SB105

SECTION 1. The purpose of this Act is to substitute the term "community restitution" for the term "community service" wherever that term appears as it relates to punishment, sanction, or sentencing. The intent of the legislature is to impart a sense that a person performing "community restitution" is rehabilitating their status as a member of the community in good standing. This Act is not intended to change the present nature or practice of community service.

SECTION 2. Section 183D-5, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

"(f) The court, in lieu of the actual cash payment of any mandatory fine, may allow the defendant to perform such community [~~service~~] restitution as directed by the department of land and natural resources at the rate of one hour of service for every $10 of mandatory fine imposed."

SECTION 3. Section 291C-95, Hawaii Revised Statutes, is amended by amending subsection (h) to read as follows:

"(h) Any person who violates this section shall be fined not more than $500 or sentenced to perform community [~~service,~~] restitution, or both."

SECTION 4. Section 291C-103, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) Any person who violates this section, except subsection (d), shall be fined not more than $500 or imprisoned not more than six months, or both. Any person who violates subsection (d) shall be fined not more than $500 or be sentenced to perform community [~~service,~~] restitution, or both."

SECTION 5. Section 291C-132, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The court shall sentence any person convicted of the offense of littering from vehicles as follows:

(1) For the first offense, defendant shall spend four hours of either picking up litter on public property or performing community [~~service.~~] restitution.

(2) For any subsequent offense, defendant shall spend eight hours of either picking up litter on public property or performing community [~~service.~~] restitution."

SECTION 6. Section 291D-9, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) The court may grant to a person claiming inability to pay, an extension of the period in which the monetary assessment shall be paid or may impose community [~~service~~] restitution in lieu thereof. If the assessment is not paid or the community service is not performed on or before the date established and the court has not extended the time, the court shall take action as provided in section 291D-10."

SECTION 7. Section 291D-12, Hawaii Revised Statutes, is amended to read as follows:

"§291D-12 Powers of the district court judge sitting in the traffic division. A district court judge sitting in the traffic division and hearing cases pursuant to this chapter shall have all the powers of a district court judge under chapter 604, including the following powers:

(1) To conduct traffic infraction hearings and to impose monetary assessments;

(2) To permit deferral of monetary assessment or impose community [~~service~~] restitution in lieu thereof;

(3) To dismiss a notice of traffic infraction or to set aside a judgment for the State;

(4) To order temporary driver's license suspension or license reinstatement;

(5) To order the director of finance not to issue or renew the driver's license or to register, renew the registration of, or issue title to a motor vehicle of any person who has not paid a monetary assessment or performed community [~~service~~] restitution in lieu thereof;

(6) To approve the issuance or renewal of a driver's license or instruction permit pursuant to section 286-109(c);

(7) To issue penal summonses and bench warrants and initiate contempt of court proceedings in proceedings conducted pursuant to section 291D-13; and

(8) To exercise other powers the court finds necessary and appropriate to carry out the purposes of this chapter."

SECTION 8. Section 291E-61, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows without possibility of probation or suspension of sentence:

(1) For the first offense, or any offense not preceded within a five‑year period by a conviction for an offense under this section or section 291E‑4(a):

(A) A fourteen‑hour minimum substance abuse rehabilitation program, including education and counseling, or other comparable program deemed appropriate by the court;

(B) Ninety‑day prompt suspension of license and privilege to operate a vehicle during the suspension period, or the court may impose, in lieu of the ninety‑day prompt suspension of license, a minimum thirty‑day prompt suspension of license with absolute prohibition from operating a vehicle and, for the remainder of the ninety‑day period, a restriction on the license that allows the person to drive for limited work‑related purposes and to participate in substance abuse treatment programs;

(i) Seventy‑two hours of community [~~service work;~~] restitution;

(ii) Not less than forty‑eight hours and not more than five days of imprisonment; or

(iii) A fine of not less than $150 but not more than $1,000; and

(D) A surcharge of $25 to be deposited into the neurotrauma special fund;

(2) For an offense committed by a highly intoxicated driver, prompt suspension of license and privilege to operate a vehicle for a period of six months with an absolute prohibition from operating a vehicle during the suspension period;

(3) For an offense that occurs within five years of a prior conviction for an offense under this section or section 291E‑4(a) by:

(A) Prompt suspension of license and privilege to operate a vehicle for a period of one year with an absolute prohibition from operating a vehicle during the suspension period;

(B) Either one of the following:

(i) Not less than two hundred forty hours of community [~~service work;~~] restitution; or

(ii) Not less than five days but not more than fourteen days of imprisonment of which at least forty‑eight hours shall be served consecutively;

(D) A surcharge of $25 to be deposited into the neurotrauma special fund;

(4) For an offense that occurs within five years of two prior convictions for offenses under this section or section 291E‑4(a):

(A) A fine of not less than $500 but not more than $2,500;

(B) Revocation of license and privilege to operate a vehicle for a period not less than one year but not more than five years;

(C) Not less than ten days but not more than thirty days imprisonment of which at least forty‑eight hours shall be served consecutively;

(D) A surcharge of $25 to be deposited into the neurotrauma special fund; and

(E) Forfeiture under chapter 712A of the vehicle owned and operated by the person committing the offense; provided that the department of transportation shall provide storage for vehicles forfeited under this subsection; and

(5) Any person eighteen years of age or older who is convicted under this section and who operated a vehicle with a passenger, in or on the vehicle, who was younger than fifteen years of age, shall be sentenced to an additional mandatory fine of $500 and an additional mandatory term of imprisonment of forty‑eight hours; provided that the total term of imprisonment for a person convicted under this paragraph shall not exceed the maximum term of imprisonment provided in paragraph (1), [[](3)[]], or [[](4)[]]."

SECTION 9. Section 339-8, Hawaii Revised Statutes, is amended to read as follows:

"§339‑8 Penalties. (a) Except as otherwise provided by this chapter, any person violating any provision of this chapter or any rule adopted under this chapter shall be guilty of a violation, and shall be fined not less than $100, and not more than $500 for each offense, and ordered to pick up and remove litter from a public place under the supervision of the director as follows:

(1) For the first offense, the violator shall spend four hours of either picking up litter or performing community [~~service;~~] restitution; and

(2) For any subsequent offense, the violator shall spend eight hours of either picking up litter or performing community [~~service.~~] restitution.

(b) If the court judges the violator to be incapable of litter removal and pick up, the court may provide some other community [~~work~~] restitution as it deems appropriate. All persons who are caught littering shall be required to remove the litter that they caused or shall be liable for the costs of removing that litter."

SECTION 10. Section 431:10C-117, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a)(1) Any person subject to this article in the capacity of the operator, owner, or registrant of a motor vehicle operated in this State, or registered in this State, who violates any applicable provision of this article, shall be subject to citation for the violation by any county police department in a form and manner approved by the traffic violations bureau of the district court of the first circuit;

(2) Notwithstanding any provision of the Hawaii Penal Code:

(A) Each violation shall be deemed a separate offense and shall be subject to a fine of not less than $100 nor more than $5,000 which shall not be suspended except as provided in subparagraph (B); and

(B) If the person is convicted of not having had a motor vehicle insurance policy in effect at the time the citation was issued, the fine shall be $500 for the first offense and a minimum of $1,500 for each subsequent offense that occurs within a five-year period from any prior offense; provided that the judge:

(i) Shall have the discretion to suspend all or any portion of the fine if the defendant provides proof of having a current motor vehicle insurance policy; provided further that upon the defendant's request, the judge may grant community [~~service~~] restitution in lieu of the fine, of not less than seventy-five hours and not more than one hundred hours for the first offense, and not less than two hundred hours nor more than two hundred seventy-five hours for the second offense; and

(ii) May grant community [~~service~~] restitution in lieu of the fine for subsequent offenses at the judge's discretion;

(3) In addition to the fine in paragraph (2), the court shall either:

(A) Suspend the driver's license of the driver or of the registered owner for:

(i) Three months for the first conviction; and

(ii) One year for any subsequent offense within a five-year period from a previous offense;

provided that the driver or the registered owner shall not be required to obtain proof of financial responsibility pursuant to section 287-20; or

(B) Require the driver or the registered owner to keep a nonrefundable motor vehicle insurance policy in force for six months;

(4) Any person cited under this section shall have an opportunity to present a good faith defense, including but not limited to lack of knowledge or proof of insurance. The general penalty provision of this section shall not apply to:

(A) Any operator of a motor vehicle owned by another person if the operator's own insurance covers such driving;

(B) Any operator of a motor vehicle owned by that person's employer during the normal scope of that person's employment; or

(C) Any operator of a borrowed motor vehicle if the operator holds a reasonable belief that the subject vehicle is insured;

(5) In the case of multiple convictions for driving without a valid motor vehicle insurance policy within a five-year period from any prior offense, the court, in addition to any other penalty, shall impose the following penalties:

(A) Imprisonment of not more than thirty days;

(B) Suspension or revocation of the motor vehicle registration plates of the vehicle involved;

(C) Impoundment, or impoundment and sale, of the motor vehicle for the costs of storage and other charges incident to seizure of the vehicle, or any other cost involved pursuant to section 431:10C-301; or

(D) Any combination of those penalties; and

(6) Any violation as provided in subsection (a)(2)(B) shall not be deemed to be a traffic infraction as defined by chapter 291D."

SECTION 11. Section 445-121, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) In addition to subsection (a), any person acting knowingly, who is either:

(1) Responsible for posting material in violation of section 445-114; or

(2) The person organizing the event or the owner or operator of the business advertised on the posted material,

shall remove the material within seventy-two hours after receipt of written notice of the posting or seventy-two hours after the date of the event advertised on the posted material, whichever occurs first. Failure to remove the posted material within the time specified shall be punishable by an additional fine of not less than $100 nor more than $200 per posted material, or community [~~service~~] restitution of not less than ten hours nor more than twenty hours, or both. [~~Such~~] The additional penalties shall not be imposed unless the person received written notice of the posting or was responsible for posting material in violation of section 445-114."

SECTION 12. Section 571-48, Hawaii Revised Statutes, is amended to read as follows:

"§571-48 Decree, if informal adjustment or diversion to a private or community agency or program has not been effected. When a minor is found by the court to come within section 571‑11, the court shall so decree and in its decree shall make a finding of the facts upon which the court exercises its jurisdiction over the minor. Upon the decree the court, by order duly entered, shall proceed as follows:

(1) As to a child adjudicated under section 571-11(1):

(A) The court may place the child on probation:

(i) In the child's own home; or

(ii) In the custody of a suitable person or facility elsewhere, upon conditions determined by the court.

When conditions of probation include incarceration in a youth correctional facility, the incarceration shall be for a term not to exceed one year, after which time the person shall be allowed to reside in the community subject to additional conditions as may be imposed by the court;

(B) The court may vest legal custody of the child, after prior consultation with the agency or institution, in a Hawaii youth correctional facility, in a local public agency or institution, or in any private institution or agency authorized by the court to care for children; or place the child in a private home. If legal custody of the child is vested in a private agency or institution in another state, the court shall select one that is approved by the family or juvenile court of the other state or by that state's department of social services or other appropriate department; or

(C) The court may fine the child for a violation which would be theft in the third degree by shoplifting if committed by an adult. The court may require the child to perform public services in lieu of the fine;

(2) As to a child adjudicated under section 571-11(2):

(A) The court may place the child under protective supervision, as hereinabove defined, in the child's own home, or in the custody of a suitable person or agency elsewhere, upon conditions determined by the court; or

(B) The court may vest legal custody of the child, after prior consultation with the agency or institution, in a local governmental agency or institution licensed or approved by the State to care for children, with the exception of an institution authorized by the court to care for children. If legal custody of the child is vested in a private agency or institution in another state, the court shall select one that is approved by the family or juvenile court of the other state or by that state's department of social services or other appropriate department; provided that the child may not be committed to a public or private institution operated solely for the treatment of law violators;

(3) An order vesting legal custody of a minor in an individual, agency, or institution under section 571-11(2) shall be for an indeterminate period but shall not remain in force or effect beyond three years from the date entered, except that the individual, institution, or agency may file with the court a petition for renewal of the order and the court may renew the order if it finds such renewal necessary to safeguard the welfare of the child or the public interest. The court, after notice to the parties, may conduct a hearing on the petition. Renewal may be periodic during minority, but no order shall have any force or effect beyond the period authorized by section 571-13. An agency granted legal custody shall be subject to prior approval of the court in any case in which the child is to reside without the territorial jurisdiction of the court and may be subject to prior approval in other cases. An individual granted legal custody shall exercise the rights and responsibilities personally unless otherwise authorized by the court;

(4) Whenever the court commits a child to the care of the director of human services or executive director of the office of youth services, or vests legal custody of a child in an institution or agency it shall transmit with the order copies of the clinical reports, social study, and other information pertinent to the care and treatment of the child, and the institution or agency shall give to the court any information concerning the child that the court may at any time require. An institution or agency receiving a child under this paragraph shall inform the court whenever the status of the child is affected through temporary or permanent release, discharge, or transfer to other custody. An institution to which a child is committed under section 571-11(1) or (2) shall not transfer custody of the child to an institution for the correction of adult offenders, except as authorized in this chapter and under chapter 352;

(5) The court may order, for any child within its jurisdiction, whatever care or treatment is authorized by law;

(6) In placing a child under the guardianship or custody of an individual or of a private agency or private institution, the court shall give primary consideration to the welfare of the child;

(7) In support of any order or decree under section 571-11(1) or (2), the court may require the parents or other persons having custody of the child, or any other person who has been found by the court to be encouraging, causing, or contributing to the acts or conditions which bring the child within the purview of this chapter and who are parties to the proceeding, to do or to omit doing any acts required or forbidden by law, when the judge deems this requirement necessary for the welfare of the child. The court may also make appropriate orders concerning the parents or other persons having custody of the child and who are parties to the proceeding. If such persons fail to comply with the requirement or with the court order, the court may proceed against them for contempt of court;

(8) In support of any order or decree for custody or support, the court may make an order of protection setting forth reasonable conditions of behavior to be observed for a specified time, binding upon both parents or either of them. This order may require either parent to stay away from the home or from the other parent or children, may permit the other to visit the children at stated periods, or may require a parent to abstain from offensive conduct against the children or each other;

(9) The court may dismiss the petition or otherwise terminate its jurisdiction at any time;

(10) In any other case of which the court has jurisdiction, the court may make any order or judgment authorized by law;

(11) The court may order any person adjudicated pursuant to section 571-11(1) to make restitution of money or services to any victim who suffers loss as a result of the child's action, or to render community [~~service;~~] restitution;

(12) The court may order any person adjudicated pursuant to section 571-11(2) to participate in community [~~service;~~] restitution; and

(13) The court may order the parents of an adjudicated minor to make restitution of money or services to any victim, person, or party who has incurred a loss or damages as a result of the child's action."

SECTION 13. Section 577-3.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) In addition to any other lawful orders, if a minor is found under chapter 571 to have committed an act constituting graffiti, the court may order the minor, the parents, or the legal guardians of the minor to pay the actual cost of having the damaged property repaired or replaced and may order the minor to perform community [~~service.~~] restitution. If the court orders payment for the actual cost of the damage, the court shall give due consideration to the financial resources of the minor, the parents, or the legal guardians of the minor to ensure that they will be able to pay the costs of the damage. If the court determines that the minor, the parents, or the legal guardians of the minor are unable to pay the actual cost of the damage, the court may order payment in an amount for which they are able to pay or in a manner in which they are able to pay, and may order the minor to perform community service work in an amount commensurate with the costs of the damage for which they are unable to pay."

SECTION 14. Section 706-605, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Except as provided in parts II and IV or in section 706-647 and subsections (2), (6), and (7), and subject to the applicable provisions of this Code, the court may sentence a convicted defendant to one or more of the following dispositions:

(a) To be placed on probation as authorized by part II;

(b) To pay a fine as authorized by part III and section 706-624;

(d) To perform [~~services for the~~] community restitution under the supervision of a governmental agency or benevolent or charitable organization or other community service group or appropriate supervisor; provided that the convicted person who performs such services shall not be deemed to be an employee of the governmental agency or assigned work site for any purpose. All persons sentenced to perform community [~~service~~] restitution shall be screened and assessed for appropriate placement by a governmental agency coordinating public service work placement as a condition of sentence."

SECTION 15. Section 708-829, Hawaii Revised Statutes, is amended by amending subsection (4) to read as follows:

"(4) The court shall sentence any person convicted of committing the offense of criminal littering as follows:

(a) For the first offense, the person shall spend four hours of either picking up litter on public property or performing community [~~service;~~] restitution;

(b) For any subsequent offense, the person shall spend eight hours of either picking up litter on public property or performing community [~~service;~~] restitution; and

(c) The court shall fine the person convicted of committing the offense of criminal littering at least $500, but not more than $1,000."

SECTION 16. Section 709-908, Hawaii Revised Statutes, is amended by amending subsection (4) to read as follows:

"(4) Any person who violates subsection (1) or (2), or both, shall be fined $500 for the first offense. Any subsequent offenses shall subject the person to a fine not less than $500 nor more than $2,000. Any minor under eighteen years of age who violates subsection (3) shall be fined $10 for the first offense. Any subsequent offense shall subject the violator to a fine of $50, no part of which shall be suspended, or the person shall be required to perform not less than forty-eight hours nor more than seventy-two hours of community [~~service~~] restitution during hours when the person is not employed and is not attending school."

SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 18. This Act shall take effect upon its approval; provided that section 8 shall take effect on July 1, 2007.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	105
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII