PART I.  GENERAL PROVISIONS

 

§329-1 Definitions.  As used in this chapter:

"Abuse"means the misuse of a substance or the use of a substance to an extent deemeddeleterious or detrimental to the user, to others, or to society.

"Address"means, with respect to prescriptions, the physical location where an individualresides such as:

(1)  Street address, city,and state;

(2)  Tax map key number; or

(3)  The description of aphysical location.

"Administer"means the direct application of a controlled substance, whether by injection,inhalation, ingestion, or any other means, to the body of a patient or researchsubject by:

(1)  A practitioner (or, inthe practitioner's presence or at the practitioner's direction, by a licensedor registered health care professional acting as the practitioner's authorizedagent), or

(2)  The patient orresearch subject at the direction or in the presence of the practitioner.

"Administrator"means the administrator of the narcotics enforcement division of the departmentof public safety.

"Advancedpractice registered nurse with prescriptive authority" means a personlicensed under section 457-8.6 who is registered under this chapter toadminister or prescribe a controlled substance.

"Agent"means an authorized person who acts on behalf of or at the direction of amanufacturer, distributor, or dispenser.  It does not include a common orcontract carrier, public warehouseman, or employee of the carrier orwarehouseman.

"Bureau"or "DEA" means the Drug Enforcement Administration, United StatesDepartment of Justice, or its successor agency.

"Central fillpharmacy" means a pharmacy located in the State that is registeredpursuant to section 329-32 to prepare controlled substance orders fordispensing to the ultimate user pursuant to a valid prescription transmitted toit by a registered pharmacy.

"Centralrepository" means a central repository established under section 329-102.

"Controlledsubstance" means a drug, substance, or immediate precursor in Schedules Ithrough V of part II.

"Counterfeitsubstance" means a controlled substance which, or the container orlabeling of which, without authorization, bears the trademark, trade name, orother identifying mark, imprint, number or device, or any likeness thereof, ofa manufacturer, distributor, or dispenser other than the person who in factmanufactured, distributed, or dispensed the substance.

"Deliver"or "delivery" means the actual, constructive, or attempted transferor sale from one person to another of a controlled substance or drugparaphernalia, whether or not there is an agency relationship.

"Department"means the department of public safety.

"Designatedmember of the health care team" includes physician assistants, advancedpractice registered nurses, and covering physicians who are authorized understate law to prescribe drugs.

"Designatedstate agency" means the narcotics enforcement division, department ofpublic safety.

"Detoxificationtreatment" means the dispensing, for a specific period of time, of anarcotic drug or narcotic drugs in decreasing doses to an individual toalleviate adverse physiological or psychological effects incident to withdrawalfrom the continuous or sustained use of a narcotic drug and as a method ofbringing the individual to a narcotic drug-free state within a specified periodof time.  There are two types of detoxification treatments:  short-termdetoxification treatment and long-term detoxification treatment;

(1)  Short-termdetoxification treatment is for a period not in excess of thirty days; and

(2)  Long-termdetoxification treatment is for a period more than thirty days but not inexcess of one hundred eighty days.

"Dispense"means to deliver a controlled substance to an ultimate user or research subjectby or pursuant to the lawful order of a practitioner, including theprescribing, administering, packaging, labeling, or compounding necessary toprepare the substance for that delivery.  A controlled substance is dispensedwhen:

(1)  It is compounded,prepared, labeled and packaged pursuant to the lawful order of a practitionerby a licensed pharmacist acting in the usual course of his professionalpractice and who is either registered individually or employed in a registeredpharmacy or by a registered institutional practitioner, for delivery to theultimate user;

(2)  It is compounded,prepared, labeled and packaged for delivery to the ultimate user by apractitioner acting in the usual course of his professional practice;

(3)  It is prepared,labeled, and packaged pursuant to the lawful order of a practitioner by aregistered health care professional acting as an agent of the practitioner fordelivery to the ultimate user by the practitioner; or

(4)  It is prepackaged by apharmacist for use in an emergency facility for delivery to the ultimate userby a licensed or registered health care professional pursuant to the order of aphysician.

"Dispenser"means a practitioner who dispenses.

"Distribute"means to deliver other than by administering or dispensing a controlledsubstance.

"Distributor"means a person who distributes.

"Drug"means:

(1)  Substances recognizedas drugs in the official United States Pharmacopoeia, official HomeopathicPharmacopoeia of the United States, or official National Formulary, or anysupplement to any of them;

(2)  Substances intendedfor use in the diagnosis, cure, mitigation, treatment, or prevention of diseasein man or animals;

(3)  Substances (other thanfood) intended to affect the structure or any function of the body of man oranimals; and

(4)  Substances intendedfor use as a component of any article specified in clause (1), (2), or (3) ofthis subsection.  It does not include devices or their components, parts, oraccessories.

"DrugEnforcement Administration registration number" means the practitioner'sDrug Enforcement Administration controlled substance registration number.

"Drugparaphernalia" means all equipment, products, and materials of any kindwhich are used, primarily intended for use, or primarily designed for use, inplanting, propagating, cultivating, growing, harvesting, manufacturing,compounding, converting, producing, processing, preparing, testing, analyzing,packaging, repackaging, storing, containing, concealing, injecting, ingesting,inhaling, or otherwise introducing into the human body a controlled substancein violation of this chapter.  It includes but is not limited to:

(1)  Kits used, primarilyintended for use, or primarily designed for use in planting, propagating,cultivating, growing, or harvesting of any species of plant which is acontrolled substance or from which a prohibited controlled substance can bederived;

(2)  Kits used, primarilyintended for use, or primarily designed for use in manufacturing, compounding,converting, producing, processing, or preparing prohibited controlledsubstances;

(3)  Isomerization devicesused, primarily intended for use, or primarily designed for use in increasingthe potency of any species of plant which is a prohibited controlled substance;

(4)  Testing equipmentused, primarily intended for use, or primarily designed for use in identifying,or in analyzing the strength, effectiveness, or purity of prohibited controlledsubstances;

(5)  Scales and balancesused, primarily intended for use, or primarily designed for use in weighing ormeasuring prohibited controlled substances;

(6)  Diluents andadulterants; such as quinine hydrochloride, mannitol, mannite, dextrose, andlactose, used, primarily intended for use, or primarily designed for use incutting prohibited controlled substances;

(7)  Separation gins andsifters used, primarily intended for use, or primarily designed for use inremoving twigs and seeds from, or in otherwise cleaning or refining, prohibitedmarijuana;

(8)  Blenders, bowls,containers, spoons, and mixing devices used, primarily intended for use, orprimarily designed for use in compounding prohibited controlled substances;

(9)  Capsules, balloons,envelopes, and other containers used, primarily intended for use, or primarilydesigned for use in packaging small quantities of prohibited controlledsubstances;

(10)  Containers and otherobjects used, primarily intended for use, or primarily designed for use instoring or concealing prohibited controlled substances;

(11)  Hypodermic syringes,needles, and other objects used, primarily intended for use, or primarilydesigned for use in parenterally injecting prohibited controlled substancesinto the human body;

(12)  Objects used,primarily intended for use, or primarily designed for use in ingesting,inhaling, or otherwise introducing prohibited marijuana, cocaine, hashish,hashish oil, or methamphetamine into the human body, such as:

(A)  Metal, wooden,acrylic, glass, stone, plastic, or ceramic pipes with or without screens,permanent screens, hashish heads, or punctured metal bowls;

(B)  Water pipes;

(C)  Carburetiontubes and devices;

(D)  Smoking andcarburetion masks;

(E)  Roach clips: meaning objects used to hold burning materials, such as marijuana cigarettes,that have become too small or too short to be held in the hand;

(F)  Miniaturecocaine spoons, and cocaine vials;

(G)  Chamber pipes;

(H)  Carburetorpipes;

(I)  Electric pipes;

(J)  Air-drivenpipes;

(K)  Chillums;

(L)  Bongs; and

(M)  Ice pipes orchillers.

In determiningwhether an object is drug paraphernalia, a court or other authority shouldconsider, in addition to all other logically relevant factors, the following:

(1)  Statements by an owneror by anyone in control of the object concerning its use;

(2)  Prior convictions, ifany, of an owner, or of anyone in control of the object, under any state orfederal law relating to any controlled substance;

(3)  The proximity of theobject, in time and space, to a direct violation of this chapter;

(4)  The proximity of theobject to controlled substances;

(5)  The existence of anyresidue of controlled substances on the object;

(6)  Direct orcircumstantial evidence of the intent of an owner, or of anyone in control ofthe object, to deliver it to a person or persons whom the owner or person incontrol knows, or should reasonably know, intend to use the object tofacilitate a violation of this chapter; the innocence of an owner, or of anyonein control of the object, as to a direct violation of this chapter shall notprevent a finding that the object is intended for use, or designed for use asdrug paraphernalia;

(7)  Instructions, oral orwritten, provided with the object concerning its use;

(8)  Descriptive materialsaccompanying the object which explain or depict its use;

(9)  National and localadvertising concerning its use;

(10)  The manner in whichthe object is displayed for sale;

(11)  Whether the owner, oranyone in control of the object, is a legitimate supplier of like or relateditems to the community, such as a licensed distributor or dealer of tobaccoproducts;

(12)  Direct orcircumstantial evidence of the ratio of sales of the object or objects to thetotal sales of the business enterprise;

(13)  The existence andscope of legitimate uses for the object in the community; and

(14)  Expert testimonyconcerning its use.

"Ephedrine"includes any synthetic compound, salt, derivative, mixture, or preparationextracted from the plant (genus) Ephedra that contains the substance ephedrine.

"Exceptionreport" means an output of data indicating schedule II controlledsubstances dispensation that is outside expected norms for a practitionerpracticing a particular specialty or field of health care, for a dispenserdoing business in a particular location, or for a patient.

"Identificationnumber" means, with respect to a patient:

(1)  The patient's uniquevalid driver's license number or state identification card number, followed bythe abbreviation of the state issuing the driver's license or stateidentification card, or the patient's military identification number;

(2)  If the patient is a foreign patient, thepatient's passport number;

(3)  If the patient does not have a validdriver's license, state identification card, or military identification, thepatient's social security number;

(4)  If the patient is less than eighteenyears of age and has none of the identification referred to in paragraph (1),(2), or (3), the unique number on the valid driver's license, stateidentification card, military identification, or passport of the patient'sparent or guardian; or

(5)  If the controlledsubstance is obtained for an animal, the unique number of the animal's owner asdescribed in paragraph (1), (2), or (3).

"Immediateprecursor" means a substance which the department of public safety hasfound to be and by rule designates as being the principal compound commonlyused or produced primarily for use, and which is an immediate chemicalintermediary used or likely to be used in the manufacture of a controlledsubstance, the control of which is necessary to prevent, curtail, or limitmanufacture.

"Locum tenenspractitioner" means a practitioner:

(1)  Who is licensed inthis State and registered under section 329-32 to administer, prescribe, ordispense a controlled substance in the course of professional practice, whotemporarily substitutes for another registered practitioner for a period not toexceed sixty days at that other practitioner's registered place of business;and

(2)  Whose Drug EnforcementAdministration controlled substance registration number has not beentransferred to the State of Hawaii.

Locum tenenspractitioners are not eligible to receive an oral code number as designated bysection [328-16(k)].

"Maintenance treatment" means the dispensing of a narcoticdrug in the treatment of an individual for dependence upon heroin or othermorphine-like drug, for a period in excess of twenty-one days.

"Manufacture"means the production, preparation, propagation, compounding, conversion, orprocessing of a controlled substance, either directly or indirectly byextraction from substances of natural origin, or independently by means ofchemical synthesis, or by a combination of extraction and chemical synthesis,and includes any packaging or repackaging of the substance or labeling or relabelingof its container, except that this term does not include the preparation orcompounding of a controlled substance by an individual for the individual's ownuse or the preparation, compounding, packaging, or labeling of a controlledsubstance:

(1)  By a practitioner asan incident to the practitioner's administering or dispensing of a controlledsubstance in the course of the practitioner's professional practice, or

(2)  By a practitioner, orby the practitioner's authorized agent under the practitioner's supervision,for the purpose of, or as an incident to, research, teaching, or chemicalanalysis and not for sale.

"Marijuana"means all parts of the plant (genus) Cannabis whether growing or not; the seedsthereof, the resin extracted from any part of the plant; and every compound,manufacture, salt, derivative, mixture, or preparation of the plant, its seeds,or resin.  It does not include the mature stalks of the plant, fiber producedfrom the stalks, oil, or cake made from the seeds of the plant, any othercompound, manufacture, salt, derivative, mixture, or preparation of the maturestalks (except the resin extracted therefrom), fiber, oil, or cake, or thesterilized seed of the plant which is incapable of germination.

"Narcoticdrug" means any of the following, whether produced directly or indirectlyby extraction from substances of vegetable origin, or independently by means ofchemical synthesis, or by a combination of extraction and chemical synthesis:

(1)  Opium and opiate, andany salt, compound, derivative, or preparation of opium or opiate.

(2)  Any salt, compound,isomer, derivative, or preparation thereof which is chemically equivalent oridentical with any of the substances referred to in clause (1), but notincluding the isoquinoline alkaloids of opium.

(3)  Opium poppy and poppystraw.

(4)  Coca leaves and anysalt, compound, derivative, or preparation of coca leaves, and any salt,compound, isomer, derivative, or preparation thereof which is chemicallyequivalent or identical with any of these substances, but not includingdecocainized coca leaves or extractions of coca leaves which do not containcocaine or ecgonine.

"Opiate"means any substance having an addiction-forming or addiction-sustainingliability similar to morphine or being capable of conversion into a drug havingaddiction-forming or addiction-sustaining liability.  It does not include,unless specifically designated as controlled under section 329-11, thedextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.

"Opiumpoppy" means the plant of the species Papaver somniferum, except itsseeds.

"Person"means individual, corporation, government, or governmental subdivision oragency, business trust, estate, trust, partnership or association, or any otherlegal entity.

"Pharmacist"means a person who is licensed or holds a permit under chapter 461 to practicepharmacy, including a pharmacy intern who is under the immediate and directsupervision of a licensed pharmacist.

"Physicianassistant" means a person licensed under section 453-5.3, who isregistered under this chapter to administer, prescribe, or dispense acontrolled substance under the authority and supervision of a physicianregistered under section 329-33, but who is not authorized to request, receive,or sign for professional controlled substance samples.

"Physician-patientrelationship" means the collaborative relationship between physicians andtheir patients.  To establish this relationship, the treating physician or thephysician's designated member of the health care team, at a minimum shall:

(1)  Personally perform aface-to-face history and physical examination of the patient that isappropriate to the specialty training and experience of the physician or thedesignated member of the physician's health care team, make a diagnosis andformulate a therapeutic plan, or personally treat a specific injury orcondition;

(2)  Discuss with thepatient the diagnosis or treatment, including the benefits of other treatmentoptions; and

(3)  Ensure theavailability of appropriate follow-up care.

"Poppystraw" means all parts, except the seeds, of the opium poppy, aftermowing.

"Practitioner"means:

(1)  A physician, dentist,veterinarian, scientific investigator, or other person licensed and registeredunder section 329-32 to distribute, dispense, or conduct research with respectto a controlled substance in the course of professional practice or research inthis State;

(2)  An advanced practiceregistered nurse with prescriptive authority licensed and registered undersection 329-32 to prescribe and administer controlled substances in the courseof professional practice in this State; and

(3)  A pharmacy, hospital,or other institution licensed, registered, or otherwise permitted todistribute, dispense, conduct research with respect to or to administer acontrolled substance in the course of professional practice or research in thisState.

"Prescribe"means to direct, designate, or order the use of a formula for the preparationof a medicine for a disease or illness and the manner of using them.

"Prescriber"means one who is authorized to issue a prescription.

"Prescription"means an order for medication, which is dispensed to or for an ultimate user. "Prescription" shall not include an order for medication that isdispensed for immediate administration to the ultimate user, such as a chartorder to dispense a drug to a bed patient for immediate administration in ahospital.

"Production"includes the manufacture, planting, cultivation, growing, or harvesting of acontrolled substance.

"State",when applied to a part of the United States, includes any state, district,commonwealth, territory, insular possession thereof, and any area subject tothe legal authority of the United States of America.

"Supervisingphysician" means a physician licensed to practice medicine in the Stateand registered under section 329-33, who supervises a physician assistant andretains full professional and legal responsibility for the performance of thesupervised physician assistant and the care and treatment of the patient.

"System"means an electronic prescription accountability system as described in partVIII.

"Ultimateuser" means a person who lawfully possesses a controlled substance for theperson's own use or for the use of a member of the person's household or foradministering to an animal owned by the person or by a member of the person'shousehold. [L 1972, c 10, pt of §1; am L 1975, c 163, §7; gen ch 1985; am L1986, c 214, §1; am L 1988, c 259, §1; am L 1989, c 293, §1; am L 1990, c 13,§1 and c 281, §§4, 10; am L 1991, c 159, §§3 to 6; am L 1996, c 268, §4; am L1999, c 90, §1 and c 252, §1; am L 2001, c 203, §1; am L 2004, c 44, §4; am L2006, c 69, §2; am L 2008, c 186, §2; am L 2009, c 169, §6]

 

Law Journals and Reviews

 

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

 

Case Notes

 

  In prosecution under §329-43.5(b),trial court should provide jury with an instruction enumerating all fourteenfactors listed in statutory definition of drug paraphernalia.  75 H. 80, 856P.2d 1246.

  No error in court failing todismiss count against defendant for possessing "everyday household itemsnot intended or designed for use as drug paraphernalia" as broaddefinition of drug paraphernalia and multiple examples of such contrabandenumerated in this section weighed against defendant's contention that theordinary nature of the containers defendant possessed did not involve the harmor evil sought to be avoided under §329-43.5 or amounted to extenuations thatwould not have been envisioned by the legislature.  98 H. 196, 46 P.3d 498.