Are you a medical marijuana patient facing state charges in Hawaii?
If you are arrested for a marijuana offense and the prosecutor files charges, you will first face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
Hawaii's S.B. 862 HD1 (click Next 7 times to see full bill), a statutory bill, was originally passed by the Hawaii legislature on June 14, 2000 (and was the first non-initiative medical marijuana law to do so) and in 2008, the legislature was considering H.B. 2675 to modify the law.
State law allows a patient with a written certification (also known as a recommendation) and a Department of Public Safety registry identification card and a primary caregiver to collectively possess 1 oz. of processed bud, 3 mature plants, and 4 immature plants.
The Department of Public Safety registry identification card is mandatory in order to assert a medical marijuana affirmative defense in state court (although the "choice of evils" defense remains law as well), and a valid written certification must note that the patient was examined "in the context of a bona fide physician-patient relationship", that the patient has been diagnosed with a "debilitating medical condition", and that "the potential benefits of the medical use of marijuana would likely outweigh the health risks" for the patient.
A medical marijuana patient may have 1 primary caregiver (a person "who has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of marijuana") who may serve only 1 patient at a time. In Hawaii, a "debilitating medical condition" is:
Hawaii's authorization for patients to use marijuana does not apply to the medical use of marijuana in a school bus, public bus, or any moving vehicle; in the workplace of one's employment; on any school grounds; at any public park, public beach, public recreation center, recreation or youth center; or other place open to the public. Distribution can only occur from a caregiver to a patient.
For more information, see How to Become a Patient in Hawaii.
Another important resource is the Hawaii Department of Public Safety website, which has a Medical Marijuana Patient Information Packet that includes a helpful FAQ. Sadly, the Department of Public Safety has one black mark on its record, as, on June 27, 2008, an employee inadvertently sent the private information on the state's 4,200 patients in the registry identification card database to the Hawaii Tribune-Herald (which did not release it). Nonetheless, the Department stated, after the fact, that its information technology personnel had since isolated the patient list and added other internal controls to prevent it from being mistakenly released in the future.
There are also great resources on the Drug Policy Forum of HI website, including this great booklet, which has an FAQ and a copy of the law. Also see Patients Without Time, a Maui county organization.
Additionally, Hawaii's statute mandates that: "Marijuana, paraphernalia, or other property seized from a qualifying patient or primary caregiver in connection with a claimed medical use of marijuana under this part shall be returned immediately upon the determination by a court that the qualifying patient or primary caregiver is entitled to the protections of this part, as evidenced by a decision not to prosecute, dismissal of charges, or an acquittal; provided that law enforcement agencies seizing live plants as evidence shall not be responsible for the care and maintenance of such plants." Hawaii Revised Statutes § 329-127.
Therefore, patients should demand their property back if it is wrongfully seized. For more information on how this type of process works in California, take a look at our Return of Property page. You and your Public Defender or private attorney can research whether your state has a Return of Property process and special proceedings in Criminal Court, and you can attempt to apply the reasoning of the California Motion for Return of Property, and create a similar Hawaii motion. For more information on filing this motion, contact ASA's Legal Services Coordinator.
Another interesting note in Hawaii law is intra-island transportation. While under state law, with a registry identification card, a patient can transport medicine within the state of Hawaii. However, because Hawaii is made up of many non-contiguous islands, a major problem is presented, as many patients need to fly between islands. While transporting marijuana is always against federal law, when a patient boards a plane, he or she must be screened through a metal detector by the Transportation Security Administration, a federal agency, and that patient runs an extremely high risk of being arrested and possibly charged, either under federal or possibly state law. Another way for patients to travel between islands is by public ferry or private boat, which presents a lower risk of negative consequences for the patient.
Make sure you give all of this information to your Public Defender or private attorney and discuss it with her or him, and also that you and your lawyer continue to research whether there is any new caselaw in your state regarding medical marijuana. For information about how to find a lawyer familiar with medical marijuana law in your state, contact local activists to see if they have any information at Local Resources.
