Presents for discussion purposes, the text of H.B. 182, 1995, which would have implemented penal code amendments proposed by the committee to conduct a comprehensive review of the Hawaii penal code, established pursuant to Act 284, Session Laws of Hawaii 1993.

A BILL FOR AN ACT

PART I

SECTION 1. The legislature finds that the Hawaii penal code is the fundamental body of law by which the State addresses crime and it therefore merits periodic consideration and review to ensure its continued clarity and effectiveness.

The history of the Hawaii penal code illustrates how efforts to maintain the code's continuity remain an ongoing process. Following the passage of the code in 1972 and amid growing concerns regarding crime, a committee on penal code revision and reform of the judicial council of the Hawaii supreme court conducted a comprehensive review of the code, pursuant to Act 291, Session Laws of Hawaii 1983. Many of the committee's recommended amendments to the code were enacted in Act 314, Session Laws of Hawaii 1986.

However, numerous amendments to the code were made in the years following the 1983 penal code review, arousing concerns over the effect of those amendments not only on the code's underlying principles, but also on the overall criminal justice system. In light of those concerns and pursuant to Act 284, Session Laws of Hawaii 1993, the judicial council of Hawaii, through a committee on penal code review, recommended to the legislature prior to the 1995 legislative session, amendments to the code consistent with the principles and philosophy of the code and that the committee determined were necessary to ensure that:

The committee's proposed amendments were subsequently incorporated into House Bill No. 182, 1995, which was introduced for the purpose of implementing the committee's recommendations. However, the measure was not enacted.

The legislature finds that, a decade after the 1995 penal code review effort, and nearly twenty years following the last recodification of the penal code, a comprehensive review and corresponding amendments to the code are long overdue. The legislature also finds that during the interim since the 1995 legislative session, statutes may have been enacted or repealed and the passing of time may have rendered some of the committee's suggestions obsolete. Nevertheless, in order to facilitate discussion on a comprehensive review of the penal code, the original draft of House Bill No. 182, 1995, is being submitted for consideration.

The purpose of this Act is to solicit comments from interested parties on the concepts proposed in House Bill No. 182, 1995, to determine which of these proposals should be incorporated into the Hawaii penal code.

PART II

The following is the text from House Bill No. 182, 1995, in its original form:

"SECTION 1. The purpose of this Act is to implement the recommendations of the committee to conduct a comprehensive review of the Hawaii penal code, appointed by Chief Justice Ronald T. Y. Moon, to review the penal code and report to the 1995 Session of the Eighteenth Legislature pursuant to Act 284, Session Laws of Hawaii 1993. The committee’s decisions in each of the following penal code chapters are set forth in this Act. Unless otherwise noted, all statutory references are to the Hawaii Revised Statutes.

Chapter 704. Penal responsibility and fitness to proceed. The committee decided not to recommend changes in Hawaii’s "insanity" (penal responsibility) defense; accordingly, no substantive amendments to section 704—400 were proposed. Although other states altered their tests for not—guilty—by— reason—of—insanity (NGI) verdicts in the wake of the Hinckley verdict, Hawaii’s NGI verdicts are relatively few in number and present no case for redefinition. The "guilty but mentally ill" verdict option was also rejected.

The committee recommended that the penal responsibility defense "may only be raised by the defendant." Current law permits this defense to be raised on court or prosecution initiative, even over a defendant’s objection. The recommended change is in line with the ABA Criminal Justice Mental Health Standards (1989).

Section 704—404 specifies the procedures for pretrial mental examinations of accused persons, examinations which inquire into their fitness to proceed (competency to stand trial), their penal responsibility (mental functioning at time of offense), or both. The current procedure, which virtually dictates unified fitness and responsibility examinations, is disapproved. The proposal treats fitness examinations in subsection (1) and responsibility examinations in subsection (2). Subsection (3), which is based in part on procedure recommended in the ABA Criminal Justice Mental Health Standards (1989), will preclude combining fitness and responsibility examinations "unless the defendant so requests" or unless, in a nonfelony case, the court finds good cause for a unified procedure.

Sections 704—411, 704—412, 704—413, and 704—415 contain amendments to ensure compliance with the constitutional mandate of Foucha v. Louisiana, 112 S. Ct. 1780 (1992), holding that a determination of present mental illness, as well as dangerousness, is required to justify continued confinement of a person acquitted by reason of insanity.

Chapter 706. Disposition of convicted defendants. In addition to numerous technical amendments correcting specific gender references and clarifying applications of existing statutes, six substantive amendments to chapter 706 were proposed.

The committee proposed a relaxation of legislatively mandated rigidity in the sentencing of repeat offenders under section 706—606.5, with a corresponding increase in judicial discretion to determine the length of mandatory minimum sentences. Mandatory minimum sentences continue to be required in all currently included classes of repeat felony offenders, but, instead of mechanically declaring prescribed lengths for the minimum terms, the court is now instructed to set the minimum sentence at a figure "not to exceed" the existing prescribed term.

The committee further proposed to remove the bar in section 706—659 to probationary sentences in class A felony cases, and to amend section 706—620 to approve judicial discretion to grant probation in these cases.

Three changes to the conditions of probation authorized by section 706—624 were recommended. The first is to allow for an eighteen—month term of imprisonment as a discretionary condition in class A felony cases. The second is to authorize a five—day term of imprisonment as a discretionary condition in petty misdemeanor cases. The third change would articulate two new discretionary conditions: (1) required compliance "with a specified curfew"; and (2) submission to an electronic monitoring device.

The committee proposed a complete overhaul of section 707—657, containing the device for enhancing sentences of imprisonment in second degree murder cases. Enacted in 1993, section 706—657 authorized the court to increase the ordinary second degree murder penalty, life imprisonment with possibility of parole, to life imprisonment without possibility of parole--Hawaii’s stiffest sentence--upon a finding that the homicide "was especially heinous, atrocious, or cruel, manifesting exceptional depravity". The committee concluded that this standard is vague; unworkable, and not well—suited to identifying those killers upon whom a heavier punishment should be imposed. As a more appropriate criterion, the committee opted for the multiple murder category of the existing first degree murder statute, section 707—701, which is deleted from the language of the substantive offense because of difficulties that have arisen in the charging and trial phases of cases in which "multiple" first degree murder is charged, and inserted into section 706—657 as a sentence enhancement.

The committee also proposed the repeal of section 706—660.2, which supplies fixed, mandatory minimum sentences for those who, while committing or attempting to commit felonies, cause death or serious injury to members of three classes of special victims. The repeal will not eliminate the special protection the legislature has sought to afford these classes of victims, because the extended term sentencing provision of section 706—662, applicable at present only to those who commit murder and in certain enumerated felonies and harm special victims, is extended in its coverage to any person committing a felony who "intentionally, knowingly, or recklessly" causes serious harm to any member of the protected classes.

Finally, new standards were proposed for consecutive sentences. Consecutive sentencing has much the same effect as extended term sentencing; yet courts at present have little guidance for the decision whether to impose concurrent or consecutive terms. The committee’s proposal remedies that deficiency by establishing concurrent sentencing as the norm, which was the original philosophy of the Hawaii penal code.

Chapter 707. Offenses against the person. The committee’s proposals include amendments to the first degree murder definitions, raising manslaughter from a class B felony to a class A felony, creating a new fourth degree assault offense, and minor revisions to the sexual assault laws. First and second degree murder are renamed "aggravated murder" and "murder", respectively, in order that the nomenclature might more aptly connote the fact that "murder" is the "default" classification for the most blameworthy homicides, and that aggravated murder is a narrow, exceptional category.

The committee proposed the repeal of the multiple killer subsection of the first-degree murder statute, section 707—70l(l)(a)("more than one person in the same or separate incident"), because, as recently construed in State v. Briones, 74 Raw. 442, 848 P.2d 966 (1993), this subsection produces procedural difficulties that unnecessarily complicate murder prosecutions. The complications are unnecessary because the intended impact of a multiple murder charge can be achieved in multiple murder cases by treating them as ordinary murders and supplying a sentence enhancement in section 706—657.

The committee recommended that manslaughter under section 707-702, in all three of its forms, be elevated to class A felony status. In terms of gravity and blameworthiness, manslaughter is on a par with other class A felonies such as first degree robbery and first degree sexual assault. Moreover, at its upper reaches, manslaughter shades into murder in the spectrum of unlawful, felonious homicides.

A fourth degree assault offense, consisting of intentional, knowing, or reckless physical abuse of another person, is proposed as a new section to chapter 707. Designed to parallel the household member abuse offense currently contained in section 709—906, the new assault offense, requiring only physical abuse and not bodily injury, will become a petty misdemeanor.

Existing sexual assault law protects youthful persons who are less than fourteen years old by criminalizing sexual penetration and sexual contact irrespective of consent or lack of consent under sections 707—730(l)(b) and 707—732(l)(b). The committee proposed to increase protection by refashioning the culpability criterion attached to the victim’s age element and shifting the burden to the defendant to prove, as an affirmative defense, "that the defendant reasonably believed that the other person was fourteen years of age or older".

Chapter 708. Offenses against property rights. In addition to a number of relatively minor and technical amendments, the committee proposed a modification of the robbery law, sections 708—840 through 708—842, that limit the application of the second degree robbery offense in the "flight after the attempt or commission of theft" phase of this crime. In order not to criminalize minor altercations as class B felonies, the second degree robbery statute, 708—841, is amended to limit qualifying flight—phase applications of force to those that occasion bodily injury to others.

Chapter 709. Offenses against the family and against incompetents. The committee recommended the repeal of section 709—906, relating to the abuse of family and household members offense, and enacting a new part II of chapter 709, consisting of sections 709—910 through 709—915. This expansion, in large part, consists of breaking down a lengthy statute into more easily recognized increments. The substantive modification is in the penalty for first—offense household member abuse and first—offense refusal to comply with a police officer’s order to quit premises. The mandatory minimum forty—eight hours of imprisonment is retained, but the discretionary imprisonment cap is lowered from one year to thirty days. This proposal will have no effect on sentences actually imposed except to improve the predictability and timing of imposition, thus heightening the deterrent and punitive efficacy of the law. Moreover, the proposal mandates a one—year term of probation for first time offenders, thus facilitating the supervision and programming that can deter recurrent and escalating violence against family and household members.

Chapter 712. Offenses against public health and morals. The committee proposed a revision of prostitution penalties under section 712—1200(4) of mandatory probation and mandatory community service, together with whatever other conditions might be appropriate in individual cases, as the penalties best designed to achieve rehabilitation in cases where rehabilitation is a possibility and, at the same time, best suited to deterring and punishing the first offender who is in reality a professional.

SECTION 2. Section 296—71, Hawaii Revised Statutes, is amended to read as follows:

"§296—71 Reporting of crime—related incidents. The board of education shall adopt rules pursuant to chapter 91 to:

SECTION 3. Section 351—32, Hawaii Revised Statutes, is amended to read as follows:

"§35l—32 Violent crimes. The crimes to which part III [of this chapter] applies are the following and no other:

SECTION 4. Section 353—5, Hawaii Revised Statutes, is amended to read as follows:

"§353—5 Offender release recommendations to the court. The intake service center shall notify the prosecutor’s office of the appropriate county whenever it is recommending to the court that a person who is accused of aggravated murder, murder, attempted aggravated murder, or attempted murder [in any degree] or a class A felony involving force or violence against another person be conditionally released or that bail for [such] the person be lowered. (Such] The notice shall be made upon the completion of the intake service center’s investigation on the offender’s case so as to allow the prosecutor’s office of the appropriate county to be present when the court considers the recommendation."

SECTION 5. Section 571—14, Hawaii Revised Statutes, is amended to read as follows:

"§57l—14 Jurisdiction; adults. The court shall have exclusive original jurisdiction:

[In any case, within paragraph (1) or (2), the court, in its discretion, may waive its jurisdiction over the offense charged.]

In any case, within paragraph (1) or (2), the court, in its discretion, may waive its jurisdiction over the offense charged. In any case within paragraph (3), (4), or (6), the attorney general, through the child support enforcement agency, may exercise concurrent jurisdiction as provided in chapter 576E."

SECTION 6. Section 571—22, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

(c) If, incident to a hearing at which the person’s prior court record under section 571—11(1) is established, the court determines that a minor of at least the age of sixteen has been charged with an act which would constitute aggravated murder [in the first degree] or attempted aggravated murder [in the first degree], murder [in the second degree] or attempted murder [in the second degree], or a class A felony if committed by an adult and that the person is not committable to an institution for the mentally defective or retarded or the mentally ill, the court shall waive jurisdiction and order the minor held for criminal proceedings, if [such] the minor has been previously determined by a court to be a law violator by:

SECTION 7. Section 586-1, Hawaii Revised Statutes, is amended by amending the definition of "domestic abuse" to read as follows:

""Domestic abuse" means:

SECTION 8. Section 701-107, Hawaii Revised Statutes, is amended by amending subsection (l) to read as follows:

"(1) An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime. Crimes are of three grades: felonies, misdemeanors, and petty misdemeanors. Felonies include aggravated murder [in the first and second degrees], murder, attempted aggravated murder [in the first and second degrees], attempted murder, and the following three classes: class A, class B, and class C."

SECTION 9. Section 701-108, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A prosecution for aggravated murder, murder, murder in the first and second degrees, attempted aggravated murder, attempted murder, and attempted murder in the first and second degrees may be commenced at any time."

SECTION 10. Section 704-400, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect [he] the person lacks substantial capacity either to appreciate the wrongfulness of [his] the person's conduct or to conform [his] the person's conduct to the requirements of law."

SECTION 11. Section 704-401, Hawaii Revised Statutes, is amended to read as follows:

"§704-401 Evidence of physical or mental disease, disorder, or defect admissible when relevant to state of mind. Evidence that the defendant [suffered from] was affected by a physical or mental disease, disorder, or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is required to establish an element of the offense."

SECTION 12. Section 704—402, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense[.] and may only be raised by the defendant."

SECTION 13. Section 704—403, Hawaii Revised Statutes, is amended to read as follows:

"§704—403 Physical or mental disease, disorder, or defect excluding fitness to proceed. No person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against [him] the person or to assist in [his] the person’s own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures."

SECTION 14. Section 704—404, Hawaii Revised Statutes, is amended to read as follows:

"§704—404 Examination of defendant with respect to physical or mental disease, disorder, or defect. (1) Whenever [the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, or] the court determines that there is reason to doubt [his] the defendant’s fitness to proceed, [or reason to believe that the physical or mental disease, disorder, or defect court will or has become an issue in the case,] the court [may] shall immediately suspend all further proceedings in the prosecution. If a trial jury has been [empanelled,] empaneled, it shall be discharged or retained at the discretion of the court. The dismissal of the trial jury shall not be a bar to further prosecution.

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

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

[(9)](h) The compensation of persons making or assisting in the examination, other than those retained by the 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 State.

(2) Whenever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, the court nay immediately suspend all further proceedings in the prosecution. If a trial jury has been empaneled, it may be discharged or retained at the discretion of the court. The dismissal of the trial jury shall not be a bar to further prosecution.

(3) An evaluation of the defendant’s fitness to proceed shall not be combined with an evaluation of the defendant’s physical or mental condition regarding penal responsibility, or with an evaluation for any other purpose, unless the defendant so requests; provided that in nonfelony cases, the court may also order combined evaluations upon a finding of good cause."

SECTION 15. Section 704—405, Hawaii Revised Statutes, is amended to read as follows:

"§704—405 Determination of fitness to proceed. When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court. If neither the prosecuting attorney nor (counsel for) the defendant contests the finding of the report filed pursuant to section [704—404,] 704—404(1), the court may make the determination on the basis of [such] that report. If the finding is contested, the court shall hold a hearing on the issue. When the report is received in evidence upon [such] the hearing, the party who contests the finding thereof shall have the right to summon and to cross—examine the persons who joined in the report or assisted in the examination and to offer evidence upon the issue."

SECTION 16. Section 704—406, Hawaii Revised Statutes, is amended to read as follows:

"§704—406 Effect of finding of unfitness to proceed. (1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in section 704—407, and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment. If the court is satisfied that the defendant may be released on condition without danger to the defendant or to the person or property of others, the court shall order the defendant’s release, which shall continue at the discretion of the court, [on conditions the court determines necessary.] pursuant to chapter 804. A copy of the report filed pursuant to section 704—404 shall be attached to the order of commitment or order of [conditional] release.

(2) When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the penal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the commitment or [conditional] release of the defendant that it would be unjust to resume the proceeding, the court may dismiss the charge and [may order] release the defendant [to be discharged] or, subject to the law governing [the] involuntary [hospitalization or conditional release of persons suffering from physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment or order the defendant to be released on conditions the court determines necessary.] civil commitment procedures, refer the matter to the director of health for institution of proceedings pursuant to chapter 334, as appropriate.

(3) Within a reasonable time following any commitment under subsection (1), the director of health shall report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. The court, in addition, may appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to make a report. If, following a report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and release the defendant or subject the defendant to involuntary civil commitment procedures.

(4) Within a reasonable time following any [conditional] release under subsection (1), the court shall appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court may dismiss the charge and release the defendant or subject the defendant to involuntary civil commitment procedures."

SECTION 17. Section 704—407, Hawaii Revised Statutes, is amended to read as follows:

"§704—407 Special post—commitment or [post—conditional release] post—release hearing. (1) At any time after commitment or release as provided in section 704—406, the defendant or [his] defendant’s counsel or the director of health may apply for a special post—commitment or post—release hearing. If the application is made by or on behalf of a defendant not represented by counsel, [he] the defendant shall be afforded a reasonable opportunity to obtain counsel, and if (he] the defendant lacks funds to do so, counsel shall be assigned by the court. The application shall be granted only if [the] counsel for the defendant satisfies the court by affidavit or otherwise that [as an attorney he] counsel has reasonable grounds for a good faith belief that [his client] the defendant has an objection based upon legal grounds to the charge.

(2) If the motion for a special post—commitment or post— release hearing is granted, the hearing shall be by the court without a jury. No evidence shall be offered at the hearing by either party on the issue of physical or mental disease, disorder, or defect as a defense to, or in mitigation of, the offense charged.

(3) After the hearing, the court shall rule on any legal objection raised by the application and may in an appropriate case quash the indictment or other charge, or find it to be defective or insufficient, or otherwise terminate the proceedings on the law. In any such case, unless all defects in the proceedings are promptly cured, the court shall terminate the commitment or conditional release ordered under section 704—406 and order the defendant to be discharged or, subject to the law governing [the] involuntary [hospitalization or conditional release of persons suffering from physical or mental disease, disorder, or defect, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment or order the defendant to be released on such conditions as the court deems necessary.] civil commitment procedures, refer the matter to the director of health for institution of proceedings pursuant to chapter 334, as appropriate."

SECTION 18. Section 704—408, Hawaii Revised Statutes, is amended to read as follows:

"§704—408 Determination of irresponsibility. If the report of the examiners filed pursuant to section [704—404,] 704—404(2), or the report of examiners of the defendant’s choice under section 704—409, states that the defendant at the time of the conduct alleged suffered from a physical or mental disease, disorder, or defect which substantially impaired [his] the defendant’s capacity to appreciate the wrongfulness of (his] the defendant’s conduct or to conform [his] the defendant’s conduct to the requirements of law, the court shall submit the defense of physical or mental disease, disorder, or defect to the jury or the trier of fact at the trial of the charge against the defendant."

SECTION 19. Section 704—409, Hawaii Revised Statutes, is amended to read as follows:

"§704—409 Access to defendant by examiners of [his] the defendant’s choice. When, notwithstanding the report filed pursuant to section 704—404, the defendant wishes to be examined by one or more qualified physicians or other experts of [his] the defendant’s own choice, [such] the examiner or examiners shall be permitted to have reasonable access to the defendant for the purposes of [such] the examination."

SECTION 20. Section 704—410, Hawaii Revised Statutes, is amended to read as follows:

"§704-410 Form of expert testimony regarding physical or mental disease, disorder, or defect. (1) [At the hearing pursuant to section 704—405 or upon the trial, the examiners who reported pursuant to section 704—404 may be called as witnesses by the prosecution, the defendant, or the court. If the issue is being tried before a jury, the jury may be informed that the examiners or any of them were designated by the court or by the director of health at the request of the court, as the case may be. If called by the court, the witness shall be subject to cross—examination by the prosecution and the defendant. Both the prosecution and the defendant may summon any other qualified physician or licensed psychologist or other expert to testify, but no one who has not examined the defendant shall be competent to testify to an expert opinion with respect to the physical or mental condition of the defendant, as distinguished from the validity of the procedure followed by, or the general scientific propositions stated by, another witness.] An examiner may be called by the prosecution, the defendant, or the court to testify as a witness on the issue of the defendant’s fitness to proceed. If called by the court, the witness shall be subject to cross-examination by the prosecution and the defendant. When an examiner testifies on the issue of the defendant’s fitness to proceed, the examiner shall be permitted to make a statement as to the nature of the examination, diagnosis of the physical or mental condition of the defendant at the time of the examination, and opinion of the extent, if any, to which the capacity of the defendant to understand the proceedings against the defendant or to assist in the defendant’s own defense is impaired as a result of physical or mental disease, disorder, or defect.

(2) [When an examiner testifies on the issue of the defendant’s fitness to proceed, he shall be permitted to make a statement as to the nature of his examination, his diagnosis of the physical or mental condition of the defendant, and his opinion of the extent, if any, to which the capacity of the defendant to understand the proceedings against him or to assist in his own defense is impaired as a result of physical or mental disease, disorder, or defect.] An examiner may be called by the defendant to testify as a witness on the issue of the defendant’s penal responsibility for conduct alleged, or by the prosecution to rebut a defense of lack of penal responsibility raised pursuant to this chapter, or by either party in proceedings in which both the defense of lack of penal responsibility under this chapter and extreme emotional disturbance mitigation under section 707—702 are presented to the trier of fact at trial. When an examiner testifies on the issue of the defendant’s penal responsibility for conduct alleged, the examiner shall be permitted to make a statement as to the nature of the examination, diagnosis of the physical or mental condition of the defendant at the time of the conduct alleged, and opinion of 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 as a result of physical or mental disease, disorder, or defect, at that time. If the issue is being tried before a jury, the jury may be informed that the examiners or any of them were designated by the court or by the director of health at the request of the court, as the case may be.

(3) [When an examiner testifies on the issue of the defendant’s responsibility for conduct alleged or the issue of the defendant’s capacity to have a particular state of mind which is necessary to establish an element of the offense charged, he shall be permitted to make a statement as to the nature of his examination, his diagnosis of the physical or mental condition of the defendant at the time of the conduct alleged, and his opinion of the extent, if any, to which the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law or to have a particular state of mind which is necessary to establish an element of the offense charged was impaired as a result of physical or mental disease, disorder, or defect at that time.]. When an examiner testifies, the examiner shall be permitted to make an explanation reasonably serving to clarify the examiner's diagnosis and opinion and may be cross—examined as to any matter bearing on the examiner’s competency or credibility or the validity of the examiner’s diagnosis or opinion.

(4) [When an examiner testifies, he shall be permitted to make any explanation reasonably serving to clarify his diagnosis and opinion and may be cross—examined as to any matter bearing on his competency or credibility or the validity of his diagnosis or opinion.] Both the prosecution and the defendant may summon any other qualified physician or licensed psychologist or other expert to testify, but no one who has not examined the defendant shall be competent to testify to an expert opinion with respect to the physical or mental condition of the defendant, as distinguished from the validity of the procedure followed by, or the general scientific propositions stated by, another witness."

SECTION 21. Section 704—411, Hawaii Revised Statutes, is amended to read as follows:

"§704—4ll Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; discharge; procedure for separate post—acquittal hearing. (1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court shall, on the basis of the report made pursuant to section

[704—404,] 704—404(2), if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, make an order as follows:

(2) The court [shall], upon its own motion or on the motion of the prosecuting attorney or the defendant, shall order a separate post—acquittal hearing for the purpose of taking evidence on the issue of physical or mental disease, disorder, or defect and the risk of danger which the defendant presents to oneself, or others.

(3) When ordering a hearing pursuant to subsection (2):

(4) To facilitate the examination and the proceedings [thereon,] held pursuant to this section, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination [and] for a period not exceeding thirty days or such longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness [and participate] in the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accord with section [704—404(3), (4)(a) and (b), (6), (7), (8), and (9).] 704—404(2)(b), (c)(l) and (2), (e), (f), (g), and (h). As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465—3(a)(3).

[(4)] (5) Whether the court’s order under subsection (1) is made on the basis of the medical or psychological evidence given at the trial, or on the basis of the report made pursuant to section [704—404,] 704—404(2), or the medical or psychological evidence given at a separate hearing, the burden shall be upon the State to prove, by a preponderance of the evidence, that the defendant is affected by a physical or mental disease, disorder, or defect and may not safely be discharged and that the defendant should be either committed or conditionally released as provided in subsection (1)."

SECTION 22. Section 704—412, Hawaii Revised Statutes, is amended to read as follows:

"§704—412 Committed person; application for conditional release or discharge; by the director of health; by the person. (1) After the expiration of at least ninety days following the order of commitment pursuant to section 704—411, if the director of health is of the opinion that the person committed to [his] the director’s custody is still affected by a physical or mental disease, disorder, or defect and may be released on condition or discharged without danger to [himself] the person or to the person or property of others, [he] or that the person is no longer affected by a physical or mental disease, disorder, or defect, the director shall [make application] apply for the discharge or conditional release of [such] the person in a report to the court [by] from which [such] the person was committed and shall transmit a copy of the application and report to the prosecuting attorney of the county from which the [defendant] person shall be given notice of [such] the application.

(2) After the expiration of ninety days from the date of the order of commitment pursuant to section 704—411, the person S committed may apply to the court [by] from which [he] the person was committed for an order of discharge or conditional release upon the ground that the [same] person is no longer affected by a physical or mental disease, disorder, or defect or, if still so affected, discharge or conditional release may be ordered without danger to [himself] the person or to the person or property of others. A copy of the application shall be transmitted to the prosecuting attorney of the county from which the defendant was committed. If the determination of the court is adverse to the application, [such] the person shall not be permitted to file a further application until one year has elapsed from the date of any preceding hearing on an application for (his] the person’s discharge or conditional release."

SECTION 23. Section 704—413, Hawaii Revised Statutes, is amended to read as follows:

"§704—413 Conditional release; application for modification or discharge; termination of conditional release and commitment. (1) Any person released on condition pursuant to section 704—411 shall continue to receive [psychological or psychiatric] mental health or other appropriate treatment and care 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 any mental health professional treating any conditionally released person believes the person is either 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 conditionally released person. The probation officer may order the conditionally released person to be hospitalized for a period not to exceed seventy—two hours if [they have] 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 unless a hearing has been held pursuant to subsection (3). The person Or the person’s counsel may waive the requirement that the hearing be held within seventy—two hours; provided that the hearing shall be held within twenty days from the date of hospitalization.

(2) Any person released on condition pursuant to section 704—411 may apply to the court ordering the conditional release for discharge from [or modification of] the order granting conditional release on the ground that [he] the person is no longer affected by a physical or mental disease, disorder, or defect, or, is affected by a physical or mental disease, disorder, or defect and may be discharged (or the order modified] without danger to [himself] the person or to others. [The] Any person released on condition pursuant to section 704—411 may apply to the court ordering the conditional release for modification of the order granting conditional release on the ground that the order may be modified without danger to the person or to others. Any application shall be [accompanied] supported by [a supporting affidavit) the written statement of a qualified physician or licensed psychologist. A copy of the application and [affidavit] written statement shall be transmitted to the prosecuting attorney of the county in which the person is confined and to any (persons] individuals supervising (his] the person’s release (and the). The hearing on the application shall be held following notice to [such persons.] those individuals. If the determination of the court is adverse to the application, [such] the person shall not be permitted to file further application until one year has elapsed from the date of any preceding hearing on an application for modification of conditions of release or for discharge.

(3) If, at any tine after the order pursuant to section 704—411 granting conditional release, the court shall determine, after hearing evidence, that the person is still affected by a physical or mental disease, disorder, or defect, and the conditions of release have not been fulfilled or that for the safety of such person or others [his] the persons’ 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 only in accordance with the procedure prescribed in section 704—412."

SECTION 24. Section 704—414, Hawaii Revised Statutes, is amended to read as follows:

"§704—4l4 Procedure upon application for discharge, conditional release, or modification of conditions of release. Upon filing of an application pursuant to section 704—412 for discharge or conditional release, or upon the filing of an application pursuant to section 704—413 for discharge or for modification of conditions of release, the court shall appoint three qualified examiners in felony cases and one qualified examiner in nonfelony cases to examine and report upon the physical and mental condition of the defendant. In [each case] felony cases the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be either a psychiatrist, licensed psychologist, or qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The [three] examiners shall be appointed from a list of certified [sanity] examiners as determined by the department of health. To facilitate the examination and the proceedings [thereon,] held pursuant to this section, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of the examination and may direct that qualified physicians or psychologists retained by the defendant be permitted to witness [and participate in] the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accord with section [704—404(3), (4)(a) and (b), (6), (7), (8), and (9).] 704—404(2)(b), (c)(l) and (2), (e)., (f), (g), and (h). As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465—3(a)(3)."

SECTION 25. Section 704—415, Hawaii Revised Statutes, is amended to read as follows:

"§704—4l5 Disposition of application for discharge, conditional release, or modification of conditions of release.

If the court is satisfied by the report or reports filed pursuant to section 704—414, and such testimony of the reporting examiners as the court deems necessary, that the person is affected by a physical or mental disease, disorder, or defect and the discharge, conditional release, or modification of conditions of release applied for may be granted without danger to the committed or conditionally released person or to the person or property of others, or, that the person is no longer affected by a physical or mental disease, disorder, or defect, the court shall grant the application and order the relief. If the court is not so satisfied, it shall promptly order a hearing [to determine whether such person may safely be discharged or released]. Any such hearing shall be deemed a civil proceeding and the burden shall be upon the applicant to prove that the person is no longer affected by a physical or mental disease, disorder, or defect or may safely be released on the conditions applied for or discharged. According to the determination of the court upon the hearing, the person shall thereupon be discharged, or released on such conditions as the court determines to be necessary, or shall be recommitted to the custody of the director of health, subject to discharge or release only in accordance with the procedure prescribed in section 704—412." SECTION 26. Section 704—416, Hawaii Revised Statutes, is amended to read as follows:

SECTION 27. Section 704—416.5, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) The probation officer shall report [from time to time], as the court may order, [as to] whether the conditionally released person is complying with the conditions of the release."

SECTION 28. Section 704—418, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

SECTION 29. Section 706—603, Hawaii Revised Statutes, is amended to read as follows:

• "§706—603 Pre—sentence mental and medical examination. [(a)] (1) Before imposing sentence, the court may order a defendant who has been convicted of a felony or misdemeanor to submit to mental or other medical observation and examination for a period not exceeding sixty days or a longer period, not to exceed the length of permissible imprisonment, as the court determines to be necessary for the purpose. In addition, thereto or in the alternative, the court may appoint one or more qualified psychiatrists, physicians, or licensed psychologists to make the examination. [The] In the case of mental examinations, the three examiners shall be appointed from a list of certified [sanity] examiners as determined by the state department of health. The report of the examination shall be submitted to the court. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465—3(a)(3).

[(c)] (3) For the purposes of this section, the defendant may be remanded to any available clinic or hospital, intake service center, community correctional center, or state or county health department facility."

SECTION 30. Section 706—604, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (2) to read:

By amending subsection (4) to read:

"(4) If the defendant is sentenced to imprisonment, a copy of the final report of any pre-sentence diagnosis or Ii psychological, psychiatric, or other medical examination shall be transmitted immediately to the department of public safety [or, when the defendant is committed to the custody of a specific institution, to that institution]. For purposes of this subsection, "final report" means a report reviewed pursuant to subsection (2) and, if required, duly amended."

SECTION 31. Section 706—605, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) In (addition to] lieu of any disposition authorized in subsection (1) [of this section], the court may sentence a person convicted of a misdemeanor [or], petty misdemeanor, or violation to a suspended sentence."

SECTION 32. Section 706—606.3, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:

SECTION 33. Section 706—606.5, Hawaii Revised Statutes, is amended to read as follows:

"§706—606.5 Sentencing of repeat offenders. (1) Notwithstanding section 706—669 and any other law to the contrary, any person convicted of murder, murder in the second degree, any class A felony, any class B felony, or any of the following class C felonies: section 707—703 relating to negligent homicide in the first degree; 707—711 relating to assault in the second degree; 707—713 relating to reckless endangering in the first degree; 707—716 relating to terroristic threatening in the first degree; 707—721 relating to unlawful imprisonment in the first degree; 707—732 relating to sexual assault or rape in the third degree; 707—735 relating to sodomy in the third degree; 707—736 relating to sexual abuse in the first degree; 707—751 relating to promoting child abuse in the second degree; 707—766 relating to extortion in the second degree; 708—811 relating to burglary in the second degree; 708—821 relating to criminal property damage in the second degree; 708—831 relating to theft in the first degree as amended by Act 68, Session Laws of Hawaii 1981; 708—831 relating to theft in the second degree; 708—835.5 relating to theft of livestock; 708—852 relating to forgery in the second degree; 708—854 relating to criminal possession of a forgery device; 710—1031 relating to intimidation of a correctional worker; 710—1071 relating to intimidating a witness; 711—1103 relating to riot; 712—1203 relating to promoting prostitution in the second degree; 712—1221 relating to gambling in the first degree; 712-1224 relating to possession of gambling records in the first degree; 712—1243 relating to promoting a dangerous drug in the third degree; 712—1247 relating to promoting a detrimental drug in the first degree; 134—7 relating to ownership or possession of firearms or ammunition by persons convicted of certain crimes; 134-8 relating to ownership, etc., of prohibited weapons; 134—9 relating to permits to carry, or who is convicted of attempting to commit murder, murder in the second degree, any class A felony, any class B felony, or any of the class C felony offenses enumerated above and who has [a prior conviction or] one or more prior convictions for the following felonies, including an attempt to commit the same: aggravated murder, murder, murder in the first or second degree, a class A felony, a class B felony, any of the class C felony offenses enumerated above, or any felony conviction of another jurisdiction shall be sentenced to a mandatory minimum period of imprisonment without possibility of parole during such period as follows:

(2) Except as in subsection (3), a person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows:

(3) If a person was sentenced for a prior felony conviction to a special term under section 706—667, then the person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows:

(4) The sentencing court may impose the above sentences consecutive to any sentence imposed on the defendant for a prior conviction, but such sentence shall be imposed concurrent to the sentence imposed for the instant conviction. [The court may impose a lesser mandatory minimum period of imprisonment without possibility of parole than that mandated by this section where the court finds that strong mitigating circumstances warrant such action. Strong mitigating circumstances shall include, but will not be limited to, the provisions of section 706-621. The court shall provide a written opinion stating its reasons for imposing the lesser sentence.

For purposes of this section:

(5) Notwithstanding subsection (1) and any other law to the contrary a person with one prior felony conviction may be sentenced to probation if the instant offense is defined by chapter 329, chapter 712, part IV, or chapter 708, exclusive of part V, and the sentencing court finds that strong mitigating circumstances warrant such a sentence. Strong mitigating circumstances shall include, but shall not be limited to, section 706—621 or the availability of a rehabilitative program. The court shall provide a written opinion stating its reasons for imposing the sentence of probation.

(6) A person who is imprisoned in a correctional institution pursuant to subsection (1) shall not be paroled prior to the expiration of the mandatory minimum term of imprisonment imposed pursuant to subsection (1).

(7) For purposes of this section:

(c) A conviction occurs on the date judgment is entered." SECTION 34. Section 706—607, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) When a person prosecuted for a class A felony, class B felony, class C felony, misdemeanor, or petty misdemeanor is [a chronic alcoholic, narcotic addict, or person suffering from mental abnormality] mentally ill or suffering from substance abuse and the person is subject by law to involuntary hospitalization [for medical, psychiatric, or other rehabilitative treatment,] the court may order [such] that hospitalization and dismiss the prosecution. The order of involuntary hospitalization may be made after conviction, in which event the court may set aside the verdict or judgment of conviction and dismiss the prosecution."

SECTION 35. Section 706—610, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Apart from [first and second degree] aggravated murder, murder, attempted aggravated murder, and attempted [first and second degree] murder, felonies defined by this Code are classified, for the purpose of sentence, into three classes, as follows:

A felony is a class A, class B, or class C felony when it is so designated by this Code. Except for (first and second degree] aggravated murder, murder, attempted aggravated murder, and attempted [first and second degree] murder, a crime declared to be a felony, without specification of class, is a class C

felony.’

Section 706—620, Hawaii Revised Statutes, is amended to read as follows:

"§706—620 Authority to withhold sentence of imprisonment. A defendant who has been convicted of a crime may be sentenced to a term of probation unless:

SECTION 37. Section 706—623, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) When the court has sentenced a defendant to be placed on probation, the period of probation shall be as follows, unless the court enters the reason therefor on the record and sentences the defendant to a shorter period of probation:

The court, on application of a probation officer, on application of the defendant, or on its own motion, may discharge the defendant at any time. Prior to granting early discharge, the court shall afford the prosecuting attorney an opportunity to be heard. The terms of probation provided in this [part, other than in this] section[,] shall not apply to sentences of probation imposed under section 706—606.3."

SECTION 38. Section 706—624, Hawaii Revised Statutes, is amended to read as follows:

"§706—624 Conditions of probation. (1) Mandatory conditions. The court shall provide, as an explicit condition of a sentence of probation:

(2) Discretionary conditions. The court may provide, as further conditions of a sentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706—606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706—606(2), that the defendant:

(3) Written statement of conditions. The court shall order the defendant at the time of sentencing to sign a written acknowledgement of the requirement provided in subsection (l)(g) to report to a probation officer for the purpose of receiving the written copy of the requirements. The probation officer shall give the defendant [shall be given] a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity [to enable the defendant) to guide the [defendant’s self] defendant accordingly."

SECTION 39. Section 706—625, Hawaii Revised Statutes, is amended by amending subsection (5) to read as follows:

"(5) When the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which [he] the defendant was convicted; provided that if a new term of probation is imposed in which another term of imprisonment is ordered as a probationary condition pursuant to section 706—624(2)(a), the aggregate terms of imprisonment shall not exceed the maximum authorized term of imprisonment for the offense."

SECTION 40. Section 706—626, Hawaii Revised Statutes, is amended to read as follows:

"§706—626 Summons or arrest of defendant on probation; commitment without bail. At any time before the discharge of the defendant or the termination of the period of probation:

SECTION 41. Section 706—640, Hawaii Revised Statutes, is amended to read as follows:

"§706—640 Authorized fines. A person who has been convicted of an offense may be sentenced to pay a fine not exceeding:

SECTION 42. Section 706—641, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) The court shall not sentence a defendant only to pay a fine, when any other disposition is authorized by law, except in misdemeanor [and], petty misdemeanor, and violation cases."

[(2) When a defendant sentenced to pay a fine is also sentenced to probation, the court may make the payment of the fine a condition of probation.

(3)] (2) When a defendant sentenced to pay a fine is also ordered to make restitution or reparation to the victim or victims, or to the person or party who has incurred loss or damage because of the defendant’s crime, the payment of restitution or reparation shall have priority over the payment of the fine. No fine shall be collected until the restitution or reparation order has been satisfied."

SECTION 44. Section 706—643, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) The defendant shall pay a fine or any installment thereof to the cashier or clerk of the [sentencing] district or circuit court. In the event of default in payment, the clerk shall notify the prosecuting attorney and, if the defendant is on probation, the probation officer."

SECTION 45. Section 706—656, Hawaii Revised Statutes, is amended to read as follows:

§706—656 Terms of imprisonment for (first and second degree murder and attempted first and second degree] aggravated murder, murder, attempted aggravated murder, or attempted murder. (1) Persons convicted of (first degree murder or first degree attempted] aggravated murder or attempted aggravated murder shall be sentenced to life imprisonment without possibility of parole.

As part of such sentence the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of

imprisonment; provided that persons who are repeat offenders under section 706—606.5 shall serve at least the applicable mandatory minimum term of imprisonment.

The prisoner shall be given reasonable notice of the preparation of the application for commutation prior to its submission and be permitted to present supplemental or controverting materials to be included with the application. For the purpose of supplementing or controverting the application, the prisoner shall:

The governor shall determine whether to grant or deny the application within six months of its submission, unless an extension is requested by the prisoner. If commutation to life imprisonment is not granted, re—application for commutation may be submitted by the prisoner or the Hawaii paroling authority no less than four years after submission of the prior application.

If the court imposes a sentence of life imprisonment without possibility of parole, as part of such sentence the court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons who are repeat offenders under section 706—606.5 shall serve at least the applicable mandatory minimum term of imprisonment]."

SECTION 46. Section 706—657, Hawaii Revised Statutes, is amended to read as follows:

The provisions pertaining to commutation in section 706—656(1) shall apply to persons sentenced pursuant to this section."

SECTION 47. Section 706—659, Hawaii Revised Statutes, is amended to read as follows:

"§706—659 Sentence of imprisonment for class A felony. [Notwithstanding part II; sections 706—605, 706—606, 706-606.5, 706—660.1, 706—661, and 706—662; and any other law to the contrary, a person who has been convicted of a class A felony, except class A felonies defined in chapter 712, part IV, shall be sentenced to an indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706—669.] A person who has been convicted of a class A felony [defined in chapter 712, part IV,] may be sentenced to an indeterminate term of imprisonment, except as provided for in section 706—660.1 relating to the use of firearms in certain

felony offenses and section 706—606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be twenty years. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706—669."

SECTION 48. Section 706—660.1, Hawaii Revised Statutes, is

amended to read as follows:

"§706—660.1 Sentence of imprisonment for carrying or use of a [firearm, semiautomatic firearm, or automatic] firearm or prohibited firearm in the commission of a separate felony. (1) A person convicted of a felony, other than a felony offense as defined in chapter 134, where the person [had a firearm in the person’s possession or threatened its use or used the] carried on the person, had within the person’s immediate control, used, or threatened to use a firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not, [may] in addition to the indeterminate term of imprisonment provided for the grade of offense may be sentenced to a mandatory minimum term of imprisonment without possibility of parole or probation the length of which shall be as follows:

[The sentence of imprisonment for a felony involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining minimum term of imprisonment prescribed under section 706—669; provided further that a] A person who is imprisoned in a correctional institution as provided in this subsection shall [become subject to the parole procedure as prescribed in section 706—670 only upon] not be paroled prior to the expiration of the term of a mandatory minimum term of imprisonment fixed under paragraph (a), (b}, (c), or (d).

[The sentence of imprisonment for a second felony offense involving the use of a firearm as provided in this subsection shall not be subject to the procedure for determining a minimum term of imprisonment prescribed under section 706—669; provided further that a] A person who is imprisoned in a correctional institution as provided in this subsection shall [become subject to the parole procedure as prescribed in section 706—670 only upon] not be paroled prior to expiration of the term of a mandatory minimum term of imprisonment fixed under paragraph (a), (b), (c), or (d).

(4) In this section:

SECTION 49. Section 706—660.2, Hawaii Revised Statutes, is repealed.

["§5706-660.2 Sentence of imprisonment for offenses against children, elder persons, or handicapped persons. Notwithstanding section 706—669, a person who, in the course of committing or attempting to commit a felony, causes the death or inflicts serious or substantial bodily injury upon a person who is:

and such disability is known or reasonably should be known to the defendant, shall, if not subjected to an extended term of imprisonment pursuant to section 706—662, be sentenced to a mandatory minimum term of imprisonment without possibility of parole as follows:

SECTION 50. Section 706—662, Hawaii Revised Statutes, is amended to read as follows:

"§706—662 Criteria for extended terms, of imprisonment. A convicted defendant may be subject to an extended term of imprisonment under section 706—661, if the convicted defendant satisfies one or more of the following criteria:

SECTION 51. Section 706—664, Hawaii Revised Statutes, is amended to read as follows:

"§706—664 Procedure for imposing extended terms of imprisonment. [Hearings to determine the grounds for imposing extended terms of imprisonment may be initiated by the prosecutor or by the court on its own motion. The court shall not impose an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed. Subject to the provisions of section 706—604, the defendant shall have the right to hear and controvert the evidence against the defendant and to offer evidence upon the issue.] (1) The prosecutor or the court on its own motion after the conviction of the defendant may initiate a hearing to determine whether an extended term of imprisonment should be imposed. The court shall not impose an extended term unless written notice of the ground proposed is served on the defendant prior to the hearing, the defendant has an opportunity at the hearing to hear and controvert the evidence against the defendant and to offer evidence upon the issue, and the ground has been established at the hearing.

"§706—667 Young adult defendants. (1) Defined. A young adult defendant is a person convicted of a crime who, at the time of [sentencing,] the offense, is sixteen years of age or older but 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 committed at age sixteen or older which would have been a felony had [he] the offender been an adult.

(2) Specialized correctional treatment. A young adult defendant who is sentenced to a term of imprisonment which may exceed thirty days may be committed by the court to the custody of the department of public safety, shall receive, as far as practicable, such special and individualized correctional [and rehabilitative] treatment as may be appropriate to [his] the young adult defendant’s needs.

(3) Special term. A young adult defendant convicted of a felony [may], 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] the special term is adequate for [his) 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 will be incarcerated separately from career criminals, when practicable. This section shall not apply to the offenses of aggravated murder, murder, attempted aggravated murder, or attempted murder."

SECTION 53. Section 706—668.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§706—668.5[]] Multiple sentence of imprisonment[.], concurrent and consecutive terms. (1) If multiple terms of imprisonment are imposed on a defendant at the same time, 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[.] subject to the following criteria and limitations:

(2) Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms run consecutively. [Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms -run concurrently.

(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) Whenever the court imposes a consecutive term of imprisonment, the court shall enter a written order stating its reasons for the consecutive term and all findings of fact which are necessary for its decision. If more than one consecutive term of imprisonment is imposed, the court shall state separate reasons for imposing each consecutive term of imprisonment."

SECTION 54. Section 706—669, Hawaii Revised Statutes, is amended by amending subsections (1) to (4) to read as follows:

"(1) when a person has been sentenced to an indeterminate or an extended term of imprisonment, the Hawaii paroling authority [shall], as soon as practicable but no later than six months after commitment to the custody of the director of [the department of []public safety[]], shall hold a hearing, and on the basis of the hearing, make an order fixing the minimum term of imprisonment to be served before the prisoner shall become eligible for parole.

(2) Before holding the hearing, the authority shall obtain a complete report regarding the prisoner’s life before entering the institution and a full report of [his] the prisoner’s progress in the institution. The report shall be a complete personality evaluation for the purpose of determining [his] the prisoner’s degree of propensity toward criminal activity.

(3) The prisoner shall be given reasonable notice of the hearing under subsection (1) and shall be permitted to be heard by the authority on the issue of the minimum term to be served before [he] the prisoner becomes eligible for parole. In addition, [he] the prisoner shall:

(4) The authority in its discretion [may], in any particular case and at any time, may impose a special condition that the prisoner will not be considered for parole unless and until [he] the prisoner has a record of continuous exemplary behavior."

SECTION 55. Section 706—670, Hawaii Revised Statutes, is 19 amended to read as follows:

"§706—670 Parole procedure; release on parole; terms of parole, recommitment, and reparole; final unconditional release. (1) Parole hearing. A person sentenced to an indeterminate term of imprisonment shall receive an initial parole hearing at least one month before the expiration of the minimum term of imprisonment determined by the Hawaii paroling authority pursuant to section 706—669. If parole is not granted at that time, additional hearings shall be held at twelve—month intervals or less until parole is granted or the maximum period of imprisonment expires. The State shall have the right to be represented at the hearing by the prosecuting attorney who may present written testimony and make oral comments and the authority shall consider [such] that testimony and comments in reaching its decision. The authority shall notify the appropriate prosecuting attorney of the hearing at the time the prisoner is given notice of the hearing.

(2) Parole criteria. In addition to this section, the authority shall fulfill the responsibility and duties in section 353—62 and apply the standards and requirements in sections 353—64 and 353—69 in determining the propriety of parole.

[(2)] (3) Parole conditions. The authority, as a condition of parole, may impose reasonable conditions on the prisoner as provided under section 706—6241.], the condition required in section 353—66, and the requirements for education as provided in section 363—67.

[(3)] (4) Prisoner’s plan and participation. Each prisoner shall be given reasonable notice of the prisoner’s parole hearing and shall prepare a parole plan, setting forth the manner of life the prisoner intends to lead if released on parole, including specific information as to where and with whom the prisoner will reside and what occupation or employment the prisoner will follow. The prisoner shall be paroled in the county where the prisoner had a permanent residence or occupation or employment prior to the prisoner’s incarceration, unless:

The institutional parole staff shall render reasonable aid to the prisoner in the preparation of the prisoner’s plan and in securing information for submission to the authority. In addition, the prisoner shall:

[(4)](5) Authority’s decision; initial minimum term of parole. The authority shall render its decision regarding a prisoner’s release on parole within a reasonable time after the parole hearing. A grant of parole shall not be subject to acceptance by the prisoner. If the authority denies parole after the hearing, it shall state its reasons in writing. A verbatim stenographic or mechanical record of the parole hearing shall be made and preserved in transcribed or untranscribed form. The authority [may], in its discretion, may order a reconsideration or rehearing of the case at any time. If parole is granted by the authority, the authority shall set the initial minimum length of the parole term.

[(5)] (6) Release upon expiration of maximum term. If the authority fixes no earlier release date, a prisoner’s release shall become mandatory at the expiration of [his] the prisoner’s maximum term of imprisonment.

[(6)) (7_) Sentence of imprisonment includes separate parole term. A sentence to an indeterminate term of imprisonment under this chapter includes as a separate portion of the sentence a term of parole or of recommitment for violation of the conditions of parole.

[(7)) (8) Revocation hearing. The authority shall follow the standards, requirements, and procedures of section 353—62 and 353—66 in the revocation or suspension of parole. When a parolee has been recommitted, the authority shall hold a hearing within sixty days after [his] a parolee’s return to custody to determine whether [his] the parolee’s parole should be revoked. The parolee shall have reasonable notice of the grounds alleged for revocation of [his] the parolee’s parole. The institutional parole staff shall render reasonable aid to the parolee in preparation for the hearing. In addition, the parolee shall have, with respect to the revocation hearing, those rights set forth in subsection [(3)(a), (3)(b), (3)(c), and (3)(d).] (4)(a) to (d). A record of the hearing shall be made and preserved as provided in subsection [(4).] (5).

SECTION 56. Section 706—671, Hawaii Revised Statutes, is amended to read as follows:

(3) When a defendant who is sentenced to imprisonment has previously been detained for another offense in any state or county correctional or other institution for any period after the arrest for the crime for which sentence is imposed, that period of detention after the arrest may be deducted from the minimum and maximum terms or the definite term of the sentence if the court finds the deduction to be in the interest of justice.

(4) when a defendant who is sentenced to imprisonment after a sentence of probation was revoked, has previously been detained for another offense in any state or county correctional or other institution for any period after the sentence of probation had been imposed, that period of detention may be deducted from the sentence of imprisonment if the court finds the deduction to be in the interest of justice.

(5) The officer having custody of the defendant shall furnish a certificate to the court at the time of sentence or whenever at term of imprisonment is imposed following a revocation of probation, showing the length of detention of the defendant in any state or county correctional or other institution for the period prior to sentence and following arrest for the crime for which sentence is imposed, and the certificate shall be annexed to the official records of the defendant’s commitment."

SECTION 57. Section 706—672, Hawaii Revised Statutes, is amended to read as follows:

"§706—672 Place of imprisonment. When a person is sentenced to imprisonment, the court shall commit [him] the person to the custody of the department of public safety for the term of [his] the sentence and until released in accordance with law. The director of [the department of] public safety shall determine the proper program of redirection and any place of confinement of the committed person."

SECTION 58. Section 707—700, Hawaii Revised Statutes, is amended by amending the definition of "bodily injury" to read as follows:

""Bodily injury" means substantial physical pain[, illness,] or any impairment of physical condition."

SECTION 59. Section 707—701, Hawaii Revised Statutes, is amended to read as follows:

"§707—701 [Murder in the first degree.] Aggravated murder. (1) A person commits the offense of aggravated murder [in the first degree] if the person intentionally or knowingly causes the death of:

(2) [Murder in the first-degree] Aggravated murder is a felony for which the defendant shall be sentenced to imprisonment as provided in section 706—656."

SECTION 60. Section 707—701.5, Hawaii Revised Statutes, is amended to read as follows:

(2) Murder [in the second degree) is a felony for which the defendant shall be sentenced to imprisonment as provided in [section] sections 706—656[.] and 706—657."

SECTION 61. Section 707—702, Hawaii Revised Statutes, is amended to read as follows:

"§707—702 Manslaughter. (1) A person commits the offense of manslaughter if:

(3) Manslaughter is a class [B] A felony."

SECTION 62. Chapter 707, Hawaii Revised Statutes, is amended by adding a new section to part III to be appropriately designated and to read as follows:

"§707—     Assault in the fourth degree. (1) A person commits the offense of assault in the fourth degree if the person intentiona1ly, knowinqly, or recklessly physically abuses another person.

(2) Assault in the fourth degree is a petty misdemeanor."

SECTION 63. Section 707—714, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) For the purposes of this section [and in addition to other applications], it shall be prima facie evidence that a person engages in conduct [which] that recklessly places another person in danger of death or serious bodily injury when that person intentionally discharges a firearm in a populated area, in a residential area, or within the boundaries or in the direction of any road, street, or highway[; provided that the provisions of this paragraph]. This subsection shall not apply to any person who discharges a firearm upon a target range for the purpose of the target shooting done in compliance with all laws and regulations applicable thereto."

SECTION 64. Section 707—716, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening:

SECTION 65. Section 707—730, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of sexual assault in the first degree if:

SECTION 66. Section 707—731, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of sexual assault in the second degree if:

SECTION 67. Section 707—732, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of sexual assault in the third degree if:

SECTION 68. Chapter 707, Hawaii Revised Statutes, is amended by adding a new section to part V to be appropriately designated and to read as follows:

"§707—     Medical and parental exemptions. Sections 707—730, 707—731, 707—732, and 707—733 shall not be construed to prohibit practitioners licensed under chapter 453, 455, or 460, or their authorized agents, from performing any lawful act within their respective practices nor to prohibit parents, guardians, or designated custodians from performing lawful acts involving duties or responsibilities which are taken for the health or welfare of the child under their care."

SECTION 69. Section 707—741, Hawaii Revised Statutes, is amended to read as follows:

"§707—741 Incest. (1) A person commits the offense of incest if the person commits an act of sexual penetration with another who is within the degrees of consanguinity or affinity within which marriage is prohibited.

(2) "The degrees of consanguinity or affinity within which marriage is prohibited" means those who stand in relation to each other of ancestor and descendant of any degree, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate or illegitimate.

(3) Incest is a class C felony."

SECTION 70. Section 708—800, Hawaii Revised Statutes, is amended by adding four new definitions to be appropriately inserted and to read as follows:

""Bodily injury" means substantial physical pain or any impairment of physical condition.

"Firearm" means any weapon, for which the operating force is an explosive, including but not limited to pistols, revolvers, rifles, shotguns, automatic firearms, noxious gas projectors, mortars, bombs, and cannons.

"School" includes every academic and noncollege type of school, whether under governmental supervision or otherwise, except sabbath schools which convene once each week.

"Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

SECTION 71. Section 708—801, Hawaii Revised Statutes, is amended to read as follows:

"§708—801 Valuation of property. Whenever the value of property or services is determinative of the class or grade of an offense, or otherwise relevant to a prosecution, the following shall apply:

SECTION 72. Section 708—813, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of criminal trespass in the first degree if:

SECTION 73. Section 708—829, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) Criminal littering is a [petty misdemeanor.] violation.

SECTION 74. Section 708—830, Hawaii Revised Statutes, is amended to read as follows:

"§708—830 Theft. A person commits theft if [he] the person does any of the following:

SECTION 75. Section 708—831, Hawaii Revised Statutes, is amended to read as follows:

"§708—831 Theft in the second degree. (1) A person commits the offense of theft in the second degree if the person commits theft:

(2) Theft in the second degree is a class C felony. [A person convicted of committing the offense of theft in the second degree under paragraphs (c) and (d) shall be sentenced in accordance with chapter 706, except that for the first offense, the court may impose a minimum sentence of a fine of at least $1,000 or twofold damages sustained by the victim, whichever is greater.]"

SECTION 76. Section 708—832, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of theft in the third degree if the person commits theft[:

SECTION 77. Section 708—833, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of theft in the fourth degree if the person commits theft of property or services of any value [not in excess of $100]."

SECTION 78. Section 708—835.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]5708—835.5[]] Theft of livestock. (1) A person commits the offense of theft of livestock if the person commits theft by having in the person’s possession a live animal of the bovine, equine, swine, or sheep species, or its carcass or meat, while in or upon premises which the person knowingly entered or remained unlawfully in or upon, and which are fenced or enclosed in a manner designed to exclude intruders, or by having in the person’s possession [such] the live animal, carcass, or meat in any other location.

(2) Theft of livestock is a class C felony.

[(3) A person convicted of committing the offense of theft of livestock shall be sentenced in accordance with chapter 706, except that for a first offense the court shall impose a minimum sentence of a fine of at least $1,000 or restitution, whichever is greater.]"

SECTION 79. Section 708—840, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of robbery in the first degree if, in the course of committing theft[:] or in the flight after the attempt or commission of theft:

SECTION 80. Section 708—841, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of robbery in the second degree [if, in]:

SECTION 81. Section 708—842, Hawaii Revised Statutes, is amended to read as follows:

"§708—842 Robbery; "in the course of committing a theft." An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft[,] or in the commission of theft[, or in the flight after the attempt or commission]."

SECTION 82. Chapter 709, Hawaii Revised Statutes, is amended as follows:

1. By repealing section 709—906.

["§709—906 Abuse of family and household members; penalty. (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member, or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member may, upon request, transport the abused person to a hospital or safe shelter.

For the purposes of this section, "family or household member" means spouses or former spouses, parents, children, and persons jointly residing or formerly residing in the same dwelling unit.

(2) Any police officer may, with or without a warrant, arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member, and that the person arrested is guilty thereof.

(3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.

(4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was recent physical abuse or harm inflicted by one person upon a family or household member, whether or not such physical abuse or harm occurred in the officer’s presence:

(5) Abuse of a family or household member, and refusal to comply with the lawful order of a police officer under subsection(4) are misdemeanors and the person shall be sentenced as follows:

(7) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting such arrest.

(9) The respondent shall be taken into custody and brought before the family court at the first possible opportunity. The court may then dismiss the petition or hold the respondent in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

(10) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member.

(11) It shall be the duty of the prosecuting attorney of the applicable county to assist any victim under this section in the preparation of the penal summons or arrest warrant.

(12) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.

(13) Upon dismissal of such person and discharge of the proceeding against the person under this section, such person, if the offense is the only offense against the other family or household member for a period of not less than five years, may apply for an order to expunge from all official records all recordation relating to the person’s arrest, trial, finding of guilt, and dismissal and discharges pursuant to this section. If the court determines, after hearing, that such person was dismissed and the proceedings against the person were discharged and that no other similar offenses were charged against the person for a period of not less than five years, it shall enter such order.

(14) If a person is ordered by the court to undergo any treatment or counseling, that person shall provide adequate proof of compliance with the court’s order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered treatment. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the treatment ordered by the court."]

2. By designating sections 709—900 to 709—908 as part I and inserting a title before section 709—900 to read

3. By adding a new part to be appropriately designated and to read:

$709— Definitions. In this part, unless a different meaning is plainly required:

"Family or household members" means spouses or former spouse, parents, children, and persons jointly residing or formerly residing in the same dwelling unit.

(2) A police officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that the person is physically abusing, or has physically abused a family or household member.

(3) A police officer who has probable cause to believe that the person is physically abusing or has physically abused a family member or household member shall prepare a written report.

(4) Any policy officer who arrests a person pursuant to this part shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting such arrest.

§709—     Abuse of family or household members; penalty. (1) A person commits the offense of abuse of family or household members if the person intentionally, knowingly, or recklessly physically abuses a family or household member.

(2) A person who commits the offense of abuse of a family or household member shall be sentenced as follows:

(3) Whenever a court sentences a person pursuant to subsection (2), it shall also require that the offender undergo any available domestic violence treatment and appropriate program or programs ordered by the court. The court may suspend any portion of the term of imprisonment imposed, except for the required minimum period of imprisonment under subsection (2)(a) and (b), upon the condition that the defendant remain conviction-free and complete any court—ordered treatment and counseling. Upon a finding of good cause, the court may grant early discharge from probation.

§709— Safety order; refusal to comply; penalty. (1) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was recent physical abuse in inflicted by one person upon a family or household member, whether or not such physical abuse occurred in the officer’s presence:

(2) A person commits the offense of refusal to comply with a safety order when the person refuses to comply with the lawful order of a police officer under this section. The person shall be sentenced as follows:

§709—     Rights of the family or household member. (1) A family or household member who alleges physical abuse by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith, or may file a criminal complaint through the prosecuting attorney of the applicable county.

(2) When the respondent is taken into custody pursuant to an arrest warrant, the respondent shall be brought before the family court at the first possible opportunity. The court may then dismiss the petition or hold the respondent in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

(3) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution under this part.

(4) It shall be the duty of the prosecuting attorney of the applicable county to assist any complainant under this section in the preparation of the penal summons or arrest warrant.

(5) This section shall not preclude the physically abused family or household from pursuing any other remedy under law or in equity.

§709—     Expungement. If the offense committed under this part is the only crime committed by the defendant for a period of not less than ten years, the person may apply for an order to expunge from all official records all recordation relating to the person’s arrest, trial, and finding of guilt."

SECTION 83. Section 712—1200, Hawaii Revised Statutes, is amended by amending subsection (4) to read as follows:

"(4) A person convicted of committing the offense of prostitution shall be sentenced as follows:

For the purpose of this subsection, if the court has deferred further proceedings pursuant to chapter 853, and notwithstanding any provision of chapter 853 to the contrary, the defendant shall not be eligible to apply for expungement pursuant to section 831—3.2 until four years following discharge. A plea previously entered by a defendant under section 853—1 for a violation of this section shall be considered a prior offense."

SECTION 84. Section 712—1205, Hawaii Revised Statutes, is repealed.

SECTION 85. Section 712—1240, Hawaii Revised Statutes, is amended by amending the definitions of "dosage unit" and "minor" to read as follows:

""Dosage unit" [for purposes of section 712—1241 and section 712—1242] means an entity designed and intended for singular consumption or administration.

"Minor" means a person who has not reached [the age of majority.] eighteen years of age."

SECTION 86. Section 712—1249.4, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of commercial promotion of marijuana in the first degree if the person knowingly:

SECTION 87. Section 712A—4, Hawaii Revised Statutes, is amended to read as follows:

"§7l2A—4 Covered offenses. Offenses for which property is subject to forfeiture under this chapter are:

SECTION 88. Section 803—44, Hawaii Revised Statutes, is amended to read as follows:

"§803—44 Application for court order to intercept wire, oral, or electronic communications. The attorney general of this State, or a designated deputy attorney general in the attorney general’s absence or incapacity, or the prosecuting attorney of [each] any county, or a designated deputy prosecuting attorney in the prosecuting attorney’s absence or incapacity, may [make application] apply to a circuit court judge, designated by the chief justice of the Hawaii supreme court, or any other circuit court judge or district court judge, if a circuit court judge has not been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, in the county where the interception is to take place, for an order authorizing or approving the interception of wire, oral, or electronic communications, and [such] the court may grant in conformity with section 803—46 an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when [such] that interception may provide or has provided evidence of aggravated murder, murder, kidnapping, or felony criminal property damage involving the danger of serious bodily injury as defined in section 707—700, or involving organized crime and any of the following felony offenses: extortion; bribery of a juror, of a witness, or of a police officer; receiving stolen property; gambling; and distribution of dangerous, harmful, or detrimental drugs."

SECTION 89. Section 803—46, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Upon such application and after such adversary hearing, the court may enter an order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the county in which the court is sitting, if the court determines on the basis of the facts submitted by the applicant that:

If the order allows physical entry to accomplish the interception, the issuing judge shall find that the interception could not be accomplished by means other than physical entry."

SECTION 90. Section 804—3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) For purposes of this section, "serious crime" means aggravated murder, attempted aggravated murder, murder, attempted murder, murder or attempted murder in the first degree, murder or attempted murder in the second degree, or a class A or B felony, except forgery in the first degree and failing to render aid under section 29lC—l2, and "bail" includes release on one’s own recognizance, supervised release, and conditional release."

SECTION 91. Section 842—1, Hawaii Revised Statutes, is amended by amending the definition of "racketeering activity" to read as follows:

"Racketeering activity" means any act or threat involving, but not limited to aggravated murder, murder, kidnapping, gambling, criminal property damage, robbery, bribery, extortion, theft or prostitution, or any dealing in narcotic or other dangerous drugs which is chargeable as a crime under state law and punishable by imprisonment for more than one year."

SECTION 92. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 93. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 94. This Act shall take effect on January 1, 1996."

SECTION 2. This Act shall take effect upon its approval.