STAND

STAND. COM. REP. 2524

Honolulu, Hawaii

, 2004

RE: S.B. No. 3233

S.D. 1

Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committees on Judiciary and Hawaiian Affairs and Health, to which was referred S.B. No. 3233 entitled:

"A BILL FOR AN ACT RELATING TO THE ILLEGAL USE OF CONTROLLED SUBSTANCES,"

beg leave to report as follows:

The purpose of this bill is to provide comprehensive legislation to address the devastating effects of crystal methamphetamine (commonly known as ice) abuse in Hawaii.

Specifically, this bill:

(1) Creates three new drug-related offenses designed to:

(a) Increase mandatory minimum sentences and impose large penalties for methamphetamine trafficking;

(b) Make distribution of methamphetamine to a minor or person known to be pregnant a class A felony;

(c) Enhance prison sentences for persons who manufacture drugs in the presence of a child and cause injury to a child; and

(d) Create a new offense of promoting controlled substances through the use of a minor;

(2) Amends the drug paraphernalia laws to conform to the federal law by making the sale of drug paraphernalia illegal and using the federal standard in determining when an object is drug paraphernalia;

(3) Amends the offenses of promoting a dangerous drug in the first, second, and third degree to eliminate the manufacturing and distribution of methamphetamine elements which are incorporated in the new offense of methamphetamine trafficking. The mandatory minimum sentences for methamphetamine are deleted because of the creation of the new offense;

(4) Amends the offense of promoting a controlled substance near schools, parks, or school vehicles to make manufacturing methamphetamine within 750 feet of a school or public park illegal;

(5) Amends the provisions of Act 161 (2002 Session Laws of Hawaii) relating to diversion to substance abuse treatment for first-time nonviolent offenders. The bill clarifies the criteria used by the court or Hawaii paroling authority to determine whether to revoke parole or probation for a first drug offense violation of parole or probation, and allows the court discretion to sentence a first-time drug offender to probation for substance abuse treatment even if the person is a repeat offender;

(6) Permits the state courts to issue arrest and search warrants based on federal affidavits and arrest and search warrants;

(7) Reenacts the Drug Dealer Liability Act that was repealed in 2003 and makes amendments to clarify the language;

(8) Requires employers with more than 15 employees to offer three hours of substance abuse prevention education for their employees; imposes civil fines of between $100 to $1,000 for each violation; and imposes additional fines and imprisonment for employers who intentionally interfere with the enforcement of the law by the Director of the Department of Labor and Industrial Relations;

(9) Requires private sector employers with 50 or more employees who are not subject to collective bargaining to reimburse certain classes of terminated employees for health insurance premiums paid in order for the employee to receive substance abuse treatment;

(10) Requires the public schools to defer the suspension of a student charged with drug offenses during the time that the student is referred and assessed for substance abuse and is in treatment. If the student successfully completes treatment, the disciplinary action is expunged;

(11) Expands health insurance benefits for abuse of or dependency on crystal methamphetamine to the level of coverage for physical disease or illness. This parity benefit applies to health insurance plans and Quest or fee-for-service programs administered by the Department of Health; the provision is repealed in six years;

(12) Designates the Office of Community Services to coordinate community drug abatement efforts and interface with county, state, and community agencies. Repeals this provision in five years;

(13) Establishes a new civil commitment procedure that may be used by family members to obtain a court order to commit a family member to outpatient substance abuse treatment;

(14) Amends the zoning laws relating to residential areas to permit drug rehabilitation homes to accommodate no more than ten unrelated persons when the homes are operated by a community-based nonprofit agency approved by the Department of Health, provided that a public informational hearing is held;

(15) Requires the Housing and Community Development Corporation of Hawaii to explore incentive programs and surplus properties to develop clean and sober homes; and

(16) Expands the Department of Health's ability to examine nuisances caused by clandestine methamphetamine laboratories.

While all testifiers supported the intent of this measure and appreciated the efforts of the Task Force, many offered comments, or concerns, or opposed portions of this bill. ILWU Local 142; the Office of the Prosecuting Attorney for the County of Kauai; the Department of Education; the Mayor for the County of Kauai, Alu Like, Inc.; Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO; Coalition for a Drug Free Hawaii, and one concerned individual testified in support of this bill. The Hawaii Youth Services Network and one concerned individual supported specific sections of this measure. Small Business Hawaii; Retail Merchants of Hawaii; the Departments of the Prosecuting Attorney for the City and County of Honolulu and the counties of Maui and Hawaii; the High Intensity Drug Trafficking Area Task Force; Hawaii Paroling Authority; Department of the Attorney General; Office of the Lieutenant Governor; Department of Human Services Housing and Community Development Corporation of Hawaii; Maui County Police Department; Honolulu Police Department; Polynesian Cultural Center; Brigham Young University-Hawaii; Oils of Aloha; Chamber of Commerce of Hawaii; Society for Human Resource Management-Hawaii Chapter; National Federation of Independent Business; JS Services, Inc.; and two concerned individuals opposed portions of this bill. The Judiciary; Office of the Public Defender; Office of Community Services; Drug Policy Action Group; Out of Prison Services; Hawaii Medical Service Association; Hawaii Substance Abuse Coalition; Community Alliance on Prisons; Harm Reduction Hawaii; the Departments of Labor and Industrial Relations, Commerce and Consumer Affairs, Public Safety, and Health; Hawaii Reserves, Inc.; and eight concerned individuals provided comments.

Your Committees find that this comprehensive legislation is a significant step toward addressing the complex and myriad problems created by the ice epidemic in Hawaii. This legislation

incorporates the recommendations of the Joint House-Senate Task Force on Ice and Drug Abatement (Task Force), which are based on findings stated in the Task Force's Final Report, dated January 2004. The Task Force went into the community and spent nearly 80 hours collecting information from over 400 persons who spoke to the Task Force members. Testimony received on this bill echo the sentiments expressed during the Task Force hearings by the community, treatment providers, law enforcement, family members, and victims of the ice epidemic. Everyone demands a solution to stop the spread of ice abuse and the effects on our communities. However, testifiers differ as to whether the priority should be placed on treatment and prevention or incarceration.

Your Committees find that this bill, as received, only partially addresses the community's feeling of frustration that law enforcement is not responding promptly to stop the drug activities in their neighborhoods. Citizens believe that their complaints are often ignored; they are not kept informed about drug interdiction efforts in their neighborhoods and have the perception that police are not responsive; and they feel harassed by drug dealers when they attempt self-help activities. Accordingly, your Committees find that additional resources are needed to encourage citizens to take lawful action against drug activities as well as to protect them from harassment from drug dealers. Your Committees have amended this bill to include a new part relating to citizen empowerment, as described below.

Your Committees conclude that the legislation proposed in this bill strikes a balance between the need to "get tough" with drug dealers and traffickers to protect the public, and the community's needs to address the social causes and public health issues relating to ice abuse. Your Committees agree with the Task Force's conclusion that the solution to the ice epidemic is to provide treatment to the current generation of ice abusers and prevent future generations from becoming abusers.

Your Committees have amended this bill by:

(1) Deleting sections 13, 14, and 15, which provided for federal search or arrest warrants and federal affidavits to serve as the bases for state search or arrest warrants;

(2) Deleting section 19 relating to employer reimbursement for health insurance premiums to a terminated employee when the employee obtains substance abuse treatment;

(3) Deleting sections 25 and 26, which designated the Office of Community Services as coordinator for state, county, and community drug abatement efforts;

(4) Deleting sections 31 and 32, requiring the Housing and Community Development Corporation of Hawaii to explore incentive programs and surplus properties to develop clean and sober homes;

(5) Amending the new offense of manufacturing a controlled substance with a child present to clarify that the enhanced sentence runs consecutively with the maximum indeterminate sentence that may be imposed on the underlying offense; and to include "serious" injury as a basis for enhanced penalties;

(6) Amending the new offense of unlawful methamphetamine trafficking to:

(a) Add a new element to the offense for possession of methamphetamine with intent to manufacture, distribute, or dispense the drug;

(b) Make the offense a class A felony when more than one-eighth ounce of methamphetamine is involved; set the basic mandatory minimum prison sentence at five years; enhance the mandatory minimum prison sentence to ten years when death or serious or substantial bodily injury occurs; and enhance the mandatory minimum prison sentence to fifteen years when the offender has been convicted of a prior drug felony;

(c) Make the offense a class B felony when less than one-eighth ounce of methamphetamine is involved; set the basic mandatory minimum prison sentence at three years; enhance the mandatory minimum prison sentence to five years when death or serious or substantial injury occurs; and enhance the mandatory minimum prison sentence to eight years when the offender has been convicted of a prior drug felony;

(d) Delete the enhanced penalty for distribution to a person known to be pregnant;

(e) Add a mandatory minimum prison sentence for distribution of methamphetamine to a minor;

(f) Clarify that death or serious or substantial bodily injury from the manufacture, distribution or dispensing of methamphetamine must be to a person other than the offender;

(g) Specify that other statutes relating to sentencing do not apply to the offense of methamphetamine trafficking; and

(h) Clarify that the court may order restitution or reimbursement for persons injured or damaged by methamphetamine trafficking;

(7) Deleting from the offense of promoting a dangerous drug in the first degree the enhanced penalty for distribution to a person known to be pregnant;

(8) Specifying that for the offense of promoting a controlled substance in or near schools, public parks, or school vehicles, the manufacture of methamphetamine within 750 feet of a school or park is a class A felony subject to the same mandatory minimum prison sentences as methamphetamine trafficking; expanding the definition of schools to include preschools, kindergarten, and middle schools;

(9) Amending the requirement of referring a parole violator to substance abuse treatment to allow the Hawaii Paroling Authority to exercise its discretion;

(10) Amending the requirement of referring a probation violator to substance abuse treatment to permit the court to exercise its discretion;

(11) Amending the balancing test that the court may use to determine whether a first-time nonviolent drug offender should be referred to substance abuse treatment to consideration of whether the offender can benefit from treatment or should be incarcerated to protect the public;

(12) Modifying the expungement provision that permits a first-time nonviolent drug offender to have the conviction expunged on a one-time-only basis upon successful completion of substance abuse treatment;

(13) Modifying the employer substance abuse prevention education requirement to one hour of training; permitting the employer to excuse employee attendance for good cause; permitting the Director of the Department of Labor and Industrial Relations to enact rules that limit the penalty for violations of this law to an amount not to exceed $500; and deleting the criminal sanctions;

(14) Modifying the zero tolerance policy applicable to public school students charged with drug offenses to permit the school to:

(a) Crisis-suspend a student for up to 10 days, provided that student is referred and assessed for substance abuse during that time; and

(b) Transfer the student to an alternative learning center pending the availability of treatment;

(15) Expanding parity for substance abuse treatment in health plans and for programs offered under QUEST, except that residential treatment is covered in the same way as for any physical disease or illness;

(16) Modifying the civil commitment process for involuntary outpatient treatment to require the court to proceed only with the respondent present, and clarifying the criteria upon which the court may grant the petition;

(17) Adding a new part to the bill entitled "Citizen Empowerment" to amend the nuisance abatement laws to allow citizens to recover attorneys^, fees and to receive the same protection as crime victims do;

(18) Designating the Department of Public Safety to coordinate community mobilization efforts and facilitate community concerns regarding effective law enforcement in their neighborhoods; and

(19) Making technical, nonsubstantive changes for style, clarity, and consistency.

As affirmed by the records of votes of the members of your Committees on Judiciary and Hawaiian Affairs and Health that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 3233, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 3233, S.D. 1, and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committees on Judiciary and Hawaiian Affairs and Health,

____________________________ ROSALYN H. BAKER, Chair		____________________________ COLLEEN HANABUSA, Chair