Report Title:
Drugs
Description:
Repeals substantive provisions of the Penal Code, and restores certain penalties for possessing large amount of drugs, and for repeat felonies.
HOUSE OF REPRESENTATIVES |
H.B. NO. |
592 |
TWENTY-THIRD LEGISLATURE, 2005 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO DRUGS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. This Act shall be known as the "Restoration of Reasonable Drug Laws Act of 2005."
SECTION 2. Section 353-66, Hawaii Revised Statutes, is amended to read as follows:
"§353-66 Terms and conditions of parole; suspension and revocation. (a) Every parole granted under this part to any prisoner shall be subject to the express condition, to be set forth in the official written notification of parole to the prisoner, but to be binding upon the prisoner in any event, that all or any portion of the prisoner's credits earned or to be earned may be forfeited by order of the Hawaii paroling authority in the event that the prisoner breaks the prisoner's parole or violates any law of the State or rule of the paroling authority or any of the terms or conditions of the prisoner's parole.
(b) No parole shall be revoked and no credits forfeited without cause, which cause must be stated in the order revoking the parole, or forfeiting the credits after notice to the paroled prisoner of the paroled prisoner's alleged offense and an opportunity to be heard; provided that when a person is convicted in the State of a crime committed while on parole and is sentenced to imprisonment, or when it is shown by personal investigation that a parolee has left the State without permission from the paroling authority and due effort is made to reach the parolee by registered mail directed to the parolee's last known address, no hearing shall be required to revoke the parolee's parole; and provided further that when any duly licensed psychiatrist or licensed psychologist finds that continuance on parole will not be in the best interests of a parolee or the community, the paroling authority, within the limitations of the sentence imposed, shall order the detention and treatment of the prisoner until such time as the prisoner shall be found by any duly licensed psychiatrist or licensed psychologist to be eligible for continuance on parole.
(c) If any paroled prisoner leaves the State without permission from the paroling authority, or if the whereabouts of any paroled prisoner is not known to the paroling authority because of the neglect or failure of the prisoner to so inform it, the paroling authority may order the parole suspended pending apprehension. From and after the suspension of the parole of any paroled prisoner and until the paroled prisoner's return to custody, the paroled prisoner shall be deemed an escapee and a fugitive from justice, and no part of the time during which the paroled prisoner is an escapee and a fugitive from justice shall be part of the paroled prisoner's term.
(d) The paroling authority may at any time order the arrest and temporary return to custody of any paroled prisoner, as provided in section 353-65, for the purpose of ascertaining whether or not there is sufficient cause to warrant the paroled prisoner's reimprisonment or the revoking of the paroled prisoner's parole or other action provided for by this part.
(e) Any paroled prisoner retaken and reimprisoned as provided in this chapter shall be confined according to the paroled prisoner's sentence for that portion of the paroled prisoner's term remaining unserved at time of parole, but successive paroles may, in the discretion of the paroling authority, be granted to the prisoner during the life and in respect of the sentence.
[(f) The Hawaii paroling authority may require a paroled prisoner to undergo and complete a substance abuse treatment program when the paroled prisoner has committed a violation of the terms and conditions of parole involving 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. If the paroled prisoner fails to complete the substance abuse treatment program or the Hawaii paroling authority determines that the paroled prisoner cannot benefit from any substance abuse program, the paroled prisoner shall be subject to revocation of parole and return to incarceration. As a condition of parole, the Hawaii paroling authority may require the paroled prisoner to:
(1) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;
(2) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;
(3) Contribute to the cost of the substance abuse treatment program; and
(4) Comply with any other terms and conditions for parole.
As used in this subsection, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.
Nothing in this subsection shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider.]"
SECTION 3. Section 706-625, Hawaii Revised Statutes, is amended to read as follows:
"§706-625 Revocation, modification of probation conditions. (1) The court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke probation [except as provided in subsection (7)], reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627.
(2) The prosecuting attorney, the defendant's probation officer, and the defendant shall be notified by the movant in writing of the time, place, and date of any such hearing, and of the grounds upon which action under this section is proposed. The prosecuting attorney, the defendant's probation officer, and the defendant may appear in the hearing to oppose or support the application, and may submit evidence for the court's consideration. The defendant shall have the right to be represented by counsel. For purposes of this section the court shall not be bound by the Hawaii rules of evidence, except for the rules pertaining to privileges.
(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.
(4) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.
(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 the defendant was convicted.
(6) As used in this section, "conviction" means that a judgment has been pronounced upon the verdict.
[(7) The court may require a defendant to undergo and complete a substance abuse treatment program when the defendant has committed a violation of the terms and conditions of probation involving 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. If the defendant fails to complete the substance abuse treatment program or the court determines that the defendant cannot benefit from any other suitable substance abuse treatment program, the defendant shall be subject to revocation of probation and incarceration. The court may require the defendant to:
(a) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;
(b) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;
(c) Contribute to the cost of the substance abuse treatment program; and
(d) Comply with any other terms and conditions of probation.
As used in this subsection, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.
Nothing in this subsection shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider.]"
SECTION 4. Section 712-1241, Hawaii Revised Statutes, is amended to read as follows:
"§712-1241 Promoting a dangerous drug in the first degree. (1) A person commits the offense of promoting a dangerous drug in the first degree if the person knowingly:
(a) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:
(i) One ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or
(ii) One and one-half ounce or more, containing one or more of any of the other dangerous drugs; or
(b) Distributes[, except for methamphetamine as provided in section 712-1240.6]:
(i) Twenty-five or more capsules, tablets, ampules, dosage units, or syrettes containing one or more dangerous drugs; or
(ii) One or more preparations, compounds, mixtures, or substances of an aggregate weight of:
(A) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or
(B) Three-eighths ounce or more, containing any other dangerous drug;
(c) Distributes any dangerous drug in any amount to a minor [except for methamphetamine as provided in section 712-1240.6]; or
(d) Manufactures a dangerous drug in any amount[, except for methamphetamine as provided in section 712-1240.6]; provided that this subsection shall not apply to any person registered under section 329-32.
(2) Promoting a dangerous drug in the first degree is a class A felony.
(3) If the commission of the offense of promoting a dangerous drug in the first degree under this section involved the possession, distribution, or manufacture of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment, the length of which shall be not less than one year and not greater than ten years, at the discretion of the sentencing court, for a conviction under subsection (1)(a), (b), or (c) and not less than ten years for a conviction under subsection (1)(d). The person convicted shall not be eligible for parole during the mandatory term of imprisonment."
SECTION 5. Section 712-1242, Hawaii Revised Statutes, is amended to read as follows:
"§712-1242 Promoting a dangerous drug in the second degree. (1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly:
(a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs; or
(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:
(i) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or
(ii) One-fourth ounce or more, containing any dangerous drug; or
(c) Distributes any dangerous drug in any amount[, except for methamphetamine as provided in section 712-1240.6].
(2) Promoting a dangerous drug in the second degree is a class B felony."
SECTION 6. Section 712-1249.6, Hawaii Revised Statutes, is amended to read as follows:
"§712-1249.6 Promoting a controlled substance in, on, or near schools, school vehicles, or public parks. (1) A person commits the offense of promoting a controlled substance in, on, or near schools, school vehicles, or public parks if the person knowingly:
(a) Distributes or possesses with intent to distribute a controlled substance in any amount in or on the real property comprising a school or public park;
(b) Distributes or possesses with intent to distribute a controlled substance in any amount within seven hundred and fifty feet of the real property comprising a school or public park; or
(c) Distributes or possesses with intent to distribute a controlled substance in any amount while on any school vehicle, or within ten feet of a parked school vehicle during the time that the vehicle is in service for or waiting to transport school children[; or
(d) Manufactures methamphetamine or any of its salts, isomers, and salts of isomers, within seven hundred and fifty feet of the real property comprising a school or public park].
(2) [A person who violates subsection (1)(a), (b), or (c) is guilty of a class C felony. A person who violates subsection (1)(d) is guilty of a class A felony.] Promoting a controlled substance in, on, or near schools, school vehicles, or public parks is a class B felony.
(3) Any person with a prior conviction or prior convictions under this section [subsection (1)(a), (b), or (c) is punishable by a term of imprisonment of not less than two years and not more than ten years.] shall be sentenced in accordance with section 706-606.5.
(4) Any individual convicted under subsection (3) of this section shall not be eligible for parole until the individual has served the minimum sentence required by such subsection.
(5) For the purposes of this section, "school vehicle" means every school vehicle as defined in section 286-181 and any regulations adopted pursuant to that section.
(6) For purposes of this section, "school" means any public or private preschool, kindergarten, elementary, intermediate, middle secondary, or high school."
SECTION 7. Section 706-622.5, Hawaii Revised Statutes, is repealed.
["§706-622.5 Sentencing for first-time drug offenders; expungement. (1) Notwithstanding section 706-620(3), a person convicted for the first time for any offense under part IV of chapter 712 involving 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, is eligible to be sentenced to probation under subsection (2) if the person meets the following criteria:
(a) The court has determined that the person is nonviolent after reviewing the person's criminal history, the factual circumstances of the offense for which the person is being sentenced, and any other relevant information;
(b) The person has been assessed by a certified substance abuse counselor to be in need of substance abuse treatment due to dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index; and
(c) Except for those persons directed to substance abuse treatment under the supervision of the drug court, the person presents a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program.
(2) A person eligible under subsection (1) may be sentenced to probation to undergo and complete a substance abuse treatment program if the court determines that the person can benefit from substance abuse treatment and, notwithstanding that the person would be subject to sentencing as a repeat offender under section 706-606.5, the person should not be incarcerated in order to protect the public. If the person fails to complete the substance abuse treatment program and the court determines that the person cannot benefit from any other suitable substance abuse treatment program, the person shall be subject to sentencing under the applicable section under this part. As a condition of probation under this subsection, the court may direct the person to undergo and complete substance abuse treatment under the supervision of the drug court if the person has a history of relapse in treatment programs. The court may require other terms and conditions of probation, including requiring that the person contribute to the cost of the substance abuse treatment program and comply with deadlines for entering into the substance abuse treatment program.
(3) For the purposes of this section, "substance abuse treatment program" means drug or substance abuse treatment services provided outside a correctional facility by a public, private, or nonprofit entity that specializes in treating persons who are diagnosed with having substance abuse or dependency and preferably employs licensed professionals or certified substance abuse counselors.
(4) The court, upon written application from a person sentenced under this part, shall issue a court order to expunge the record of conviction for that particular offense; provided that a person has successfully completed the substance abuse treatment program and complied with other terms and conditions of probation. A person sentenced to probation under this section shall be eligible for one time only for expungement under this subsection.
(5) Nothing in this section shall be construed to give rise to a cause of action against the State, a state employee, or a treatment provider."]
SECTION 8. 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:
(a) If death or serious bodily injury as defined in section 707-700 to any person other than the defendant, results from the manufacture, distribution, or dispensing of or possession with intent to manufacture, distribute, or dispense any methamphetamine substance, conviction under this section shall be treated as a class A felony, with a mandatory minimum prison term of ten years and a fine not to exceed $4,000,000 if the defendant is an individual, or a fine not to exceed $10,000,000 if the defendant is other than an individual; and
(b) If the defendant has been convicted of any felony drug offense prior to conviction of the offense under this section, conviction under this section shall be punishable by a term of life imprisonment with the possibility of parole, with a mandatory minimum prison term of fifteen years and a fine not to exceed $8,000,000 if the defendant is an individual, or a fine not to exceed $20,000,000 if the defendant is other than an individual.
(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:
(a) If death or serious bodily injury as defined in section 707-700 to any person other than the defendant results from the manufacture, distribution or dispensing of any methamphetamine substance, conviction under this section shall be treated as a class B felony, with a mandatory minimum prison term of five years and a fine not to exceed $2,000,000 if the defendant is an individual, or a fine not to exceed $5,000,000 if the defendant is other than an individual; and
(b) If the defendant has been convicted of any felony drug offense prior to conviction of the offense under this section, conviction under this section shall be treated as a class A felony, with a mandatory minimum prison term of eight years and a fine not to exceed $4,000,000 if the defendant is an individual, or a fine not to exceed $10,000,000 if the defendant is other than an individual.
(c) If the distribution or dispensing of any amount of a methamphetamine substance is to a minor, then conviction under this section shall be treated as a class A felony, with a mandatory minimum prison term of five years.
(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:
(a) The state or county government for the cost incurred for any cleanup associated with the manufacture, distribution, or dispensing of methamphetamine, or any of its salts, isomers, and salts of isomers by the defendant; and
(b) Any other person injured as a result of the manufacture, distribution, or dispensing of methamphetamine, or any of its salts, isomers, and salts of isomers, by the defendant."]
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect upon its approval.
INTRODUCED BY: |
_____________________________ |
BY REQUEST |