§329-43.5 Prohibited acts related to drug
paraphernalia. (a) Except as provided in subsection (e), it is unlawful
for any person to use, or to possess with intent to use, drug paraphernalia to
plant, propagate, cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance in violation of this chapter. A violation of this
subsection shall constitute a violation subject to a fine of no more than $500.
(b) Except as provided in subsection (e), it
is unlawful for any person to deliver, possess with intent to deliver, or
manufacture with intent to deliver drug paraphernalia, knowing or under
circumstances where one reasonably should know, that it will be used to plant,
propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain, conceal, inject,
ingest, inhale, or otherwise introduce into the human body a controlled substance
in violation of this chapter. A violation of this subsection shall constitute
a violation subject to a fine of no more than $500.
(c) Any person eighteen years of age or over
who violates subsection (b) by delivering drug paraphernalia to a person or
persons under eighteen years of age who are at least three years younger than
that adult person is guilty of a class B felony and upon conviction may be
imprisoned pursuant to section 706-660 and, if appropriate as provided in
section 706-641, fined pursuant to section 706-640.
(d) It is unlawful for any person to place in
any newspaper, magazine, handbill, or other publication any advertisement,
knowing or under circumstances where one reasonably should know, that the
purpose of the advertisement, in whole or in part, is to promote the sale of
objects designed or intended for use as drug paraphernalia. Any person who
violates this section is guilty of a class C felony and upon conviction may be
imprisoned pursuant to section 706-660 and, if appropriate as provided in
section 706-641, fined pursuant to section 706-640.
(e) Subsections (a) and (b) shall not apply to
a person who is authorized to:
(1) Acquire, possess, cultivate, use, distribute, or
transport cannabis pursuant to the definition of "medical use" under
section 329-121, while the person is facilitating the medical use of cannabis
by a qualifying patient; or
(2) Dispense, manufacture, or produce cannabis or
manufactured cannabis products pursuant to and in compliance with chapter 329D,
while the person is facilitating the medical use of cannabis by a qualifying
patient pursuant to part IX of chapter 329. [L 1988, c 259, §2; am L 2016, c
230, §6; am L 2017, c 72, §2 and c 170, §2]
Revision Note
In subsection (e), "marijuana" changed to
"cannabis" to conform to L 2017, c 170, pursuant to §23G-15.
Cross References
Forfeitures, see §329-55.
Sale of sterile syringes for the prevention of disease, see
§325-21.
Case Notes
In a prosecution under subsection (b): of a merchant, jury
should be instructed that it must first find that the defendant-seller
delivered the object(s) in question to the buyer with the specific intent that
the object(s) be used with illegal drugs; trial court should provide jury with
an instruction enumerating all fourteen factors listed in the statutory
definition of drug paraphernalia. 75 H. 80, 856 P.2d 1246 (1993).
Subsection (b): not void for vagueness; contains mens rea
requirement of "intentionally"; mere fact that the buyer is actually
an undercover police officer, which fact is unknown to the defendant, cannot
render it "factually and legally" impossible that the defendant
should reasonably have known that the items sold would be used with illegal
drugs. 75 H. 80, 856 P.2d 1246 (1993).
No error in court failing to dismiss count against defendant
for possessing "everyday household items not intended or designed for use
as drug paraphernalia" as broad definition of drug paraphernalia and
multiple examples of such contraband enumerated in §329-1 weighed against
defendant's contention that the ordinary nature of the containers defendant
possessed did not involve the harm or evil sought to be avoided under this
section or amounted to extenuations that would not have been envisioned by the
legislature. 98 H. 196, 46 P.3d 498 (2002).
Legislature intended to impose penal sanctions for
constructive and actual possession of contraband items. 8 H. App. 610, 822
P.2d 23 (1991).
Insufficient evidence to support jury's verdict that
defendant possessed scale with intent to use it for any of the purposes stated
in subsection (a). 92 H. 472 (App.), 992 P.2d 741 (1999).
Notes of Decisions
Cited in
13
cases (
2 in the last 5 years), 1999–2022 · leading case:
State v. Moniz, 992 P.2d 741 (Haw. App. 1999).
State v. Moniz, 992 P.2d 741 (Haw. App. 1999).
· cites it 19× “ant Juliet [1] Moniz (Juliet) appeals from the June 23, 1998 Judgment of the Circuit Court of the First Circuit, convicting and sentencing her for Promoting a Detrimental Drug in the Third Degree, specifically marijuana, in violation of Hawai`i Revised Statutes (HRS) § 712-1249…”
United States v. Marcelino Oseguera-Madrigal, 700 F.3d 1196 (9th Cir. 2012).
· cites it 3× “2009), we held that the “materially identical” drug paraphernalia statute in Hawaii, Haw.Rev.Stat. § 329-43.5(a), 2 was similarly “relating to a controlled substance.”
State v. Hironaka, 53 P.3d 806 (Haw. 2002).
“[3] HRS § 329-43.5(a) provides in relevant part that "[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia[.”
Bermudez v. Holder, 586 F.3d 1167 (9th Cir. 2009).
“Haw.Rev.Stat. § 329-43.5(a) (2009). Following that conviction, the government charged Petitioner with being removable under 8 U.”
State v. Taua, 49 P.3d 1227 (Haw. 2002).
“[11] These items predicated the three-count indictment against Tau`a in the present matter, which charged him with committing, as either a principal or an accomplice, the offenses of promoting a dangerous drug in the third degree, in violation of Hawai`i Revised Statutes (HRS) §…”
State v. Balberdi, 975 P.2d 773 (Haw. App. 1999).
“] HRS § 329-43.5(a) (1993) provides: Prohibited acts related to drug paraphernalia, (a) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process,…”
State v. Miyashiro, 979 P.2d 85 (Haw. App. 1999).
“HRS § 329-43.5(a) (1993) provides: Prohibited acts related to drug paraphernalia.”
State v. Yamashita., 515 P.3d 207 (Haw. 2022).
“55; four counts of theft of credit card in violation of HRS § 708-8102; two counts of fraudulent use of a credit card in violation of HRS § 708-8100; one count of promoting a dangerous drug in the third degree in violation of HRS § 712-1243; and one count of prohibited acts…”
State v. Herbert, 145 P.3d 751 (Haw. App. 2006).
“2001), and Prohibited Acts Related to Drug Paraphernalia, in violation of HRS § 329-43.5(a) (1993). The circuit court sentenced Herbert to five years of probation on each count pursuant to Act 161 (HRS § 706-622.”
State v. Ramos, 201 P.3d 628 (Haw. App. 2009).
· cites it 2× “[5] HRS § 329-43.5 (a) (1993) provides in relevant part: (a) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack,…”
Romualdo Bermudez v. Eric H. Holder Jr. (9th Cir. 2009).
· cites it 2× “That section provides: Prohibited acts related to drug paraphernalia (a) It is unlawful for any person to use, or to pos- sess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test,…”
State v. Yamashita., 151 Haw. 390 (Haw. 2022).
“55; four counts of theft of credit card in violation of HRS § 708-8102; two counts of fraudulent use of a credit card in violation of HRS § 708-8100; one count of promoting a dangerous drug in the third degree in violation of HRS § 712-1243; and one count of prohibited acts…”
— Haw. Rev. Stat. § 329-43.5(a) — 10 cases
State v. Moniz, 992 P.2d 741 (Haw. App. 1999).
“ant Juliet [1] Moniz (Juliet) appeals from the June 23, 1998 Judgment of the Circuit Court of the First Circuit, convicting and sentencing her for Promoting a Detrimental Drug in the Third Degree, specifically marijuana, in violation of Hawai`i Revised Statutes (HRS) § 712-1249…”
United States v. Marcelino Oseguera-Madrigal, 700 F.3d 1196 (9th Cir. 2012).
“2009), we held that the “materially identical” drug paraphernalia statute in Hawaii, Haw.Rev.Stat. § 329-43.5(a), 2 was similarly “relating to a controlled substance.”
State v. Hironaka, 53 P.3d 806 (Haw. 2002).
“[3] HRS § 329-43.5(a) provides in relevant part that "[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia[.”
Bermudez v. Holder, 586 F.3d 1167 (9th Cir. 2009).
“Haw.Rev.Stat. § 329-43.5(a) (2009). Following that conviction, the government charged Petitioner with being removable under 8 U.”
State v. Taua, 49 P.3d 1227 (Haw. 2002).
“[11] These items predicated the three-count indictment against Tau`a in the present matter, which charged him with committing, as either a principal or an accomplice, the offenses of promoting a dangerous drug in the third degree, in violation of Hawai`i Revised Statutes (HRS) §…”
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