STAND. COM. REP. 3091

Honolulu, Hawaii

, 2004

RE: H.B. No. 2003

H.D. 1

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committees on Judiciary and Hawaiian Affairs and Health, to which was referred H.B. No. 2003, H.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO THE ILLEGAL USE OF CONTROLLED SUBSTANCES,"

beg leave to report as follows:

The purpose of this measure is to provide comprehensive legislation to address the use of addiction to crystal methamphetamines (commonly referred to as "ice"), which have reached epidemic proportions in Hawaii.

Specifically, this measure:

(1) Deters the proliferation of drug trafficking and importation into Hawaii;

(2) Protects children from the dangers of clandestine methamphetamine laboratories and homes where illegal substances may harm them;

(3) Requires employers to offer substance abuse prevention education programs;

(4) Expands access to treatment for first time nonviolent drug offenders;

(5) Allows families to involuntarily commit a family member to substance abuse outpatient treatment;

(6) Creates parity for treatment for substance abuse addiction; and

(7) Encourages the development of clean and sober homes for persons recovering from substance abuse.

Testimony in support of this measure was submitted by the Department of Planning and Permitting for the City and County of Honolulu, ILWU Local 142, Coalition for a Drug-Free Hawaii, Harm Reduction Hawai'i, Ho'omau Ke Ola, Hawaii Substance Abuse Coalition, Hina Mauka, and two individuals. Testimony in opposition to this measure was submitted by Diversified Exterminators.

Due to the number of issues in this measure, most of the testimony was submitted on only portions of the measure. While most of the testifiers supported the intent of the measure, many offered comments or concerns, or opposed portions of the measure. The Judiciary, Department of Health, Department of Commerce and Consumer Affairs, Aloha House, Inc., Community Alliance on Prisons, Drug Policy Alliance, the Drug Policy Action Group, Hawaii Medical Service Association (HMSA), Kaiser Permanente, Maui Economic Opportunity, Inc., and nine individuals submitted comments or concerns regarding portions of this measure. The Office of the Lieutenant Governor, Department of the Attorney General (AG), Department of Education, Department of Labor and Industrial Relations (DLIR), Hawaii Paroling Authority, Office of the Public Defender (Public Defender), Department of Public Safety, Department of the Prosecuting Attorney for the City and County of Honolulu (Prosecuting Attorney), Honolulu Police Department, the Chamber of Commerce of Hawaii, Hawaii Bankers Association, Inner Ocean, Society for Human Resources Management, and five individuals submitted testimony opposing portions of this measure.

Your Committees find that in the summer of 2003, the Speaker of the House of Representatives and President of the Senate appointed eighteen legislators to the Joint House-Senate Task Force on Ice and Drug Abatement (Task Force). The mission of the Task Force was to find a solution to the ice epidemic and draft comprehensive legislation to address the problems created by the ice epidemic. After nearly eighty hours of informational briefings, public hearings, and site visits, and the input of over four hundred persons, the Task Force concluded that the solution to the ice epidemic is to treat the present generation of ice abusers and prevent future generations from becoming substance abusers. At the request of the leaders of both houses, a report on the findings and recommendations of the Task Force was submitted in January 2004.

Your Committees concur with the findings and recommendations in the "Final Report of the Task Force" and find that this measure was drafted following the Task Force recommendations. This measure was also amended by its house committees. While your Committees recognize that this measure will not solve all of the problems noted by the Task Force, your Committees find that there is a compelling state interest in enacting this measure and further believe that this measure is a very good start in battling illegal drugs.

Your Committees have amended this measure by adopting the amendments suggested by:

(1) The Department of Public Safety, to require a two-year penalty for manufacturing a controlled substance with a child present;

(2) The Public Defender and the Prosecuting Attorney, to restore the current language for determining drug paraphernalia in section 321-1, Hawaii Revised Statutes (HRS);

(3) The AG, to:

(a) Add that a paroled prisoner who violates the terms and conditions of parole by committing the offense of unlawful methamphetamine trafficking, as defined in section 712-B, HRS, is excluded from the provisions for substance abuse treatment program under section 353-66, HRS;

(b) Add that a defendant convicted for a first time methamphetamine trafficking offense under section 712-B shall not be eligible for sentencing under section 706-622.5, HRS; and

(c) Add that a defendant who violates the terms and conditions of probation by committing the offense of unlawful methamphetamine trafficking under section 712-B shall not be eligible for substance abuse treatment program under section 706-625, HRS;

(4) The Prosecuting Attorney and the Hawaii Paroling Authority, to replace the "and" with an "or" allowing the revocation of parole if:

(a) The parolee fails to complete the substance abuse program; or

(b) The Hawaii Paroling Authority determines the paroled prisoner cannot benefit from any substance abuse program;

(5) The Prosecuting Attorney, who wanted the same provision to replace the "and" with an "or" allowing the revocation of probation if:

(a) The defendant fails to complete the substance abuse program; or

(b) The court determines the defendant cannot benefit from any substance abuse program;

(6) DOH, to:

(a) Replace all references to "professional licensed or certified abuse counselors" with "licensed professionals or certified substance abuse counselors"; and

(b) Clarify that a "drug rehabilitation home" shall be operated by a community-based nonprofit agency licensed by DOH;

(7) DLIR, the Chamber of Commerce of Hawaii, Hawaii Bankers Association, Inner Ocean, Kaiser Permanente, and Society for Human Resource Management, to delete the provisions that require employers to offer substance abuse treatment education programs;

(8) The Judiciary, to add a provision that clarifies that the civil commitment process shall be used only for family members seeking involuntary outpatient commitment of the respondent with substance abuse as the primary diagnosis; and

(9) HMSA, to change the effective date of the parity sections to July 1, 2005 and repeal those sections on June 30, 2011.

Your Committees also amended this measure to:

(1) Clarify that public informational meetings for drug rehabilitation homes shall be performed by DOH; and

(2) Make technical, nonsubstantive changes.

Your Committees noted concerns from several testifiers regarding the requirements for employers to offer substance abuse prevention education programs. As mentioned above, your Committees considered the testimony carefully and decided to remove the section from this measure.

Your Committees are committed to battling this fight against methamphetamines and recognize the importance of substance abuse training programs. However, your Committees also heard testimony from DLIR that training materials are currently being developed and will be available to employers next year. It is with this information that your Committees are willing to wait and see how the private sector responds to the program, and if the response is inadequate, this Legislature may act to mandate training programs in the future.

Your Committees noted further concerns regarding drug rehabilitation homes. Specifically, your Committees discussed the meaning, intent, and repercussions of removing the counties' responsibilities for conditional use, permit, variance, or special exceptions for drug rehabilitation homes. Your Committees concluded that the intent of this provision is to supersede the counties' restrictions for "use" of the property. However, it is not the intent of your Committees that this measure supersede any county building codes or structural requirements.

Your Committees also noted concerns regarding Act 161, Session Laws of Hawaii 2002 (Act 161). Act 161 was enacted to divert first-time nonviolent drug offenders to drug treatment instead of prison. Testimony was also submitted by law enforcement to repeal Act 161 because they feel this provision is a "get out of jail free card" and takes away the discretion ordinarily reserved for the court. However, proponents for Act 161 feel that because this provision did not get any funding, it is impossible to determine if Act 161 is effective. As a result, approximately two hundred fifty offenders were identified as eligible for diversion to treatment, but fewer than half actually began treatment.

Your Committees noted both arguments and compromised by adopting the recommendations of the Judiciary by giving courts the discretion to determine if an offender should be sentenced under Act 161. However, it is your Committees' intent to have Act 161 apply to first-time nonviolent drug offenders regardless of whether the offender has prior convictions.

Your Committees note that drug court provides the offender with the best chance of success, as well as the highest risk of incarceration if the offender fails to comply with its program. As a result, your Committees strongly urge the courts to divert difficult cases, those with the most severely addicted offenders with problems such as a history of relapse or criminal histories, to drug court. Your Committees believe that drug court can provide the best supervision and treatment programs for these types of difficult cases.

However, your Committees also noted concerns regarding the jurisdiction of cases transferred to drug court. Specifically, concerns were raised regarding the sentencing court retaining jurisdiction or supervision over offenders who are transferred to drug court. It is your Committees' intent that if an offender is transferred to drug court, the jurisdiction over the offender should also be transferred to drug court, and the sentencing court shall no longer have any jurisdiction over the offender.

As affirmed by the records of votes of the members of your Committees on Judiciary and Hawaiian Affairs and Health that are attached to this report, your Committees are in accord with the intent and purpose of H.B. No. 2003, H.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2003, H.D. 1, S.D. 1, and be placed on the calendar for Third Reading.

 

Respectfully submitted on behalf of the members of the Committees on Judiciary and Hawaiian Affairs and Health,

____________________________

ROSALYN H. BAKER, Chair

____________________________

COLLEEN HANABUSA, Chair