de minimis violation in Hawaii

2016The circuit court granted the motion in part, agreeing with Pacqu-ing that his actions constituted a de minimis violation of the UPCPI statutes. 3 The State appealed from the circuit court’s order to the Intermediate Court of Appeals (ICA), which, in a memorandum opinion, vacated the order and remanded the case for further proceedings after concluding that Pacquing had failed to “place all the relevant attendant circumstances before the trial court.” State v. Pacquing, No. 29703, 2012 WL 247992 (App. Jan. 25, 2012) (mem.), aff'd on other grounds, 129 Hawai'i 172 , 297 P.3d 188 (2013).

2016The circuit court granted the motion in part, agreeing with Pacqu-ing that his actions constituted a de minimis violation of the UPCPI statutes. 3 The State appealed from the circuit court’s order to the Intermediate Court of Appeals (ICA), which, in a memorandum opinion, vacated the order and remanded the case for further proceedings after concluding that Pacquing had failed to “place all the relevant attendant circumstances before the trial court.” State v. Pacquing, No. 29703, 2012 WL 247992 (App. Jan. 25, 2012) (mem.), aff'd on other grounds, 129 Hawai'i 172 , 297 P.3d 188 (2013).

2013Discussion A. Pacquing’s conduct did not constitute a de minimis violation of the UPCPI statute HRS § 702-236(1) addresses the circumstances in which a prosecution may be dismissed as de minimis, and provides in relevant part: (1) The court may dismiss a prosecution if, having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds that the defendant’s conduct: [[Image here]] (b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnatio

2013Discussion A. Pacquing’s conduct did not constitute a de minimis violation of the UPCPI statute HRS § 702-236(1) addresses the circumstances in which a prosecution may be dismissed as de minimis, and provides in relevant part: (1) The court may dismiss a prosecution if, having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds that the defendant’s conduct: [[Image here]] (b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnatio

2002See Carmichael, 99 Hawai'i at 95 , 53 P.3d at 234 (Acoba, J., dissenting); Vance, 61 Haw. at 307 , 602 P.2d at 943 .

2002I write separately (1) in favor of a third prong to be added to the test that, at the time of possession, the defendant was not engaged in a crime to support a drug habit, see State v. Carmichael, 99 Hawai`i 75, 93-94, 53 P.3d 214, 232-233 (Haw.2002) (Acoba, J., dissenting), and (2) to observe that an expert in pharmacology may not necessarily be required to establish that a drug is not useable or saleable. [1] *818 I.

2002I would also hold that (1) there is no conflict between HRS § 702-236 and HRS § 712-1243 and both statutes are to be given application, where appropriate, and (2) in the absence of attendant circumstances that "threaten the harm or evil sought to be prevented by the law defining the offense[,]" HRS § 702-236(1)(b), an amount of a drug "so minuscule that it cannot be sold or used in such a way as to have any discernible effect on the human body[,]" Viernes , 92 Hawai`i at 134, 988 P.2d at 199 (citing Vance, 61 Haw. at 307 , 602 P.2d at 944 ), qualifies as a de minimis violation of HRS § 712-124

2002I would also hold that (1) there is no conflict between HRS § 702-236 and HRS § 712-1243 and both statutes are to be given application, where appropriate, and (2) in the absence of attendant circumstances that “threaten the harm or evil sought to be prevented by the law defining the offense[,]” HRS § 702-236(l)(b), an amount of a drug “so minuscule that it cannot be sold or used in such a way as to have any discernible effect on the human body[,]” Viernes, 92 Hawai'i at 134 , 988 P.2d at 199 (citing Vance, 61 Haw. at 307 , 602 P.2d at 944 ), qualifies as a de minimis violation of HRS § 712-124

2023Relatedly, the State challenges COLs 9 through 17 and the Circuit Court's "Order generally." 4 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER "[T]he defendant bears the burden of establishing that 'his or her conduct neither caused nor threatened to cause the harm or evil that the statute, under which he or she is charged, seeks to prevent.'" State v. Fukagawa, 100 Hawai#i 498, 507, 60 P.3d 899, 908 (2002) (quoting State v. Oughterson, 99 Hawai#i 244, 256, 54 P.3d 415, 427 (2002)).

2023See State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435 (2019). 3 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER (2) The State contends that the Circuit Court abused its discretion in dismissing the charge against Jose as a de minimis violation.

2023Relatedly, the State challenges COLs 9 through 17 and the Circuit Court's "Order generally." 4 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER "[T]he defendant bears the burden of establishing that 'his or her conduct neither caused nor threatened to cause the harm or evil that the statute, under which he or she is charged, seeks to prevent.'" State v. Fukagawa, 100 Hawai#i 498, 507, 60 P.3d 899, 908 (2002) (quoting State v. Oughterson, 99 Hawai#i 244, 256, 54 P.3d 415, 427 (2002)).

2021State v. Enos, 147 Hawai#i 150, 159, 465 P.3d 597, 606 (2020).

2013Okada Trucking Co., Ltd. v. Bd. of Water Supply, 101 Hawai'i 68, 76-80 , 62 P.3d 631, 639-43 (App.2002). 14 .

2013Okada Trucking Co., Ltd. v. Bd. of Water Supply, 101 Hawai'i 68, 76-80 , 62 P.3d 631, 639-43 (App.2002). 14 .

2002The majority outlines a two-part de minimis test requiring a defendant to establish "that the amount of the drug he or she possessed is incapable of producing any pharmacological or physiological effect" (in essence, whether the drugs are useable) and, secondly, that the amount possessed "is not, in fact saleable[.]" Majority opinion at 209, 53 P.3d at 817 (emphasis in original).