Drugs; Conditional Discharge

Repeals provisions that allow a conditional discharge and
expunging of court records in a case where a person does not have
a previous drug conviction.

THE SENATE                              S.B. NO.           2629
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 712-1255, Hawaii Revised Statutes, is
 2 repealed.
 3      ["712-1255  Conditional discharge.(1)  Whenever any
 4 person who has not previously been convicted of any offense under
 5 this chapter or chapter 329 or under any statute of the United
 6 States or of any state relating to a dangerous drug, harmful
 7 drug, detrimental drug, or an intoxicating compound, pleads
 8 guilty to or is found guilty of promoting a dangerous drug,
 9 harmful drug, detrimental drug, or an intoxicating compound under
10 section 712-1243, 712-1245, 712-1246, 712-1248, 712-1249, or
11 712-1250, the court, without entering a judgment of guilt and
12 with the consent of the accused, may defer further proceedings
13 and place the accused on probation upon terms and conditions.
14 Upon violation of a term or condition, the court may enter an
15 adjudication of guilt and proceed as otherwise provided.
16      (2)  Upon fulfillment of the terms and conditions, the court
17 shall discharge the person and dismiss the proceedings against
18 the person.
19      (3)  Discharge and dismissal under this section shall be

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 1 without adjudication of guilt and is not a conviction for
 2 purposes of this section or for purposes of disqualifications or
 3 disabilities imposed by law upon conviction of a crime.
 4      (4)  There may be only one discharge and dismissal under
 5 this section with respect to any person.
 6      (5)  After conviction, for any offense under this chapter or
 7 chapter 329, but prior to sentencing, the court shall be advised
 8 by the prosecutor whether the conviction is defendant's first or
 9 a subsequent offense.  If it is not a first offense, the
10 prosecutor shall file an information setting forth the prior
11 convictions.  The defendant shall have the opportunity in open
12 court to affirm or deny that the defendant is identical with the
13 person previously convicted.  If the defendant denies the
14 identity, sentence shall be postponed for such time as to permit
15 the trial, before a jury if the defendant has a right to trial by
16 jury and demands a jury, on the sole issue of the defendant's
17 identity with the person previously convicted."]
18      SECTION 2.  Section 712-1256, Hawaii Revised Statutes, is
19 repealed.
20      ["712-1256  Expunging of court records.(1)  Upon the
21 dismissal of such person and discharge of the proceeding against
22 the person under section 712-1255, this person, if the person was

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 1 not over twenty years of age at the time of the offense, may
 2 apply to the court for an order to expunge from all official
 3 records all recordation relating to the person's arrest,
 4 indictment, or information, trial, finding of guilt, and
 5 dismissal and discharge pursuant to this section. 
 6      (2)  If the court determines, after hearing, that such
 7 person was dismissed and the proceedings against the person
 8 discharged and that the person was not over twenty years of age
 9 at the time of the offense, it shall enter such order. 
10      (3)  The effect of such order shall be to restore such
11 person, in the contemplation of the law, to the status the person
12 occupied before such arrest or indictment or information. 
13      (4)  No person as to whom such order has been entered shall
14 be held thereafter under any provision of any law to be guilty of
15 perjury or otherwise giving a false statement by reason of the
16 person's failures to recite or acknowledge such arrest or
17 indictment or information, or trial in response to any inquiry."]
18      SECTION 3.  Section 353G-4, Hawaii Revised Statutes, is
19 amended by amending subsection (a) to read as follows:
20      "(a)  Any inmate who has been convicted of more than one
21 offense under chapter 329, 329C, 707, 708, 709, 710, 711, or 712,
22 and has one prior conviction under any of these chapters, shall

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 1 be required to undergo an assessment if:
 2      (1)  The inmate refuses to undergo a drug test required
 3           under section 353G-3;
 4      (2)  The results of the drug test conducted pursuant to
 5           section 353G-3 reveal the presence of a controlled
 6           substance, for which the inmate has no lawful
 7           prescription, or reveals alcohol abuse or dependency;
 8      (3)  The inmate requests an assessment;
 9      (4)  The inmate admits to the unlawful use of a controlled
10           substance within the year preceding the conviction for
11           the present charge or admits to alcohol abuse or
12           alcoholism;
13     [(5)  The inmate has been granted a conditional discharge
14           within the past five years pursuant to section 712-1255
15           or any similar or predecessor law of this State, any
16           other state, or federal law;
17      (6)] (5)  The inmate has been sentenced within the past five
18           years to probation or treatment during incarceration
19           pursuant to this chapter or any similar or predecessor
20           law of this State, any other state, or federal law; or
21     [(7)] (6)  The present or pending charge involved the use or
22           possession of a controlled substance or alcohol."

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                                     S.B. NO.           2629

 1      SECTION 4.  Section 706-644, Hawaii Revised Statutes, is
 2 amended by amending subsection (1) to read as follows:
 3      "(1)  When a defendant is sentenced pursuant to section
 4 706-605[, granted a conditional discharge pursuant to section
 5 712-1255,] or granted a deferred plea pursuant to chapter 853,
 6 and the defendant is ordered to pay a fine or restitution,
 7 whether as an independent order, as part of a judgment and
 8 sentence, or as a condition of probation or deferred plea, and
 9 the defendant defaults in the payment thereof or of any
10 installment, the court, upon the motion of the prosecuting
11 attorney or upon its own motion, may require the defendant to
12 show cause why the defendant's default should not be treated as
13 contumacious and may issue a summons or a warrant of arrest for
14 the defendant's appearance.  Unless the defendant shows that the
15 defendant's default was not attributable to an intentional
16 refusal to obey the order of the court, or to a failure on the
17 defendant's part to make a good faith effort to obtain the funds
18 required for the payment, the court shall find that the
19 defendant's default was contumacious and may order the defendant
20 committed until the fine, restitution, or a specified part
21 thereof is paid."
22      SECTION 5.  Statutory material to be repealed is bracketed.

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                                     S.B. NO.           2629

 1 New statutory material is underscored.
 2      SECTION 6.  This Act shall take effect upon its approval.
 4                              INTRODUCED BY:______________________