2011 Hawaii Code
DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS
TITLE 37. HAWAII PENAL CODE
712. Offenses Against Public Health and Morals
§712-1240.1 Defense to promoting.

§712-1240.1 Defense to promoting. (1) It is a defense to prosecution for any offense defined in this part that the person who possessed or distributed the dangerous, harmful, or detrimental drug did so under authority of law as a practitioner, as an ultimate user of the drug pursuant to a lawful prescription, or as a person otherwise authorized by law.

(2) It is an affirmative defense to prosecution for any marijuana-related offense defined in this part that the person who possessed or distributed the marijuana was authorized to possess or distribute the marijuana for medical purposes pursuant to part IX of chapter 329. [L 1977, c 137, §1; am L 2000, c 228, §4]

COMMENTARY ON §712-1240.1

Act 137, Session Laws 1977, added this section to provide a defense for the lawful possession or distribution of drugs by authorized persons. In enacting the section, the legislature found that the law as then worded made any possession or distribution of drugs criminal. Senate Standing Committee Report No. 1127, House Standing Committee Report No. 683.

Act 228, Session Laws 2000, in permitting the medical use of marijuana by persons with certain medical conditions, amended this section to include an affirmative defense for the medical use of marijuana. Senate Standing Committee Report No. 2760.

Case Notes

Legislature intended section as a defense rather than element of an offense. 64 H. 568, 645 P.2d 308.

As California statute did not authorize defendant to possess or cultivate fifty or more marijuana plants in violation of §712-1249.5, trial court did not err in concluding that this section was inapplicable to the case and the documents submitted in support of defendant's motion to dismiss were not clearly exculpatory; thus, trial court did not err in denying defendant's motion to dismiss. 108 H. 169, 118 P.3d 652.