§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. [L 1972, c 9, pt of §1; am L 1985, c 192, §1; am L 1986, c
314, §27; am L 1989, c 45, §1; gen ch 1993; am L 1994, c 5, §6; am L 2002, c
161, §5; am L 2004, c 44, §12]



 



COMMENTARY ON §706-625



 



  This section restates prior law[1] and allows the court to
increase or relax the conditions of probation.  Such power is essential if the
disposition is to remain flexible.  However, if an increase in the severity of
the conditions is proposed, the court must accord the defendant the procedural
rights stated in §706-627.



 



SUPPLEMENTAL COMMENTARY ON §706-625



 



  Act 192, Session Laws 1985, amended this section and
consolidated it with the law governing the revocation of probation or
suspension of sentence, formerly contained in §706-628 and part of §706-627. 
As a result, §706-628 is repealed.



  Act 45, Session Laws 1989, defined the word
"conviction" as applied in the revocation or modification of
probation conditions.  Senate Standing Committee Report No. 1282, House
Standing Committee Report No. 844.



  Act 161, Session Laws 2002, amended this section to require
the court not to revoke probation for the first violation of a nonviolent
drug-related probation condition, and to require that the probation violators
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.



 



Case Notes



 



  Criteria for modification.  55 H. 632, 525 P.2d 1119.



  Mandated revocation of probation under certain circumstances
is a means to compel a court to review defendant's original sentence in light
of new facts.  Court may reimpose the same sentence.  69 H. 424, 744 P.2d 1208.



  Defendant was prejudiced because of inability to
independently test urine samples.  70 H. 194, 767 P.2d 243.



  Court had discretion to consider factors other than
defendant's wilfulness in determining whether failure to comply with probation
condition was inexcusable under section.  73 H. 81, 829 P.2d 1325.



  Statutory language of subsection (e) (1992) must be
harmonized with §706-671(2), mandating credit for time served in imprisonment. 
78 H. 343, 893 P.2d 194.



  Court abused discretion in revoking defendant's probation
where defendant made the monthly payments as condition of probation and there
was no other justifiable cause for revocation.  79 H. 511, 904 P.2d 525.



  Subsection (5), which permits a trial court on revocation of
probation to impose any sentence that might have originally been imposed at the
time of conviction, does not apply to the sentencing procedure attendant to
revocation of a deferred acceptance of guilty plea, which is already
specifically governed by §853-3.  93 H. 362, 3 P.3d 1239.



  Court cannot revoke probation and impose new probation term. 
6 H. App. 253, 718 P.2d 1117.



  Where defendant made conscious and wilful decision to fail to
comply with a substantial requirement imposed as a condition of probation under
subsection (3), court did not abuse discretion in revoking probation and
imposing sentence which may have been originally imposed.  82 H. 441 (App.),
922 P.2d 1054.



  Circuit court properly concluded that it was required to
revoke defendant's probation pursuant to subsection (c) because of subsequent
felony conviction.  83 H. 102 (App.), 924 P.2d 596.



  When defendant refused to admit having committed the sex
crimes and failed to pass the lie detector tests, defendant did not
"inexcusably" fail to comply with a substantial requirement imposed
as a condition of the probation order under subsection (3) as the trial court
could not order defendant to admit defendant's sex crimes and defendant did not
personally expressly and explicitly agree to admit defendant's sex crimes and
to accept probation on that basis.  93 H. 321 (App.), 2 P.3d 725.



  Upon revocation of probation pursuant to subsection (3), in
light of the record, §§706-660 and 706-621, trial court did not abuse its
discretion in sentencing defendant to imprisonment "for a term of not more
than ten years with credit for time served".  97 H. 135 (App.), 34 P.3d
1034.



  Where defendant failed to submit to drug/alcohol assessments,
failed to report to defendant's probation officer, failed to notify probation
officer of a change in address, and failed to pay the crime victim compensation
and probation service fees, these violations of defendant's terms and
conditions of probation did not involve the possession or use of drugs as meant
under subsection (7); thus, trial court erred in its interpretation and
application of this subsection.  112 H. 208 (App.), 145 P.3d 751.



  Criminal contempt of court under §710-1077 is not available
as a sanction for a violation of a condition of probation as there is no provision
in this chapter that authorizes the use of criminal contempt as a sanction for
violation of a condition of probation; the exclusive sanctions for a violation
of a condition of probation in this chapter are set forth in this section.  120
H. 312 (App.), 205 P.3d 577.



 



__________



§706-625 Commentary:



 



1.  H.R.S. §711-77.