§702-236  De minimis infractions.  (1) 
The court may dismiss a prosecution if, having regard to the nature of the
conduct alleged and the nature of the attendant circumstances, it finds that
the defendant's conduct:



(a) Was within a customary license or tolerance,
which was not expressly refused by the person whose interest was infringed and
which is not inconsistent with the purpose of the law defining the offense; or



(b) Did not actually cause or threaten the harm or
evil sought to be prevented by the law defining the offense or did so only to
an extent too trivial to warrant the condemnation of conviction; or



(c) Presents such other extenuations that it cannot
reasonably be regarded as envisaged by the legislature in forbidding the
offense.



(2)  The court shall not dismiss a prosecution
under subsection (1)(c) of this section without filing a written statement of
its reasons. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §702-236



 



  Following the suggestion of the Model Penal Code,[1] this
Code allows the court to dismiss de minimis infractions of the law.  An obvious
example of an area where such discretion might appropriately be exercised is
the field of minor sex offenses, where a rejected partner might seek revenge
through the penal process.



  While it has been claimed that the determination of whether
the defendant's conduct is "within a customary license or tolerance,"
or caused harm "to an extent too trivial to warrant the condemnation of
conviction," will vary not only on the merits of the case but according to
the differing inclinations of judges, the answer does not lie, as it has been
suggested, in requiring the prosecutor's consent.[2]  The prosecutor has
exercised the prosecutor's prosecutorial discretion by bringing the charge
against the defendant.  Furthermore, prosecutors, like judges, differ in their
assessment of the same standards.



  Previous Hawaii law did not have a provision permitting
exercise of judicial discretion in cases of de minimis infractions.



 



SUPPLEMENTAL COMMENTARY ON §702-236



 



  The Proposed Code provided that:  "The court shall
dismiss a prosecution" if it makes one or more of the relevant findings
set forth in subsections (1)(a), (1)(b), and (1)(c).  The Legislature deleted
the mandatory "shall" and inserted in lieu thereof the permissive
"may", in order "to make the court's power to dismiss a
prosecution discretionary upon the finding that the conduct constituted a de
minimis infraction.  It is your Committee's intent to give the courts broad
discretion in this matter."  Conference Committee Report No. 2 (1972).



 



Case Notes



 



  Before the section can be applied, all the relevant facts
bearing upon defendant's conduct and the nature of the attendant circumstances
regarding commission of the offense should be shown to and considered by the
judge, State v. Park, 55 H. 610, 525 P.2d 586.



  Section is not unconstitutional on ground that it contravenes
doctrine of separation of power.  Id.



  Application to prosecution under §712-1243.  61 H. 291, 602
P.2d 933.



  Traffic in narcotics not de minimis.  63 H. 77, 621 P.2d 364.



  Defendant's prosecution for custodial interference in the
second degree under §707-727 should have been dismissed as too trivial to
warrant condemnation of conviction.  73 H. 75, 828 P.2d 269.



  Where defendant's possession of .001 grams of methamphetamine
did not threaten the harm sought to be prevented by §712-1243, trial court did
not abuse discretion by determining that amount of methamphetamine was de
minimus under this section.  92 H. 130, 988 P.2d 195.



  Where prosecution adduced substantial evidence that the
cocaine residue in the pipe was visible to the naked eye and could be scraped
out and smoked again, trial court did not abuse its discretion in ruling that
defendant's infraction of §712-1243 was not de minimus within the meaning of
this section.  93 H. 279, 1 P.3d 281.



  No error in court failing to dismiss count against defendant
for possessing "everyday household items not intended or designed for use
as drug paraphernalia" as broad definition of drug paraphernalia and
multiple examples of such contraband enumerated in §329-1 weighed against
defendant's contention that the ordinary nature of the containers defendant
possessed did not involve the harm or evil sought to be avoided under §329-43.5
or amounted to extenuations that would not have been envisioned by the
legislature.  98 H. 196, 46 P.3d 498.



  Where the defense failed to adduce any evidence or present
any argument with respect to the attendant circumstances, it failed to meet its
burden of providing evidence to support a finding that the conduct alleged
"did not actually cause or threaten the harm or evil sought to be
prevented by §712-1243 or did so only to an extent too trivial to warrant the
condemnation of conviction"; thus trial court did not err in finding that
defendant's alleged conduct did not constitute a de minimis infraction.  99 H.
75, 53 P.3d 214.



  Where defendant adduced no evidence that the amount of
methamphetamine defendant was charged with possessing was incapable of
producing a pharmacological or physiological effect or was not saleable, there
was no evidence introduced from which the trial court could have concluded that
defendant's conduct did not "cause or threaten the harm or evil sought to
be prevented by the law".  99 H. 198, 53 P.3d 806.



  Where trial judge lacked any cogent reason for overruling
pretrial judge's denial of defendant's motion to dismiss charge of promoting a
dangerous drug based on this section, trial judge abused trial judge's
discretion in granting defendant's motion for reconsideration and dismissing
charge. 99 H. 244, 54 P.3d 415.



  In light of defendant's burden to prove that defendant's
conduct constituted a de minimis infraction and trial court's finding that pipe
residue contained a sufficient amount of methamphetamine to produce a
pharmacological effect, which was supported by officer's testimony that amount
recovered from defendant's pipe may have been an amount sufficient to be
"used" by someone, trial court did not abuse discretion in refusing
to dismiss charge of promoting a dangerous drug in the third degree.  100 H.
498, 60 P.3d 899.



  As defendant's striking of husband did actually cause harm
sought to be prevented by §709-906, no abuse of discretion where trial court
holds that infraction not too trivial to warrant the condemnation of conviction
under this section.  79 H. 419 (App.), 903 P.2d 723.



  Looking at defendant's conduct and nature of attendant
circumstances regarding the commission of the offense, including possession of
the smoking device, smoked residue, and depleted drug contraband of 0.004 grams
of methamphetamine by one engaged in shoplifting, court could not conclude that
defendant's conduct "did not actually cause or threaten the harm or evil
sought to be prevented by §712-1243, or did so only to an extent too trivial to
warrant condemnation of conviction".  97 H. 247 (App.), 35 P.3d 764.



  Although the purpose of a §586-4 temporary restraining order
is to prevent domestic abuse, the plain and obvious purpose of the §586-4(d)
misdemeanor is to prevent violations of a temporary restraining order; thus,
although defendant's contact with complainant was brief and defendant drove off
after being reminded of the temporary restraining order, the contact was not de
minimus under this section.  107 H. 67 (App.), 109 P.3d 708.



 



__________



§702-236 Commentary:



 



1.  M.P.C. §2.13.



 



2.  See Kuh, A Prosecutor Considers the Model Penal Code, 63
Colum. L. Rev. 608, 628 (1963).