PART IV. 
OFFENSES RELATED TO DRUGS AND INTOXICATING



COMPOUNDS



 



Cross References



 



  Drug demand reduction assessments; special fund, see
§706-650.



  Intermediate sanctions for selected offenders and defendants,
see §§353-10.5, 353-63.5, and 706-605.1.



  Money laundering, see chapter 708A.



 



Law Journals and Reviews



 



  Marijuana Prohibition in Hawaii.  13 HBJ No. 3 Fall 1977, pg.
9.



 



Case Notes



 



  When a statute proscribes a substance as harmful, presumption
of constitutionality applies although scientific views on harm are
conflicting.  This rule applies to marijuana cases.  56 H. 271, 535 P.2d 1394.



  Defendants with prior felony convictions of drug offenses are
disqualified from sentencing pursuant to §706-622.5, even if the convictions
occurred in other jurisdictions and therefore not "under part IV of
chapter 712", so long as the offenses would implicate this part if
committed in Hawaii.  104 H. 71, 85 P.3d 178.



 



§712-1240  Definitions of terms in this
part.  In this part, unless a different meaning plainly is required:



"Dangerous drugs" means any substance
or immediate precursor defined or specified as a "Schedule I
substance" or a "Schedule II substance" by chapter 329, or a
substance specified in section 329-18(c)(13), except marijuana or marijuana concentrate.



"Detrimental drug" means any
substance or immediate precursor defined or specified as a "Schedule V
substance" by chapter 329, or any marijuana.



"Dosage unit" for purposes of section
712-1241 and section 712-1242 means an entity designed and intended for
singular consumption or administration.



"Harmful drug" means any substance or
immediate precursor defined or specified as a "Schedule III
substance" or a "Schedule IV substance" by chapter 329, or any
marijuana concentrate except marijuana and a substance specified in section
329-18(c)(13).



"Immediate precursor" means a
substance which the department of health, State of Hawaii, has found to be and
by rule designates as being the principal compound commonly used or produced
primarily for use, and which is an immediate chemical intermediary used or
likely to be used in the manufacture of a controlled substance, the control of
which is necessary to prevent, curtail, or limit manufacture.



"Intoxicating compounds" means any
compound, liquid or chemical containing toluol, hexane, trichloroethylene,
acetone, toluene, ethyl acetate, methyl ethyl ketone, trichloroethane,
isopropanol, methyl isobutyl ketone, methyl cellosolve acetate, cyclohexanone,
or any other substance for the purpose of inducing a condition of intoxication,
stupefaction, depression, giddiness, paralysis or irrational behavior, or in
any manner changing, distorting or disturbing the auditory, visual or mental
processes.  For the purposes of this section, any such condition so induced shall
be deemed to be an intoxicated condition.



"Intoxicating liquor" means any
substance defined as "liquor" or "intoxicating liquor" by
section 281-1.



"Manufacture" means to produce,
prepare, compound, convert, or process a dangerous drug, either directly or
indirectly by extraction from substances of natural origin, or independently by
means of chemical conversion or synthesis.



"Marijuana" means any part of the
plant (genus) cannabis, whether growing or not, including the seeds and the
resin, and every alkaloid, salt, derivative, preparation, compound, or mixture
of the plant, its seeds or resin, except that, as used herein,
"marijuana" does not include hashish, tetrahydrocannabinol, and any
alkaloid, salt, derivative, preparation, compound, or mixture, whether natural
or synthesized, of tetrahydrocannabinol.



"Marijuana concentrate" means
hashish, tetrahydrocannabinol, or any alkaloid, salt, derivative, preparation,
compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol.



"Minor" means a person who has not
reached the age of majority.



"Ounce" means an avoirdupois ounce as
applied to solids and semi-solids, and a fluid ounce as applied to liquids.



"Practitioner" means



(1)  A physician, dentist, veterinarian, scientific
investigator, or other person licensed, registered, or otherwise permitted to
distribute, dispense, prescribe, conduct research with respect to or to
administer a controlled substance in the course of professional practice or
research in this State.



(2)  A pharmacy, hospital, or other institution
licensed, registered, or otherwise permitted to distribute, dispense,
prescribe, conduct research with respect to or to administer a controlled
substance in the course of professional practice or research in this State.



"To distribute" means to sell,
transfer, prescribe, give, or deliver to another, or to leave, barter, or
exchange with another, or to offer or agree to do the same.



"To sell" means to transfer to
another for consideration. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(a),
(b); am L 1979, c 112, §2; am L 1984, c 122, §2; am L 1987, c 176, §6 and c
356, §1; am L 1997, c 319, §1; am L 2004, c 193, §4]



 



COMMENTARY ON §712-1240



 



  This section provides definitions of terms used throughout
this Part.  The definitions are discussed, when an explanation is needed, in
the commentary on the following sections.



  The Code made several changes to the recommendations of the
proposed draft for this section.  It redefined "dangerous drug", and
added definitions of such new terms as "harmful drug",
"detrimental drug", "immediate precursor",
"intoxicating compounds", "practitioner", and "to
distribute".  Concurrently, the Code eliminated the proposed draft's
definitions of the terms "narcotic drug" and "to
dispense".  The Code also changed the draft's definition of the word
"unlawfully".  Instead of "narcotic drug and dangerous
drug", the term concerned is "a Schedule I, II, III, IV, or V
substance", as well as marijuana, marijuana concentrates, and intoxicating
compounds.



  Act 163, Session Laws 1975, amended this section in two
respects.  The word "unlawfully" was deleted from the list of
definitions and from every other section in this part where it was made an
element of an offense.  The legislature found that the inclusion of this
element required the prosecution to prove a negative without being able to
compel the accused to testify.  It was found that this was a practical
impossibility and accordingly it has been eliminated as an element of every
offense in this part.  Senate Standing Committee Report No. 590.



  The legislature also amended the definition of marijuana so
as to indicate that the entire genus cannabis was to be included in the term
and not merely cannabis sativa.



 



SUPPLEMENTAL COMMENTARY ON §712-1240



 



  Act 112, Session Laws 1979, amended this section by adding
the broadly defined term "dosage unit."  The legislature found that
drugs, while commonly sold in tablets, capsules, or other forms covered by
existing drugs laws, are also distributed and sold in forms which are not
covered.  The legislature believed that these amendments would lessen the
promotion of dangerous drugs within the State.  Conference Committee Report No.
41.



  Act 122, Session Laws 1984, added the definition of
intoxicating liquor because of the inclusion of a new section prohibiting
adults from promoting intoxicating liquor to a minor.



  Act 356, Session Laws 1987, added "and section
712-1242" to the definition of "dosage unit", for the purpose of
conformity between sections 712-1241 and 712-1242.  House Standing Committee
Report No. 480.



  Act 319, Session Laws 1997, amended this section by defining
"manufacture".  The legislature found that the growing problem of
manufacturing dangerous drugs in Hawaii posed a significant problem to law
enforcement officials given the lack of powerful sanctions under current law. 
The legislature believed it was imperative to establish an aggressive policy
for penalizing the manufacture, sale, and distribution of dangerous drugs. 
Senate Standing Committee Report No. 770, House Standing Committee Report No.
1651.



  Act 193, Session Laws 2004, made medical gamma hydroxybutyric
acid a schedule III depressant and made conforming amendments to the
definitions of "dangerous drugs" and "harmful drug" in this
section to make the nonmedical use of gamma hydroxybutyric acid an
appropriately severe crime.  House Standing Committee Report No. 701-04.



 



Case Notes



 



  One who acts as buyer's agent to purchase drug with buyer's
funds does not commit offense of "selling" the drug.  60 H. 8, 586
P.2d 1022.



  "To distribute" does not include "to buy"
or "to offer to buy".  78 H. 317, 893 P.2d 168.



  Although there was substantial evidence to conclude that
defendant was a drug distributor in violation of §712-1242, defendant was entitled
to a procuring agent defense instruction as (1) a jury instruction must be
given on every defense if there is any support in the evidence "no matter
how weak, inconclusive or unsatisfactory the evidence may be", (2)
defendant's participation in drug transaction negotiation or touching the drugs
or money involved did not foreclose a procuring agent defense, (3) determining
whether defendant was an agent of buyer was for the fact finder, and (4) there
was support in evidence for a procuring agent defense.  113 H. 385, 153 P.3d
456.



  Charge of possession of "marijuana concentrate
hashish" established by presence of THC and absence of marijuana plant;
fact that commonly accepted connotation of "concentrate" is that of
more powerful substance is irrelevant for purposes of section; section not
unconstitutionally vague.  4 H. App. 79, 661 P.2d 1206.