§702-212 When state of mind requirements
are inapplicable to violations and to crimes defined by statutes other than
this Code. The state of mind requirements prescribed by sections 702-204
and 702-207 through 702-211 do not apply to:
(1) An offense which constitutes a violation, unless
the state of mind requirement involved is included in the definition of the
violation or a legislative purpose to impose such a requirement plainly
appears; or
(2) A crime defined by statute other than this Code,
insofar as a legislative purpose to impose absolute liability for such offense
or with respect to any element thereof plainly appears. [L 1972, c 9, pt of §1]
COMMENTARY ON §702-212
This section provides for those instances when the
culpability provisions of §§702-204 and 207 through 211 are not applicable.
Subsection (1) provides that the requirements of culpability
are not generally applicable to violations. (Violations are the lowest grade
of penal offenses and for which conviction can only result, according to
§701-107 and chapter 706 in a fine, forfeiture or other "civil"
penalty.) An exception is made in two cases: (1) for violations which by
definition require culpable commission; and (2) for violations with respect to
which a legislative purpose to impose one or more culpability requirements
plainly appears. Subsection (1) applies whether the violation is defined in
the Penal Code or in some other Title.
The assumption is that, with respect to violations, if
culpable commission is required, the relevant state of mind will be stated in
the definition of the violation whether the offense appears in the Penal Code
or in some other statute. If the law is silent, the court must make an
affirmative determination that the application of state of mind requirements
with respect to the violation is within the legislature's purpose. In the
absence of such a determination the liability is absolute or strict.
Subsection (2) provides for an extremely limited situation.
The Code takes the general position that absolute or strict liability in the
penal law is indefensible in principle if conviction results in the possibility
of imprisonment and condemnation. Therefore, within the immediate context of
the Penal Code, criminal liability must be based on culpability. However, it is
recognized that the scope of the Penal Code is finite. In other codes or
Titles penal statutes exist which prima facie impose absolute criminal
liability.[1] Subsection (2) allows for the imposition of such criminal
liability in the case of crimes defined by statutes other than the Penal
Code--when and only when--"a legislative purpose to impose absolute
liability for such offense or with respect to any element thereof plainly
appears." "That such a purpose should not be discerned lightly by
the courts seems very clear."[2] Often regulatory penal statutes are
absolute on their face when it is doubtful that absolute criminal liability was
intended.[3] The limited recognition which subsection (2) affords absolute
criminal liability is more of a limitation than a recognition, and within the
context of the Penal Code this limitation is as far as the Code can wisely go
in imposing its standards on the spectrum of penal regulations.
Prior Hawaii law recognized absolute criminal liability.[4]
The effect of subsection (1) is to withdraw the criminal sanction (imprisonment
or its equivalent) when liability is imposed absolutely within the Penal Code.
Subsection (2) severely limits the situations which will allow the imposition
of absolute criminal liability by statutes outside of the Penal Code.
Case Notes
Legislative purpose to impose absolute liability should not
be discerned lightly. 62 H. 102, 612 P.2d 103 (1980).
Subsection (a) cited. 62 H. 222, 615 P.2d 730 (1980).
Cited: 132 H. 36, 319 P.3d 1044 (2014); 134 H. 465 (App.),
342 P.3d 884 (2015).
__________
§702-212 Commentary:
1. See, e.g., H.R.S. §453-14 (reporting knife, bullet and
other wounds within twenty-four hours).
2. M.P.C., Tentative Draft No. 4, comments at 145 (1955).
3. Compare H.R.S. §§403-141, 403-142, and 403-147 with H.R.S.
§403-146 (relating to the regulation of banks).
4. Territory v. Yamamoto, 39 Haw. 556 (1952) (possession of
enemy flag during wartime).
Notes of Decisions
Cited in
36
cases (
8 in the last 5 years), 1977–2025 · leading case:
State v. Nesmith, 276 P.3d 617 (Haw. 2012).
State v. Nesmith, 276 P.3d 617 (Haw. 2012).
· cites it 136× “istory indicated that driving under the influence based on blood alcohol content was a per se offense, with reference to the absolute liability framework set forth in HRS § 702-212: Defendant contends that regarding the elements of the HRS § 291-4(a)(2) offense, the trial court…”
State v. Gonzalez., 288 P.3d 788 (Haw. 2012).
· cites it 31× “The court denied Defen *316 dant’s motion, ruling that when a statute does not expressly set forth the culpable state of mind, but rather imports the mens rea element from HRS § 702-212 (2011), that “obviates the need of the [S]tate to articulate a state of mind.”
State v. Armitage., 319 P.3d 1044 (Haw. 2014).
· cites it 19× “) 19 HRS § 702-212 provides in relevant part as follows The state of mind requirements prescribed by sections 702–204 and 702–207 through 702–211 do not apply to: (1) An offense which constitutes a violation, unless the state of mind requirement involved is included in the…”
State v. Eastman, 913 P.2d 57 (Haw. 1996).
· cites it 6× “However, HRS § 702-212(2) permits a penal statute to dispense with the state of mind requirement only “insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element plainly appears.”
State v. Nesmith, 257 P.3d 245 (Haw. App. 2011).
· cites it 22× “] Except as provided in HRS § 702-212 (1993), if the statute defining the offense does not specify a state of mind, the default states of mind of intentionally, knowingly, or recklessly apply to each element of the offense.”
State v. Pinero, 778 P.2d 704 (Haw. 1989).
· cites it 4× “6 HRS § 702-212 reads: The state of mind requirements prescribed by sections 702-204 and 702-207 through 702-211 do not apply to: (1) An offense which constitutes a violation, unless the state of mind requirement involved is included in the definition of the violation or a…”
State v. Keawemauhili, 157 P.3d 539 (Haw. App. 2007).
· cites it 21× “This was improper, they maintain, because pursuant to HRS § 702-212 (1993), a strict liability crime cannot exist unless “a legislative purpose to impose absolute liability for such offense or with respect to any element thereof plainly appears” and the Director and the Mayor,…”
State v. Carmichael, 53 P.3d 214 (Haw. 2002).
· cites it 4× “See HRS § 702-212 (1993) (explaining that "the state of mind requirements" of the HPC "do not apply to .”
State v. Holbron, 895 P.2d 173 (Haw. App. 1995).
· cites it 6× “’” Commentary to HRS § 702-212 (1985) (quoting Model Penal Code § 301.”
State v. Kane, 652 P.2d 642 (Haw. App. 1982).
· cites it 6× “2145 (1968) (doctrine of mens rea not constitutionally mandated); HRS § 702-212 and Commentary (1976) (absolute liability recognized).”
State v. Rushing, 612 P.2d 103 (Haw. 1980).
· cites it 6× “See Commentary to HRS § 702-212. That the legislative purpose to impose absolute liability should not be discerned lightly by the courts seems very dear.”
State v. Young, 795 P.2d 285 (Haw. App. 1990).
· cites it 4× “” However, HRS § 702-212(2) (1985) states that the state of mind requirements do not apply to: A crime defined by statute other than this [Hawaii Penal] Code, insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element thereof…”
— Haw. Rev. Stat. § 702-212(1) — 2 cases
— Haw. Rev. Stat. § 702-212(2) — 13 cases
State v. Nesmith, 276 P.3d 617 (Haw. 2012).
“istory indicated that driving under the influence based on blood alcohol content was a per se offense, with reference to the absolute liability framework set forth in HRS § 702-212: Defendant contends that regarding the elements of the HRS § 291-4(a)(2) offense, the trial court…”
State v. Eastman, 913 P.2d 57 (Haw. 1996).
“However, HRS § 702-212(2) permits a penal statute to dispense with the state of mind requirement only “insofar as a legislative purpose to impose absolute liability for such offense or with respect to any element plainly appears.”
State v. Nesmith, 257 P.3d 245 (Haw. App. 2011).
“] Except as provided in HRS § 702-212 (1993), if the statute defining the offense does not specify a state of mind, the default states of mind of intentionally, knowingly, or recklessly apply to each element of the offense.”
State v. Pinero, 778 P.2d 704 (Haw. 1989).
“6 HRS § 702-212 reads: The state of mind requirements prescribed by sections 702-204 and 702-207 through 702-211 do not apply to: (1) An offense which constitutes a violation, unless the state of mind requirement involved is included in the definition of the violation or a…”
State v. Gonzalez., 288 P.3d 788 (Haw. 2012).
“The court denied Defen *316 dant’s motion, ruling that when a statute does not expressly set forth the culpable state of mind, but rather imports the mens rea element from HRS § 702-212 (2011), that “obviates the need of the [S]tate to articulate a state of mind.”
— Haw. Rev. Stat. § 702-212(2)(1993) — 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.