Establishes a new state new drug enforcement department with statewide responsibility for drug enforcement, including interdiction and interagency planning. Establishes new methamphetamine trafficking offenses. Requires cleanup of drug houses closed under nuisance abatement law. Appropriates funds to establish new department. Appropriates funds for substance abuse prevention and treatment programs.

A BILL FOR AN ACT

SECTION 1. In 2003, the legislature created a joint house and senate task force to assess the growing abuse of crystal methamphetamine, commonly referred to as "ice". In the following series of seven informational briefings and seven hearings, fourteen site visits, and nearly eight hours of testimony and discussion from more than three hundred individuals, the joint house and senate task force on ice and drug abatement concluded that prevention, treatment, and enforcement should be the key focuses in fighting crystal methamphetamine.

Acting upon the findings of the joint house and senate task force on ice and drug abatement, the legislature committed more than $10,000,000 toward prevention and treatment of crystal methamphetamine abuse, as well as increased penalties for crystal methamphetamine abuse and distribution, and began to provide law enforcement with greater resources to combat drug abuse. In 2005, the legislature continued its effort to curb crystal methamphetamine abuse by restricting the sale of methamphetamine precursor chemicals, appropriating $15,400,000 toward prevention and treatment programs, and began targeting children with substance abuse problems. These efforts continue in 2006 with similar funding for substance abuse prevention and treatment, especially for children.

However, because between eighty and ninety per cent of methamphetamine in Hawaii is believed to come from out of state, further measures are necessary to adequately protect Hawaii's communities from the devastating effects of crystal methamphetamine abuse. One of those measures is to consolidate all drug enforcement functions and employees of state government into a department of drug enforcement. This will ensure better organization and coordination of drug enforcement functions and allow for standardized training.

This Act establishes a department of drug enforcement to be effective upon approval of this Act. Effective July 1, 2007, the functions and employees of the narcotics enforcement division of the department of public safety are to be transferred to the new department. The director of drug enforcement shall report to the legislature, no later than twenty days before the convening of the Regular Session of 2007, concerning the director's recommendations regarding the transfer to the department of drug enforcement of all other drug enforcement functions and employees of the State.

This Act also provides that, in the interim between the Act's approval and July 1, 2007, a management team shall be selected by the governor, with necessary staff hired by the governor, to develop the appropriate transitional plans, rework position descriptions, review personnel classifications, develop an organizational structure, prepare a proposed budget, and attend to other administrative details so that the new department of drug enforcement can become initially operational on July 1, 2007.

This Act also makes appropriations for substance abuse, including ice prevention, treatment, education, and rehabilitation, to provide substance abuse treatment services for adolescents and first-time nonviolent drug offenders, and to fund community efforts to sustain anti-drug campaigns and community-based substance abuse prevention programs.

The purpose of this Act is to concentrate on stopping methamphetamine from entering Hawaii and continue to focus on treatment and prevention for drug endangered children.

SECTION 2. Chapter 26, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§26- Department of drug enforcement. (a) The department of drug enforcement shall be headed by a single executive to be known as the director of drug enforcement.

(b) The department of drug enforcement shall be responsible for the formulation and implementation of state policies and objectives for drug enforcement.

(c) Effective July 1, 2007, the functions and authority heretofore exercised by the department of drug enforcement relating to narcotics enforcement agents with the narcotics enforcement division shall be transferred to the department of drug enforcement."

SECTION 3. Section 26-4, Hawaii Revised Statutes, is amended to read as follows:

"§26-4 Structure of government. Under the supervision of the governor, all executive and administrative offices, departments, and instrumentalities of the state government and their respective functions, powers, and duties shall be allocated among and within the following principal departments that are hereby established:

SECTION 4. Effective July 1, 2007, section 26-52, Hawaii Revised Statutes, is amended to read as follows:

§26-52 Department heads and executive officers. The salaries of the following state officers shall be as follows:

SECTION 5. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

§ -1 Definitions. Whenever used in this chapter, unless the context otherwise requires:

"Department" means the department of drug enforcement.

"Director" means the director of drug enforcement.

§ -2 Director of drug enforcement; powers and duties. The director of drug enforcement shall administer the programs of the department of drug enforcement and shall be responsible for the formulation and implementation of state goals and objectives for drug enforcement programs. In the administration of these programs, the director may:

§ -3 Deputy directors; appointment. The director shall appoint, without regard to chapter 76, one deputy director to serve at the director's pleasure. Unless otherwise assigned by the director, the deputy director shall oversee the administration of the department.

§ -4 Appointment of employees with police powers and other employees. (a) The director may appoint employees to be drug enforcement officers who shall have all of the powers of police officers; provided that the director may establish and assign the employees to positions or categories of positions that may have differing titles, specific duties, and limitations upon the exercise of police powers.

(b) The director may appoint other personnel necessary to carry out the functions of the department.

§ -5 Canine interdiction program. The director shall establish and maintain a canine drug interdiction program for the purpose of preventing entry of drugs into the State through air and sea traffic. The director shall enter into cooperative agreements with air and sea carriers for canine screening of shipments received in the State from interstate and foreign commerce.

§ -6 Interagency drug enforcement planning council. (a) There is established in the department of drug enforcement an interagency drug enforcement planning council that shall oversee the development and implementation of a statewide drug interdiction and enforcement program. The council shall be headed by the director and consist of the attorney general, the director of public safety, the county prosecuting attorneys, the county chiefs of police, or their designees, and representatives of such other state and county agencies as the director determines.

(b) The department of drug enforcement shall be the lead agency for interagency planning council. As the lead agency, the department shall act as facilitator of and provide administrative support to the coordinating body."

SECTION 6. Chapter 712, part IV, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:

"§712-A Methamphetamine trafficking in the first degree. (1) A person commits the offense of methamphetamine trafficking in the first degree if the person knowingly:

(d) Manufactures methamphetamine in any amount.

(2) Methamphetamine trafficking in the first degree is a class A felony for which the defendant shall be sentenced as provided in subsection (3).

(3) Notwithstanding sections 706-620(2), 706-640, 706-641, 706-659, 706-669, and any other law to the contrary, a person convicted of methamphetamine trafficking in the first degree shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment of not less than two years and not greater than eight years and a fine not to exceed $20,000,000; provided that:

§712-B Methamphetamine trafficking in the second degree. (1) A person commits the offense of methamphetamine trafficking in the second degree if the person knowingly distributes methamphetamine in any amount.

(2) Methamphetamine trafficking in the second degree is a class B felony for which the defendant shall be sentenced as provided in subsection (3).

(3) Notwithstanding sections 706-620, 706-640, 706-641, 706-660, 706-669, and any other law to the contrary, a person convicted of methamphetamine trafficking in the second degree shall be sentenced to an indeterminate term of imprisonment of ten years with a mandatory minimum term of imprisonment of not less than one year and not greater than four years and a fine not to exceed $10,000,000; provided that:

(c) If the person has three or more prior convictions for methamphetamine trafficking pursuant to this section or section 712-A, the mandatory minimum term of imprisonment shall be ten years.

§712-C Methamphetamine trafficking; restitution and reimbursement. When sentencing a defendant convicted of methamphetamine trafficking pursuant to sections 712-A or 712-B, the court may order restitution or reimbursement to the state or county government for the cost incurred for any cleanup associated with the manufacture or distribution of methamphetamine and to any other person injured as a result of the manufacture or distribution of methamphetamine.

SECTION 7. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to part V to be appropriately designated and to read as follows:

"§712-D Inspection and rehabilitation of premises. (a) No premises or portion thereof ordered to be closed pursuant to this part shall be released or opened unless it has been inspected by the department of health and found to be in compliance with applicable county or state housing, building, fire, zoning, health and safety codes, laws, ordinances, rules, regulations, or statutes. The premises must be specifically cleaned of all drug-related paraphernalia including any residual biological and chemical material. Where the inspection reveals violations of any such code, law, ordinance, rule, regulation, or statute, the court shall issue such orders or grant such relief as may be necessary to bring the premises or portion thereof into compliance. In that event, the court may order the premises or portion thereof to remain closed pending such necessary repairs or modification.

(b) The court may authorize any person or government official to enter a premises or portion thereof closed pursuant to this section for the purpose of conducting an inspection or making any repairs or modifications necessary to abate the nuisance or to bring the premises or portion thereof into compliance with any applicable housing, building, fire, zoning, health or safety code, law, ordinance, rule, regulation or statute."

SECTION 8. Section 706-622.5, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Notwithstanding section 706-620(3), a person convicted for the first time for any offense under section 329-43.5 involving the possession or use of drug paraphernalia or any felony offense under part IV of chapter 712 involving the possession or use[, not including to distribute or manufacture as defined in section 712-1240,] of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, [unlawful methamphetamine trafficking as provided in section 712-1240.6, or involving possession or use of drug paraphernalia under section 329-43.5,] but not including any offense under part IV of chapter 712 involving the distribution or manufacture of any such drugs or substances and not including any methamphetamine trafficking offenses under section 712A and 712B, is eligible to be sentenced to probation under subsection (2) if the person meets the following criteria:

SECTION 9. Section 712-1241, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) A person commits the offense of promoting a dangerous drug in the first degree if the person knowingly:

SECTION 10. Section 712-1240.6, Hawaii Revised Statutes, is repealed.

["[§712-1240.6] Unlawful methamphetamine trafficking; penalties. (1) A person commits the offense of unlawful methamphetamine trafficking if the person knowingly manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense, one or more preparations, compounds, mixtures, or substances of methamphetamine, or any of its salts, isomers, and salts of isomers.

(2) The manufacture, distribution, or dispensing of or possession with intent to manufacture, distribute, or dispense one or more preparations, compounds, mixtures, or substances of an aggregate weight of one-eighth ounce or more of methamphetamine, or any of its salts, isomers, and salts of isomers is a class A felony with a mandatory minimum prison term of five years; provided however:

(3) The manufacture, distribution, or dispensing of one or more preparations, compounds, mixtures, or substances of an aggregate weight of less than one-eighth ounce of methamphetamine, or any of its salts, isomers, and salts of isomers is a class B felony with a mandatory minimum prison term of three years; provided however:

(4) A defendant convicted of the offense of unlawful methamphetamine trafficking shall be sentenced in accordance with this section, notwithstanding sections 706-620(2), 706-659, 706-640, and 706-641. When sentencing a defendant convicted of the offense of unlawful methamphetamine trafficking, the court may order restitution or reimbursement to:

SECTION 11. The governor shall appoint a management team and may hire necessary staff, who shall be exempt from chapter 77, Hawaii Revised Statutes, to develop the appropriate transition plans, rework position descriptions, revise personnel classifications, develop an organizational structure, prepare a proposed budget, and attend to other administrative details so that the new department of drug enforcement can be initially operational by July 1, 2007.

SECTION 12. The director of drug enforcement shall report to the legislature, no later than twenty days before the convening of the regular session of 2008, concerning the director's recommendations regarding the transfer to the department of drug enforcement of all other drug enforcement functions and employees of the State.

SECTION 13. All officers and employees of the department of public safety whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to state personnel laws and this Act.

No officer or employee of the State having tenure who is transferred by this Act shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

In the event that an office or position held by an officer or employee having tenure is abolished and the officer, employee, or position is not transferred to the department of drug enforcement by this Act, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position of the State for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

Any employee who, prior to this Act, was exempt from civil service and may be transferred as a consequence of this Act, shall continue to retain the employee's exempt status and shall not be appointed to a civil service position because of this Act. Employees who may be transferred by this Act and who are receiving entitlements, benefits, or privileges in accordance with chapter 77, Hawaii Revised Statutes, shall continue to receive only those entitlements, benefits, or privileges received under chapter 77, Hawaii Revised Statutes, after such transfer.

SECTION 14. Transfers of records, equipment, appropriations, authorizations, and other property. All appropriations, records, equipment, files, supplies, contracts, books, papers, documents, maps, computer software and data, authorizations and other property, both real and personal, heretofore made, used, acquired, or held by the department, office, board, commission, or agency in the exercise of the functions and programs transferred by this Act shall be transferred to the department of drug enforcement when the functions or programs are so transferred.

SECTION 15. All rules, policies, procedures, guidelines, and other material adopted or developed by the department of public safety to implement provisions of the Hawaii Revised Statutes which are reenacted or made applicable to the department of drug enforcement by this Act, shall remain in full force and effect until amended or repealed by the department of drug enforcement pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of public safety or director of public safety in those rules, policies, procedures, guidelines, and other material is amended to refer to the department drug enforcement or director of drug enforcement, as appropriate.

SECTION 16. No offense committed and no penalty or forfeiture incurred under the law shall be affected by this Act; provided that whenever any punishment, penalty, or forfeiture is mitigated by any provision of this Act, such provision may be extended and applied to any judgment pronounced after the passage of this Act. No suit or prosecution pending at the time this Act takes effect shall be affected by this Act. The right of any administrative officer whose function is transferred by this Act to the department of drug enforcement, to institute proceedings for prosecution for an offense or an action to recover a penalty or forfeiture shall be vested in the director of drug enforcement or the director's designee.

SECTION 17. The right of appeal from administrative actions or determinations as provided by law shall not be impaired by this Act.

Except as otherwise provided by this Act, wherever a right of appeal from administrative actions or determinations is provided by law to or from any officer, board, department, bureau, commission, administrative agency, or instrumentality of the State which, or any of the programs of which, is transferred by this Act to the department of drug enforcement, the right of appeal shall lie to or from the department of drug enforcement when the transfer is made. The right of appeal shall exist to the same extent and in accordance with the applicable procedures that are in effect immediately prior to the effective date of this Act.

If the provisions of the preceding paragraph relating to appeals cannot be effected by reason of abolishment, splitting, or shifting of functions or otherwise, the right of appeal shall lie to the circuit court of the State pursuant to the Hawaii Rules of Civil Procedure.

SECTION 18. It is the intent of this Act not to jeopardize the receipt of any federal aid nor to impair the obligation of the State or any agency thereof to the holders of any bond issued by the State or by any such agency, and to the extent, and only to the extent, necessary to effectuate this intent, the governor is authorized and empowered to modify the strict provisions of this Act, but shall promptly report any such modifications with reasons therefor to the legislature at its next session thereafter for review by the legislature.

SECTION 19. The revisor of statutes may incorporate into the Hawaii Revised Statutes, any of the provisions contained in this Act. The revisor of statutes shall substitute the appropriate department of drug enforcement reference in all existing statutes where a department, board, commission, agency, program, or organizational segment is transferred to the department of drug enforcement if such existing statutory language has not been amended by this Act.

SECTION 20. All Acts passed during this Regular Session of 2006, whether enacted before or after the passage of this Act, shall be amended to conform to this Act, unless such Acts specifically provide that the Act relating to a "department of drug enforcement" is being amended. Amendments made to sections of the Hawaii Revised Statutes that are amended by this Act as of a future effective date shall include amendments made after the approval of this Act and before the effective date of the amendments made by this Act, to the extent that the intervening amendments may be harmonized with the amendments made by this Act.

SECTION 21. There is hereby appropriated out of the general revenues of the State of Hawaii the sum of $500,000, or so much thereof as may be necessary, for fiscal year 2006-2007, to carry out the purposes of section 11 of this Act.

The sum appropriated shall be expended by the office of the governor.

SECTION 22. There is appropriated out of the general revenues of the State of Hawaii the sum of $3,000,000 or so much thereof as may be necessary for fiscal year 2006-2007 for adolescent substance abuse treatment programs, with priority given to establishing school-based treatment programs in all high schools, middle and intermediate schools, and adolescent residential treatment programs.

The sum appropriated shall be expended by the department of health for the purposes of this Act.

SECTION 23. There is appropriated out of the general revenues of the State of Hawaii the sum of $2,000,000 or so much thereof as may be necessary for fiscal year 2006-2007 for substance abuse prevention, with priority given to drug education and awareness in the schools and community partnerships, non-school youth activities in communities with the greatest need, education and support for families and parenting women, and community mobilization.

The sum appropriated shall be expended by the department of health for the purposes of this Act.

SECTION 24. There is appropriated out of the general revenues of the State of Hawaii the sum of $4,000,000 or so much thereof as may be necessary for fiscal year 2006-2007 for adult treatment services, including family counseling, with priority given to women of child-bearing age, pregnant women, parents of young children in the home, and Hawaiians as defined in section 10-2, Hawaii Revised Statutes.

The sum appropriated shall be expended by the department of health for the purposes of this Act.

SECTION 25. There is appropriated out of the general revenues of the State of Hawaii the sum of $500,000 or so much thereof as may be necessary for fiscal year 2006-2007 for the treatment of first-time nonviolent drug offenders sentenced by the court under sections 706-622.5 and 706-625, Hawaii Revised Statutes.

SECTION 26. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the city and county of Honolulu to fund grassroots community efforts to sustain its anti-drug campaigns; provided that no single nonprofit entity shall receive more than $5,000 under this section; and provided further that no funds shall be expended under this section unless matched by funds from the city and county of Honolulu.

The sum appropriated shall be expended by the city and county of Honolulu.

SECTION 27. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the county of Hawaii to fund grassroots community efforts to sustain its anti-drug campaigns; provided that no single nonprofit entity shall receive more than $5,000 under this section; and provided further that no funds shall be expended under this section unless matched by funds from the county of Hawaii.

The sum appropriated shall be expended by the county of Hawaii.

SECTION 28. There is appropriated out of the general revenues of the State of Hawaii the sum of $380,000 or so much thereof as may be necessary for fiscal year 2006-2007, pursuant to chapter 103F, Hawaii Revised Statutes, for community adolescent drug prevention programs on the island of Hawaii.

The sum appropriated shall be expended by the county of Hawaii.

SECTION 29. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the county of Kauai to fund grassroots community efforts to sustain its anti-drug campaigns; provided that no single nonprofit entity shall receive more than $5,000 under this section; and provided further that no funds shall be expended under this section unless matched by funds from the county of Kauai.

The sum appropriated shall be expended by the county of Kauai.

SECTION 30. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the county of Maui to fund grassroots community efforts to sustain its anti-drug campaigns; provided that no single nonprofit entity shall receive more than $5,000 under this section; and provided further that no funds shall be expended under this section unless matched by funds from the county of Maui.

The sum appropriated shall be expended by the county of Maui.

SECTION 31. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the city and county of Honolulu to fund community-based substance abuse prevention programs, with priority given to drug education and awareness in the schools, community partnerships, and non-school youth activities in communities with the greatest need.

The sum appropriated shall be expended by the city and county of Honolulu.

SECTION 32. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the county of Hawaii to fund community-based substance abuse prevention programs, with priority given to drug education and awareness in the schools, community partnerships, and non-school youth activities in communities with the greatest need.

The sum appropriated shall be expended by the county of Hawaii.

SECTION 33. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the county of Kauai to fund community-based substance abuse prevention programs, with priority given to drug education and awareness in the schools, community partnerships, and non-school youth activities in communities with the greatest need.

The sum appropriated shall be expended by the county of Kauai.

SECTION 34. There is appropriated out of the emergency and budget reserve fund the sum of $100,000 or so much thereof as may be necessary for fiscal year 2006-2007 as a grant-in-aid to the county of Maui to fund community-based substance abuse prevention programs, with priority given to drug education and awareness in the schools, community partnerships, and non-school youth activities in communities with the greatest need.

The sum appropriated shall be expended by the county of Maui.

The sum appropriated shall be expended by the county of Hawaii.

SECTION 36. There is appropriated out of the general revenues of the State of Hawaii the sum of $125,000 or so much thereof as may be necessary for fiscal year 2006-2007 for a needs assessment for adult substance abuse treatment services or the implementation of the substance abuse treatment monitoring program, and for coordination of community-based drug abatement and mobilization efforts.

The sum appropriated shall be expended by the department of public safety.

SECTION 37. Statutory material to be repealed is bracketed. New statutory material is underscored.

SECTION 38. This Act shall take effect upon its approval; provided that specific provisions of this Act shall take effect as otherwise specified in this Act; and provided further that sections 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, and 36 shall take effect on July 1, 2006.