§712-1249 Promoting a detrimental drug in
the third degree. (1) A person commits the offense of promoting a
detrimental drug in the third degree if the person knowingly possesses any
marijuana or any Schedule V substance in any amount.
(2) Promoting a detrimental drug in the third
degree is a petty misdemeanor; provided that possession of three grams or less
of marijuana is a violation, punishable by a fine of $130. [L 1972, c 9, pt of
§1; am L 1975, c 163, §6(k); gen ch 1993; am L 2019, c 273, §3; am L 2019, c
273, §3]
Note
Pilot project to expunge certain arrest records relating to
the offense under this section; reports to 2025-2026 legislature. L 2024, c
62; L 2025, c 5, §2.
Law Journals and Reviews
The Protection of Individual Rights Under Hawai`i's
Constitution. 14 UH L. Rev. 311 (1992).
Privacy Outside of the Penumbra: A Discussion of Hawai`i's
Right to Privacy After State v. Mallan. 21 UH L. Rev. 273 (1999).
Case Notes
Not unconstitutional. 56 H. 271, 535 P.2d 1394 (1975); 61 H.
71, 595 P.2d 287 (1979).
Defense of medical necessity. 61 H. 71, 595 P.2d 287 (1979).
Identification of seeds as marijuana seeds required expert
testimony. 61 H. 505, 606 P.2d 913 (1980).
Purported right to possess and use marijuana not a
fundamental right; where defendant failed to prove section lacked any rational
basis, section constitutional. 86 H. 440, 950 P.2d 178 (1998).
Under the circumstances of the case, the free exercise clause
of the First Amendment was not a viable defense to prosecution under this
section; this section is a neutral law of general applicability to the extent
it purports to prohibit, without exception, the possession of marijuana and any
other substance defined as a "Schedule V substance" by chapter 329,
it does not interfere with other constitutional rights, and it does not create
a mechanism for governmental assessment of individual applicants for exemptions.
115 H. 396, 168 P.3d 526. (2007)
Hawaii county ordinance that established cannabis offenses as
the lowest law enforcement priority in the county conflicted with, and was
therefore preempted by, this section and other state laws governing the
investigation and prosecution of alleged violations of the Hawaii Penal Code
concerning the adult personal use of cannabis. 135 H. 411, 353 P.3d 953
(2015).
Section did not burden defendant's free exercise of
religion. 5 H. App. 411, 695 P.2d 336 (1985).
Where insufficient evidence in record that defendant had the
necessary intent to exercise control and dominion over the marijuana, no
violation of section by "constructive possession". 92 H. 472 (App.),
992 P.2d 741 (1999).
Where a Hawaii county ordinance made the enforcement of
marijuana laws the lowest enforcement priority in the county, the ordinance was
preempted by state laws governing the investigation and prosecution of alleged
violations of the Hawaii Penal Code concerning the adult personal use of
cannabis. 132 H. 511 (App.), 323 P.3d 155 (2014).
Notes of Decisions
Cited in
62
cases (
6 in the last 5 years), 1974–2024 · leading case:
State v. Mallan, 950 P.2d 178 (Haw. 1998).
State v. Mallan, 950 P.2d 178 (Haw. 1998).
· cites it 84× “We dare say that liberty and justice can exist in spite of the prohibition against marijuana possession. Therefore, the purported right to possess and use marijuana is not a fundamental right and a compelling state interest is not required.”
State v. Sunderland, 168 P.3d 526 (Haw. 2007).
· cites it 100× “Enforcement of HRS § 712-1249 Does Not Violate Sunderland's First Amendment Right to the Free Exercise of Religion.”
State v. Rivera, 102 P.3d 1044 (Haw. 2004).
· cites it 16× “5(a) (1993); [2] and (3) promoting a detrimental drug in the third degree, in violation of HRS § 712-1249 (1993). [3] On appeal, Rivera contends that the circuit court erred as follows: (1) in granting the motions of the State of Hawai'i [hereinafter, "the prosecution"] for (a)…”
State v. Koch, 112 P.3d 69 (Haw. 2005).
· cites it 8× “2001); 1 (2) promoting a detrimental drug in the third degree, in violation of HRS § 712-1249 (1993); 2 and (3) prohibited acts related to drug paraphernalia, in violation of HRS § 329^3.”
State v. Haugen, 85 P.3d 178 (Haw. 2004).
· cites it 7× “5(a) (1993) 2 (Count II), and promoting a detrimental drug in the third degree, in violation of HRS § 712-1249 (1993) 3 (Count III). Haugen’s *73 sole contention on appeal is that the circuit court erred in failing to sentence her pursuant to HRS § 706-622.”
State v. Moniz, 992 P.2d 741 (Haw. App. 1999).
· cites it 14× “5(a), and Promoting a Detrimental Drug in the Third Degree, in violation of HRS § 712-1249. In light of our reversal of Juliet's conviction for Unlawful Use of Drug Paraphernalia, we need not decide whether the jury's verdict convicting Juliet of this charge was inconsistent…”
Fagaragan v. State., 320 P.3d 889 (Haw. 2014).
· cites it 8× “4 HRS § 712-1249 (Supp. 2005) Promoting a Detrimental Drug in the Third Degree provides in relevant part: (1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses any marijuana or any Schedule V substance in any…”
State v. Entrekin, 47 P.3d 336 (Haw. 2002).
· cites it 4× “HRS § 712-1249 provides in relevant part that “[a] person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possess any marijuana or any Schedule V substance in any amount.”
State v. Woodhall., 301 P.3d 607 (Haw. 2013).
· cites it 21× “Question Presented Woodhall’s sole question presented is: The ICA gravely erred in holding that in a prosecution under HRS § 712-1249, promoting a detrimental drug in the third degree, Woodhall’s valid medical marijuana certification was insufficient evidence to prove by a…”
State v. Eleneki, 102 P.3d 1075 (Haw. 2004).
· cites it 4× “5(a) (1993) (Counts II and IV); (3) promoting a dangerous drug in the second degree, HRS § 712-1242(1)(b)(i) (1993) (Count III); and (4) promoting a detrimental drug in the third degree, HRS § 712-1249(1) (1993). She was sentenced to concurrent terms of incarceration.”
State v. Blake, 695 P.2d 336 (Haw. App. 1985).
· cites it 9× “He contends that the application of HRS § 712-1249 results in an unconstitutional deprivation of his right to the free exercise of a religion 2 known as Hindu Tantrism.”
In the Interest of Doe, 887 P.2d 645 (Haw. 1994).
· cites it 6× “Accordingly, on June 30, 1993, the court entered a "decree" adjudicating Minor a law violator within the purview of HRS § 571-11(1) for having committed the offense of promoting a detrimental drug in the third degree, in violation of HRS § 712-1249. The court "ordered, adjudged,…”
— Haw. Rev. Stat. § 712-1249(1) — 25 cases
State v. Mallan, 950 P.2d 178 (Haw. 1998).
“We dare say that liberty and justice can exist in spite of the prohibition against marijuana possession. Therefore, the purported right to possess and use marijuana is not a fundamental right and a compelling state interest is not required.”
State v. Eleneki, 102 P.3d 1075 (Haw. 2004).
“5(a) (1993) (Counts II and IV); (3) promoting a dangerous drug in the second degree, HRS § 712-1242(1)(b)(i) (1993) (Count III); and (4) promoting a detrimental drug in the third degree, HRS § 712-1249(1) (1993). She was sentenced to concurrent terms of incarceration.”
State v. Moniz, 992 P.2d 741 (Haw. App. 1999).
“5(a), and Promoting a Detrimental Drug in the Third Degree, in violation of HRS § 712-1249. In light of our reversal of Juliet's conviction for Unlawful Use of Drug Paraphernalia, we need not decide whether the jury's verdict convicting Juliet of this charge was inconsistent…”
Fagaragan v. State., 320 P.3d 889 (Haw. 2014).
“4 HRS § 712-1249 (Supp. 2005) Promoting a Detrimental Drug in the Third Degree provides in relevant part: (1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses any marijuana or any Schedule V substance in any…”
— Haw. Rev. Stat. § 712-1249(1)(1993) — 1 case
State v. Woodhall., 301 P.3d 607 (Haw. 2013).
“Question Presented Woodhall’s sole question presented is: The ICA gravely erred in holding that in a prosecution under HRS § 712-1249, promoting a detrimental drug in the third degree, Woodhall’s valid medical marijuana certification was insufficient evidence to prove by a…”
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