2012 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
712. Offenses Against Public Health and Morals
712-1249.5 Commercial promotion of marijuana in the second degree.

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.

§712-1249.5 Commercial promotion of marijuana in the second degree. (1) A person commits the offense of commercial promotion of marijuana in the second degree if the person knowingly:

(a) Possesses marijuana having an aggregate weight of two pounds or more; or

(b) Distributes marijuana having an aggregate weight of one pound or more; or

(c) Possesses, cultivates, or has under the person's control fifty or more marijuana plants; or

(d) Cultivates on land owned by another person, including land owned by the government or other legal entity, any marijuana plant, unless the person has the express permission from the owner of the land to cultivate the marijuana or the person has a legal or an equitable ownership interest in the land or the person has a legal right to occupy the land; or

(e) Sells or barters any marijuana or any Schedule V substance in any amount to a minor.

(2) Commercial promotion of marijuana in the second degree is a class B felony.

(3) Any marijuana seized as evidence in violation of this section in excess of an aggregate weight of two pounds as stated in subsection (1)(a), or in excess of an aggregate weight of one pound as stated in subsection (1)(b), or in excess of twenty-five marijuana plants as stated in subsection (1)(c) may be destroyed after the excess amount has been photographed and the number of plants and the weight thereof has been recorded. The required minimum amount of the marijuana needed to constitute the elements of this offense shall remain in the custody of the police 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 1986, c 314, §76; am L 1987, c 176, §8; am L 1989, c 384, §4]

Case Notes

As California statute did not authorize defendant to possess or cultivate fifty or more marijuana plants in violation of this section, trial court did not err in concluding that §712-1240.1 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.

Trial court did not err in concluding that defendant failed to prove that this section unconstitutionally burdened the free exercise of defendant’s religion where defendant failed to establish that the trial court clearly erred in finding that defendant did not demonstrate that defendant's religion required possession or cultivation of fifty or more marijuana plants. 108 H. 169, 118 P.3d 652.