2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 853. Criminal Procedure: Deferred Acceptance of Guilty Plea, Nolo Contendere Plea › 853-4 Chapter not applicable; when.

§853-4 Chapter not applicable; when.
(a) This chapter shall not apply when:
(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;
(2)
[Repeal and reenactment on June 30, 2026. L 2020, c 19, §15.]
The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or
(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;
provided that the prohibition in this paragraph shall not apply to offenses described in section 709-906(18);
(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;
(4) The offense charged is a class A felony;
(5) The offense charged is nonprobationable;
(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;
(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;
(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;
(9) A firearm was used in the commission of the offense charged;
(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;
(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired;
(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;
(13)
[Repeal and reenactment on June 30, 2026. L 2020, c 19, §15.]
The offense charged is:
(A) Escape in the first degree;
(B) Escape in the second degree;
(C) Promoting prison contraband in the first degree;
(D) Promoting prison contraband in the second degree;
(E) Bail jumping in the first degree;
(F) Bail jumping in the second degree;
(G) Bribery;
(H) Bribery of or by a witness;
(I) Intimidating a witness;
(J) Bribery of or by a juror;
(K) Intimidating a juror;
(L) Jury tampering;
(M) Promoting prostitution;
(N) Abuse of family or household member except as provided in paragraph (2) and section 709-906(18);
(O) Sexual assault in the second degree;
(P) Sexual assault in the third degree;
(Q) A violation of an order issued pursuant to chapter 586;
(R) Promoting child abuse in the second degree;
(S) Promoting child abuse in the third degree;
(T) Electronic enticement of a child in the first degree;
(U) Electronic enticement of a child in the second degree;
(V) Commercial sexual exploitation pursuant to section 712-1200.5;
(W) Street prostitution and commercial sexual exploitation under section 712-1207(1)(b) or (2)(b);
(X) Commercial sexual exploitation near schools or public parks under section 712-1209;
(Y) Commercial sexual exploitation of a minor under section 712-1209.1;
(Z) Habitual commercial sexual exploitation under section 712-1209.5;
(AA) Violation of privacy in the first degree under section 711-1110.9;
(BB) Violation of privacy in the second degree under section 711-1111(1)(d), (e), (f), (g), or (h);
(CC) Habitually operating a vehicle under the influence of an intoxicant under section 291E-61.5(a);
(DD) Promoting gambling in the first degree; or
(EE) Promoting gambling in the second degree;
(14) The defendant has been charged with:
(A) Knowingly or intentionally falsifying any report required under part XIII of chapter 11, with the intent to circumvent the law or deceive the campaign spending commission; or
(B) Violating section 11-352 or 11-353; or
(15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle.
(b) The court may adopt by rule other criteria for purposes of this section. [L 1976, c 154, pt of §2; am L 1980, c 292, §2; am L 1993, c 130, §4 and c 234, §1; am L 1996, c 201, §3; am L 1997, c 55, §1; am L 1998, c 172, §9; am L 2000, c 4, §7; am L 2004, c 85, §1; am L 2005, c 203, §25; am L 2006, c 80, §4; am L 2007, c 288, §3; am L 2008, c 171, §11; am L 2009, c 88, §13; am L 2010, c 166, §22 and c 211, § §7, 8, 13; am L 2011, c 145, §5; am L 2013, c 53, §1; am L 2014, c 114, §5; am L 2016, c 206, §20 and c 231, §68; am L 2020, c 19, §4; am L 2021, c 33, §1, c 60, §2, and c 68, §15; am L 2022, c 111, §7]
Case Notes
Paragraph (7) is limited to cases involving minors who were waived for adult prosecution under §571-22. 61 H. 385, 605 P.2d 496 (1980).
Subsections are not to be read conjunctively. 69 H. 602, 752 P.2d 597 (1988).
As sentencing court limited to alternatives expressly enumerated in §188-70 and probation not an enumerated alternative, offense of fishing with gill nets under §188-30.2 nonprobationable; thus, under paragraph (5), deferred acceptance of no contest plea not allowed for that offense. 87 H. 102, 952 P.2d 390 (1998).
The plain and unambiguous language of paragraph (2) does not prohibit the grant of a deferred acceptance of no contest plea for assault in the second degree under §707-711 causing "substantial bodily injury", as statutory prohibition expressly applies only to felony and misdemeanor assaults inflicting "bodily injury" or "serious bodily injury". 101 H. 409, 70 P.3d 635 (2003).
By the express terms of §712-1207(4) and (5), the offense of street solicitation under §712-1207(1) is probationable, and thus not excludable under paragraph (5); appeals court therefore erred in affirming trial court's refusal to consider defendant's motion for a deferred acceptance of no contest plea. 116 H. 519, 174 P.3d 358 (2007).
When family court implicitly entered a deferred acceptance of guilty plea pursuant to §853-1 and conditioned deferral upon defendant's submitting to counseling according to schedule and not committing any subsequent offenses, family court violated paragraph (2), where defendant was charged with abuse of family and household member ( §709-906). 10 H. App. 148, 861 P.2d 759 (1993).
Where the indictment alleges that a "dangerous instrument" was used in the commission of the offense charged so as to allow proof that a "firearm" was used, the possibility exists that the defendant is not eligible for a deferred acceptance of no contest (DANC) plea; in such cases, if prior to the court's decision on the defendant's motion for a DANC plea the court is informed that the "dangerous instrument" was a "firearm", the defendant is not eligible for, and the court is not authorized to enter, a DANC plea. 101 H. 65 (App.), 62 P.3d 628 (2002).
Mentioned: 74 H. 75, 837 P.2d 776 (1992).