2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 712. Offenses Against Public Health and Morals › 712-1240 Definitions of terms in this part.

Note
Industrial hemp remediation and biofuel crop research program (repealed July 1, 2016). L 2014, c 56.
Cross References
Drug demand reduction assessments; special fund, see §706-650.
Intermediate sanctions for selected offenders and defendants, see § §353-10.5, 353-63.5, and 706-605.1.
Money laundering, see chapter 708A.
Cross References
Overdose prevention; limited immunity, see §329-43.6.
Law Journals and Reviews
Marijuana Prohibition in Hawaii. 13 HBJ, no. 3, at 9 (1977).
Case Notes
When a statute proscribes a substance as harmful, presumption of constitutionality applies although scientific views on harm are conflicting. This rule applies to marijuana cases. 56 H. 271, 535 P.2d 1394 (1975).
Defendants with prior felony convictions of drug offenses are disqualified from sentencing pursuant to §706-622.5, even if the convictions occurred in other jurisdictions and therefore not "under part IV of chapter 712", so long as the offenses would implicate this part if committed in Hawaii. 104 H. 71, 85 P.3d 178 (2004).
§712-1240 Definitions of terms in this part.
In this part, unless a different meaning plainly is required:
"Dangerous drugs" means any substance or immediate precursor defined or specified as a "Schedule I substance" or a "Schedule II substance" by chapter 329, or a substance specified in section 329-18(c)(14), except marijuana or marijuana concentrate.
"Detrimental drug" means any substance or immediate precursor defined or specified as a "Schedule V substance" by chapter 329, or any marijuana.
"Dosage unit" for purposes of section 712-1241 and section 712-1242 means an entity designed and intended for singular consumption or administration.
"Harmful drug" means any substance or immediate precursor defined or specified as a "Schedule III substance" or a "Schedule IV substance" by chapter 329, or any marijuana concentrate except marijuana and a substance specified in section 329-18(c)(14).
"Hemp"
[Definition repealed July 1, 2027. L 2023, c 263,
§15.]
means all parts of the plant (genus) cannabis, whether growing or not, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, with a delta-9-tetrahydrocannabinol concentration of not more than 0.3 per cent on a dry weight basis, as measured post-decarboxylation or other similarly reliable methods.
"Immediate precursor" means a substance which the department of health, State of Hawaii, has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture.
"Intoxicating compounds" means any compound, liquid or chemical containing toluol, hexane, trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane, isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone, or any other substance for the purpose of inducing a condition of intoxication, stupefaction, depression, giddiness, paralysis or irrational behavior, or in any manner changing, distorting or disturbing the auditory, visual or mental processes. For the purposes of this section, any such condition so induced shall be deemed to be an intoxicated condition.
"Intoxicating liquor" means any substance defined as "liquor" or "intoxicating liquor" by section 281-1.
"Manufacture" means to produce, prepare, compound, convert, or process a dangerous drug, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical conversion or synthesis.
"Marijuana"
[Repeal and reenactment on July 1, 2027. L 2023, c 263,
§15.]
means any part of the plant (genus) cannabis, whether growing or not, including the seeds and the resin, and every alkaloid, salt, derivative, preparation, compound, or mixture of the plant, its seeds or resin, except that, as used herein, "marijuana" shall not include:
(1) Hashish, tetrahydrocannabinol, and any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol;
(2) Hemp that is in the possession, custody, or control of an individual or entity that holds a license to produce hemp issued by the United States Department of Agriculture pursuant to title 7 [United States] Code section 1639q;
(3) Hemp that is in the possession, custody, or control of a person or entity that is authorized under state law to process hemp; or
(4) A product containing or derived from hemp that:
(A) Does not include any living hemp plants, viable seeds, leaf materials, or floral materials; and
(B) Has a delta-9-tetrahydrocannabinol concentration of not more than 0.3 per cent, as measured post-decarboxylation or other similarly reliable methods.
"Marijuana concentrate"
[Repeal and reenactment on July 1, 2027. L 2023, c 263,
§15.]
means hashish, tetrahydrocannabinol, or any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol, except that, as used herein, "marijuana concentrate" shall not include:
(1) Hemp that is in the possession, custody, or control of an individual or entity that holds a license to produce hemp, issued by the Secretary of the United States Department of Agriculture pursuant to title 7 United States Code section 1639q; or
(2) A product containing or derived from hemp, including any product containing one or more hemp-derived cannabinoids such as cannabidiol, that:
(A) Does not include any living hemp plants, viable seeds, leaf materials, or floral materials; and
(B) Has a delta-9-tetrahydrocannabinol concentration of not more than 0.3 per cent, as measured post-decarboxylation or other similarly reliable methods.
"Minor" means a person who has not reached the age of majority.
"Ounce" means an avoirdupois ounce as applied to solids and semi-solids, and a fluid ounce as applied to liquids.
"Practitioner" means[:]
(1) A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, prescribe, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this State.
(2) A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, prescribe, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this State.
"To distribute" means to sell, transfer, prescribe, give, or deliver to another, or to leave, barter, or exchange with another, or to offer or agree to do the same.
"To sell" means to transfer to another for consideration. L 1972, c 9, pt of §1; am L 1975, c 163, §6(a), (b); am L 1979, c 112, §2; am L 1984, c 122, §2; am L 1987, c 176, §6 and c 356, §1; am L 1997, c 319, §1; am L 2004, c 193, §4; am L 2012, c 34, §15; am L 2020, c 14, § §5, 9; am L 2022, c 137, §2
COMMENTARY ON §712-1240
This section provides definitions of terms used throughout this part. The definitions are discussed, when an explanation is needed, in the commentary on the following sections.
The Code made several changes to the recommendations of the proposed draft for this section. It redefined "dangerous drug", and added definitions of such new terms as "harmful drug", "detrimental drug", "immediate precursor", "intoxicating compounds", "practitioner", and "to distribute". Concurrently, the Code eliminated the proposed draft's definitions of the terms "narcotic drug" and "to dispense". The Code also changed the draft's definition of the word "unlawfully". Instead of "narcotic drug and dangerous drug", the term concerned is "a Schedule I, II, III, IV, or V substance", as well as marijuana, marijuana concentrates, and intoxicating compounds.
Act 163, Session Laws 1975, amended this section in two respects. The word "unlawfully" was deleted from the list of definitions and from every other section in this part where it was made an element of an offense. The legislature found that the inclusion of this element required the prosecution to prove a negative without being able to compel the accused to testify. It was found that this was a practical impossibility and accordingly it has been eliminated as an element of every offense in this part. Senate Standing Committee Report No. 590.
The legislature also amended the definition of marijuana so as to indicate that the entire genus cannabis was to be included in the term and not merely cannabis sativa.
SUPPLEMENTAL COMMENTARY ON §712-1240
Act 112, Session Laws 1979, amended this section by adding the broadly defined term "dosage unit." The legislature found that drugs, while commonly sold in tablets, capsules, or other forms covered by existing drugs laws, are also distributed and sold in forms which are not covered. The legislature believed that these amendments would lessen the promotion of dangerous drugs within the State. Conference Committee Report No. 41.
Act 122, Session Laws 1984, added the definition of intoxicating liquor because of the inclusion of a new section prohibiting adults from promoting intoxicating liquor to a minor.
Act 356, Session Laws 1987, added "and section 712-1242" to the definition of "dosage unit," for the purpose of conformity between sections 712-1241 and 712-1242. House Standing Committee Report No. 480.
Act 319, Session Laws 1997, amended this section by defining "manufacture." The legislature found that the growing problem of manufacturing dangerous drugs in Hawaii posed a significant problem to law enforcement officials given the lack of powerful sanctions under current law. The legislature believed it was imperative to establish an aggressive policy for penalizing the manufacture, sale, and distribution of dangerous drugs. Senate Standing Committee Report No. 770, House Standing Committee Report No. 1651.
Act 193, Session Laws 2004, made medical gamma hydroxybutyric acid a schedule III depressant and made conforming amendments to the definitions of "dangerous drugs" and "harmful drug" in this section to make the nonmedical use of gamma hydroxybutyric acid an appropriately severe crime. House Standing Committee Report No. 701-04.
Act 34, Session Laws 2012, amended the definitions of "dangerous drugs" and "harmful drug" by changing the reference to "section 329-18(c)(13)" to "section 329-18(c)(14)" to correctly reference gamma hydroxybutyric acid.
Act 14, Session Laws 2020, amended this section by adding a definition for "hemp" and amending the definitions of "marijuana" and "marijuana concentrate" to conform with the provisions of Act 14 that excluded hemp from the State's prohibitions against marijuana. The legislature found that hemp was no longer classified as an illegal drug under federal law due to the Agriculture Improvement Act of 2018, informally known as the "Farm Bill." The Farm Bill authorized the department of agriculture of each state wishing to have primary regulatory authority over hemp production in that state to submit to the federal Secretary of Agriculture a proposed plan for the state's department of agriculture to monitor and regulate hemp production within the state, including a procedure for conducting annual inspections of a random sample of hemp producers. The legislature further found that research on hemp showed significant potential for a successful hemp agricultural industry in Hawaii. Hemp grows quickly, has the beneficial effects of removing toxins from the soil and acting as a superior phytoremediation crop, is environmentally friendly, and serves as an efficient feedstock and source for biofuel. Also, hemp can be made into clothing and used in other products to promote the growth of small businesses. Act 14 facilitated the regulation and production of industrial hemp in the State. Senate Standing Committee Report No. 3776.
Act 137, Session Laws 2022, extended to July 1, 2025, the sunset date of Act 14, Session Laws 2020, which established the state hemp processors and commercial hemp production laws. Act 14 amended §712-1240 by adding the definition of "hemp" and amending the definitions of "marijuana" and "marijuana concentrate". The legislature found that Act 14 established a regulatory framework for the department of agriculture to monitor and regulate the cultivation and processing of hemp. However, in 2022, the hemp industry in the State remained in a nascent stage largely due to overly burdensome regulations established under Act 14. The legislature noted that with Act 14 originally scheduled to sunset on June 30, 2022, there remained considerable disagreement on the required reforms for the hemp industry. Accordingly, the legislature found it necessary to extend the sunset date of Act 14 to July 1, 2025. Conference Committee Report No. 61-22, House Standing Committee Report No. 1905-22.
Act 263, Session Laws 2023, extended to July 1, 2027, the sunset date of Act 14, Session Laws 2020, which established the hemp processors and commercial hemp production laws. Act 14 amended this section by adding the definition of "hemp" and amending the definitions of "marijuana" and "marijuana concentrate." The legislature found that Act 14 authorized the cultivation of hemp and the production and sale of hemp products in the State. However, hemp cultivation and production in the State faced significant barriers in regulation that stifled industry growth. The legislature additionally found that reducing this regulatory burden would allow the industry to thrive and lead to increased production of hemp for fuel, food, clothing and building material, natural plastic alternatives, and numerous other products. Act 263 balanced the interests of industry growth and protection of human health by reducing redundant regulatory barriers while ensuring appropriate protections are in place. House Standing Committee Report No. 749, Senate Standing Committee Report No. 1884.
Case Notes
One who acts as buyer's agent to purchase drug with buyer's funds does not commit offense of "selling" the drug. 60 H. 8, 586 P.2d 1022 (1978).
"To distribute" does not include "to buy" or "to offer to buy". 78 H. 317, 893 P.2d 168 (1995).
Although there was substantial evidence to conclude that defendant was a drug distributor in violation of §712-1242, defendant was entitled to a procuring agent defense instruction as (1) a jury instruction must be given on every defense if there is any support in the evidence "no matter how weak, inconclusive or unsatisfactory the evidence may be", (2) defendant's participation in drug transaction negotiation or touching the drugs or money involved did not foreclose a procuring agent defense, (3) determining whether defendant was an agent of buyer was for the fact finder, and (4) there was support in evidence for a procuring agent defense. 113 H. 385, 153 P.3d 456 (2007).
Charge of possession of "marijuana concentrate hashish" established by presence of THC and absence of marijuana plant; fact that commonly accepted connotation of "concentrate" is that of more powerful substance is irrelevant for purposes of section; section not unconstitutionally vague. 4 H. App. 79, 661 P.2d 1206 (1983).