§712-1247

Promoting a detrimental drug in the first degree

Drugs & vice · Chapter 712 — Offenses Against Public Health and Morals · Part IV. Offenses Related to Drugs and Intoxicating

(1) A person commits the offense of promoting a detrimental drug in the first degree if the person knowingly:

(a) Possesses four hundred or more capsules or tablets containing one or more of the Schedule V substances;

(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more, containing one or more of the Schedule V substances;

(d) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one-eighth ounce or more, containing one or more of the Schedule V substances;

(e) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of one pound or more, containing any marijuana;

(f) Distributes one or more preparations, compounds, mixtures, or substances of an aggregate weight of one ounce or more, containing any marijuana;

(g) Possesses, cultivates, or has under the person's control twenty-five or more marijuana plants; or

(h) Sells or barters any marijuana or any Schedule V substance in any amount.

(2) Promoting a detrimental drug in the first degree is a class C felony.

(3) Any marijuana seized as evidence of a violation of this section in excess of one pound may be destroyed after it has been photographed and the weight thereof recorded. The remainder of the marijuana shall remain in the custody of the police department until the termination of any criminal action brought as a result of the seizure of the marijuana. Photographs duly identified as accurately representing the marijuana shall be deemed competent evidence of the marijuana involved and shall be admissible in any proceeding, hearing, or trial to the same extent as the marijuana itself; provided that nothing in this subsection shall be construed to limit or to restrict the application of rule 901 of the Hawaii rules of evidence. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(i); am L 1981, c 31, §3 and c 123, §1; am L 1986, c 314, §75; am L 1989, c 384, §2]

Pattern jury instructions (HAWJIC)

Elements the State must prove for this offense.

Source / Amendment history

[L 1972, c 9, pt of §1; am L 1975, c 163, §6(i); am L 1981, c 31, §3 and c 123, §1; am L 1986, c 314, §75; am L 1989, c 384, §2]

Cross references, commentary & case notes

Revision Note In subsection (1)(a) to (f), "or" deleted pursuant to §23G-15. Case Notes Criminalization of marijuana is constitutional. 56 H. 501, 542 P.2d 366 (1975). Where a bill of particulars, under a charge of distributing marijuana, states that defendant "offered or agreed to sell" marijuana, State is limited to proving the particulars specified in the bill, notwithstanding the definition of "distribute" contained in §712-1240(1). 60 H. 8, 586 P.2d 1022 (1978). Where violation of misdemeanor offense under §712-1247(1)(d) also constituted violation of felony offense under subsection (1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights. 86 H. 48, 947 P.2d 360 (1997). Hawaii county ordinance that established cannabis offenses as the lowest law enforcement priority in the county conflicted with, and was therefore preempted by, this section and other state laws governing the investigation and prosecution of alleged violations of the Hawaii Penal Code concerning the adult personal use of cannabis. 135 H. 411, 353 P.3d 953 (2015). Procuring agent for the buyer defense was available against a charge of bartering a drug and was available to a defendant who was buyer's accomplice. 78 H. 488 (App.), 896 P.2d 944 (1995). Since to sell and to barter do not include to prescribe, §712-1248(1)(d) is not a lesser included offense of §712-1247(1)(h). 78 H. 488 (App.), 896 P.2d 944 (1995). Where a Hawaii county ordinance made the enforcement of marijuana laws the lowest enforcement priority in the county, the ordinance was preempted by state laws governing the investigation and prosecution of alleged violations of the Hawaii Penal Code concerning the adult personal use of cannabis. 132 H. 511 (App.), 323 P.3d 155 (2014).

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