2020 Hawaii Revised Statutes
Title 37. Hawaii Penal Code
708. Offenses Against Property Rights
708-814 Criminal trespass in the second degree.

§708-814 Criminal trespass in the second degree. (1) A person commits the offense of criminal trespass in the second degree if:

(a) The person knowingly enters or remains unlawfully in or upon premises that are enclosed in a manner designed to exclude intruders or are fenced;

(b) The person enters or remains unlawfully in or upon commercial premises after a reasonable warning or request to leave by the owner or lessee of the commercial premises, the owner's or lessee's authorized agent, or a police officer; provided that this paragraph shall not apply to any conduct or activity subject to regulation by the National Labor Relations Act.

For the purposes of this paragraph, "reasonable warning or request" means a warning or request communicated in writing at any time within a one-year period inclusive of the date the incident occurred, which may be evidenced by a copy of the previously issued written warning or request, whether or not the copy is posted at the premises or retained by the county police department, and which may contain but is not limited to the following information:

(i) A warning statement advising the person that the person's presence is no longer desired on the property for a period of one year from the date of the notice, that a violation of the warning will subject the person to arrest and prosecution for trespassing pursuant to this subsection, and that criminal trespass in the second degree is a petty misdemeanor;

(ii) The legal name, any aliases, and a photograph, if practicable, or a physical description, including but not limited to sex, racial extraction, age, height, weight, hair color, eye color, or any other distinguishing characteristics of the person warned;

(iii) The name of the person giving the warning along with the date and time the warning was given; and

(iv) The signature of the person giving the warning, the signature of a witness or police officer who was present when the warning was given and, if possible, the signature of the violator;

(c) The person enters or remains unlawfully on agricultural lands without the permission of the owner of the land, the owner's agent, or the person in lawful possession of the land, and the agricultural lands:

(i) Are fenced, enclosed, or secured in a manner designed to exclude intruders;

(ii) Have a sign or signs displayed on the unenclosed cultivated or uncultivated agricultural land sufficient to give notice and reading as follows: "Private Property" or "Government Property - No Trespassing". The sign or signs, containing letters no less than two inches in height, shall be placed at reasonable intervals no less than three signs to a mile along the boundary line of the land and at roads and trails entering the land in a manner and position as to be clearly noticeable from outside the boundary line; or

(iii) At the time of entry, are fallow or have a visible presence of livestock or a crop:

(A) Under cultivation;

(B) In the process of being harvested; or

(C) That has been harvested;

(d) The person enters or remains unlawfully on unimproved or unused lands without the permission of the owner of the land, the owner's agent, or the person in lawful possession of the land, and the lands:

(i) Are fenced, enclosed, or secured in a manner designed to exclude the general public; or

(ii) Have a sign or signs displayed on the unenclosed, unimproved, or unused land sufficient to give reasonable notice and reads as follows: "Private Property - No Trespassing", "Government Property - No Trespassing", or a substantially similar message; provided that the sign or signs shall contain letters no less than two inches in height and shall be placed at reasonable intervals no less than three signs to a mile along the boundary line of the land and at roads and trails entering the land in a manner and position as to be clearly noticeable from outside the boundary line.

For the purposes of this paragraph, "unimproved or unused lands" means any land upon which there is no improvement; construction of any structure, building, or facility; or alteration of the land by grading, dredging, or mining that would cause a permanent change in the land or that would change the basic natural condition of the land. Land remains "unimproved or unused land" under this paragraph notwithstanding minor improvements, including the installation or maintenance of utility poles, signage, and irrigation facilities or systems; minor alterations undertaken for the preservation or prudent management of the unimproved or unused land, including the installation or maintenance of fences, trails, or pathways; maintenance activities, including forest plantings and the removal of weeds, brush, rocks, boulders, or trees; and the removal or securing of rocks or boulders undertaken to reduce risk to downslope properties; or

(e) The person enters or remains unlawfully in or upon any area of a housing project that is closed to the public pursuant to section 356D-6.7 and meets the signage requirements of section 356D-6.7, or the person enters or remains unlawfully in or upon any property that is subject to section 356D-6.7 and meets the signage requirements of section 356D-6.7 after a reasonable warning or request to leave by the housing authority or law enforcement officer, as defined in section 710-1000, based upon an alleged violation of law or administrative rule, notwithstanding any invitation or authorization provided to the person by a tenant of that housing project or a member of that tenant's household.

As used in this paragraph:

"Housing authority" means a property manager, resident manager, tenant monitors, security guards, or others officially designated by the Hawaii public housing authority, for the housing project.

"Housing project" means a public housing project, or elder or elderly housing as defined in section 356D-1, or state low-income housing project as defined in section 356D-51.

"Reasonable warning or request" means a warning or request communicated in writing at any time within a one-year period inclusive of the date the incident occurred, which may contain but is not limited to the following information:

(i) A warning statement advising the person that for a period of one year from the date of the notice, the person's presence is no longer desired in or on the areas of the subject housing project that are closed to the public, that a violation of the warning will subject the person to arrest and prosecution for trespassing pursuant to this subsection, and that criminal trespass in the second degree is a petty misdemeanor;

(ii) The legal name, any aliases, and a photograph, if practicable, or a physical description, including but not limited to sex, racial extraction, age, height, weight, hair color, eye color, or any other distinguishing characteristics of the person warned;

(iii) The name of the person giving the warning along with the date and time the warning was given;

(iv) The signature of the person giving the warning and, if possible, the signature of the violator; and

(v) The name and signature of a witness or law enforcement officer, as defined in section 710-1000, who was present when the warning was given.

(2) Subsection (1) shall not apply to a process server who enters or remains in or upon the land or premises of another, unless the land or premises are secured with a fence and locked gate, for the purpose of making a good faith attempt to perform the process server's legal duties and to serve process upon any of the following:

(a) An owner or occupant of the land or premises;

(b) An agent of the owner or occupant of the land or premises; or

(c) A lessee of the land or premises.

For the purposes of this subsection, "process server" means any person authorized under the Hawaii rules of civil procedure, district court rules of civil procedure, Hawaii family court rules, or section 353C-10 to serve process.

(3) Criminal trespass in the second degree is a petty misdemeanor. [L 1972, c 9, pt of §1; am L 1974, c 49, §1; am L 1979, c 201, §1; am L 1980, c 232, §40; am L 1981, c 177, §2; gen ch 1993; am L 1998, c 146, §1; am L 2004, c 50, §2; am L 2005, c 181, §2 and c 212, §3; am L 2011, c 208, §2; am L 2013, c 145, §1; am L 2015, c 101, §3; am L 2017, c 136, §3; am L 2018, c 31, §3; am L 2019, c 245, §2]

Note

The 2017 amendment does not affect native Hawaiian traditional and customary rights as set forth in the state constitution. L 2017, c 136, §6.

Attorney general; report to 2018-2020 legislature on extent to which L 2017, c 136 (regarding criminal trespass) has been utilized. L 2017, c 136, §4.

Case Notes

Where defendant failed to adduce sufficient evidence to support claim of the exercise of a constitutionally protected native Hawaiian right and knowingly entered landowner's property which was fenced in a manner to exclude others, trial court properly concluded that defendant was unlawfully on property in violation of subsection (1). 89 H. 177, 970 P.2d 485 (1998).

Where persons were allowed on hotel premises if invited by hotel guests, State had burden to prove that defendants were not so invited. 2 H. App. 264, 630 P.2d 129 (1981).

As criminal liability in section (1993) based only on contemporaneous refusal to obey warning or request to leave premises, no conviction where defendant returned to bar more than a month after being given warning not to return to premises for a year. 80 H. 372 (App.), 910 P.2d 143 (1996).

Finding by court that property was "commercial premises" protected by this section not clearly erroneous. 80 H. 460 (App.), 911 P.2d 95 (1996).