§706-603  DNA analysis monetary assessment;
DNA registry special fund.  (1)  In addition to any disposition authorized
by chapter 706 or 853, every defendant convicted of a felony offense shall be
ordered to pay a monetary assessment of $500 or the actual cost of the DNA
analysis, whichever is less.  The court may reduce the monetary assessment if
the court finds, based on evidence presented by the defendant and not rebutted
by the State, that the defendant is not and will not be able to pay the full
monetary assessment and, based on the finding, shall instead order the
defendant to pay an assessment that the defendant will be able to pay within
five years.



(2)  Notwithstanding any other law to the
contrary, the assessment and penalty provided by this section shall be in
addition to, and not in lieu of, and shall not be used to offset or reduce, any
fine or restitution authorized or required by law.  All assessments and
penalties shall be paid into the DNA registry special fund established in
subsection (3).



(3)  There is established a special fund to be
known as the DNA registry special fund which shall be administered by the
attorney general.  The fund shall consist of:



(a) All assessments and penalties ordered pursuant to
subsection (1);



(b) All other moneys received by the fund from any
other source; and



(c) Interest earned on any moneys in the fund.



Moneys in the DNA registry special fund shall be
used for DNA collection, DNA testing, and related costs of recording,
preserving, and disseminating DNA information pursuant to chapter 844D.



(4)  Restitution to the victim of a sexual or
violent crime shall be made before payment of the monetary assessment. [L 1972,
c 9, pt of §1; am L 1973, c 179, §24; am L 1974, c 54, §4; am L 1979, c 3, §4
and c 105, §65; am L 1980, c 232, §37; am L 1986, c 314, §12; am L 1987, c 145,
§4; am L 1991, c 231, §2; am L 1998, c 271, §1; am L 2001, c 157, §35; am L
2005, c 112, §4]



 



COMMENTARY ON §706-603



 



  This section recognizes that in some, if not many, cases the
court will need medical and psychiatric information not normally found within
the scope of the pre-sentence investigation and report.  It is clear that in
deciding which of numerous sentencing alternatives should be employed--e.g.,
fine, suspended sentence, probation (and the conditions thereof), or
imprisonment--the court will need and should be allowed to call upon the
professional insights of medical experts.  The need for such professional help
has been well stated in the A.B.A. Standards:



Reliance on the trial court for such significant
correctional decisions suggests the imperative need for informational services
beyond the normal pre-sentence report.  There will inevitably be instances in
which the pre-sentence report together with other information acquired during
the trial will either leave the court short of desired information or will have
raised additional questions which can only be answered by an examination of the
defendant's physical, emotional or mental condition.  The lack of access to
facilities which can supply such information will force the court to an
uninformed guess as to the proper disposition.



Too much is at stake to place the court in such a
position.  On occasion the simple correction of a physical defect has altered
the course of a seemingly incorrigible offender.  The use of prison in such a
context could reinforce the offender's anti-social tendencies.  Similarly, the
pattern of psychiatric study followed by appropriate treatment offers
significant advantages over the simple detention which characterizes so many of
our prisons.  The system needs the ability to discover the cases where unusual
factors may indicate the desirability of an unusual disposition.  The
availability of facilities such as are contemplated by this section is one step
in providing that capability.[1]



  The Code does not deal with the question of whether the State
should establish one or more reception and diagnostic centers to meet the needs
of sentencing courts or whether the court's needs should be met by the employment
on a case-by-case basis of local physicians and psychiatrists.[2]  That
decision will have to be made eventually, however, the Code is formulated in a
manner which allows for future expansion of facilities in this area.



  This section represents a needed addition to Hawaii law.



 



SUPPLEMENTAL COMMENTARY ON §706-603



 



  Act 179, Session Laws 1973, amended this section to permit a
convicted defendant to be remanded to an intake service center or community
correctional center in addition to a clinic or hospital.  This amendment was
part of the implementation of the Hawaii Correctional Master Plan.  (See
Supplemental Commentary on §706-602.)



  Act 54, Session Laws 1974, amended this section to permit the
use of a certified clinical psychologist in making a pre-sentence diagnosis or
evaluation.  (Cf. Supplemental Commentary on §§704-404, 411, and 414.)



  Act 3, Session Laws 1979, amended this section by providing
for a three member examination panel (to be appointed in the same manner as the
examination panels in §§704-404, 411 and 414) as the sole alternative to a
single examiner.  This was done to allow greater flexibility in appointing
mental health professionals to the panels.  Act 105 amended section to restore
language inadvertently deleted by Act 54, SL 1974.



  Act 232, Session Laws 1980, amended this section to restore
amendments made by L 1979, Act 3, §4, which were superseded by L 1979, Act 105,
under a general supersession clause.



  Act 314, Session Laws 1986, amended "certified clinical
psychologists" to "licensed psychologists".  This change was
made because psychologists are licensed and not certified and the term
"clinical" does not accurately describe psychologists qualified to
determine penal responsibility and fitness to proceed.  Act 314 also provided
an exception to the licensure requirement which recognizes that under
§465-3(4), psychologists employed under government certification or civil
service rules are exempt from the licensure requirement.  Conference Committee
Report No. 51-86.



  Act 145, Session Laws 1987, permitted the department of
health to set minimum standards for participation and appointment of a sanity
examiner.  The legislature felt this change would allow additional assurances
of higher quality testimony by these examiners.  Senate Standing Committee
Report No. 691, House Standing Committee Report No. 1217.



  Act 231, Session Laws 1991, required the court to order a
defendant convicted of a sexual offense, a violent crime, or the attempt of
either, to submit to blood and saliva testing to be used for a DNA
identification profile which will allow law enforcement officials to identify
reoffenders.  The legislature weighed the balance between the defendant's right
to privacy and the needs of society, and found that the needs of society to
deter sexual and violent crimes outweighed the defendant's right to privacy. 
House Standing Committee Report No. 1018.



  Act 271, Session Laws 1998, amended this section to require
defendants convicted of sexual or violent offenses to provide blood samples for
DNA analysis.  The court is allowed to order convicted defendants to pay a
monetary assessment of $500 or the actual cost of DNA analysis, whichever is
less, to defray the costs of obtaining, storing, and testing the blood sample. 
Act 271 created a DNA registry special fund, administered by the attorney
general, into which the monetary assessments are to be deposited.  A person who
negligently or recklessly fails to provide blood samples is guilty of a
misdemeanor, and a person who intentionally or knowingly fails to provide blood
samples is guilty of a class C felony.



  The legislature recognized that DNA information is an
increasingly valuable tool for investigating, prosecuting, and defending
criminal cases.  The legislature found that the development of a DNA registry
is important to protect the public from further criminal acts committed by the
offenders, but that the cost of the DNA sampling process is borne by police
departments without state funding.  The legislature agreed that convicted
defendants who are required to provide DNA samples should be assessed a fee to
defray the costs of testing.  Conference Committee Report No. 110, Senate
Standing Committee Report No. 3009.



  Act 157, Session Laws 2001, amended this section, among others,
to conform amendments relating to revocation of motor vehicle registrations
under administrative revocation proceedings with the comprehensive law
regarding driving under the influence which is to take effect on January 1,
2002.  Act 157 conformed and consolidated the provisions of Act 189, Session
Laws 2000, to existing law regarding driving while under the influence of
alcohol or drugs, and suspension and revocation of licenses.  Senate Standing
Committee Report No. 1406.



  Act 112, Session Laws 2005, established a statewide
deoxyribonucleic acid database and data bank identification program for all
convicted felons.  Conference Committee Report No. 184.  Act 112 amended this
section by deleting the provisions regarding blood samples for deoxyribonucleic
acid analysis and by requiring every convicted felon to pay a monetary
assessment of $500 or the actual cost of the deoxyribonucleic acid analysis,
whichever is less.



 



Case Notes



 



  Cited as authorizing a pre-sentence psychiatric examination. 
60 H. 100, 588 P.2d 409.



 



__________



§706-603 Commentary:



 



1.  A.B.A. Standards, comments at 229.



 



2.  Cf. A.B.A. Standards, comments at 229-231.