§712-1243 Promoting a dangerous drug in the
third degree. (1) A person commits the offense of promoting a dangerous
drug in the third degree if the person knowingly possesses any dangerous drug
in any amount.
(2) Promoting a dangerous drug in the third
degree is a class C felony. [L 1972, c 9, pt of §1; am L 1975, c 163, §6(e);
gen ch 1993; am L 1996, c 308, §4; am L 2002, c 161, §8; am L 2004, c 44, §7]
Case Notes
Possession of "any" amount is sufficient; usable
quantity standard not applicable, but de minimis doctrine may apply. 61 H.
291, 602 P.2d 933 (1979).
Though evidence insufficient to convict defendant of
promoting a dangerous drug in the first degree, purged trial record contained
substantial and admissible evidence that defendant knowingly possessed cocaine "in
any amount". 80 H. 382, 910 P.2d 695 (1996).
Where defendant's possession of .001 grams of methamphetamine
did not threaten the harm sought to be prevented by this section, trial court
did not abuse discretion by determining that amount of methamphetamine was de minimis
under §702-236. 92 H. 130, 988 P.2d 195 (1999).
Where prosecution adduced substantial evidence that the
cocaine residue in the pipe was visible to the naked eye and could be scraped
out and smoked again, trial court did not abuse its discretion in ruling that
defendant's infraction of this section was not de minimis within the meaning of
§702-236. 93 H. 279, 1 P.3d 281 (2000).
Where the defense failed to adduce any evidence or present
any argument with respect to the attendant circumstances, it failed to meet its
burden of providing evidence to support a finding that the conduct alleged "did
not actually cause or threaten the harm or evil sought to be prevented by this
section or did so only to an extent too trivial to warrant the condemnation of
conviction"; thus trial court did not err in finding that defendant's
alleged conduct did not constitute a de minimis infraction. 99 H. 75, 53 P.3d
214 (2002).
In light of defendant's burden to prove that defendant's
conduct constituted a de minimis infraction and trial court's finding that pipe
residue contained a sufficient amount of methamphetamine to produce a
pharmacological effect, which was supported by officer's testimony that amount
recovered from defendant's pipe may have been an amount sufficient to be "used"
by someone, trial court did not abuse discretion in refusing to dismiss charge
of promoting a dangerous drug in the third degree. 100 H. 498, 60 P.3d 899
(2002).
Trial court properly sentenced defendant as a repeat offender
based on defendant's conviction of promoting a dangerous drug in the third
degree, an enumerated class C felony under §706-606.5. 106 H. 146, 102 P.3d
1044 (2004).
As §706-622.5 is ameliorative in its intent and effect and
its application would neither be detrimental nor materially disadvantageous to
the defendant, retrospective application of §706-622.5 as established by Act
161, L 2002, was not prohibited; where defendant did not qualify as a
first-time drug offender, the trial court did not err in sentencing defendant
pursuant to subsection (3) (2002). 107 H. 215, 112 P.3d 69 (2005).
Notwithstanding that trial court had authority to sentence
defendant pursuant to subsection (3) (2002), it did not have the discretion to
consider the alleged conduct of which defendant was acquitted in sentencing
defendant; trial court thus erred in factoring its belief that defendant was
dealing drugs into its imposition of the two maximum statutorily prescribed
mandatory minimum terms of imprisonment. 107 H. 215, 112 P.3d 69 (2005).
Where promoting a dangerous drug in the third degree was a
lesser included offense of the charged offense of promoting a dangerous drug in
the second degree, and evidence established that defendant knowingly possessed
methamphetamine, case remanded to convict defendant of promoting a dangerous
drug in the third degree. 115 H. 343, 167 P.3d 336 (2007).
Legislature intended to impose penal sanctions for
constructive and actual possession of contraband items. 8 H. App. 610, 822
P.2d 23 (1991).
In subsection (3), the word "convicted" means "found
guilty" and not "found guilty and sentenced". 93 H. 389 (App.),
4 P.3d 523 (2000).
Looking at defendant's conduct and attendant circumstances
regarding commission of the offense, including possession of smoking device,
smoked residue, and depleted drug contraband of 0.004 grams of methamphetamine
by one engaged in shoplifting, court could not conclude that under §702-236,
defendant's conduct "did not actually cause or threaten the harm or evil
sought to be prevented by this section, or did so only to an extent too trivial
to warrant condemnation of conviction". 97 H. 247 (App.), 35 P.3d 764
(2001).
Notes of Decisions
Cited in
191
cases (
30 in the last 5 years), 1977–2026 · leading case:
State v. Carmichael, 53 P.3d 214 (Haw. 2002).
State v. Carmichael, 53 P.3d 214 (Haw. 2002).
· cites it 284× “" On April 12, 1999, Carmichael was charged by grand jury indictment with: (1) driving *216 under the influence of intoxicating liquor (Count I); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp.1999) [2] (Count II); and (3)…”
State v. Oughterson, 54 P.3d 415 (Haw. 2002).
· cites it 98× “Town presiding, that, pursuant to HRS § 702-236 (1993), [3] Oughterson's conduct did not amount to a de minimis infraction of HRS § 712-1243, Judge Bryant "overruled another court's ruling of equal and concurrent jurisdiction without cogent reasons.”
State v. Rapozo, 235 P.3d 325 (Haw. 2010).
· cites it 50× “In reaching that conclusion, it is instructive to compare the circumstances of the instant case with those presented in Viernes.”
State v. Koch, 112 P.3d 69 (Haw. 2005).
· cites it 41× “2002), see supra note 1; and (2) prohibited acts related to drug paraphernalia, in violation of HRS § 329-43.”
State v. Fukagawa, 60 P.3d 899 (Haw. 2002).
· cites it 48× “With specific reference to HRS § 712-1243, this court has noted that Hawai`i's drug laws were intended to control the use and sale of illicit drugs, State v.”
State v. Hironaka, 53 P.3d 806 (Haw. 2002).
· cites it 30× “On September 5, 2000, Hironaka was charged with promoting a dangerous drug in the third degree, in violation of HRS § 712-1243, see supra note 1, and unlawful use of drug paraphernalia, in violation of HRS § 329-43(a) (1993).”
State v. Rivera, 102 P.3d 1044 (Haw. 2004).
· cites it 16× “The following facts were adduced at Rivera's jury trial, which commenced on July 10, 2003 and ended on July 11, 2003.”
State v. Melendez., 463 P.3d 1048 (Haw. 2020).
· cites it 32× “2 The State did not file a written opposition, but 1 HRS § 712-1243 (2014) provides as follows: “(1) A person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount.”
State v. Enos., 465 P.3d 597 (Haw. 2020).
· cites it 28× “HRS § 712-1243 (2014). Enos moved to dismiss the charge as de minimis pursuant to HRS § 702-236 (2014), which allows a court to dismiss a criminal charge when the defendant’s conduct “[d]id not actually cause or threaten the harm or evil sought to be prevented by the law…”
State v. Balanza, 1 P.3d 281 (Haw. 2000).
· cites it 18× “On appeal, Balanza contends that the trial court erred in denying: (1) his motion to dismiss Count III as a de minimis offense; (2) his request for a jury instruction on the procuring agent defense; and (3) his motion to sever Count I from Counts II and III.”
State v. Manewa, 167 P.3d 336 (Haw. 2007).
· cites it 16× “As to Count 9, Promoting a Dangerous Drug in the Third Degree, HRS § 712-1243(1) (1993 & Supp.2003), is included in the charged offense of Promoting a Dangerous Drug in the Second Degree, HRS § 712-1242(1)(b)(i), inasmuch as "[i]t is established by proof of the same or less than…”
State v. Akau, 185 P.3d 229 (Haw. 2008).
· cites it 18× “The drug buys led to the execution of a search warrant of Akau's person and personal effects, which, in turn, led to charges of promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993), and unlawful use of drug paraphernalia, in violation of HRS §…”
— Haw. Rev. Stat. § 712-1243(1) — 60 cases
State v. Manewa, 167 P.3d 336 (Haw. 2007).
“As to Count 9, Promoting a Dangerous Drug in the Third Degree, HRS § 712-1243(1) (1993 & Supp.2003), is included in the charged offense of Promoting a Dangerous Drug in the Second Degree, HRS § 712-1242(1)(b)(i), inasmuch as "[i]t is established by proof of the same or less than…”
State v. Carmichael, 53 P.3d 214 (Haw. 2002).
“" On April 12, 1999, Carmichael was charged by grand jury indictment with: (1) driving *216 under the influence of intoxicating liquor (Count I); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp.1999) [2] (Count II); and (3)…”
State v. Fukagawa, 60 P.3d 899 (Haw. 2002).
“With specific reference to HRS § 712-1243, this court has noted that Hawai`i's drug laws were intended to control the use and sale of illicit drugs, State v.”
— Haw. Rev. Stat. § 712-1243(1)(a)(i) — 1 case
— Haw. Rev. Stat. § 712-1243(1)(b)(i) — 1 case
— Haw. Rev. Stat. § 712-1243(2) — 2 cases
— Haw. Rev. Stat. § 712-1243(3) — 7 cases
State v. Koch, 112 P.3d 69 (Haw. 2005).
“2002), see supra note 1; and (2) prohibited acts related to drug paraphernalia, in violation of HRS § 329-43.”
State v. Carmichael, 53 P.3d 214 (Haw. 2002).
“" On April 12, 1999, Carmichael was charged by grand jury indictment with: (1) driving *216 under the influence of intoxicating liquor (Count I); (2) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243 (1993 & Supp.1999) [2] (Count II); and (3)…”
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