§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 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 of any dangerous
drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or
marijuana concentrate, as defined in section 712‑1240, 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 sections 712‑1240.7 and 712‑1240.8,
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 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, comply with deadlines for entering into the
substance abuse treatment program, and reside in a secure drug treatment
facility.



(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. [L 2002, c 161, §3; am L 2004, c 44, §11; am L 2006, c 230,
§18; am L Sp 2009, c 4, §3]



 



COMMENTARY ON §706-622.5



 



  Act 161, Session Laws 2002, added this section to require,
among other things, that first-time nonviolent drug offenders be sentenced to
undergo and complete drug treatment instead of incarceration.  The legislature
found that the link between substance abuse and crime is well-established.  The
legislature did not wish to diminish the seriousness of crime, but looked to
approaching crime as being the result of addiction that is treatable.  The
treatment route was expected to produce a reduction in crime and recidivism. 
The legislature intended to promote treatment of nonviolent substance abuse
offenders, rather than incarceration, as being in the best interests of the
individual and the community at large.  Conference Committee Report No. 96-02.



  Act 230, Session Laws 2006, amended subsection (1) to exclude
the offenses of methamphetamine trafficking in the first and second degrees
from the offenses for which first-time drug offenders may be eligible to be
sentenced to probation.



Act 4, Special Session Laws 2009, amended subsection
(2) authorizing the placement of certain drug offenders in secure drug
treatment facilities, to promote the rehabilitation of convicted drug offenders
through alternatives to incarceration.  The legislature found that providing
convicted drug offenders with drug rehabilitation programs in a secure drug
treatment facility would reduce the offenders' rate of recidivism upon release
and help the offenders develop an important and meaningful role in society. 
Senate Standing Committee Report No. 1285, Conference Committee Report No. 25.



 



Case Notes



 



  Inasmuch as the plain and unambiguous language of §706-606.5
requires application of the repeat offender statute over "any other law to
the contrary", the circuit court did not err in sentencing defendant as a
repeat offender pursuant to §706-606.5; in all cases in which §706-606.5 is
applicable, including those in which a defendant would otherwise be eligible
for probation under this section, the circuit courts must sentence defendants
pursuant to the provisions of §706-606.5.  103 H. 228, 81 P.3d 408.



  Defendants with prior felony convictions of drug offenses are
disqualified from sentencing pursuant to this section, even if the convictions
occurred in other jurisdictions and therefore not "under part IV of
chapter 712", so long as the offenses would implicate part IV of chapter
712 if committed in Hawaii.  104 H. 71, 85 P.3d 178.



  By its plain language, Act 44, L 2004, prospectively
permitted greater discretion to sentencing courts confronted with conflicts
between this section and §706-606.5 than they previously possessed; thus, based
on the legislative intent reflected in Act 44, the Act 161, L 2002 version of
this section, under which defendant was sentenced, did not trump the repeat
offender statute.  106 H. 1, 100 P.3d 595.



  As section is ameliorative in its intent and effect and its
application would neither be detrimental nor materially disadvantageous to the
defendant, retrospective application of this section as established by Act 161,
L 2002, was not prohibited; where defendant did not qualify as a first-time
drug offender, the trial court did not err in sentencing defendant pursuant to
§712-1243(3) (2002).  107 H. 215, 112 P.3d 69.