Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred H.B. No. 2117, H.D. 1, entitled:

begs leave to report as follows:

The purpose of this measure is to clarify the sentencing provisions for the second, third, and subsequent offenses of abuse of a family or household member.

Testimony in support of this measure was received from the Attorney General, Honolulu Prosecuting Attorney, Honolulu Police Department, and Hawaii State Coalition Against Domestic Violence.

This measure is intended to remedy a constitutionally defective statute. In State v. Modica, 58 Haw. 249 (1977), the Hawaii Supreme Court held that a defendant's due process and equal protection rights are violated if the defendant is convicted of a felony, when the same act committed under the same circumstances could also have been punished as a misdemeanor under another statute, and the elements of proof essential to either conviction are exactly the same.

Section 709-906(5)(b), Hawaii Revised Statutes (HRS), makes it a misdemeanor for second and subsequent offenses of abuse of a family member that occur within one year of the first offense. Section 709-906(7), HRS, makes it a class C felony of any subsequent offense occurring within two years after a second misdemeanor conviction. Under the foregoing provisions, subsequent offenses after a second offense could be charged either as a felony or a misdemeanor. Under State v. Modica, a potential constitutional problem exists. This measure remedies the potential defect by limiting misdemeanors to the first and second offense, while making it a class C felony for any third and subsequent offense.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2117, H.D. 1, and recommends that it pass Second Reading and be placed on the calendar for Third Reading.