious bodily injury or death of the pet animal. The legislature found that violence, whether against humans or animals, must not be tolerated in our society. Evidence suggests a link between animal abuse and the commission of violent acts against humans. Hawaii is only one of nine states in the United States without a felony offense for domestic animal abuse. The legislature also found that pet animals provide a close emotional bond and relationship with their owners and family members and friends. Violence and harm committed against the animals have a significant emotional impact on their owners and family. The felony provisions of Act 114 protected pet animals. Conference Committee Report No. 29.

Act 128, Session Laws 2008, added §711-1109.6, criminalizing animal hoarding as a misdemeanor. Act 128 was in response to recent incidences of the keeping of a large number of animals, typically dogs and cats, without providing adequate care to the animals. The legislature found that animal hoarding is an under-recognized community problem affecting both human and animal welfare. Act 128 sunsets on July 1, 2011. Conference Committee Report No. 45-08.

Act 128, Session Laws 2008, criminalized animal hoarding as a misdemeanor in §711-1109.6, and made conforming amendments to §§711-1109.1 and 711-1109.2. Act 128 sunsets on July 1, 2011. Conference Committee Report No. 45-08.

Act 11, Session Laws 2009, provided for the reenactment of §§711-1109.1(1) and 711-1109.2(1), (3), and (5) upon the repeal of Act 128, Session Laws 2008.

Act 160, Session Laws 2009, amended §711-1109(1) and (2) to clarify the offense of cruelty to animals in the second degree by including intentionally, knowingly, or recklessly: (1) confining or causing to be confined, in a kennel or cage, any pet animal in a cruel or inhumane manner; or (2) tethering, fastening, tying, or restraining a dog to a doghouse, tree, fence, or any other stationary object by means of a choke collar, pinch collar, or prong collar; provided that a person is not prohibited from using the restraints when walking a dog with a handheld leash or while a dog is engaged in a supervised activity. Conference Committee Report No. 85.

Act 160, Session Laws 2009, amended §711-1109.6(1) by decreasing from ["more than twenty"] to "more than fifteen," the number of dogs, cats, or combination of dogs and cats required to be possessed for the animal hoarding statute to apply. Conference Committee Report No. 85, Senate Standing Committee Report No. 590.

Act 160, Session Laws 2009, also extended the sunset date of Act 128, Session Laws 2008, relating to animal hoarding, [affecting §§711-1109.6, 711-1109.1, and 711-1109.2,] from July 1, 2011 to July 1, 2015. Conference Committee Report No. 85.

Act 149, Session Laws 2011, created a new offense, §711-1109.35, cruelty to animals by fighting dogs in the second degree, a class C felony. Act 149 amended §711-1109.3 by converting the existing offense to cruelty to animals by fighting dogs in the first degree, clarifying the elements of the offense, and increasing the penalty from a class C felony to a class B felony. Act 149 also amended §§711-1109.1(1) and 711-1109.2(1), (3), and (5) by adding cruelty to animals by fighting dogs to the offenses for which a dog may be impounded or forfeited. The legislature found that dogfighting is a brutal practice which often results in the death of the participating dogs within hours or days after the fight. Also, because dogs used for fighting have been bred for generations to be dangerously aggressive toward other animals, the presence of the dogs in a community increases the risk of attacks on not only other animals, but potentially on children, whose small size may cause a fighting dog to perceive a child as another animal. Hawaii ranked fiftieth in a recent national ranking of the weakest state dogfighting laws, primarily because Hawaii lacked a penalty for attending or wagering on an organized dogfight. Act 149 was intended to address the demand for dogfighting, in an attempt to deter the callous practice. Act 149 also specifically prohibited the use of other animals as bait to train fighting dogs. Bait animals are often stolen animals, stray pets, or animals obtained through advertisements that offer pets free to a good home. Senate Standing Committee Report No. 562, House Standing Committee Report No. 1098.

Act 149, Session Laws 2011, also provided for the reenactment of §§711-1109.1(1) and 711-1109.2(1), (3), and (5) upon the repeal of Act 128, Session Laws 2008, as amended by Act 160, Session Laws 2009.

Act 175, Session Laws 2011, amended §§711-1109.4 and 711-1109.5 to conform to the definition of "service dog" established in chapter 347 by the Act. House Standing Committee Report No. 1497.

Act 226, Session Laws 2011, amended §711-1109(1) by requiring that any handling or extermination of insects, vermin, or other pests be conducted in accordance with standard and acceptable pest control practices and all applicable laws and regulations. House Standing Committee Report No. 1300.

Act 25, Session Laws 2012, amended §711-1109.1 to add equine animals to those animals that may be subject to impoundment in the course of an animal cruelty case. The legislature found that Hawaii's animal cruelty laws acknowledged equine animals as companion animals like other pet animals that typically have special meaning to or a relationship with their owners. As such, Act 25 provided the same protections to equine animals that are afforded to pet animals. Senate Standing Committee Report No. 2453, House Standing Committee Report No. 1194-12.

Act 25, Session Laws 2012, amended §711-1109.2 by adding equine animals to those animals that may be subject to forfeiture in the course of an animal cruelty case, subsection (7) to allow a court discretion to determine whether attorney's fees should be awarded to the petitioner following the conviction of the defendant, and subsection (8) to clarify that a pet animal or equine animal includes any offspring from a pet animal or equine animal that was pregnant at the time of a rescue and born during the impoundment of the pet animal and equine animal. The legislature found that Hawaii's animal cruelty laws acknowledged equine animals as companion animals like other pet animals that typically have special meaning to or a relationship with their owners. However, the forfeiture law did not include equine animals that are often held in limbo during animal cruelty investigations. As such, Act 25 provided the same protections to equine animals that are afforded to pet animals. Senate Standing Committee Report No. 2453, House Standing Committee Report No. 1194-12.

Act 205, Session Laws 2013, amended §711-1109.4 to include recklessly causing substantial bodily injury to or death of any law enforcement animal. Act 205 also established that a violation is a class C felony and provided restitution. The legislature found that law enforcement animals are an integral part of Hawaii's law enforcement and corrections agencies and are hand-selected and highly trained for their jobs. The animals diligently work side-by-side with law enforcement officers, deputies, and other personnel and should be afforded special protections. Act 205 protected law enforcement animals in the line of duty. Conference Committee Report No. 128.

Act 205, Session Laws 2013, amended §711-1109.5 to include intentionally or knowingly striking, beating, kicking, [cutting,] stabbing, shooting, or administering any type of harmful substance or poison to a law enforcement animal. Act 205 provided certain exceptions to the offense, established a violation as a misdemeanor, and provided restitution. The legislature found that law enforcement animals are an integral part of Hawaii's law enforcement and corrections agencies and are hand-selected and highly trained for their jobs. The animals diligently work side-by-side with law enforcement officers, deputies, and other personnel and should be afforded special protections. Act 205 protected law enforcement animals in the line of duty. Conference Committee Report No. 128.

Act 208, Session Laws 2013, added §711-1109.37, establishing an animal cruelty offense for the use of steel-jawed leg-hold traps, or the use of snares, conibear traps, and foot- or leg-hold traps in residential or other prohibited areas. The legislature found that this Act would allow for the use of appropriate tools to control feral animals, such as pigs, goats, sheep, deer, and wild cattle, where there is a potential for these animals to damage natural resource areas, while at the same time establishing reasonable additional protections for pet animals in residential areas, where they are most likely to be inadvertently caught if certain animal control tools are employed. Act 208 also provided an exemption for state or federal employees to use snares, conibear traps, and foot- or leg-hold traps in residential or other prohibited areas for certain purposes. Conference Committee Report No. 61.

Act 210, Session Laws 2013, amended §711-1109 by elevating the penalty for the offense of cruelty to animals in the second degree from a misdemeanor to a class C felony when the offense involves ten or more pet animals in any one instance, to ensure that defendants who were convicted of animal cruelty involving multiple pet animals served time in jail. Conference Committee Report No. 74.

Act 217, Session Laws 2018, amended §§711-1109.4 and 711-1109.5 to replace all references to "service dog" with "service animal" to conform Hawaii law with the definition of "service animal" under the Americans with Disabilities Act of 1990. Conference Committee Report No. 77-18.

Act 31, Session Laws 2021, established §711-1109.8 to create the offense of sexual assault of an animal. The legislature found that sexual assault of an animal has been significantly linked to the sexual abuse of children as well as interpersonal violence and other forms of animal cruelty. In addition, sexual abusers of animals have been shown to collect and share child pornography and express interest in other aberrant behavior involving sexual violence and fetish behaviors. The legislature further found that although Hawaii had strong animal cruelty laws, some acts of sexual assault on animals could not be prosecuted under those laws because the acts did not cause bodily injury. Establishing sexual assault of an animal as a separate crime would allow law enforcement officers to better identify potentially dangerous and violent sexual predators in the community. The legislature noted that the high penalties for the offense of sexual assault of an animal were intended not just to protect animals but also to be a deterrent against the sexual assault of children because animal abuse is often a precursor to child abuse. House Standing Committee Report No. 979, House Standing Committee Report No. 1827, Senate Standing Committee Report No. 43.

Act 182, Session Laws 2021, amended §711-1109 to prohibit: (l) specified trolleys, trolleys with swivels, pulleys, cables, or running lines designed to attach a dog to two stationary objects in a configuration that endangers the dog, including by depriving the dog of sustenance; (2) tethering or restraining 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; (3) tethering or restraining a dog with a tow or log chain; and (4) tethering or restraining a dog with a 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. The legislature found that tethering a dog in manners that cause injuries; preventing access to food, water, or shelter; or isolating an animal from opportunities to bond with their human families adversely affects the health and safety of dogs and can lead to further aggressive behavior. The legislature further found that vagueness in existing law made it difficult for law enforcement officers to take action before an improperly tethered or restrained dog had suffered serious injury or death. Act 182 established clear guidelines for dog owners and law enforcement officers on what legally constitutes proper tethering. Senate Standing Committee Report No. 1518.
Haw. Rev. Stat. § 711-1142 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1142
Legal requirements of owner.
Status: in_force

(1) The owner of a dog declared to be a dangerous dog shall:

(a) Provide the owner's name, address, and telephone number to the animal control authority;

(b) Provide the location where the dangerous dog is currently kept, if the location is not the owner's address, to the animal control authority;

(c) Promptly notify the animal control authority of:

(i) Any changes in the ownership of the dangerous dog or the location of the dangerous dog, along with the names, addresses, and telephone numbers of the new owners or the new address where the dangerous dog is located;

(ii) Any further instances of an attack by the dangerous dog upon a person or an animal;

(iii) Any current or future claims made or legal actions brought as a result of an attack by the dangerous dog upon a person or an animal; or

(iv) The death of the dangerous dog;

(d) Have a microchip implanted in the dangerous dog, register the owner's microchip information pursuant to section 143-2.2, and provide the microchip identification number of the dangerous dog to the animal control authority;

(e) Ensure that the dangerous dog is under the control of a person who is at least eighteen years of age, when the dangerous dog is indoors at the owner's premises;

(f) Ensure that when the dangerous dog is outdoors on the owner's premises and unattended, the dangerous dog is confined to an escape-proof kennel that remains locked;

(g) Ensure that when the dangerous dog is outdoors on the owner's premises and attended, the dangerous dog is:

(i) Kept on a fixed and secure leash no longer than four feet in length;

(ii) Under the control of a person at least eighteen years of age; and

(iii) Kept within a fenced or walled area where it cannot escape;

(h) Ensure that when the dangerous dog is outdoors outside the owner's premises, the dangerous dog is:

(i) Kept on a fixed and secure leash no longer than four feet in length;

(ii) Under the control of a person who is at least eighteen years of age; and

(iii) Muzzled with a properly fitted, basket muzzle that prevents the dangerous dog from biting any person or animal but does not cause injury to the dangerous dog or interfere with its vision or respiration;

(i) Place on the owner's premises a sign or signs provided by the animal control authority informing the public of the presence and dangerousness of the dangerous dog; and

(j) Neuter or spay the dangerous dog at the owner's expense, unless neutering or spaying the dangerous dog is medically contraindicated.

(2) The owner of a dangerous dog who keeps the dangerous dog in a manner found to be in violation of this section commits the offense of negligent failure to control a dangerous dog and the dangerous dog shall be subject to seizure and impoundment pursuant to this part if the owner is unable to immediately secure the dangerous dog. [L 2024, c 224, pt of §2; am L 2025, c 21, §18]
Haw. Rev. Stat. § 710-1075.5 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1075.5
Retaliating against a juror.
Status: in_force

(1) A person commits the offense of retaliating against a juror if the person uses force upon or threatens a juror or another person because of the vote, opinion, decision, or other action of the juror in an official proceeding.

(2) "Threaten" as used in this section means any threat proscribed in sections 707-764(1) and 707-764(2).

(3) Retaliating against a juror is a class C felony. [L 1981, c 156, pt of §1; gen ch 1993]

COMMENTARY ON §710-1075.5

Act 156, Session Laws 1981, enacted this section to provide additional protection to jurors. Although the prior law penalized force or threats used against a juror before or during a trial, it contained no provision dealing specifically with the offense of force or threats directed against a person for the person's actions as a juror, after the trial.
Haw. Rev. Stat. § 708-892.5 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-892.5
Computer damage in the second degree.
Status: in_force

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

(a) The person knowingly causes the transmission of a program, information, code, or command, and thereby knowingly causes unauthorized damage to a computer, computer system, or computer network; or

(b) The person intentionally accesses a computer, computer system, or computer network without authorization and thereby knowingly causes damage.

(2) As used in this section, "damage" means:

(a) A loss aggregating at least $5,000 in value, including the costs associated with diagnosis, repair, replacement, or remediation, during any one-year period to one or more individuals;

(b) The modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of one or more individuals; or

(c) Impairment or disruption of government operations.

(3) Computer damage in the second degree is a class B felony. [L 2001, c 33, pt of §1; am L 2014, c 213, §4]
Haw. Rev. Stat. § 706-601 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-601
Pre-sentence diagnosis and report.
Status: in_force

(1) Except as provided in subsections (3) and (4), the court shall order a pre-sentence correctional diagnosis of the defendant and accord due consideration to a written report of the diagnosis before imposing sentence where:

(a) The defendant has been convicted of a felony; or

(b) The defendant is less than twenty-two years of age and has been convicted of a crime.

(2) The court may order a pre-sentence diagnosis in any other case.

(3) With the consent of the court, the requirement of a pre-sentence diagnosis may be waived by agreement of both the defendant and the prosecuting attorney; provided that in felony cases, the prosecuting attorney shall inform, or make reasonable efforts to inform, the victim or the victim's surviving immediate family members of their rights to be present at the sentencing hearing and to provide information relating to the impact of the crime, including any requested restitution.

(4) The court on its own motion may waive a pre-sentence correctional diagnosis where:

(a) A prior pre-sentence diagnosis was completed within one year preceding the sentencing in the instant case;

(b) The defendant is being sentenced for murder or attempted murder in any degree; or

(c) The sentence was agreed to by the parties and approved by the court under rule 11 of the Hawaii rules of penal procedure. [L 1972, c 9, pt of §1; am L 1986, c 314, §11; am L 1997, c 275, §1; am L 2016, c 231, §15]

COMMENTARY ON §706-601

In any system which vests discretion in the sentencing authority, it is necessary that the authority have sufficient and accurate information so that it may rationally exercise its discretion. In our penal system which vests sentencing authority in the court, it is extremely unlikely that without a special provision providing for a pre-sentence investigation and report that the relevant information will be brought to the attention of the court. The vast majority of cases are disposed of upon pleas of guilty. It is obvious that in such cases the court has no information upon which to select between and among various sentencing alternatives. Even where the case is tried before the sentencing judge, the evidence at trial is not likely to produce information relevant to sentencing a subsequently convicted defendant. Relevant information, such as the defendant's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits, are not likely to be fully explored in an adversary proceeding designed to decide the issue of guilt.

This section requires a pre-sentence investigation in the cases specified; it allows the court to order a pre-sentence investigation in any other case. In a system with unlimited resources, a pre-sentence investigation and report might be required in the case of every convicted defendant regardless of whether the offense was a felony, misdemeanor, or violation. However, realizing the limitations of the State's resources, the Code has required a pre-sentence investigation and report only in cases of felons and youthful offenders. This requirement is in substantial accord with recent studies on sentencing.[1]

This section is also in substantial accord with Hawaii rules of procedure governing criminal cases in the circuit courts,[2] which have jurisdiction over felony cases and over some misdemeanor cases (those which are tried before a jury). However, it is left to the circuit court's discretion whether a pre-sentence investigation and report is or is not ordered. In candor, it must be pointed out that as a regular practice such reports are ordered and the Code in large degree brings the law into conformity with existing circuit court practice.

District courts, which have original jurisdiction over misdemeanor cases, presently have no procedure or authorization for pre-sentence investigation. Supplemental services will have to be added to the district courts, either by legislation, court rule, or administratively, so the pre-sentence investigators (probation officers or otherwise) are available in all courts which would be required or authorized to take into consideration a pre-sentence report before imposing sentence.

Subsection (3) was added to the Code to accommodate the request of some defendants for immediate sentence. The court has sometimes granted this request where the offense is of a very minor nature and the court is inclined to impose only a fine or to suspend imposition of sentence.

SUPPLEMENTAL COMMENTARY ON §706-601

In 1972 the legislature, when enacting the Penal Code, substituted the phrase "pre-sentence correctional diagnosis" for "pre-sentence investigation," in order to conform the language to the new correctional procedures provided for with the establishment of the Correctional Diagnostic Center. The Conference Committee stated that "a 'correctional diagnosis' will provide a more comprehensive psychiatric, social, and correctional analysis of a defendant than previously provided with a 'pre-sentence investigation'." Conference Committee Report No. 2 (1972).

Act 275, Session Laws 1997, amended this section to allow courts to waive the pre-sentence diagnosis and report under certain specified circumstances. The legislature found that under current law, a pre-sentence diagnosis and report must be prepared for all individuals convicted of a felony offense and all convicted defendants less than twenty-two years of age, unless the report is waived by both the defendant and the prosecuting attorney. However, in certain cases, the sentence to be imposed is predetermined due to plea agreements or sentencing guidelines; thus, the diagnosis and report are unnecessary. The amendment expedites the disposal of criminal cases and reduces unnecessary delays in sentencing. Conference Committee Report No. 72, House Standing Committee Report No. 1650.

Act 231, Session Laws 2016, amended subsection (3) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 711-1124 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1124
[ §711-1124] Uncrewed aircraft; operation.
Status: in_force

[ §711-1124] Uncrewed aircraft; operation. Notwithstanding section 711-1121(3), 711-1122(3), and 711-1123(3), uncrewed aircraft shall be directly operated by a human operator at all times.

COMMENTARY ON §§711-1120 TO 711-1124

Act 161, Session Laws 2024, added this part to: (1) establish the felony offenses of misuse of uncrewed aircraft in the first, second, and third degrees; and (2) require uncrewed aircraft to be operated by a human operator at all times. The legislature found that the civilian use of drones had become increasingly popular among the general public, and this use increased the risk of drones being utilized to harm people and property. The legislature further found that drones may be used to conduct illegal activities including the drug trade, gang activities, smuggling contraband, and facilitating assaults. Accordingly, the legislature noted that Act 161 would adjust to the increasing availability and use of drones by the public, discourage the misuse of drones that is detrimental to others, and ensure that state and county prosecutors are equipped to properly charge these types of offenses. Senate Standing Committee Report No. 3684, Senate Standing Committee Report No. 3224.
Haw. Rev. Stat. § 707-767 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-767
Extortion in the third degree.
Status: in_force

(1) A person commits the offense of extortion in the third degree if the person commits extortion of property, labor, or services.

(2) Extortion in the third degree is a misdemeanor. [L 1979, c 106, pt of §1; gen ch 1993; am L 2008, c 147, §7]
Haw. Rev. Stat. § 702-208 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-208
Substitutes for negligence, recklessness, and knowledge.
Status: in_force

When the law provides that negligence is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly. When the law provides that recklessness is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally or knowingly. When the law provides that acting knowingly is sufficient to establish an element of an offense, that element also is established if, with respect thereto, a person acts intentionally.

COMMENTARY ON §702-208

Since intent, knowledge, recklessness, and negligence are in a descending order of culpability, this section establishes that "it is only necessary to articulate the minimal basis of liability for the more serious bases to be implied."[1] The proposition is essentially axiomatic.

__________

§702-208 Commentary:

1. M.P.C., Tentative Draft No. 4, comments at 129 (1955).
Haw. Rev. Stat. § 702-227 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-227
Penal liability of corporations and unincorporated associations.
Status: in_force

A corporation or unincorporated association is guilty of an offense when:

(1) It omits to discharge a specific duty of affirmative performance imposed on corporations or unincorporated associations by law and the omission is prohibited by penal law;

(2) The conduct or result specified in the definition of the offense is engaged in, caused, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors of the corporation or by the executive board of the unincorporated association or by a high managerial agent acting within the scope of the agent's office or employment and in behalf of the corporation or the unincorporated association; or

(3) The conduct or result specified in the definition of the offense is engaged in or caused by an agent of the corporation or the unincorporated association while acting within the scope of the agent's office or employment and in behalf of the corporation or the unincorporated association and:

(a) The offense is a misdemeanor, petty misdemeanor, or violation; or

(b) The offense is one defined by a statute which clearly indicates a legislative purpose to impose such criminal liability on a corporation or unincorporated association. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

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

COMMENTARY ON §702-227

Corporations and unincorporated associations (partnerships, unions, etc.) are a powerful part of contemporary society and their conduct, like that of individuals, ought to be subject to penal sanctions when it injures substantial social values and can be morally condemned. The common law originally found it difficult to impose penal sanctions on a corporation or an unincorporated association because the former was regarded as an artificial entity and the latter as a label for an aggregate of individuals and neither could form a requisite state of mind or be imprisoned. These "philosophical" difficulties have been swept away by imputing to the corporation or association the acts and mental culpability of its directors, managers, or employees and by utilizing fines as an appropriate alternative to imprisonment.

Subsection (1) provides for penal liability of a corporation or unincorporated association which (acting through its agents) fails to discharge any affirmative duty imposed by law upon it and enforced by penal sanction (e.g., a fine). Examples would be failure to comply with health or safety laws. Since the definition of "person" includes, where relevant, corporations and unincorporated associations, a corporation or unincorporated association could not be held penally liable unless, with respect to each element of the offense, it (through its agents) acted with the requisite state of mind. Penal liability of corporations or associations should not be imposed absolutely merely because imprisonment is not an available penalty.

Subsection (2) imposes penal liability for any prohibited conduct or result which is engaged in, caused, authorized, solicited, commanded, or recklessly tolerated by persons who represent the policy of the corporation or unincorporated association. Policy is obviously represented by the board of directors of a corporation and by the executive board (regardless of what proper name is used) of an unincorporated association. "High managerial agent" is defined in §702-229 and is used to denote those individuals whose conduct may be said to represent the policy of a corporation or an association.

Subsection (3) deals with conduct and results which are engaged in or caused by a person who is not a high managerial agent and which are not authorized by such an agent or by the board of directors or executive board. Corporate penal liability for conduct engaged in or results caused by an "agent" will result if the offense is a misdemeanor, petty misdemeanor, or violation, or if the definition of the offense shows a clear legislative purpose to impose felony liability on a corporation or unincorporated association for such conduct or results.

The phrase "in behalf of the corporation or unincorporated association" is intended to avoid imposing penal liability on a corporation or unincorporated association for the conduct of an agent who, though acting within the scope of the agent's employment, acts solely for the agent's own benefit. For example, a manager may falsify public documents to conceal the manager's own fraud on the corporation or association--certainly the corporation or association should not be held penally liable because the manager was acting within the scope of the manager's employment simpliciter.

The Code follows substantially the approach taken in New York[1] and proposed in Delaware,[2] except that the Code imposes liability on unincorporated associations along the same lines as that imposed on corporations. This treatment of unincorporated associations was suggested in part by the Model Penal Code.[3]

Although there is little law on the subject, Hawaii has recognized corporate penal liability. H.R.S. §712-3 (as codified prior to this Code) provided for collection of fines from corporations upon conviction; and at least two cases have resulted in criminal convictions of corporations for regulatory offenses.[4]

SUPPLEMENTAL COMMENTARY ON §702-227

An example of the failure of previous Hawaii penal law to cover situations involving unincorporated associations is contained in State v. Good Guys For Fasi, 56 H. 88, 528 P.2d 811 (1974). In that case, the court held that an unincorporated association, namely a political campaign committee, could not be prosecuted for failure to file certain campaign contribution reports when the statute providing the penalty for the failure related only to the candidate, an agent of the candidate, and the members of the committee acting on behalf of the candidate. The case does not preclude the possibility of an unincorporated association being held liable for a penal offense.

Section 702-227 clearly permits the imposition of penal liability on corporations and unincorporated associations but if the liability is based on the failure to discharge an affirmative duty of performance, the duty must be imposed on the corporation or association and the omission must be prohibited by penal law. See subsection (1).

__________

§702-227 Commentary:

1. N.Y.R.P.L. §20.20.

2. Prop. Del. Cr. Code §140.

3. M.P.C. §2.07. See also Prop. Pa. Cr. Code §207.

4. Territory v. Pacific Club, 16 Haw. 507 (1905) (selling intoxicating liquor without a license), and Territory v. Hilo Mercantile Co., 23 Haw. 409 (1916) (improper storage of explosives).
Haw. Rev. Stat. § 708-895.7 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-895.7
Unauthorized computer access in the third degree.
Status: repealed

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

(2) Unauthorized computer access in the third degree is a class C felony. [L 2001, c 33, pt of §1; am L 2012, c 293, §6]

COMMENTARY ON §§708-890 TO 708-895.7

Act 225, Session Laws 1992, repealed former §§708-890 to 708-896 and added this part [§§708-890 to 708-893] to expand the degree of protection afforded to individuals and organizations from persons who tamper, interfere, damage, and gain unauthorized access to their computers, computer systems, software, and data. Finding that the growth in computer use has resulted in a similar growth in unauthorized access to computer systems, the legislature created two new offenses of "computer fraud" and "unauthorized computer use," both class C felonies. The legislature, however, recognized that other people, including harmless pranksters, students, or curious computer hackers, may gain unauthorized access to computer systems and do no damage to those systems. Although these people have committed a serious breach of privacy, they do not deserve to be charged with a class C felony; the legislature therefore created the affirmative defense of "entry without disruption," authorizing a court to dismiss a prosecution if, having regard for the nature of the alleged conduct and attendant circumstances, it finds that the defendant's conduct did not actually cause harm or damage to a computer system or network. The court must also file a written statement of its reasons for dismissal. Conference Committee Report No. 29.

Act 33, Session Laws 2001, strengthened the State's computer crime laws, by, among other things, replacing statutes relating to computer crimes with several new offenses and provisions to deter computer fraud, damage, and other computer-related perpetrations, allowing the forfeiture of property used in computer crimes, and updating computer-related definitions to reflect modern technology and for clarity. The legislature found that society was adopting at a rapid pace, computer technology to conduct activities of daily living. Computer technology was being utilized not only for purposes of business and recreation, but also for criminal activity. Thus, computer-related criminal activity was on the rise as society's dependence on computers increased. Senate Standing Committee Report No. 1508.

Act 3, Session Laws 2003, made a technical amendment to §708-890, by deleting the brackets around the word "retrieve" in the definition of "access."

Act 141, Session Laws 2006, amended §708-893 to include the use of a computer to obtain control over the property of the victim [to commit theft in the first or second degree]. The legislature found that the use of a computer to commit theft is a growing problem in Hawaii and the number of crimes perpetrated via the Internet is increasing. Using a computer as an instrument of the crime offers the perpetrator relative anonymity, a quick and easy mechanism to commit fraud, and the potential for sizable financial gain. Hawaii's statutes relating to computer fraud are inadequate for purposes of prosecuting internet fraud. The amendment of §708-893 would enable law enforcement to respond more efficiently to the various forms of computer crime. Senate Standing Committee Report Nos. 3116 and 3306.

Act 192, Session Laws 2012, amended §708-893(1) by: (1) establishing that knowingly using a computer to perform certain acts against a victim or intended victim of harassment under §711-1106, or harassment by stalking under §711-1106.5, constitutes the offense of use of a computer in the commission of a separate crime; and (2) clarifying that the offense of use of a computer in the commission of a separate crime also includes knowingly using a computer to pursue, surveil, contact, harass, annoy, or alarm a victim or intended victim. The legislature found that Act 192 would assist in combating cyberbullying and preventing the emotional harm caused by the dissemination of personal information of an individual, whether true or false, via the Internet or wireless cellular communications. Senate Standing Committee Report No. 3232.

Act 293, Session Laws 2012, amended §708-891 to update Hawaii's computer crime statutes by adding language mirroring Hawaii's identity theft statutes to better address the realities of modern cybercrime by changing the offense of computer fraud in the first degree from a class B felony to a class A felony. Act 293 was intended to streamline and update computer crime statutes to better address and combat cybercrime. Senate Standing Committee Report No. 3230, Conference Committee Report No. 36-12.

Act 293, Session Laws 2012, amended §708-891.5 to update Hawaii's computer crime statutes by adding language mirroring Hawaii's identity theft statutes to better address the realities of modern cybercrime by changing the offense of computer fraud in the second degree from a class C felony to a class B felony. Act 293 was intended to streamline and update computer crime statutes to better address and combat cybercrime. Senate Standing Committee Report No. 3230, Conference Committee Report No. 36-12.

Act 293, Session Laws 2012, added §708-891.6 to establish a new offense of computer fraud in the third degree as a class C felony to update Hawaii's computer crime statutes, adding language mirroring Hawaii's identity theft statutes to better address the realities of modern cybercrime. Act 293 was intended to streamline and update computer crime statutes to better address and combat cybercrime. Senate Standing Committee Report No. 3230, Conference Committee Report No. 36-12.

Act 293, Session Laws 2012, amended §708-895.5 to update Hawaii's computer crime statutes by adding language mirroring Hawaii's identity theft statutes to better address the realities of modern cybercrime by: (1) changing the offense of unauthorized computer access in the first degree from a class B felony to a class A felony; and (2) increasing the minimum value of information obtained that constitutes unauthorized computer access in the first degree from $5,000 to $20,000. Act 293 was intended to streamline and update computer crime statutes to better address and combat cybercrime. Senate Standing Committee Report No. 3230, Conference Committee Report No. 36-12.

Act 293, Session Laws 2012, amended §708-895.6 to update Hawaii's computer crime statutes by adding language mirroring Hawaii's identity theft statutes to better address the realities of modern cybercrime by changing the offense of unauthorized computer access in the second degree from a class C to a class B felony. Act 293 was intended to streamline and update computer crime statutes to better address and combat cybercrime. Senate Standing Committee Report No. 3230, Conference Committee Report No. 36-12.

Act 293, Session Laws 2012, amended §708-895.7 to update Hawaii's computer crime statutes by adding language mirroring Hawaii's identity theft statutes to better address the realities of modern cybercrime by changing the offense of unauthorized computer access in the third degree from a misdemeanor to a class C felony. Act 293 was intended to streamline and update computer crime statutes to better address and combat cybercrime. Senate Standing Committee Report No. 3230, Conference Committee Report No. 36-12.

Act 213, Session Laws 2014, (1) created and established as a class C felony the offense of computer damage in the third degree [(§708-892.6)] as knowingly accessing a computer, computer system, or computer network without authorization and recklessly causing damage; (2) redefined and increased to a class A felony the offense of computer damage in the first degree [(§708-892)] as intentionally causing or attempting to cause damage to a computer, computer system, or computer network that manages or controls any critical infrastructure and specified that the offense applies to damage to state and federal critical infrastructure; (3) redefined and increased to a class B felony the offense of computer damage in the second degree [(§708-892.5)] as knowingly causing the transmission of a program, information, code, or command, and thereby knowingly causing unauthorized damage to a computer, computer system, or computer network, or intentionally accessing a computer, computer system, or computer network without authorization, and thereby knowingly causing damage; and (4) added a new definition of "critical infrastructure" [(§708-890)]. The legislature found that existing law only applied when a perpetrator used a computer to damage another computer, such as by hacking or transmitting a computer virus. However, greater protections were needed for [computers managing or controlling] critical infrastructure, as damage to these computers jeopardized public health, safety, and security, regardless of how the damage occurred. Senate Standing Committee Report No. 2452, House Standing Committee Report No. 1100-14.

Act 231, Session Laws 2016, amended §708-893(1) by repealing a provision that subjects a person to a separate charge and enhanced penalty for using a computer to commit an underlying theft crime. The amendment implemented the recommendation made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015). The Penal Code Review Committee commented, on page 51 of its report:

Currently, the enhanced penalties for use of a computer in the commission of a separate crime converts first-degree theft into a class A felony and second-degree theft into a class B felony. The definition of "computer" for purposes of this section would appear to include devices such as smartphones. Given the prevalence of such devices and the widespread use of "computers" in today's society in general, imposing the enhanced penalties for the use of a computer in committing theft seems unduly harsh.

House Standing Committee Report No. 660-16.

Act 184, Session Laws 2021, amended §708-893 to add aggravated harassment by stalking to the list of offenses upon which the offense of use of a computer in the commission of a separate crime may be based. Act 184 also amended §708-894 to provide courts with the discretion to require the forfeiture of property used in computer crimes if the perpetrator was a minor, regardless of whether the minor owned the property. The legislature found that bullying, cyberbullying, and harassment are serious issues that hinder student well-being and achievement, especially when the targets are vulnerable youth. The legislature further found that although the department of education had recently implemented comprehensive efforts to address bullying, cyberbullying, and harassment in public schools, including the adoption of amended administrative rules that, among other things, provided expanded definitions of and complaint procedures for these forms of student misconduct, the transition to online classroom environments as a result of the coronavirus disease 2019 pandemic had exacerbated the problems of bullying, cyberbullying, and harassment of vulnerable youth. The legislature found that Act 184 would provide further incentive to parents and guardians to better ensure that their minor children would refrain from using electronic devices to perpetrate bullying, cyberbullying, and harassment. Senate Standing Committee Report No. 1213.

Act 239, Session Laws 2024, amended §708-893 to amend the offense of use of a computer in the commission of a separate crime to include violation of privacy in the first and second degrees. The legislature found that the use of a computer to commit a separate crime, such as hacking into someone's personal or financial information, has become increasingly prevalent. The legislature further found that including the offenses of violation of privacy in the first and second degrees under the offense of use of a computer in the commission of a separate crime would strengthen penalties against violators for conducting this type of illegal behavior. Accordingly, the legislature noted that Act 239 would strengthen law enforcement's ability to combat these types of computer crimes, provide an additional tool for prosecutors, and serve as a deterrent to prevent these types of crimes from occurring. Conference Committee Report No. 20-24, House Standing Committee Report No. 1459-24.
Haw. Rev. Stat. § 711-1109.8 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109.8
[ §711-1109.
Status: in_force

[ §711-1109.8] Sexual assault of an animal. (1) A person commits the offense of sexual assault of an animal if the person knowingly:

(a) Subjects an animal to sexual contact;

(b) Possesses, sells, transfers, purchases, or otherwise obtains an animal with the intent to subject the animal to sexual contact;

(c) Organizes, promotes, conducts, or participates as an observer in an act where an animal is subject to sexual contact;

(d) Causes, coerces, aids, or abets another person to subject an animal to sexual contact;

(e) Permits sexual contact with an animal to be conducted on any premises under the person's charge or control;

(f) Advertises, solicits, offers, or accepts the offer of an animal with the intent that it be subjected to sexual contact in the State; or

(g) Creates, distributes, publishes, or transmits, whether for commercial or recreational purposes, a pornographic image or material depicting a person subjecting an animal to sexual contact.

(2) This section shall not apply to the following practices:

(a) Veterinary medicine;

(b) Artificial insemination of animals for the purpose of procreation;

(c) Animal husbandry;

(d) Conformation judging; or

(e) Customary care of an animal by its owner.

(3) Unless otherwise provided by any other law:

(a) Sexual assault of an animal is a misdemeanor for the first offense and a class C felony for the second or subsequent offense; or

(b) If the offense subjected a minor to sexual contact with an animal or was committed in the presence of a minor as defined in section 706‑606.4, sexual assault of an animal is a class B felony.

(4) Each violation of this section shall constitute a separate offense.

(5) Upon conviction, guilty plea, or plea of nolo contendere for any violation of this section, in addition to any other penalty, the defendant shall be:

(a) Ordered to:

(i) Surrender or forfeit the animal whose sexual assault was the basis of the conviction or plea to the custody of the animal service contractor in the county in which the offense took place for the time and under the conditions ordered by the court;

(ii) Surrender or forfeit any other animals in the defendant's possession, custody, or control to the animal service contractor in the county in which the offense took place for the time and under the conditions ordered by the court; provided that there is substantial evidence that the animals are being abused in violation of this section;

(iii) Reimburse the animal service contractor in the county in which the offense took place for reasonable costs incurred to care for, feed, house, and medically treat any animal sexually assaulted under this section;

(iv) Attend an appropriate treatment program or obtain psychiatric or psychological counseling, at the defendant's expense; and

(v) Make restitution to the owner of the animal, including reimbursement for any expenses incurred for medical treatment or rehabilitation; provided that the defendant is not the owner of the animal whose sexual assault was the basis of the conviction or plea; and

(b) Prohibited from:

(i) Harboring, owning, possessing, or exercising control over any animal;

(ii) Residing in any household where animals are present; and

(iii) Engaging in any occupation, whether paid or unpaid, or participating in a volunteer position at any establishment at which animals are present, for the length of time that the court deems reasonable for the protection of all animals but no less than five years after the person's release from imprisonment or court supervision.

(6) Prosecution under this section does not preclude prosecution under any other law. Nothing in this section is intended to affect any civil remedies available for a violation of this section.

(7) As used in this section:

"Animal" includes every living or dead creature, except a human being.

"Pornographic" has the same meaning as defined in section 712-1210.

"Sexual contact" means:

(a) The intentional touching or penetration, however slight, of the sex organs, genitalia, mouth, or anus of an animal by a person or of a person by an animal; or

(b) The insertion of a person's body part or object into the sex organs, genitalia, mouth, or anus of an animal.

(8) Violations of this section shall be subject to the search, impound, and forfeiture provisions in sections 711‑1109.1 and 711-1109.2. [L 2021, c 31, §2]
Haw. Rev. Stat. § 708-821 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-821
Criminal property damage in the second degree.
Status: in_force

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

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

(b) The person intentionally or knowingly damages the property of another, without the other's consent, in an amount exceeding $1,500; or

(c) The person intentionally or knowingly damages the agricultural equipment, supplies, or products or aquacultural equipment, supplies, or products of another, including trees, bushes, or any other plant and livestock of another, without the other's consent, in an amount exceeding $500. In calculating the amount of damages to agricultural products, the amount of damages includes future losses and the loss of future production.

(2) Criminal property damage in the second degree is a class C felony; provided that any person convicted of violating subsection (1)(c) shall be sentenced to a term of imprisonment of not less than one hundred eighty days, without possibility of probation or suspension of sentence. [L 1972, c 9, pt of §1; am L 1973, c 136, §7(b); gen ch 1993; am L 1996, c 170, §2; am L 2003, c 19, §2; am L 2006, c 156, §4 and c 181, §4; am L 2007, c 98, §2; am L 2025, c 235, §41]
Haw. Rev. Stat. § 701-111 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-111
When prosecution is barred by former prosecution for a different offense.
Status: in_force

Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution under any of the following circumstances:

(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in section 701-110(3) and the subsequent prosecution is for:

(a) Any offense of which the defendant could have been convicted on the first prosecution;

(b) Any offense for which the defendant should have been tried on the first prosecution under section 701-109 unless the court ordered a separate trial of the offense; or

(c) An offense based on the same conduct, unless:

(i) The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or

(ii) The second offense was not consummated when the former trial began.

(2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed, or vacated and which acquittal, final order, or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.

(3) The former prosecution was improperly terminated, as improper termination is defined in section 701-110(4), and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated. [L 1972, c 9, pt of §1]

Revision Note

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

COMMENTARY ON §701-111

This section parallels §701-110, but has to do with different offenses rather than the same offense. It would thus, for example, be the appropriate section to use in the case of a new prosecution for an offense already prosecuted for under the law existing prior to the effective date of this Code. In short, it forbids reprosecuting when the defendant has previously been prosecuted for an offense arising out of the same factual situation in certain specified cases. The section must be read in conjunction with §701-109(2) which requires joinder of trials of "multiple offenses based on the same conduct or arising from the same episode." Both §701-109(2) and §701-111 effectuate the policy of preserving the defendant from numerous and vexatious prosecutions.

Subsection (1) applies where the former prosecution resulted in a conviction or an acquittal and the subsequent prosecution is either (a) for any offense of which the defendant could have been convicted in the first prosecution (e.g., an included offense), (b) for any offense for which the defendant should have been tried at the earlier trial under §701-110, or (c) for an offense based on the same conduct, unless proof of a fact not required by the former prosecution is required and the law defining each offense is intended to prevent a substantially different harm or evil, or unless the second offense was not consummated when the former trial began.

Subsection (2) is an important provision, giving a sort of collateral estoppel effect to a former prosecution resulting in acquittal or final order or judgment for the defendant which required a determination inconsistent with a fact which must be established for conviction of the second offense. As an example of how this would work, we may take the case of an injury caused by allegedly reckless driving by D. Suppose, for example, that D is first charged with a traffic offense which by definition is limited to reckless driving, and the case results in an explicit determination that, under all the circumstances, D was not reckless. If D is later charged with manslaughter, which requires proof of recklessness,[1] D would be entitled to an acquittal. D would not, however, be able to avoid a trial for negligent homicide, which requires proof of a lesser degree of culpability.

Subsection (3) deals with the case of improper termination of a prosecution. The defendant may not later be tried for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated. Once the trial has begun, only exceptional circumstances should permit the State to discontinue it. Otherwise the defendant may be prejudiced by having the defendant's trial tactics exposed and the defendant's witnesses subjected to unfair pressures.
Haw. Rev. Stat. § 706-646 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-646
Victim restitution.
Status: in_force

(1) As used in this section, "victim" includes any of the following:

(a) The direct victim of a crime including a business entity, trust, or governmental entity;

(b) If the victim dies as a result of the crime, a surviving relative of the victim as defined in chapter 351;

(c) A governmental entity that has reimbursed the victim for losses arising as a result of the crime or paid for medical care provided to the victim as a result of the crime; or

(d) Any duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals, contracted with the county or State to enforce animal-related statutes or ordinances, that impounds, holds, or receives custody of a pet animal pursuant to section 711-1109.1, 711-1109.2, or 711‑1110.5; provided that this section does not apply to costs that have already been contracted and provided for by the counties or State.

(2) The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant's offense when requested by the victim. The court shall order restitution to be paid to the crime victim compensation commission if the victim has been given an award for compensation under chapter 351. If the court orders payment of a fine in addition to restitution or a compensation fee, or both, the payment of restitution and compensation fee shall be made pursuant to section 706-651.

(3) 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. The court shall specify the time and manner in which restitution is to be paid. While the defendant is in the custody of the department of corrections and rehabilitation , restitution shall be collected pursuant to chapter 353 and any court-ordered payment schedule shall be suspended. Restitution shall be a dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to:

(a) Full value of stolen or damaged property, as determined by replacement costs of like property, or the actual or estimated cost of repair, if repair is possible;

(b) Medical expenses, which shall include mental health treatment, counseling, and therapy;

(c) Funeral and burial expenses; and

(d) Lost earnings, which shall include paid leave.

(4) In any criminal proceeding before any court, all money deposited by the defendant as bail and not declared forfeited shall be applied toward payment of any restitution, fines, or fees ordered by the court in the same case, consistent with the priorities in subsection (2).

(5) The restitution ordered shall not affect the right of a victim to recover under section 351-33 or in any manner provided by law; provided that any amount of restitution actually recovered by the victim under this section shall be deducted from any award under section 351-33. [L 1998, c 269, pt of §1; am L 1999, c 18, §17; am L 2006, c 230, §22; am L 2012, c 211, §5; am L 2013, c 207, §1; am L 2016, c 231, §25; am L 2017, c 77, §4; am L 2019, c 108, §2; am L 2022, c 278, §29]

COMMENTARY ON §706-646

Act 269, Session Laws 1998, added this section and §706-647 to allow victims of crime to enforce a criminal restitution order in the same manner as a civil judgment. This section also includes within the definition of "victim" a governmental entity which has reimbursed the victim for losses arising as a result of the crime, and allows the court to order restitution to be paid to the criminal injuries compensation commission if the victim has been given an award for compensation by the commission. 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, Senate Standing Committee Report No. 3008.

Act 230, Session Laws 2006, amended this section to, among other things, require that when restitution is ordered, the amount ordered 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 211, Session Laws 2012, amended this section by making a conforming amendment to include medical assistance provided by the State as an expense for which restitution may be ordered to conform with amendments made to other sections in the Hawaii Revised Statutes by Act 211. The legislature found that the medicaid program's ability to recover moneys from third parties to which it was entitled must be strengthened to maintain the viability of the medicaid program. Act 211 would assist the medicaid program in recovering those moneys, thereby reducing the burden on the program imposed by third parties and helping to ensure that the program is sustainable. Senate Standing Committee Report No. 3314.

Act 207, Session Laws 2013, amended subsection (1) by expanding the definition of "victim" to: (1) include duly incorporated humane societies or duly incorporated societies for the prevention of cruelty to animals, contracted with the county or State, in order to provide those societies with restitution for reasonable and verified losses suffered; and (2) provide that duly incorporated humane societies or duly incorporated societies for the prevention of cruelty to animals, contracted with the county or State, should not receive restitution as a victim for costs that have already been contracted and provided for by the counties or State. The legislature found that in a recent decision, the circuit court of the first circuit denied restitution to the Hawaiian Humane Society for their expenses incurred in caring for one hundred fifty-three dogs previously subjected to animal cruelty in the second degree. The court held that the Hawaiian Humane Society was not a government agency or a "direct victim" of the crime committed. Although the Hawaiian Humane Society assumed care of the dogs and became the legal owner of all of the dogs upon forfeiture proceedings, the court held that it was not the "actual owner" and was not entitled to restitution under this section. Act 207 provided clear language to allow any duly incorporated humane society contracted with a county or State to receive restitution for expenses incurred when caring for an animal as a result of animal forfeiture or impoundment. Senate Standing Committee Report No. 1294, Conference Committee Report No. 19.

Act 231, Session Laws 2016, amended subsections (2) and (3) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 77, Session Laws 2017, amended this section by requiring that any bail posted by a defendant be applied toward payment of any court-ordered restitution, fines, or fees in the same case. The legislature recognized concerns raised by the [city and county of Honolulu] department of the prosecuting attorney concerning the ineffectiveness of §10 of Act 139, Session Laws 2012 [amending §353-22.6 "Victim restitution"], in facilitating the payment of restitution to crime victims since a vast majority of offenders owing restitution are not in prison. The legislature found that Act 77 established additional mechanisms to increase offender accountability and secure restitution payments to crime victims. Senate Standing Committee Report No. 956, Senate Standing Committee Report No. 1523, Conference Committee Report No. 33.

Act 108, Session Laws 2019, amended this section to clarify that restitution payments to crime victims may include reimbursements for mental health treatment, counseling, therapy, and lost earnings, including paid leave. The legislature found that an ambiguity existed as to what losses are eligible for reimbursement to crime victims. The legislature further found that losses suffered by crime victims can include the cost of damaged or stolen property and hospitalization, as well as lost earnings and the cost of mental health treatment. Act 108 made a broader range of losses eligible for reimbursement in order for crime victims to be made as whole as possible. Conference Committee Report No. 36.

Act 278, Session Laws 2022, amended this section to replace references to "department of public safety" with "department of corrections and rehabilitation" to reflect the provisions in Act 278 that: (1) reestablished the department of public safety as an independent department of corrections and rehabilitation to administer the corrections, rehabilitation, and reentry of the inmate population; and (2) established a department of law enforcement to consolidate and administer certain criminal law enforcement and investigative functions of the department of public safety, department of transportation, department of the attorney general, and office of homeland security. The legislature found that the goals and functions of corrections and law enforcement are distinct, and separating the functions of the department of public safety into two departments would advance these distinct goals and objectives while allowing the corrections arm to more fully integrate strategies for rehabilitation. The legislature further found that reorganizing certain state law enforcement functions into a single entity with consistent training opportunities would allow for the efficient use of resources in administering correctional programs and improve decision making, promote accountability, streamline communication, decrease costs, reduce duplication of efforts, provide uniform training and standards, and promote uniform standards of law enforcement services. House Standing Committee Report No. 200-22, Senate Standing Committee Report No. 3292.
Haw. Rev. Stat. § 708-812.55 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-812.55
Unauthorized entry in a dwelling in the first degree.
Status: in_force

(1) A person commits the offense of unauthorized entry in a dwelling in the first degree if the person intentionally or knowingly enters unlawfully into a dwelling and another person was, at the time of the entry, lawfully present in the dwelling who:

(a) Was sixty years of age or older and the age of the person lawfully present in the dwelling was known or reasonably should have been known to the person who unlawfully entered;

(b) Was an incapacitated person; or

(c) Had a developmental disability.

(2) For the purposes of this section:

"Developmental disability" shall have the same meaning as in section 333E-2.

"Incapacitated person" shall have the same meaning as in section 560:5-102.

(3) Unauthorized entry in a dwelling in the first degree is a class B felony.

(4) It shall be an affirmative defense that reduces this offense to a misdemeanor that, at the time of the unlawful entry:

(a) There was a social gathering of invited guests at the dwelling the defendant entered;

(b) The defendant intended to join the social gathering as an invited guest; and

(c) The defendant had no intent to commit any unlawful act other than the entry. [L 2011, c 187, §2; am L 2021, c 147, §3]

COMMENTARY ON §708-812.55

Act 187, Session Laws 2011, established the offense of unauthorized entry in a dwelling in the first degree, a class B felony, for the unauthorized entry in a dwelling if another person, at the time of entry, was lawfully present in the dwelling and the person was sixty-two years of age or older, was an incapacitated person, or had a developmental disability. The legislature found that home invasions are traumatic experiences for the victims and may be especially frightening for vulnerable elderly and disabled individuals present during the intrusion. The legislature intended that the presence of a person lawfully in the dwelling shall be a strict liability element and that it shall not be necessary to prove that a defendant knew or had any reason to know that the person lawfully in the dwelling was sixty-two years of age or older, incapacitated, or disabled. Conference Committee Report No. 32.

Act 147, Session Laws 2021, amended this section to: (1) lower the age at which the offense of unauthorized entry in a dwelling in the first degree applies to crimes against seniors, from sixty-two years of age to sixty years of age; and (2) require that the perpetrator knew or reasonably should have known the senior victim's age. The legislature found that the rate of crimes targeting seniors in the State had increased in recent years. The legislature further found that senior citizens are especially vulnerable to long-term physical, emotional, and financial harm from criminal acts and that there was a lack of adequate protection against exploitation of senior citizens under existing law. Act 147 more closely aligned certain Penal Code statutes with common elder abuse scenarios to facilitate appropriate responses by law enforcement and prosecutors. Senate Standing Committee Report No. 1212.
Haw. Rev. Stat. § 702-215 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-215
Intentional or knowing causation; different result from that intended or contemplated.
Status: in_force

In the following instances intentionally or knowingly 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 defendant's intention or contemplation:

(1) The actual result differs from that intended or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm intended or contemplated 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 intended or contemplated 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 1975, c 163, §1; gen ch 1993]

COMMENTARY ON §702-215

As indicated in the commentary to §702-214 this section departs from the common-law concept of "proximate cause" (at best a poor label for a host of largely unarticulated considerations) and analyzes the question of whether a defendant will be held liable for having caused a particular result not in terms of factual or "scientific" causation (which has to be resolved according to the test set forth in §702-214) but in terms of those factors which properly bear on the defendant's culpability with respect to a result other than one which the defendant intended or contemplated. The factors to be considered are, as stated, whether the actual result is more serious or extensive than the intended or contemplated result and whether the actual result is too remote or accidental in its occurrence or too dependent on another's volitional conduct to have a bearing on defendant's liability (or the gravity of the defendant's offense).

The Code follows the Model Penal Code[1] as supplemented by the suggestion of Hart and Honore that provisions regarding liability for unintended or uncontemplated results must be separately stated for those instances when the difference in result is due to natural events and those instances when it is due to the volitional conduct of another.[2] Although the commentary to the Model Penal Code would suggest that volitional conduct of another is adequately covered as a factor which might make the actual result "too remote or accidental," greater clarity is achieved by the language of this Code.

SUPPLEMENTAL COMMENTARY ON §702-215

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.

__________

§702-215 Commentary:

1. M.P.C. §2.03(2).

2. Hart & Honore, Causation in the Law 357 (1959).
Haw. Rev. Stat. § 712A-9 — HI Code / Division 5 / Title 37 / Chapter 712A / Section 712A-9
Commencement of proceedings.
Status: in_force

(1) The prosecuting attorney shall determine whether it is probable that the property is subject to forfeiture and, if so, shall initiate administrative or judicial proceedings against the property within forty-five days of receipt of a written request for forfeiture from a seizing agency. If, on inquiry and examination, the prosecuting attorney determines, with sole discretion, that the proceedings probably cannot be sustained or that justice does not require the institution of proceedings, the prosecuting attorney shall notify the seizing agency, and as soon as practicable authorize the release of the seizure for forfeiture on the property or on any specified interest in it. A determination by the prosecuting attorney to forego initiation of proceedings shall not be a bar to initiation of proceedings against the same property based on the same circumstances at a later time.

(2) If the property sought to be forfeited is real property, including fixtures, the prosecuting attorney shall file a lis pendens with respect to the property but shall not be required to pay a filing fee. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1991, c 166, §4; am L 1993, c 196, §1; am L 1996, c 104, §6]
Haw. Rev. Stat. § 707-721 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-721
Unlawful imprisonment in the first degree.
Status: in_force

(1) A person commits the offense of unlawful imprisonment in the first degree if the person knowingly restrains another person under circumstances which expose the person to the risk of serious bodily injury.

(2) Unlawful imprisonment in the first degree is a class C felony. [L 1972, c 9, pt of §1; ree L 1986, c 314, §54; gen ch 1993; am L 2008, c 147, §3]
Haw. Rev. Stat. § 712-1209 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1209
Commercial sexual exploitation near schools or public parks.
Status: in_force

(1) A person commits the offense of commercial sexual exploitation near schools or public parks if, within seven hundred fifty feet of a school or public park, the person provides, agrees to provide, or offers to provide a fee or anything of value to another person to engage in sexual conduct.

(2) Commercial sexual exploitation near schools or public parks is a misdemeanor.

(3) For purposes of this section:

"School" has the same meaning as in section 712-1249.6(6).

"Sexual conduct" has the same meaning as in section 712‑1200(2). [L 2011, c 74, §1; am L 2021, c 68, §8]

COMMENTARY ON §712-1209

Act 74, Session Laws 2011, added this section, establishing a misdemeanor offense for solicitation of prostitution near schools or public parks if, within seven hundred fifty feet of a school or a public park, a person offers or agrees to pay a fee to another person to engage in sexual conduct. Act 74 was a means of ensuring that the public was not subjected to viewing acts of prostitution near schools and public parks, where children are often present. Senate Standing Committee Report No. 1104, Conference Committee Report No. 68.

Act 68, Session Laws 2021, amended this section to: (1) rename the offense to reference commercial sexual exploitation; and (2) provide that the compensation for engaging in sexual conduct includes anything of value. The legislature found that sex trafficking is an ever-evolving criminal enterprise in which traffickers and exploiters find various means to sexually exploit the most vulnerable in the community. The legislature further found that protecting victims from sexual exploitation and holding offenders accountable is difficult given the disparity in power between the victims and perpetrators, and that amending Hawaii's sex trafficking laws to better reflect the current reality and challenges would improve outcomes for trafficking victims and survivors. Senate Standing Committee Report No. 1654, Conference Committee Report No. 45.
Haw. Rev. Stat. § 711-1109.2 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1109.2
Forfeiture of animal prior to filing of or final disposition of criminal charges.
Status: in_force

(1) If any pet animal or equine animal is impounded pursuant to section 711-1109.1, prior to filing of, or final disposition of a criminal charge under section 711-1108.5, 711-1109, 711-1109.3, or 711-1109.35, as applicable, against the pet animal's or equine animal's owner, any duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals that is holding the pet animal or equine animal may file a petition in the court that would have jurisdiction over the criminal case when the criminal charge is filed, if the petition is filed prior to the filing of the criminal charge, or in the criminal action requesting that the court issue an order for forfeiture of the pet animal or equine animal to the county or to the duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals prior to the filing of the criminal charge that arises from the impoundment or final disposition of the criminal charge. The petitioner shall serve a true copy of the petition upon the owner or custodian of the impounded pet animal or equine animal, when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, and the prosecuting attorney.

(2) Upon receipt of a petition pursuant to subsection (1), the court shall set a hearing on the petition. The hearing shall be conducted within fourteen days after the filing of the petition, or as soon as practicable.

(3) At a hearing conducted pursuant to subsection (2), the petitioner shall have the burden of establishing probable cause that the pet animal or equine animal was subjected to a violation of section 711-1108.5, 711-1109, 711-1109.3, or 711‑1109.35, as applicable. If the court finds that probable cause exists, the court shall order immediate forfeiture of the pet animal or equine animal to the petitioner, unless the owner or custodian of the impounded pet animal or equine animal, when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, within seventy-two hours of the hearing:

(a) Posts a security deposit or bond with the court clerk in an amount determined by the court to be sufficient to repay all reasonable costs incurred, and anticipated to be incurred, by the petitioner in caring for the pet animal or equine animal from the date of initial impoundment to the date of trial; or

(b) Demonstrates to the court that proper alternative care has been arranged for the pet animal or equine animal.

Notwithstanding subsection (3)(a), a court may waive, for good cause shown, the requirement that the owner or custodian of the impounded pet animal or equine animal, when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, post a security deposit or bond.

(4) If a security deposit or bond has been posted in accordance with subsection (3)(a), the petitioner may draw from the security deposit or bond the actual reasonable costs incurred by the petitioner in caring for the pet animal or equine animal until the date of final disposition of the criminal action. If the trial is continued to a later date, any order of continuance shall require the owner or custodian of the impounded pet animal or equine animal, when a petition is filed prior to the filing of the criminal charge, or the defendant, in the criminal action, to post an additional security deposit or bond in an amount determined by the court that shall be sufficient to repay all additional reasonable costs anticipated to be incurred by the petitioner in caring for the pet animal or equine animal until the date of final disposition of the criminal action, and the petitioner may draw from the additional security deposit or bond as necessary.

(5) No pet animal or equine animal may be destroyed by a petitioner under this section prior to final disposition of a criminal charge under section 711-1108.5, 711-1109, 711-1109.3, or 711-1109.35, as applicable, against the pet animal's or equine animal's owner, except in the event that the pet animal or equine animal is a danger to itself or others, or so severely injured that there is no reasonable probability that its life can be saved.

(6) Forfeiture of a pet animal or equine animal under this section shall not be subject to the provisions of chapter 712A.

(7) In addition to any reasonable costs incurred under subsection (4) by the petitioner in the caring for the pet animal or equine animal, the court may award reasonable attorney's fees and court costs to the petitioner following the conviction of the defendant.

(8) As used in this section, "pet animal or equine animal" includes any offspring from the pet animal or equine animal that was pregnant at the time of the rescue and born during the impoundment of the pet animal or equine animal.

(9) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this chapter. [L 2006, c 239, pt of §1; am L 2007, c 114, §6; am L 2008, c 128, §§3, 7; am L 2009, c 11, §15 as superseded by c 160, §3; am L 2011, c 149, §§3, 6; am L 2012, c 25, §2; am L 2017, c 78, §2]
Haw. Rev. Stat. § 712-1258 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1258
Tobacco products and electronic smoking devices; persons under twenty-one years of age.
Status: in_force

(1) It shall be unlawful to sell or furnish a tobacco product in any shape or form or an electronic smoking device to a person under twenty-one years of age.

(2) All persons engaged in the retail sale of tobacco products or electronic smoking devices shall check the identification of tobacco product or electronic smoking device purchasers to establish the age of the purchaser if the purchaser reasonably appears to be under twenty-seven years of age.

(3) It shall be an affirmative defense that the seller of a tobacco product or an electronic smoking device to a person under twenty-one years of age in violation of this section had requested, examined, and reasonably relied upon a photographic identification from the person establishing that person's age as at least twenty-one years of age prior to selling the person a tobacco product or an electronic smoking device. The failure of a seller to request and examine photographic identification from a person under twenty-one years of age prior to the sale of a tobacco product or an electronic smoking device to the person shall be construed against the seller and form a conclusive basis for the seller's violation of this section.

(4) Signs using the statement, "The sale of tobacco products or electronic smoking devices to persons under twenty-one is prohibited", shall be posted on or near any vending machine in letters at least one-half inch high and at or near the point of sale of any other location where tobacco products or electronic smoking devices are sold in letters at least one-half inch high.

(5) It shall be unlawful for a person under twenty-one years of age to purchase or possess any tobacco product or electronic smoking device, as those terms are defined in subsection (7). This provision does not apply if a person under the age of twenty-one, with parental authorization, is participating in a controlled purchase as part of a law enforcement activity or a study authorized by the department of health under the supervision of law enforcement to determine the level of incidence of tobacco or electronic smoking devices sales to persons under twenty-one years of age.

(6) Any person who violates subsection (1) or (4), or both, shall be fined $500 for the first offense. Any subsequent offenses shall subject the person to a fine not less than $500 nor more than $2,000. Any person under twenty-one years of age who violates subsection (5) shall be fined $10 for the first offense. Any subsequent offense shall subject the violator to a fine of $50, no part of which shall be suspended, or the person shall be required to perform not less than forty-eight hours nor more than seventy-two hours of community service during hours when the person is not employed and is not attending school. Any tobacco product or electronic smoking device, as those terms are defined in subsection (7), in the person's possession at the time of violation of subsection (5) shall be seized, summarily forfeited to the State, and destroyed by law enforcement following the conclusion of an administrative or judicial proceeding finding that a violation of subsection (5) has been committed. The procedures set forth in chapter 712A shall not apply to this subsection.

(7) For the purposes of this section:

"Electronic smoking device" means any electronic product that can be used to aerosolize and deliver nicotine or other substances to the person inhaling from the device, including but not limited to an electronic cigarette, electronic cigar, electronic cigarillo, or electronic pipe, and any cartridge or other component of the device or related product.

"Tobacco product" means any product made or derived from tobacco that contains nicotine or other substances and is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by other means. "Tobacco product" includes but is not limited to a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. "Tobacco product" does not include drugs, devices, or combination products approved for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. [L 2016, c 231, §50; am L 2018, c 206, §8]

COMMENTARY ON §712-1258

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

Act 206, Session Laws 2018, amended this section to: (1) require retailers of tobacco products or electronic smoking devices to check the identification of tobacco or electronic smoking device purchasers who reasonably appear to be under twenty-seven years of age; (2) prohibit a person under the age of twenty-one from possessing any tobacco product or electronic smoking device; and (3) establish procedures for the forfeiture and destruction of tobacco products and electronic smoking devices that are illegally purchased or possessed by a person under the age of twenty-one. The legislature found that the use of electronic smoking devices, also known as e-cigarettes, is proliferating and that the electronic smoking device industry is rapidly expanding. According to a 2016 report by the United States Surgeon General, e-cigarette use among the nation's youth and young adults has become a major public health concern. For these reasons, the legislature found it necessary, as a matter of statewide concern, to regulate the sale of cigarettes, tobacco products, and electronic smoking devices in a uniform and exclusive manner. Conference Committee Report No. 170-18.
Haw. Rev. Stat. § 710-1027 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1027
Resisting an order to stop a motor vehicle in the second degree.
Status: in_force

(1) A person commits the offense of resisting an order to stop a motor vehicle in the second degree if the person intentionally fails to obey a direction of a law enforcement officer, acting under color of the law enforcement officer's official authority, to stop the person's vehicle.

(2) Resisting an order to stop a motor vehicle in the second degree is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4; am L 2016, c 231, §48]

COMMENTARY ON §710-1027

This section is designed to deal with the special problems incident to motor vehicle direction and apprehension of suspects in motor vehicles. Note that whereas it is not made an offense to evade arrest by running away, if the attempt to escape involves a motor vehicle, this section comes into operation. One reason for this special treatment is the inherent danger involved in escape and pursuit by motor vehicle. Another reason, incident to traffic direction and control, is the desirability of giving a peace officer criminal sanctions to back up the peace officer's reasonable traffic directions.

The section specifies that the actor act intentionally. For conviction the actor must have recognized the person giving the order to be a peace officer. For the same reasons discussed in the commentary to §710-1026, it is no defense that the order given was unlawful.
Haw. Rev. Stat. § 704-413 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-413
Conditional release; application for modification or discharge; termination of conditional release and commitment.
Status: in_force

(1) Any person granted conditional release pursuant to this chapter shall continue to receive mental health or other treatment and care deemed appropriate by the director of health until discharged from conditional release. The person shall follow all prescribed treatments and take all prescribed medications according to the instructions of the person's treating mental health professional. If a mental health professional who is treating a person granted conditional release believes that either the person is not complying with the requirements of this section or there is other evidence that hospitalization is appropriate, the mental health professional shall report the matter to the probation officer of the person granted conditional release. The probation officer may order the person granted conditional release to be hospitalized for a period not to exceed seventy-two hours if the probation officer has probable cause to believe the person has violated the requirements of this subsection. No person shall be hospitalized beyond the seventy-two-hour period, as computed pursuant to section 1-29, unless a hearing has been held pursuant to subsection (4); provided that on or before the expiration of the seventy-two-hour period, a court may conduct a hearing to determine whether the person would benefit from further hospitalization, which may render a revocation of conditional release unnecessary. If satisfied, the court may order further temporary hospitalization for a period not to exceed ninety days, subject to extension as appropriate, but in no event for a period longer than one year. At any time within that period, the court may determine that a hearing pursuant to subsection (4) should be conducted.

(2) The director of health may apply to the court ordering any person released pursuant to this chapter, for the person's discharge from, or modification of, the order granting conditional release; provided that the person receives community-based mental health services from or contracted by the department of health, and the director is of the opinion that the person on conditional release is no longer affected by a physical or mental disease, disorder, or defect and may be discharged, or the order may be modified, without danger to the person or to others. The director shall make an application for the discharge from, or modification of, the order of conditional release in a report to the circuit from which the order was issued. The director shall transmit a copy of the application and report to the prosecuting attorney of the county from which the conditional release order was issued, to the person's treating mental health professionals, and to the probation officer supervising the conditional release. The person on conditional release shall be given notice of the application.

(3) Any person granted conditional release pursuant to this chapter may apply to the court ordering the conditional release for discharge from, or modification of, the order granting conditional release on the ground that the person is no longer affected by a physical or mental disease, disorder, or defect and may be discharged, or the order may be modified, without danger to the person or to others. The application shall be accompanied by a letter from or supporting affidavit of a qualified physician or licensed psychologist. A copy of the application and letter or affidavit shall be transmitted to the prosecuting attorney of the circuit from which the order issued and to any persons supervising the release, and the hearing on the application shall be held following notice to such persons. If the court denies the application, the person shall not be permitted to file another application for either discharge or modification of conditional release until one year after the date of the denial.

(4) If, at any time after the order pursuant to this chapter granting conditional release, the court determines, after hearing evidence, that:

(a) The person is still affected by a physical or mental disease, disorder, or defect, and the conditions of release have not been fulfilled; or

(b) For the safety of the person or others, the person's conditional release should be revoked,

the court may forthwith modify the conditions of release or order the person to be committed to the custody of the director of health, subject to discharge or release in accordance with the procedure prescribed in section 704-412; provided that, if satisfied that the person would benefit from temporary hospitalization that may render a revocation of conditional release unnecessary, the court, in lieu of revocation, may order hospitalization for a period not to exceed ninety days, subject to extension as appropriate, but in no event for a period exceeding a total of one year, and may reinstate or revoke conditional release at any time during the temporary hospitalization.

(5) Upon application for discharge from, or modification of, the order of conditional release by either the director of health or the person, the court shall complete the hearing process and render a decision within sixty days of the application, provided that for good cause the court may extend the sixty day time frame upon the request of the director of health or the person. [L 1972, c 9, pt of §1; am L 1983, c 189, §1; am L 1988, c 305, §8; am L 1997, c 306, §4; am L 2006, c 230, §12; am L 2008, c 100, §5; am L 2016, c 231, §10]

COMMENTARY ON §704-413

What has been said in the commentary to §704-412 applies with equal force to applications, by a person released on condition, for discharge or for modification of conditions of release. The criterion of dangerousness is still applicable.

Subsection (2) limits the time during which a person released on condition remains subject to recommitment.

SUPPLEMENTAL COMMENTARY ON §704-413

Act 189, Session Laws 1983, added a new subsection (1) which requires continued psychological or psychiatric treatment of persons conditionally released after being committed pursuant to §704-411. Assurance of continued treatment was felt necessary for the safety and welfare of both the community and the person conditionally released. This section was further amended to provide for the recommittal of persons conditionally released or the modification of the conditions of their release. Senate Conference Committee Report No. 26.

Act 305, Session Laws 1988, included licensed psychologists among the professionals which may provide offender examination services to the Hawaii criminal justice system. The legislature stated that the present laws, which permit only psychiatric evaluation, are inconsistent with the many and varied uses the court has found for the services of licensed psychologists. Senate Standing Committee Report No. 2153.

Act 306, Session Laws 1997, amended this section to require that any person released on condition pursuant to §704-411 shall receive mental health or other appropriate treatment and care until discharged from conditional release. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Senate Standing Committee Report No. 98.

Act 230, Session Laws 2006, amended this section, among others, to ensure that the person's physical or mental disease, disorder, or defect is considered in commitment and release provisions. House Standing Committee Report No. 665-06.

Act 100, Session Laws 2008, amended this section by, among other things, providing an alternative of further temporary hospitalization through a court hearing rather than proceeding immediately to a revocation of a person's conditional release when the person is in violation of the conditions of the conditional release. House Standing Committee Report No. 1133-08.

Act 231, Session Laws 2016, amended subsection (4) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Haw. Rev. Stat. § 706-667 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-667
Young adult defendants.
Status: in_force

(1) Defined. A young adult defendant is a person convicted of a crime who, at the time of the offense, is less than twenty-two years of age and who has not been previously convicted of a felony as an adult or adjudicated as a juvenile for an offense that would have constituted a felony had the young adult defendant been an adult.

(2) Specialized correctional treatment. A young adult defendant who is sentenced to a term of imprisonment exceeding thirty days may be committed by the court to the custody of the department of corrections and rehabilitation and shall receive, as far as practicable, such special and individualized correctional and rehabilitative treatment as may be appropriate to the young adult defendant's needs.

(3) Special term. A young adult defendant convicted of a felony, in lieu of any other sentence of imprisonment authorized by this chapter, may be sentenced to a special indeterminate term of imprisonment if the court is of the opinion that such special term is adequate for the young adult defendant's correction and rehabilitation and will not jeopardize the protection of the public. When ordering a special indeterminate term of imprisonment, the court shall impose the maximum length of imprisonment, which shall be eight years for a class A felony, five years for a class B felony, and four years for a class C felony. The minimum length of imprisonment shall be set by the Hawaii paroling authority in accordance with section 706-669. During this special indeterminate term, the young adult shall be incarcerated separately from career criminals, when practicable.

[(4)] This section shall not apply to the offenses of murder or attempted murder. [L 1972, c 9, pt of §1; am L 1976, c 92, §8; am L 1980, c 295, §§2, 3; am L 1986, c 314, §44; am L 1987, c 338, §10; am L 1989, c 211, §8; gen ch 1993; am L 1997, c 318, §4; am L 2006, c 230, §25; am L 2022, c 278, §29]
Haw. Rev. Stat. § 711-1121 — HI Code / Division 5 / Title 37 / Chapter 711 / Section 711-1121
[ §711-1121] Misuse of uncrewed aircraft in the first degree.
Status: in_force

[ §711-1121] Misuse of uncrewed aircraft in the first degree. (1) A person commits the offense of misuse of uncrewed aircraft in the first degree if the person intentionally or knowingly:

(a) Equips or arms an uncrewed aircraft with a firearm, explosive, electric gun, or weapon of mass destruction;

(b) Possesses, receives, transfers, operates, or produces an uncrewed aircraft that is equipped or armed with a firearm, explosive, electric gun, or weapon of mass destruction;

(c) Discharges or deploys a firearm, explosive, electric gun, or weapon of mass destruction using an uncrewed aircraft;

(d) Operates an uncrewed aircraft and thereby intentionally, knowingly, or recklessly interferes with or disrupts the operation of any manned aircraft;

(e) Uses an uncrewed aircraft to transport and introduce, or to attempt to transport and introduce, contraband, drugs, or dangerous instruments into a prison; or

(f) Operates an uncrewed aircraft and thereby causes serious bodily injury to another person.

(2) Misuse of uncrewed aircraft in the first degree is a class A felony.

(3) Subsection (1)(a), (b), (c), (d), and (g) shall not apply to any police officer, deputy sheriff, adult corrections officer, correctional worker, or fire department personnel acting within the course and scope of their duties, or to any other person acting under the authority of, or pursuant to a contract with, the United States or a state or county government, or any department or agency of the United States or a state or county government.

(4) For purposes of this subsection:

"Contraband" has the same meaning as in section 710-1023.

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

"Drug" has the same meaning as in section 710-1022.

"Electric gun" has the same meaning as in section 134-81.

"Explosive" means a device composed of a single ingredient, or mixture of ingredients, capable of instantaneously releasing a sufficient amount of energy to inflict substantial damage to persons or property, and includes fireworks as defined in section 132D-2.

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

"Prison" includes jails, prisons, correctional centers, correctional facilities, and detention centers.

"Serious bodily injury" has the same meaning as in section 707-700.

"Weapon of mass destruction" means any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or other precursors, and includes any weapon involving a biological agent, toxin, or vector and any weapon designed to release radiation or radioactivity at a level dangerous to human life. [L 2024, c 161, pt of §1]
Haw. Rev. Stat. § 702-228 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-228
Liability of persons acting, or under a duty to act, in behalf of corporations or unincorporated associations.
Status: in_force

(1) A person is legally accountable for any conduct the person performs or causes to be performed in the name of a corporation or an unincorporated association or in its behalf to the same extent as if it were performed in the person's own name or behalf.

(2) Whenever a duty to act is imposed by law upon a corporation or an unincorporated association, any agent of the corporation or the unincorporated association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon the agent.

(3) When a person is convicted of an offense by reason of the person's legal accountability for the conduct of a corporation or of an unincorporated association, the person is subject to the sentence authorized by law when a natural person is convicted of an offense of the grade and class involved. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §702-228

Subsection (1) invokes the principle generally recognized in the law of agency that an agent does not escape personal liability merely because the agent's conduct is on behalf of a principal. The liability of a corporation or unincorporated association under §702-227 should have no bearing on the individual agent's personal liability. The defendant should not escape personal liability because the defendant's conduct was on behalf of the corporation or association which is held liable. Similarly, if the corporation or association is not held liable for the agent's conduct (because, for example, the agent is not of high managerial status and the offense is a felony which is not so defined as to indicate a legislative purpose to impose such criminal liability on corporations or associations) the agent should not, because of this, escape personal liability.

Subsection (2) permits the imposition of penal liability upon a corporate or associational agent who, having primary responsibility for the discharge of a duty imposed by law upon the corporation or association, fails to perform the required act. It is intended to avoid the ambiguity which might arise because, without this provision, it might be argued that the absence of a specific duty of performance upon the agent makes the agent's omission an insufficient basis for personal liability.

Subsection (3) is intended to avoid the problem of equating the sentence available for a corporate or associational defendant (fine, revocation of charter or license, etc.) with that which may be imposed on an individual defendant (imprisonment) accountable for the conduct of a corporation or unincorporated association.[1]
Haw. Rev. Stat. § 712-1215.5 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1215.5
Promoting minor-produced sexual images in the first degree.
Status: in_force

(1) A person, eighteen years of age or older, commits the offense of promoting minor-produced sexual images in the first degree if the person intentionally or knowingly commands, requests, or encourages a minor to use a computer, cell phone, or any other device capable of electronic data transmission or distribution, to transmit to any person a nude photograph or video of a minor.

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

(3) Promoting minor-produced sexual images in the first degree is a misdemeanor. [L 2012, c 213, pt of §1]
Haw. Rev. Stat. § 706-668.5 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-668.5
Multiple sentence of imprisonment.
Status: in_force

(1) If multiple terms of imprisonment are imposed on a defendant, whether at the same time or at different times, or if a term of imprisonment is imposed on a defendant who is already subject to an unexpired term of imprisonment, the terms may run concurrently or consecutively. Multiple terms of imprisonment run concurrently unless the court orders or the statute mandates that the terms run consecutively.

(2) The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider the factors set forth in section 706-606.

(3) For terms of imprisonment imposed prior to June 18, 2008, the department of corrections and rehabilitation shall post written notice in all inmate housing units and the facility library at each correctional facility for a period of two months and send written notice to the defendant no later than January 1, 2016, that shall include but not be limited to:

(a) Notice that the department of corrections and rehabilitation may recalculate the multiple terms of imprisonment imposed on the defendant; and

(b) Notice of the defendant's right to have the court review the defendant's sentence. [L 1986, c 314, §45; am L 2008, c 193, §1; am L 2015, c 194, §1; am L 2022, c 278, §29]

COMMENTARY ON §706-668.5

Act 193, Session Laws 2008, amended this section to promote consistency in sentencing law by requiring that multiple terms of imprisonment, whether imposed at the same time or at different times, run concurrently unless the court orders or the statute mandates that the terms run consecutively. Testimony indicated that there had been some misunderstanding and misinterpretation of the sentencing law involving multiple terms of imprisonment. Act 193 clarified the law. Conference Committee Report No. 81-08, House Standing Committee Report No. 688-08, Senate Standing Committee Report No. 3337.

Act 194, Session Laws 2015, amended this section to require the department of public safety to provide written notice to defendants who had terms of imprisonment imposed prior to June 18, 2008, to include notice: (1) that the department may recalculate the multiple terms of imprisonment imposed on the defendant; and (2) of the defendant's right to have the court review the defendant's sentence. The legislature found that prior to 2008, this section provided that multiple terms of imprisonment run consecutively unless the court specifically ordered that the terms run concurrently. Act 193, Session Laws 2008, amended this section to provide that multiple terms of imprisonment run concurrently unless the court specifically orders that the terms run consecutively. Act 194 attempted to bring parity to the treatment of defendants sentenced to multiple terms prior to the effective date of Act 193, which is June 18, 2008, and those sentenced to multiple terms after that date while providing defendants with adequate notice regarding the possibility of their multiple terms of imprisonment being recalculated by the department and their rights to have the court review their sentences. Conference Committee Report No. 158.

Act 278, Session Laws 2022, amended this section to replace references to "department of public safety" with "department of corrections and rehabilitation" to reflect the provisions in Act 278 that: (1) reestablished the department of public safety as an independent department of corrections and rehabilitation to administer the corrections, rehabilitation, and reentry of the inmate population; and (2) established a department of law enforcement to consolidate and administer certain criminal law enforcement and investigative functions of the department of public safety, department of transportation, department of the attorney general, and office of homeland security. The legislature found that the goals and functions of corrections and law enforcement are distinct, and separating the functions of the department of public safety into two departments would advance these distinct goals and objectives while allowing the corrections arm to more fully integrate strategies for rehabilitation. The legislature further found that reorganizing certain state law enforcement functions into a single entity with consistent training opportunities would allow for the efficient use of resources in administering correctional programs and improve decision making, promote accountability, streamline communication, decrease costs, reduce duplication of efforts, provide uniform training and standards, and promote uniform standards of law enforcement services. House Standing Committee Report No. 200-22, Senate Standing Committee Report No. 3292.
Haw. Rev. Stat. § 706-606 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-606
Factors to be considered in imposing a sentence.
Status: in_force

The court, in determining the particular sentence to be imposed, shall consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant;

(2) The need for the sentence imposed:

(a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense;

(b) To afford adequate deterrence to criminal conduct;

(c) To protect the public from further crimes of the defendant; and

(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) The kinds of sentences available; and

(4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. [L 1972, c 9, pt of §1; am L 1976, c 92, §8; am L 1981, c 27, §1; am L 1986, c 314, §15]
Haw. Rev. Stat. § 710-1072.2 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1072.2
Retaliating against a witness.
Status: in_force

(1) A person commits the offense of retaliating against a witness if the person uses force upon or threatens a witness or another person or damages the property of a witness or another person because of the attendance of the witness, or any testimony given, or any record, document, or other object produced, by the witness in an official proceeding.

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

(3) Retaliating against a witness is a class C felony. [L 1981, c 156, pt of §1; gen ch 1993]

COMMENTARY ON §710-1072.2

Act 156, Session Laws 1981, enacted this section to provide additional protection to witnesses. Although the prior law penalized force or threats used against a person about to be called as a witness, it had no provisions dealing specifically with the offense of force or threats directed against a person for having served as a witness.
Haw. Rev. Stat. § 710-1073 — HI Code / Division 5 / Title 37 / Chapter 710 / Section 710-1073
Bribery of or by a juror.
Status: in_force

(1) A person commits the offense of bribing a juror if the person confers, or offers or agrees to confer, directly or indirectly, any benefit upon a juror with intent to influence the juror's vote, opinion, decision, or other action as a juror.

(2) A person is guilty of the offense of bribe receiving by a juror if the person intentionally solicits, accepts, or agrees to accept, directly or indirectly, any benefit as consideration which will influence the person's vote, opinion, decision, or other action as a juror.

(3) The offenses defined in this section are class C felonies. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 708-814.7 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-814.7
Criminal trespass onto state lands.
Status: in_force

(1) Except for lands owned by the office of Hawaiian affairs, and except for improved state lands that are designated safe havens by state departments or agencies, or that are under executive order by the governor to be used as a safe haven and have a department of health component and adequate space, not to include state hospitals, a person commits the offense of criminal trespass onto state lands if:

(a) The person enters or remains unlawfully in or upon any improved state land when:

(i) The land is closed to public use and its closure hours are posted on a sign or signs on the improved state land, and after a request to leave is made by any law enforcement officer the person remains in or upon the land; or

(ii) The land is not open to the public and there are signs that are sufficient to give reasonable notice that read: "Government Property - No Trespassing"; provided that these signs shall contain letters no less than two inches in height and shall be placed at reasonable intervals no less than three signs to a mile along the boundary line of the land and at all roads and trails entering the land in a manner and position as to be clearly noticeable from outside the boundary; or

(b) The person enters or remains unlawfully in or upon any state land on or under any highway, and the state land has a sign or signs displayed upon the land that are sufficient to give reasonable notice that read: "Government Property - No Trespassing"; provided that the signs shall contain letters no less than two inches in height and shall be placed at reasonable intervals no less than three signs to a mile along the boundary line of the land and at all roads and trails entering the land in a manner and position as to be clearly noticeable from outside the boundary.

(2) Criminal trespass onto state lands is a petty misdemeanor.

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

"Highway" has the same meaning as in section 286-2.

"Improved state land" means any state land, including but not limited to harbors under the care and control of the department of transportation under chapter 266, and small boat harbors under the care and control of the department of land and natural resources under chapter 200, upon which there is improvement, including any structure, building, or facility; or alteration of the land by grading, dredging, or mining that would cause a permanent change in the land or that would change the basic natural condition of the land. Land is not "improved state land" if it only has minor improvements, including utility poles, signage, and irrigation facilities or systems; or minor alterations undertaken for the preservation or prudent management of the unimproved or unused land, including fences, trails, or pathways. Land is not "improved state land" solely due to the performance of state maintenance activities on the land, including forest plantings and the removal of weeds, brush, rocks, boulders, or trees; or removal or securing of rocks or boulders undertaken to reduce risk to downslope properties.

"State lands" means all land owned by the State through any of its departments or agencies.

(4) No conviction under this section shall be used to establish a felony conviction under section 708-803. [L 2017, c 136, §2]
Haw. Rev. Stat. § 701-108 — HI Code / Division 5 / Title 37 / Chapter 701 / Section 701-108
Time limitations.
Status: in_force

(1) A prosecution for murder, murder in the first and second degrees, attempted murder, attempted murder in the first and second degrees, criminal conspiracy to commit murder in any degree, criminal solicitation to commit murder in any degree, sexual assault in the first and second degrees, sex trafficking, and continuous sexual assault of a minor under the age of fourteen years may be commenced at any time.

(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a) A prosecution for manslaughter where the death was not caused by the operation of a motor vehicle must be commenced within ten years after it is committed;

(b) A prosecution for a class A felony must be commenced within six years after it is committed;

(c) A prosecution for any felony under part IX of chapter 708 must be commenced within five years after it is committed;

(d) A prosecution for any other felony must be commenced within three years after it is committed;

(e) A prosecution for a misdemeanor or parking violation must be commenced within two years after it is committed; and

(f) A prosecution for a petty misdemeanor or a violation other than a parking violation must be commenced within one year after it is committed.

(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:

(a) Any offense an element of which is fraud, deception as defined in section 708-800, or a breach of fiduciary obligation or the offense of medical assistance fraud under section 346-43.5, within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is oneself not a party to the offense, but in no case shall this provision extend the period of limitation by more than six years from the expiration of the period of limitation prescribed in subsection (2);

(b) Any offense based on misconduct in office by a public servant at any time when the defendant is in public office or employment or within two years thereafter, but in no case shall this provision extend the period of limitation by more than three years from the expiration of the period of limitation prescribed in subsection (2); and

(c) Any felony offense involving evidence containing deoxyribonucleic acid from the offender, if a test confirming the presence of deoxyribonucleic acid is performed prior to expiration of the period of limitation prescribed in subsection (2), but in no case shall this provision extend the period of limitation by more than ten years from the expiration of the period of limitation prescribed in subsection (2).

(4) An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed.

(5) A prosecution is commenced either when an indictment is found or a complaint filed, or when an arrest warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay.

(6) The period of limitation does not run:

(a) During any time when the accused is continuously absent from the State or has no reasonably ascertainable place of abode or work within the State, but in no case shall this provision extend the period of limitation by more than four years from the expiration of the period of limitation prescribed in subsection (2);

(b) During any time when a prosecution against the accused for the same conduct is pending in this State; or

(c) For any felony offense under chapter 707, part V or VI, during any time when the victim is alive and under eighteen years of age.

(7) As used in this section, "public servant" shall have the same meaning as in section 710-1000. [L 1972, c 9, pt of §1; am L 1974, c 93, §1; am L 1982, c 28, §2; am L 1983, c 63, §1; am L 1986, c 296, §1; am L 1987, c 181, §2; am L 1993, c 186, §1; gen ch 1993; am L 1995, c 171, §1; am L 1996, c 148, §1; am L 1997, c 149, §1; am L 2001, c 33, §2; am L 2005, c 112, §2; am L 2006, c 99, §1; am L 2014, c 113, §1; am L 2016, c 94, §2; am L 2021, c 68, §3; am L 2023, c 124, §2]
Haw. Rev. Stat. § 706-622.5 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-622.5
Sentencing for drug offenders; expungement.
Status: in_force

(1) Notwithstanding section 706-620(3), a person convicted for the first or second time for any offense under section 329-43.5, except offenses under subsections (a) and (b) of that section which constitute violations, involving the possession or use of drug paraphernalia or any felony offense under part IV of chapter 712 involving the possession or use of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712‑1240, but not including any offense under part IV of chapter 712 involving the distribution or manufacture of any such drugs or substances and not including any methamphetamine offenses under sections 712‑1240.7, 712‑1240.8 as that section was in effect before July 1, 2016, 712-1241, and 712-1242, is eligible to be sentenced to probation under subsection (2) if the person meets the following criteria:

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

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

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

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

(3) For the purposes of this section, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.

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

(5) Upon motion from a person convicted for the possession of marijuana under section 712-1249 arising from a set of facts and circumstances that resulted in no other criminal charge, the court shall grant an expungement order pertaining to the conviction for the offense; provided that the amount of marijuana for which the person was convicted of possessing was three grams or less.

(6) Nothing in this section shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider. [L 2002, c 161, §3; am L 2004, c 44, §11; am L 2006, c 230, §18; am L Sp 2009, c 4, §3; am L 2012, c 140, §2; am L 2016, c 231, §21; am L 2018, c 102, §1; am L 2019, c 273, §2]

COMMENTARY ON §706-622.5

Act 161, Session Laws 2002, added this section to require, among other things, that first-time nonviolent drug offenders be sentenced to undergo and complete drug treatment instead of incarceration. The legislature found that the link between substance abuse and crime is well-established. The legislature did not wish to diminish the seriousness of crime, but looked to approaching crime as being the result of addiction that is treatable. The treatment route was expected to produce a reduction in crime and recidivism. The legislature intended to promote treatment of nonviolent substance abuse offenders, rather than incarceration, as being in the best interests of the individual and the community at large. Conference Committee Report No. 96-02.

Act 230, Session Laws 2006, amended subsection (1) to exclude the offenses of methamphetamine trafficking in the first and second degrees from the offenses for which first-time drug offenders may be eligible to be sentenced to probation.

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

Act 140, Session Laws 2012, amended this section by: (1) allowing for the sentence of probation for certain second time drug offenses; and (2) clarifying that a person sentenced to probation as a first time drug offender who has not been previously sentenced to probation as a drug offender shall be eligible for expungement only once. The legislature found that the rates of crime, victimization, and arrests and felony convictions for violent and property crimes had declined, while the number of persons incarcerated or under probation supervision, in some cases, had increased. The legislature also found that existing law required the courts to impose a prison sentence for an offender who had a second felony conviction for drug possession. Act 140 amended the law to allow for second time drug offenders to be eligible for probation. Senate Standing Committee Report No. 3352, Conference Committee Report No. 130-12.

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

Act 102, Session Laws 2018, made a housekeeping amendment to this section to clarify that eligibility for probation does not apply to certain drug paraphernalia violations that had been decriminalized. This amendment was intended to make the law governing the probation of drug offenders consistent with Act 72, Session Laws 2017, which decriminalized certain offenses related to the use, possession, and delivery of drug paraphernalia. As a result of Act 72, statutory language governing probation eligibility for offenders convicted of those offenses was no longer relevant. Senate Standing Committee Report No. 3029, House Standing Committee Report No. 442-18.

Act 273, Session Laws 2019, amended this section to provide for the expungement of criminal records pertaining solely to the possession of three grams or less of marijuana. The legislature found that ten states and the District of Columbia had legalized the recreational use of marijuana by adults, and that others were in the process of considering legalization. The legislature further found that legalization in these states had avoided the criminalization of thousands of people, reduced opioid overdose deaths and untreated opioid use disorders, and lowered the number of arrests for driving under the influence of alcohol and other drugs. In addition, recent polling indicated broad public support in Hawaii for the legalization of marijuana. Senate Standing Committee Report No. 1429.
Haw. Rev. Stat. § 707-733.6 — HI Code / Division 5 / Title 37 / Chapter 707 / Section 707-733.6
Continuous sexual assault of a minor under the age of fourteen years.
Status: in_force

(1) A person commits the offense of continuous sexual assault of a minor under the age of fourteen years if the person:

(a) Either resides in the same home with a minor under the age of fourteen years or has recurring access to the minor; and

(b) Engages in three or more acts of sexual penetration or sexual contact with the minor over a period of time, while the minor is under the age of fourteen years.

(2) To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts have occurred; the jury need not agree on which acts constitute the requisite number.

(3) No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section, unless the other charged offense occurred outside the period of the offense charged under this section, or the other offense is charged in the alternative. A defendant may be charged with only one count under this section, unless more than one victim is involved, in which case a separate count may be charged for each victim.

(4) Continuous sexual assault of a minor under the age of fourteen years is a class A felony. [L 2006, c 60, §1]
Haw. Rev. Stat. § 708-841 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-841
Robbery in the second degree.
Status: in_force

(1) A person commits the offense of robbery in the second degree if, in the course of committing theft or non-consensual taking of a motor vehicle:

(a) The person uses force against the person of anyone present with the intent to overcome that person's physical resistance or physical power of resistance;

(b) The person threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property; or

(c) The person recklessly inflicts serious bodily injury upon another.

(2) Robbery in the second degree is a class B felony. [L 1972, c 9, pt of §1; am L 1983, c 68, §2; am L 1986, c 314, §69; gen ch 1993; am L 2006, c 230, §42]
Haw. Rev. Stat. § 702-210 — HI Code / Division 5 / Title 37 / Chapter 702 / Section 702-210
Requirement of wilfulness satisfied by acting knowingly.
Status: in_force

A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the elements of the offense, unless a purpose to impose further requirements appears.

COMMENTARY ON §702-210

Many regulatory penal offenses appear in statutes other than the Penal Code. These regulatory statutes often employ different words to designate the state of mind or culpability requirement needed to establish various regulatory offenses. In this respect the penal statutes dealing with regulatory offenses are much the same as those appearing in the previous Title on crimes.[1] While no attempt will be made to correlate the present culpability requirements of regulatory offenses with the four states of mind which the Code recognizes as sufficient to establish culpability with respect to the elements of an offense, an exception is made for the word "wilful" or "wilfully."

That term is used pervasively in penal statutes to describe the requisite culpability or state of mind. However, the phrase has been defined differently in similar contexts. For example, it has been held that the felony of wilfully failing to account for and to pay over tax monies requires "bad purpose and evil motive," whereas, the misdemeanor of wilfully failing to file an income tax return requires that the defendant acted "with bad purpose or without grounds for believing that one's act is lawful or without reasonable cause, or capriciously or with careless disregard whether one has the right to so act."[2] With respect to the same misdemeanor, it has been said that "[m]ere voluntary and purposeful, as distinguished from accidental, omission to make timely return might meet the test of wilfulness."[3]

In a Hawaii case, involving a disputed labor contract, the court, in discussing the penal remedies afforded to the employer by then existing law, said that a wilful absence was "one without sufficient legal excuse"[4]--a rather transparent definition at best.

To eliminate distinctions of this type, the Code equates acting wilfully with acting knowingly. This equation reaches a result in accord with most decisions. The Code recognizes, however, that in some situations the courts have construed "wilful" to impose an additional requirement of culpability. In such situations the "perception of such a ... [legislative] purpose [to impose additional culpability requirements] normally derives, of course, from judicial appraisal of the consequences of the enactment if its scope is not limited by construction."[5] To allow for situations of this kind, the final clause provides that the section is not applicable if a purpose to impose further culpability requirements appears.

__________

§702-210 Commentary:

1. Cf. Commentary on §702-204.

2. Abdul v. United States, 254 F.2d 292, 294 (1958); Martin v. United States, 317 F.2d 753 (1963).

3. Spies v. United States, 317 U.S. 492, 498, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943).

4. Rickard v. Couto, 5 Haw. 507, 513 (1885).

5. M.P.C., Tentative Draft No. 4, comments at 130 (1955). See Screws v. United States, 325 U.S. 91 (1945) (holding that a statute making it an offense to wilfully deprive a person of rights secured by the Constitution required, when applied to rights secured through the due process clause, a specific intent to deprive the person of a right which has been made specific by the express terms of Constitution, the laws of the United States, or by a decision interpreting them), and United States v. Murdock, 290 U.S. 389 (1933) (holding that a tax statute making it an offense to wilfully fail to supply information to the government regarding income tax returns did not make criminal the bona fide, albeit intentional and erroneous, refusal to answer on the ground of self-incrimination).
Haw. Rev. Stat. § 708-826 — HI Code / Division 5 / Title 37 / Chapter 708 / Section 708-826
Criminal tampering in the first degree.
Status: in_force

(1) A person commits the offense of criminal tampering in the first degree if, and with intent to cause a substantial interruption or impairment of a service rendered to the public by a utility or by an institution providing health or safety protection, the person damages or tampers with, without the consent of the utility or institution, its property or facilities and thereby causes substantial interruption or impairment of service.

(2) Criminal tampering in the first degree is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
Haw. Rev. Stat. § 712-1242 — HI Code / Division 5 / Title 37 / Chapter 712 / Section 712-1242
Promoting a dangerous drug in the second degree.
Status: in_force

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

(a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs;

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

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

(ii) One-fourth ounce or more, containing any dangerous drug; or

(c) Distributes any dangerous drug in any amount.

(2) Promoting a dangerous drug in the second degree is a class B felony. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(d); am L 1982, c 9, §2; am L 1987, c 176, §7 and c 356, §2; am L 1988, c 291, §1; am L 1989, c 163, §2; gen ch 1992; am L 1996, c 308, §3; am L 2002, c 161, §7; am L 2004, c 44, §6; am L 2007, c 27, §1; am L 2016, c 231, §55; am L 2025, c 4, §2]
Haw. Rev. Stat. § 706-663 — HI Code / Division 5 / Title 37 / Chapter 706 / Section 706-663
Sentence of imprisonment for misdemeanor and petty misdemeanor.
Status: in_force

After consideration of the factors set forth in sections 706-606 and 706-621, the court may sentence a person who has been convicted of a misdemeanor or a petty misdemeanor to imprisonment for a definite term to be fixed by the court and not to exceed one year in the case of a misdemeanor or thirty days in the case of a petty misdemeanor.

COMMENTARY ON §706-663

This section of the Code continues the previous policy of the law of providing definite sentences (not to exceed one year) in the case of misdemeanors,[1] and adds a new category of minor criminal offenses, designated as petty misdemeanors, for which imprisonment not exceeding 30 days is authorized. The court is free within the statutory maximum to choose a shorter definite period of confinement.

Indeterminate terms of imprisonment are not provided for misdemeanors or petty misdemeanors because the gravity of the offenses and the character of most such offenders would not warrant the authorization of a longer prison term. The flexibility sought to be achieved by indeterminate sentences decreases as the maximum authorized term of imprisonment decreases. In view of this fact and in view of the fact that resources devoted to the determination of minimum terms of imprisonment have decreasing marginal utility as maximum authorized terms decrease, the Code provides for definite terms in cases of misdemeanors and petty misdemeanors.

SUPPLEMENTAL COMMENTARY ON §706-663

Act 217, Session Laws 2016, amended this section by making a conforming amendment. Act 217 authorized the director of public safety to release detainees or inmates charged on or after July 1, 2016, with petty misdemeanor or misdemeanor offenses; provided that the detainee or inmate is not disqualified based on present charges or past arrest or conviction of certain serious or violent offenses. The legislature found that correctional facilities in Hawaii suffer from persistent overcrowding and that this condition adversely affects the ability of the State to adequately provide for the safe, secure, and humane incarceration of inmates in its care and custody. Act 217 provided a reasonable alternative to incarceration that would relieve overcrowded jail conditions in Hawaii. Senate Standing Committee Report No. 3563, Conference Committee Report No. 70-16.
Haw. Rev. Stat. § 704-404 — HI Code / Division 5 / Title 37 / Chapter 704 / Section 704-404
Examination of defendant with respect to physical or mental disease, disorder, or defect excluding fitness to proceed.
Status: in_force

(1) Whenever there is reason to doubt the defendant's fitness to proceed, the court may immediately suspend all further proceedings in the prosecution; provided that for any defendant not subject to an order of commitment to the director of health for the purpose of the examination, neither the right to bail nor proceedings pursuant to chapter 804 shall be suspended. If a trial jury has been empaneled, it shall be discharged or retained at the discretion of the court. The discharge of the trial jury shall not be a bar to further prosecution.

(2) Upon suspension of further proceedings in the prosecution:

(a) In cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence, if a court-based certified examiner is available, the court shall appoint the court-based certified examiner to examine and provide an expedited report solely upon the issue of the defendant's capacity to understand the proceedings against the defendant and defendant's ability to assist in the defendant's own defense. The court-based certified examiner shall file the examiner's report with the court within two days of the appointment of the examiner, or as soon thereafter is practicable. A hearing shall be held to determine if the defendant is fit to proceed within two days of the filing of the report, or as soon thereafter as is practicable;

(b) In all other nonfelony cases, and where a court-based certified examiner is not available in cases under paragraph (a), the court shall appoint one qualified examiner to examine and report upon the defendant's fitness to proceed. The court may appoint as the examiner either a psychiatrist or a licensed psychologist designated by the director of health from within the department of health; and

(c) In felony cases, the court shall appoint three qualified examiners to examine and report upon the defendant's fitness to proceed. The court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health.

All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted while the defendant is in custody or on release or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or a longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered.

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

(4) For defendants charged with felonies, the examinations for fitness to proceed under this section and penal responsibility under section 704-407.5 shall be conducted separately unless a combined examination has been ordered by the court upon a request by the defendant or upon a showing of good cause to combine the examinations. The report of the examination for fitness to proceed shall be separate from the report of the examination for penal responsibility unless a combined examination has been ordered. For defendants charged with offenses other than felonies, a combined examination is permissible when ordered by the court.

(5) Except in the case of an examination pursuant to subsection (2)(a), the report of the examination for fitness to proceed shall include the following:

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

(b) A diagnosis of the physical or mental condition of the defendant;

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

(d) An assessment of the risk of danger to the defendant or to the person or property of others for consideration and determination of the defendant's release on conditions; and

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

(6) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of physical or mental disease, disorder, or defect.

(7) A copy of the report of the examination, including any supporting documents, shall be filed with the clerk of the court.

(8) Any examiner shall be permitted to make a separate explanation reasonably serving to clarify the examiner's opinion.

(9) The court shall obtain all existing relevant medical, mental health, social, police, and juvenile records, including those expunged, and other pertinent records in the custody of public agencies, notwithstanding any other statute, and make the records available for inspection by the examiners in hard copy or digital format. The court may order that the records so obtained be made available to the prosecuting attorney and counsel for the defendant in either format, subject to conditions the court determines appropriate; provided that juvenile records shall not be made available unless constitutionally required. No further disclosure of records shall be made except as permitted by law. If, pursuant to this section, the court orders the defendant committed to a hospital or other suitable facility under the control of the director of health, then the county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or no contest, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of plea of guilty or no contest made pursuant to chapter 853; provided that the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments, with the exception of expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center. The county police departments shall segregate or sanitize from the police reports information that would result in the likely or actual identification of individuals who furnished information in connection with its investigation, or who were of investigatory interest. No further disclosure of records shall be made except as provided by law.

(10) All public agencies in possession of relevant medical, mental health, social, police, and juvenile records, and any other pertinent records of a defendant ordered to be examined under this chapter, shall provide those records to the court, notwithstanding any other state statute.

(11) The compensation of persons making or assisting in the examination, other than those retained by a nonindigent defendant, who are not undertaking the examination upon designation by the director of health as part of their normal duties as employees of the State or a county, shall be paid by the judiciary in the amount of $2,000, which amount includes compensation for the examination, the drafting of the report, and any consultation, preparation, testimony, and attendance in court. [L 1972, c 9, pt of §1; am L 1973, c 136, §4(b); am L 1974, c 54, §1; am L 1979, c 3, §1 and c 105, §64; am L 1983, c 172, §1; am L 1987, c 145, §1; am L 1988, c 305, §5; am L 1992, c 88, §1; gen ch 1993; am L 1997, c 306, §1; am L 2006, c 230, §6; am L 2008, c 99, §1; am L 2014, c 192, §2; am L 2016, c 198, §3 and c 231, §§4, 5; am L 2020, c 26, §2; am L 2025, c 274, §1]

COMMENTARY ON §704-404

This section sets forth the provisions for appropriate medical examination of a defendant when the defendant's physical or mental condition is made an issue either with respect to the defendant's fitness to proceed, the defendant's responsibility for conduct, or the defendant's capacity to have a particular state of mind.

The Code provides that, whenever the defendant's responsibility, fitness to proceed, or physical or mental condition becomes an issue in the case, the proceedings shall be suspended and the designated medical examination shall take place. In taking this approach we reject the requirement of prior notice suggested by the Model Penal Code.[1] Such a requirement necessarily relies on the psychiatric and other medical insights of defendant's counsel--a person manifestly without proper training in these areas. If defense counsel does not recognize symptoms of a physical or mental disease, disorder, or defect--either because of lack of medical knowledge or because of lack of diligence--the consequences of his ineptness should not fall on his client. Especially is this so where the client is unable to "communicate" the disease, disorder, or defect to the client's attorney. The procedure provided for examination of the defendant assures that the prosecution will not be prejudiced in gathering evidence and in litigating these issues merely because the defendant did not raise these issues at a preliminary stage. The defendant or the prosecuting attorney may request, or the court may order, an examination of the defendant at a preliminary (or later) stage in the proceedings whenever it appears that fitness to proceed, responsibility, or physical or mental condition is or may become an issue in the case.