§712-1250 - Promoting intoxicating compounds.
§712-1250 Promoting intoxicating compounds. (1) A person commits the offense of promoting intoxicating compounds if the person knowingly:
(a) Breathes, inhales, or drinks 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.
(b) Sells or offers for sale, delivers or gives to any person under eighteen years of age, unless upon written order of such person's parent or guardian, 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 which will induce an intoxicated condition, as defined herein, when the seller, offeror or deliveror knows or has reason to know that such compound is intended for use to induce such condition.
(2) Promoting intoxicating compounds is a misdemeanor.
(3) This section shall not apply to any person who commits any act described herein pursuant to the direction or prescription of a practitioner, as defined in the "Hawaii Food, Drug and Cosmetic Act" (section 328-16). [L 1972, c 9, pt of §1; am L 1975, c 163, §6(1); gen ch 1993]
COMMENTARY ON §§712-1241 TO 1250
These sections set forth four different offenses relating to drugs and intoxicating compounds. The offenses are: 1) promoting a dangerous drug; 2) promoting a harmful drug; 3) promoting a detrimental drug; and 4) promoting intoxicating compounds. All of the drug offenses are divided into three degrees. The intoxicating compound offense is in one degree, a misdemeanor.
Dangerous Drugs. These drugs are defined in §712-1240 as any substance or immediate precursor defined as a Schedule I or II substance by Chapter 329, Hawaii Revised Statutes, except marijuana or marijuana concentrate. Chapter 329 is the Uniform Controlled Substances Act, which was enacted by the 1972 Legislature. Schedule I substances have the "highest degree of danger or probable danger"[1] and includes such drugs as morphine[2] and heroin,[3] among others. Schedule II substances have a "high degree of danger or probable danger",[4] and includes, among others, such drugs as opium[5] and cocaine.[6]
These drugs are the most fearsome in their potential for destruction of physical and mental well being. The drugs of this category are characterized by a high tolerance level which requires the user to use greater and greater amounts each time to achieve the same "high".[7] More importantly, all the drugs, with the exception of cocaine to some extent, are highly addictive;[8] that is, if use of the drug is discontinued, severe withdrawal symptoms occur which can be relieved only by more of the drug.[9] The combination of a high tolerance level and addictive liability creates a physical dependence in the user which may lead, and in many cases has led, the user to commit crimes to obtain money needed to buy more narcotics.
Under §712-1243, a person commits the offense of promoting a dangerous drug in the third degree if the person "knowingly" possesses any dangerous drug in any amount. The offense is a class C felony.
The offense is in the second degree, a class B felony, if the defendant possesses a specified quantity of a dangerous drug. Thus, it would be a second degree offense if the defendant possesses 1/8 ounce of heroin, morphine, or cocaine, or 50 or more capsules, tablets, ampules, syrettes containing one or more dangerous drugs or 1/2 ounce of any other dangerous drug. It would also be promoting a dangerous drug in the second degree if the defendant "distributes" any dangerous drug in any amount. The word "distribute", as defined in §712-1240, means to "sell, transfer, give, or deliver to another or to leave, barter, exchange with another, or to offer or agree to do the same".
Section 712-1241 deals with promoting a dangerous drug in the first degree, which is a class A felony. A person commits this offense if the person "knowingly" possesses one ounce or more of morphine, heroin, or cocaine, or two ounces or more of any other dangerous drug. It would also cover a person who "knowingly" distributes 50 capsules, etc., of a dangerous drug, or 1/8 ounce of heroin, morphine, or cocaine, or 1/2 ounce of any other dangerous drug. Finally, the offense is committed if any dangerous drug is distributed to any minor who is at least three years younger than the distributor.
Harmful Drugs. These drugs, according to §712-1240, mean any substance or immediate precursor listed as a Schedule III or IV substance by Chapter 329, and include marijuana concentrates, but not marijuana. Schedule III substances, which have a degree of danger or probable danger less than substances in Schedules I and II, include drugs which have a stimulant or depressant effect on the central nervous system.[10] Schedule IV substances generally have a depressant effect on the central nervous system.[11]
"Marijuana concentrates" are defined to include hashish and tetrahydrocannabinol. Formerly, hashish was defined under "narcotics",[12] which it is not. Tetrahydrocannabinol is the recently synthesized active principal of marijuana. It is believed that hashish and tetrahydrocannabinol, and its alkaloids, salts, derivatives, preparations, compounds, and mixtures, will be subject to more abuse in the future due to the rise in popularity of marijuana,[13] of which hashish is a concentrated resin extract. It is vital that persons tempted to deal in or use these substances be warned that their effects are more dangerous than those of marijuana,[14] and that thus its possession and distribution are subject to severer sanctions.
Under §712-1246, a person commits the offense of promoting a "harmful" drug in the third degree if the person knowingly possesses any harmful drug in any amount. The offense is a misdemeanor. However, if the person distributes a harmful drug or marijuana concentrate, then under §712-1245, it is an offense in the second degree, which is a class B felony. It is also in the second degree if the person possesses 50 or more capsules, etc., of a harmful drug or marijuana concentrate, or 1/8 ounce of a harmful drug or marijuana concentrate.
Section 712-1244 makes the offense in the first degree, a class A felony, if the possession totalled 400 or more capsules or tablets of harmful drugs or marijuana concentrates, or one ounce of such harmful drug or marijuana concentrate. It is also in the first degree if the defendant distributes 50 or more capsules or tablets of the same, or 1/8 ounce or more of the same. Finally, it is promoting harmful drug in the first degree if defendant knowingly distributes a harmful drug or marijuana concentrate to a minor who is three years the defendant's junior.
Detrimental Drugs. These drugs are defined in §712-1240 as marijuana or any Schedule V substance listed in Chapter 329. Schedule V substances, which are less dangerous than Schedule IV substances, include limited quantities of certain types of narcotic drugs combined with nonnarcotic ingredients.
It should be noted again that marijuana concentrates are not included under the term "marijuana". It now appears that marijuana is not addictive; that is, there are no withdrawal symptoms at the discontinuance of the use of the substance so the user is not forced to continue taking it because of physical need;[15] the substance has no tolerance level so there is no necessity to take more each time to achieve the same "high";[16] and finally, hallucinations and other elements of model psychosis are rare and appear to occur only under very large doses.[17] Such large doses are usually risked only by the users of hashish.[18]
Under §712-1249, a person commits the offense of promoting a detrimental drug in the third degree, which is a petty misdemeanor, if the person knowingly possesses marijuana or any Schedule V substance in any amount. The offense is in the second degree if the possession is of 50 or more capsules or tablets of a Schedule V substance, or 1/8 ounce or more of such substance, or one ounce or more of marijuana. Also, it is a second degree offense if the defendant "sells" marijuana or distributes a Schedule V substance in any amount. Under §712-1248, the second degree offense is classified as a misdemeanor.
Under §712-1247, promoting a detrimental drug in the first degree is a class C felony. Here again, the offense is concerned with the knowing possession or distribution of specified amount of Schedule V substances or marijuana. The offense is also committed if there is distribution to a minor who is three years younger than the defendant.
Illegal traffic in dangerous drugs, harmful drugs, and detrimental drugs. It is the purpose of the Code to hit hardest at the illegal trafficker in dangerous drugs, harmful drugs, and detrimental drugs. The scheme devised for so doing is to arrange the sanctions relating to each substance, either for possession or distributing, on the basis of the amounts involved. Such amounts are meant to reflect, i.e., provide an indicia of the position of the defendant in the illegal drug traffic. Large amounts indicate the defendant is a main source of supply, sometimes called an "importer", "dealer", or "wholesaler". Middle amounts indicate that the defendant is an intermediary between the main source and the consumer; sometimes the intermediary is called a "pusher", "carrier", or "retailer". Finally, the smallest amounts indicate the defendant's main involvement in the traffic is that of a user or consumer of drugs or substances. In keeping with the purpose of the Code, the greater the amounts involved the more severe the sanctions. Also, it will be noted that the offenses of distributing a given substance are classed or graded one degree above the possession of the same amount. Thus, for example, in §§712-1241 and 1242, the possession of "wholesale" amounts of a dangerous drug is a class A felony; however, the defendant who distributes "retail" amounts of a dangerous drug will receive the same sanction, whereas possession of that amount is a class B felony. In equating, for purposes of classification and sanction, possession of a given amount of a substance with distributing a somewhat smaller amount, the Code attempts to provide the same sanction for persons at the same level of involvement in the trafficking of a particular substance. For example, a "pusher" is likely to possess a larger supply of one or more of the specified substances which the pusher would distribute on a given occasion; the pusher will break down the pusher's supply into smaller, marketable amounts before distributing.
Distributing to Minors. The Code attaches severe penalties to distributing to the young. This position reflects society's special interest in protecting the young from those who encourage or induce young people to experiment in any drug, or pander to their wishes to do so. In each category of substances, the offense of distributing to a minor receives the most serious sanction involving the individual substance.
It should be noted that the Code severely punishes the distribution of any drug to a minor who is at least three years younger than the defendant. Thus if a dangerous drug is involved, §712-1241(1)(c) makes it a first degree offense. Similarly, §712-1244(1)(e) makes it promoting a harmful drug in the first degree if there is distribution of a harmful drug or marijuana concentrate to a minor who is three years younger than the defendant. Under §712-1247(1)(g) the same type of treatment is made when a detrimental drug is involved.
Intoxicating Compounds. The Code, under §712-1250, makes it a misdemeanor for a person to knowingly "breathe, inhale, or drink" certain intoxicating compounds, and prohibits the sale or offer for sale of such compounds to persons under 18 years of age.
The Code differs from the proposed draft in several respects. Basically, it changes the draft by incorporating the schedules set forth in the companion statute, Uniform Controlled Substances Act, which was enacted by the 1972 Legislature. This is based on the "Comprehensive Drug Abuse Prevention and Control Act of 1970" (Public Law 91-513). Thus the Hawaii law generally is in accord with the federal law relating to the drug abuse problem.
In another revision, the Code has included the offense of promoting intoxicating compounds, which are found in Chapter 328 of the Hawaii Revised Statutes. Another change is that the Code handles the problem of avoiding severe sanctions on youthful offenders by requiring a three-year difference in age between the offender and the minor involved.
Prior Law. The Code differs basically in spirit from previous Hawaii law on drugs, and intoxicants. First and foremost, under prior law, all prohibited drugs were treated the same, with marijuana considered a narcotic along with heroin, morphine, and cocaine.[19] Thus the sale of a narcotic or a dangerous drug or marijuana carried a possible penalty of 10 years in prison and a $1,000 fine for a first conviction.[20] Also, prior law provided no distinction between possessing and transferring a dangerous drug; the same penalty stated for selling existed for possession of any such drug.[21] However, a distinction was made under the previous law, in the case of narcotics, between selling or possessing with intent to sell, on the one hand, and simple possession on the other. The former case was a 10-year felony upon first conviction, and the latter case was a 5-year felony upon first conviction.[22] Possession of marijuana could be treated either as a felony or misdemeanor upon first conviction.[23] Because of difficulties of proof, the offense based on intent to sell was rarely invoked. There were no differentiations based on the amounts involved except as related to a presumption of intent to sell.[24] The Code's approach, which attempts to provide some indicia of the defendant's role in the drug, marijuana concentrate, or marijuana traffic, and the dangerousness of the substance involved, rationalizes previous law. The Code is essentially in agreement with the policy of special sanctions, in previous Hawaii law,[25] for those who unlawfully dispense or sell narcotics, dangerous drugs, or marijuana to minors. Although the differentiation based on amounts must be considered, the Code (1) generally increases the available penalties for dangerous drug offenses, (2) is in accord with previous penalties relating to harmful drug offenses, and (3) provides a slight reduction relating to detrimental drug offenses.
SUPPLEMENTAL COMMENTARY ON §§712-1241 TO 1250
Act 163, Session Laws 1975, deleted the term "unlawfully" from the description of any offense set forth in this Part for the reasons stated in the Commentary on §712-1240.
Act 112, Session Laws 1979, amended §712-1241 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 drug 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 146, Session Laws 1988, added methamphetamine to the list of drugs under §712-1241. The changes to this section are intended to control the sale, use or possession of the street drug, known by various names such as: "crystal", "crystal meth", "crack" and "ice." It is intended that the illegal distribution of prescription methamphetamine in its capsule or tablet form remains within the scope of subsection (1)(b)(i). House Standing Committee Report No. 1093-88, Senate Conference Committee Report No. 271.
Act 9, Session Laws 1982, amended §§712-1241 and 1242 by deleting the references to alkaloids of heroin, morphine, and cocaine, there being no such alkaloids.
Act 31, Session Laws 1981, deleted "who is at least three years his junior" after "minor" in §§712-1241, 1244, and 1247 to remove an incentive to recruit young persons as "pushers." Senate Standing Committee Report No. 403, House Standing Committee Report No. 944.
Act 356, Session Laws 1987, added the term "dosage units" to §712-1242 for the purpose of conforming this section with §712-1241. House Standing Committee Report No. 480.
Act 291, Session Laws 1988, added methamphetamine to the list of drugs covered by §712-1242. The changes are intended to control the sale, use or possession of the street drug, known by various names such as: "crystal", "crystal meth", "crack" and "ice." It is intended that the illegal distribution of prescription methamphetamine in its capsule or tablet form will remain within the scope of subsection (1)(a). House Standing Committee Report No. 1085-88, Senate Conference Committee Report No. 277.
Act 119, Session Laws 1975, amended §712-1244 and §712-1245 by increasing the penalty one step to create a greater deterrent to persons considering engaging in the proscribed activities. Senate Standing Committee Report No. 775, House Standing Committee Report No. 480.
Act 163, Session Laws 1989, added §712-1246.5 and amended various sections in this part to reduce the quantity of dangerous and harmful drugs required for conviction of the crime of promoting such drugs to provide law enforcement officers a much needed tool in the war on drugs. Senate Conference Committee Report No. 168, House Conference Committee Report No. 163.
Act 123, Session Laws 1981, amended §712-1247 by adding subsection (3) to deal with the storage and transportation problem, which was increasing with the rise in marijuana cases. Senate Conference Committee Report No. 13, House Conference Committee Report No. 14.
Act 384, Session Laws 1989, added §712-1249.4 and amended various sections in this part to provide stiffer penalties for the promotion of marijuana and similar substances in furtherance of the war against drugs. Senate Conference Committee Report No. 164, House Conference Committee Report No. 146.
Act 314, Session Laws 1986, added §712-1249.5 to make commercial growing of marijuana a crime and a class B felony. House Standing Committee Report No. 487.
Act 284, Session Laws 1988, added §712-1249.6 which makes the promotion of a controlled substance in or around a school a class C felony. This section will give law enforcement officials the power to conduct investigations of drug dealers who operate in the vicinity of the schools. Senate Conference Committee Report No. 268, House Conference Committee Report No. 118-88.
Act 11, Session Laws 1991, amended §712-1249.6 by prohibiting distribution or possession of drugs on or near school vehicles. The legislature felt this measure would ensure that the drug free school zone law would not be easily circumvented and drug dealing on buses or at bus stops would be discouraged. House Standing Committee Report No. 545.
Act 308, Session Laws 1996, amended §§712-1241, 712-1242, and 712-1243 by providing for mandatory minimum terms of imprisonment for offenses involving methamphetamines. The stiffer penalties were intended to counter increased property and violent crimes associated with the use of methamphetamines. Conference Committee Report No. 29, House Standing Committee Report No. 734-96.
Act 319, Session Laws 1997, amended §712-1241 by including the manufacture of dangerous drugs in any amount in the offense of promoting a dangerous drug in the first degree, and by providing a ten-year mandatory minimum term of imprisonment applicable to the offense of manufacturing methamphetamine. 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. Further, the illegal manufacture and abuse of "ice", a form of methamphetamine, presented an imminent public health threat as a highly addictive drug linked to violent behavior. 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 161, Session Laws 2002, amended §§712-1241, 712-1242, and 712-1243 to require 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 70, Session Laws 2003, amended §712-1249.6 to extend the offense of promoting a controlled substance near schools or school vehicles to include public parks. The legislature found that public parks serve functions similar to those served by school playgrounds where people congregate for recreation and student activities. These areas should be free from the bad influence that drug activity can inflict upon Hawaii's youth. House Standing Committee Report No. 311, Conference Committee Report No. 8.
Act 44, Session Laws 2004, amended §§712-1241, 712-1242, and 712-1243, by eliminating the manufacturing and distribution of methamphetamine elements which are incorporated in a new offense of methamphetamine trafficking [§712-1259]. The mandatory minimum sentences for methamphetamine were deleted because of the creation of the new offense. House Standing Committee Report No. 495-04.
Act 44, Session Laws 2004, amended §712-1249.6 to make the manufacture of methamphetamine within seven hundred fifty feet of a school or public park a class A felony and expanded the definition of schools to include preschools, kindergarten, and middle schools. House Standing Committee Report No. 495-04.
Act 44, Session Laws 2004, added §712-1249.7, creating a new offense of promoting a controlled substance through the use of a minor, as part of the Act's comprehensive legislation to address the devastating effects of crystal methamphetamine (commonly known as "ice") abuse in Hawaii. House Standing Committee Report No. 495-04.
Act 230, Session Laws 2006, amended §712-1241(1) by, among other things, deleting references to §712-1240.6, which was repealed by the Act.
Act 27, Session Laws 2007, amended §712-1242(1) by deleting an obsolete reference [to §712-1240.6]. The legislature repealed §712-1240.6 with Act 230, Session Laws 2006. However, the reference to that section was not deleted from §712-1242. Act 27 rectified the oversight. Senate Standing Committee Report No. 1368.
Case Notes
"Any other substance" in subsection (1)(a) construed; rule of ejusdem generis applied. 56 H. 481, 541 P.2d 1020.
Subsection (1)(a) is not unconstitutional; consumption of compounds to become intoxicated is not a fundamental freedom. 56 H. 481, 541 P.2d 1020.
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§§712-1241 To 1250 Commentary:
1. HRS §329-13.
2. Id. §329-14.
3. Id.
4. Id. §329-15.
5. Id. §329-16.
6. Id.
7. Goth, Medical Pharmacology, 275-292 (1966).
8. Id.
9. Id.
10. H.R.S. §329-18.
11. Id. §329-20.
12. Id. §329-1.
13. Kaplan, Proposed Tentative Draft and Commentary, California Legislature, Joint Committee for the Revision of the Penal Code 89-124 (1968).
14. Id.
15. Grollman, Pharmacology and Therapeutics, 251 (1965).
16. Id.
17. Kaplan, op cit.
18. Id.
19. H.R.S. §329-1.
20. Id. §§328-84, 329-3.
21. Id. §328-84.
22. Id. §§329-3, 329-5.
23. Id. §329-5.
24. Id. §329-3.
25. Id. §§328-84, 329-4.