State v. Carmichael

person easily that a reasonable could be con 53 P.3d 214 “prior and fused misled as to alcohol whether Hawai'i, Plaintiff-Appellee, STATE of (1) prior contacts” enforcement includes: having open arrest or conviction for con beverage tainer of an alcoholic in a motor CARMICHAEL, Kalawaianui F.

vehicle; (2) prior arrest or conviction for Defendant-Appellant. being minor anof alcoholic No. 22871. (3) (4) violation; beverage; liquor license conviction; (5) disorderly” “drunk and Supreme Court of Hawai'i. prior selling arrest or conviction for an alco beverage holic to a years than 21 less Aug. 2002. However, age. claim, Rodgers not does Sept. As Corrected 2002. indicate, and the record does not that she had ever been arrested for or convicted of Sept. As Amended Nothing of the offenses she lists. before explains why us or how she could have been attributing interpre

misled into the various term,

tations “prior she offers to the relevant Therefore,

alcohol enforcement contacts.” (1)

given: specific HPD 386B forms’ refe “Driving

rences Under the Influence of

Intoxicating Liquor” “Habitually Driving and Intoxicating

Under Liquor the Influence of Drugs”; of Rodgers’s the context arrest; specific

DUI absence of explaining why facts Rodgers or how

could interpreting “pri have been misled into

or alcohol enforcement contacts” the man that, suggests,

ner she we hold under the case, of this

circumstances absence of a prior

definition of alcohol enforcement con Rodgers’s

tacts did knowing not affect

intelligent decision to an alcohol take test.

IV. CONCLUSION that, foregoing,

Based on the hold we un- case, Rodgers

der the facts of this was not eligibility require-

misinformed as permit

ments for a conditional driver’s of a “prior the absence definition of

alcohol enforcement contacts” did affect knowing intelligent decision to take Consequently, alcohol test. we vacate the July findings fact,

district court’s law, suppressing

conclusions and order Rodgers’s

evidence of alcohol test and re- proceedings.

mand this for further ease that, court, circuit

chael contends Shaekley presiding, Raffetto Honorable denying its Carmichael’s abused discretion charge promoting of to dismiss a motion degree third as a de dangerous drug in the reasons, following For the offense. of affirm both the circuit court’s denial we judgment and its of motion dismiss conviction sentence.

I. BACKGROUND Depart February Maui Police On (MPD) Christopher Horton ob ment Officer driven-by Carmichael travel a vehicle served per on a 84 and 86 miles hour between speed per limit horn'. road with of miles stopped vehicle Horton Carmichaers Officer spoke to him. Officer Horton detected Carmichael, who an odor of alcohol from spoke. his words as he Carmichael slurred two, one, drinking initially then admitted later, told Offi beers. Minutes Carmichael had drunk “three cer Horton that he Mickey’s.” appeared un ounce Carmichael feet, sobriety steady on his and his field test impairment. signs other He revealed driving for under influence of arrested intoxicating Re liquor, in violation of Hawaii (HRS) (Supp.1999).1 vised Statutes Chinn, Deputy Public De- Theodore Y.H. station, police At the Wailuku Carmichael fender, briefs, defendant-appellant. on for test, which to take a breath alcohol elected content .096. While revealed alcohol Simonds, At- Deputy Prosecuting Mark R. Carmichael, “processing” MPD Rob- Officer briefs, torney, plaintiff-appellee. Harley pat-down did a search and recov- ert (1) glass pipe from Carmichael’s sock: ered J.; MOON, C.J., NAKAYAMA, containing crystalline white substance RAMIL, J. substance; (2) brown, two metal burnt J., MOON, Opinion (3) C. in which scrapers; plastic with one a small straw J., RAMIL, J., NAKAYAMA, joins; at an an- and the other cut end heat-sealed concurring (4) containing the result. ziplock bags gle; and several naked light rock visible to the “a residue Defendant-appellant Kalawaianui P. Car- eye.” 23,1999 appeals September michael from the 12,1999, charged judgment April Carmichael was of conviction and sentence On (1) driving jury by grand indictment with: Circuit Court of the Second Carmi- Circuit. ability care for part: faculties pertinent 1. HRS normal mental 291-4 states casualty; guard against (a) driving oneself and (2) person A commits the offense person intoxicating liquor operates actual or assumes under influence of if: (1) operates operation person actual vehi- physical or assumes control of physical operation vehi- control of per alcohol cle with .08 or more intoxicating cle while under the influence of centimeters one hundred milliliters cubic liquor, meaning that the concerned is per or more of alcohol of blood or .08 intoxicating liquor under the influence two hundred ten liters breath. person’s impair amount sufficient intoxicating liquor bags under the influence of analy was of an insufficient amount for (Count I); promoting dangerous drug sis. degree, in

the third violation of 712- Read, Ph.D., George The defense called W. (1993 (Count II); Supp.1999)2 & Pharmacology Emeritus Professor at the prohibited acts parapherna related University quali- of Hawai‘i. Dr. Read was lia, 329-43.5(a) (1993)3 § in violation of HRS expert pharmacolo- fied as an in of the field (Count III). On June Carmichael gy, study “the of actions of in an filed a motion to dismiss II Count of the man, organism, especially humans.” He tes- indictment, claiming alleged that his violation that methamphetamine tified is a central ner- § of HRS 714-1243 a constituted de minimis (CNS) system vous stimulant that has been infraction, pursuant to HRS 702-236 medically accepted for use in the treatment (1993).*4 obesity, narcolepsy, hy- attention deficit (ADHD), peractive fatigue.5 disorder hearing A on Carmichael’s motion was held chart, into defense offered evidence6 parties December 1999. Both stipu Read, prepared by indicating Dr. that Wood, expert lated Julie in the field ranges methamphetamine dosages used to identification, tested the evidence ADHD, obesity, narcolepsy, fatigue treat recovered from parties Carmichael. The grams; grains; are: .01 to .04 .005 to .06 .005 stipulated that testimony Wood’s would have grams; grams, respec- .015 and .01 to .04 been in substance tested the instant tively. Dr. Read testified that the doses eye, case was visible to the naked and the upon pure on his indicated chart were based parties agreed to admit into evidence a lab methamphetamine orally pill in taken form. report prepared by report Wood. Wood’s lab He also that at testified least one manufac- grams that .002 indicated of a substance con gram turer makes .0025 tablets of metham- taining methamphetamine was recovered phetamine to ADHD in treat children. glass pipe from the taken from Carmichael. report also: respect methamphet- indicated the white resi With to the abuse of plastic amine, ziplock user,” due on the straw and in the Dr. that a Read testified “naive pertinent part: may imprisoned 2. HRS 712-1243 in pursuant states to section 706- and, appropriate provided 660 706-641, section (1) person promot- A commits the offense of pursuant fined to section 706-640. ing dangerous drug degree in the third if the person knowingly possesses any dangerous provides pertinent part: 4. any amount. if, The court dismiss Notwithstanding contrary, law to the having regard to the nature of the conduct promoting if the commission of the offense of alleged and the nature of the attendant circum- dangerous drug degree in the third under this stances, it finds that the defendant’s conduct: section involved the or distribution (a) customary within a Was license or toler- methamphetamine, person convicted ance, expressly which was not refused shall be sentenced to an indeterminate term of person infringed whose interest was imprisonment years mandatory of five with a purpose which is not inconsistent with the imprisonment, length minimum term of offense; defining the law thirty days which shall be greater than not less and not (b) actually Did not cause or threaten the years, than two-and-a-half at the dis- prevented harm or evil to be sentencing person cretion of the court. The defining law the offense or did so to an eligible parole convicted shall not be ing dur- extent too trivial to warrant the condemna- mandatory period imprisonment. conviction; tion (c) 329-43.5(a) Presents such other extenuations that it pertinent part: 3. HRS states reasonably regarded envisaged cannot use, any person It is unlawful for or to forbidding the offense. use, possess drug paraphernalia with intent to cultivate, harvest, plant, propagate, grow, to manufacture, methamphet- 5. Dr. Read described the use of convert, compound, produce, fatigue accept- amine to treat as "a borderline test, process, prepare, analyze, pack, repack, able use.” store, contain, conceal, inhale, inject, ingest, body otherwise introduce into the human list, Although chap- controlled not reflected on the Exhibit substance violation of this Any person transcript hearing ter. who violates this section is indicates that chart guilty felony upon objection. of a class C conviction was admitted into evidence without is, system.” questioning by developed Upon further one who had not toler- methamphetamine, prosecution, would use Dr. Read indicated meth- ance for be- feeling amphetamine use would not affect the rate of .05 and .1 to achieve tween body of alcohol from human “euphoria and elation.” Dr. Read referred to elimination methamphetamine manner. an amount of used euphoria and elation as a “street achieve Callinan, assigned MPD Officer Michael dose,” dose,” an “illicit and an “illicit use division, the vice and narcotics testified for in one dose.” He also noted researchers prosecution. Officer Callinan identified had of the studies he reviewed used pipe recovered from as one Carmichael methamphetamine for a 70 kilo- grams of crystal methamphetamine. to smoke used end of the street gram as “the low He indicated that is usual- Dr. that .002 dose.” Read concluded ly pipe loaded into the ball end of the saleable, methamphetamine7 would not of pipe cut straw. The ball end of the is then dose, would not be effective as an illicit and flame, open heated with an the user produce pharmacological a would not effect. cylin- methamphetamine from the inhales that Dr. Read further testified residue recov- pipe. drical of the end Officer Callinan ex- pipe going a “is almost all ered from plained plastic straw recovered very drug.” inert material with little type Carmichael was of the used to load methamphetamine pipe into a for use or to cross-examination, explained Dr. Read On drug packets load into for smaller distri- inhaling drug greater in a a will result inspect scrapers, bution. With to the metal ingesting with a smaller dose than effect he also testified that a user who “is low on drug orally. Dr. also same Read stated product” “scrape will them sometimes had nor he neither met examined Carmichael bunch, grouping a residue into or small if and indicated that he did not know Carmi- ... then resmoke the residue.” history chael had use. arguments, In them both the defense and inquired The circuit court as to how alcohol prosecution amount of focused on the system in Carmichael’s would interact with methamphetamine recovered the instant methamphetamine. Specifically, the court alia, argued, case. The defense inter asked: II Count of the indictment should be dis- is that as I understand The evidence here infraction missed as de minimis because memorand[a] [Carmichael] from the grams containing methamphet- .002 “the driving for influ- was arrested under the pharmacological has no accord- amine effect alcohol, police told the he was ence Therefore, ing George to Doctor Read. driving speed, his car at an excessive told should find this amount is for Court unusable three, policeman forty-ounce he drank purview use or sale and falls within the Mickeys, got police to the when he upon language of Based Dr. State Vance.” they gave him a station breath test and testimony was a Read’s had, I think .096 blood alcohol content. measurable amount and Officer Callinan’s ingestion That will affect the effect the testimony regarding practice “scraping methamphetamine person, would have on glass pipe inside of the in order to heat would it not? it,” residue and smoke ar- Dr. Read stated that alcohol and metham- gued methamphet- that a useable amount of opposition phetamine would work to each amine was recovered from Carmichael. and, anything, other court mo- The circuit denied Carmichael’s him “would have made more alert and less dismiss, noting: tion to appear drunk than he would with the alcohol that, “in talk- alone” and his behavior to the ar- We know the Vance case was cocaine, resting cop, appeared slightly ing about for which there’s no he have mandatory sentencing. less drunk with the stimulant his We do know the CNS grams” pertained expressed in to ".002 to the substance 7. Dr. Read's conclusions were re- enees counsel; pure sponse questions by howev- recovered in the instant case or metham- defense er, phetamine. refer- it is not clear whether defense counsel’s 29, 1999, pos- July his prohibiting in addition to On Carmichael withdrew pleas no drug, plea guilty of not session of amount metham- entered mandatory jail phetamine, requires in fact I and III. re- contest Count Count With II, particular for of this a con- spect terms Carmichael entered Count contest, drug, reemphasized reserving right so it its intent that this plea ditional of no his for potential appeal is a serious and that the in this the issues ease. The and, society very high. accepted pleas September harm to our his alia, to, inter sentenced Carmichael was—well, In this amount that case the 90-day imprisonment days for five and a step. I think let me take the de I; suspension for Count of his driver’s license essentially for a situa- standard is intended five-year imprisonment with a 30- term person tion borrows such where II; mandatory day minimum term for Count person they car of another and then are five-year imprisonment and a term find some small amount arrested III. All to run Count terms were concurrent- ashtray in the like something timely ly. On October Carmichael that, or that don’t indicate circumstances appeal. filed notice of actively smoking, ingest- using drug. II. REVIEW STANDARDS OF just—I Not that it is don’t think it is provide bright intended to line for a a trial can Before court address amount, apparent it that certain and also is to on de min- whether dismiss Supreme using even the Court is grounds, factual imis it must first make de terminology, say to wrong that is the word regarding al terminations both the conduct Apparently, appropri- narcotic. that’s not circumstances, leged which and the attendant drug methamphet- ate for use with the clearly are reviewed under the erroneous I interpreting amine. am to mean 130, Hawai'i standard. v. 92 State system. on the effects central nervous (1999) (citations 988 P.2d 198 omit about, well, expert talked what he ted). A trial under HRS court’s decision use, how much means street does take infractions, governing de minimis high, problematical, get which is for an of discretion. Id. is reviewed abuse variables, you all what because have these be, might how much them tolerance III. DISCUSSION know, pure in- weigh, how it is. We for outset, plurality At that our we note stance, therapeutic amount as low that a with the decision this case is consistent .0025, apparently pills ai'e available analysis See id. decision and Viernes. amount for attention for treatment Additionally, note 988 P.2d at 200. we disorder, say so it is hard to .002 is deficit challenge regard raises no Carmichael just not meant to be concerned about when Therefore, I and III. we leave the Counts methamphetamine, talking we’re about for judgment of conviction and sentence I into think have take consideration Additionally, Car these counts undisturbed. the circumstances here. challenge of the circuit michael does not was a What is in evidence is Thus, findings of fact. this court court’s pipe commonly smoking used for findings op accept court’s as the the circuit methamphetamine, pipe in a that residue Haw facts of the ease. See Robert’s erative commonly by people can to smoke used Bus, Laupahoehoe Inc. v. ai'i School just methamphetamine, and I don’t feel 224, 239, Co., Inc., 982 Transp. 91 Hawai'i totality circumstances of this (1999) (citation omitted); but P.2d 868 cf. case that I should exercise discretion Appellate Rule Hawai'i Rules Procedure and find that this was the Court (2000) (an court, 28(b)(4) op appellate at its infraction, going I am minimus so [sic] tion, may plain presented). notice error deny motion. case, present police recov- denying motion A written order Carmichael's 23,1999. glass pipe one used July on ered Carmichael: to dismiss was filed methamphetamme; plastic actually to smoke one cause threaten the harm or evil straw one end and the other prevented by heat-sealed [HRS 712-1243] which, angle, cut according end or did so to an extent too trivial to testimony, typically crystal used to load warrant the condemnation of conviction.”8 methamphetamme pipe into a and to use inadequate See HRS 702-236. Given the packets load the into smaller for distri- defense, presented by record the circuit bution; scrapers typically two metal used found, clearly court did not err when it based scrape pipe residue from a in order to res- upon expressed its consideration “the to it; ziplock bags moke and several of various tality case[,]” of the circumstances of this sizes, containing each a white residue. Addi- alleged that Carmichael’s conduct did not tionally, noted that Carmichael was constitute a de minimis infraction.9 See driving speed immediately at an excessive Sanford, State 97 Hawai'i 35 P.3d prior being pulled police over (App.) (upholding circuit court’s that he had a breath alcohol content of .096. denial of a charge motion to dismiss a as de Further, sobriety sug- Carmichael’s field test alia, upon, minimis based inter juxtapo “the gested that impaired. he was drug repositories, sition of smoking device residue, especially pos smoked party advancing As the the motion to depleted session of such contraband grounds, dismiss de minimis the defen cert, engaged denied, in shoplifting”), one establishing dant bears the burden (2001). Hawai'i According P.3d alleged conduct constituted de minimis ly, the circuit court did not abuse its discre Balanza, generally infraction. See State v. in denying tion the motion to dismiss. 279, 283-85, Hawai'i (2000). Thus, the defendant must adduce regarding alleged evidence both the conduct IV. CONCLUSION and the attendant circumstances order to reasons, For foregoing we affirm the support finding alleged conduct denying order Carmichael’s motion to dis- However, was de minimis. at both the hear miss judgment and the of conviction and appeal, and on defense focused sentence of the circuit court. drug possessed whether the amount of the constituted a useable amount. The record Dissenting Concurring in Part and in Part indicates that the defense did not adduce RAMIL, Opinion by J. present any argument evidence with re circumstances, spect Although to the attendant agree includ I with the result reached (1) ing: possession multiple Moon, C.J., Carmichael’s of plurality, joined by Naka- J., items associated with yama, respectfully the use and distribu I plu- from dissent (2) methamphetamme; tion of driving rality’s analysis. his at For the reasons discussed below, speed immediately prior being Viernes, excessive to believe State v. 92 apprehended; arresting (1999), officer’s Hawaii wrong- 988 P.2d 195 appeared ly determination that im Carmichael decided and should be overruled. After paired. By failing Viernes, joined, address these attend which I re- circumstances, ant peatedly requested defense failed to meet that this court revisit the providing support so, its burden of Having evidence to compelled issue.1 done I now feel finding alleged the conduct “did not a dissenting opinion. to file warrant, Therefore, clearly 8. When the attendant so circumstances be warranted. we re- charge promoting spectfully disagree we believe dismissal of a with Justice Ramil. dangerous drug degree in the third as a de min- imis offense is respectfully disagree consistent with intent of the 9. We with Justice Acoba's legislature. example, analysis For in a disagree case where characterization of our opinion generally. evidence demonstrates that a defendant had knowingly with his quantity methamphet- recovered a See, police amine with the intent to deliver it to the e.g., Oughterson, State v. Cr. No. 99-1326 Cir.Haw., (1st 1999) evidence of a crime when he (prosecution was arrested and ap- Dec. charged "any possessing pealing amount” a dan- holding the circuit court’s gerous drug, minimis), ap- dismissal as de minimis offense of cocaine substance is de

81 omitted) added)). may (emphasis we held that tions pivot “conduct be that, although technically so harmless it vio- al determination to be made is whether HRS § lates § is nonetheless de § 712-1243 and HRS 702-236 are in con pursuant § flict, 702-236.” Id. merely overlap. or if question 988 P.2d at 200. The I begin my analysis by interpreting first proscribe legislature whether the intended §HRS 712-1243. The court’s “foremost ob (as possession “any” quantity ligation give is to ascertain and effect to the 712-1243), stated or whether the legislature, intention of the which is to be proscribe only intended to primarily obtained language con possession quantities capable of usable tained in the statute itself. And we must (as Viernes). producing an effect held in A statutory language read in the context of the plain meaning statutory fresh look at entire statute and in a construe it manner intent steers me the ineluctable conclusion Putnam, purpose.” consistent with its 93 (HRS) § that Hawai'i Revised Statutes Hawai'i (quoting Gray P.3d (1993)may applied not be to HRS 712- Court, Dir. Administrative Ha (1993 cases, Supp.2000) possession (1997) (cita wai'i accordingly, must be Viernes over- omitted)). tions language of HRS ruled. unambiguous. 712-1243 clear and part: provides relevant

I. interpreting appear Promoting dangerous statutes that to re- the third matter, subject degree. person same A late this court commits the offense adopted dangerous drug statutory promoting has three rules con- the third degree person knowingly possesses struction: any dangerous drug amount. First, legislative presump are enactments tively interpreted valid and should give such a manner them effect. (3) Notwithstanding any law to con- Second, materia, pari upon laws in trary, if the commission of the offense of matter, subject same shall be construed dangerous promoting in the third reference each other. What degree under section involved the clear called in aid to one statute methamphet- or distribution of explain Third, what is doubtful in another. amine, shall convicted be sen- plainly where there is irreconcilable con an of impris- tenced to indeterminate term general specific between a and a stat

flict years a mandatory onment of five matter, concerning subject ute same the minimum imprisonment, term the However, specific the will be favored. length of which shall not less than simply overlap in where the statutes their thirty days greater not than and two-and- application, will to given effect both if years, at a-half the of the discretion sen- possible, repeal by implication is disfa tencing court.... vored. 712-1243(1) 362, Putnam, 373, 93 prohibits illegal Hawai'i 3 P.3d HRS pos- State the 1239, 1250(2000) (quoting City dangerous drugs, expressly Richardson v. session of em- Honolulu, 46, County ploying “in phrase any and 76 Hawai'i 54- amount.” Ac- the 55, 1193, 1201-02, ask, cordingly, might part reconsideration one what of the denied, 247, (1994), “any” my 76 Hawai'i 871 P.2d 795 word we not In do understand? (9th Cir.1997) view, ajfd, jtidgment phrase 124 F.3d “in 1150 amount” creates the (internal marks, brackets, quotation policy and cita inference of a zero tolerance 7,

pea/ (Haw., 2000). 99-0020(2) (2d filed, Fukagawa, No. 23075 In State v. Cr. Jan. No. Cir. addition, Haw., 31, 1999) (defendant have Aug. defendants also raised this issue appealing the by appealing their In the convictions. appealing instant holding circuit court's of meth case, circuit Carmichael court’s minimis), amphetamine ap substance is not de holding holding that .002 of metham- (Haw., peal filed, 1999). Sept. 22810 No. phetamine substance is not de See minimis. also Thus, presumed that it cannot be quantity at 943-44. for discussion on no room leaves accidentally unwittingly legislature drug possessed.2 “any amount for- designated amount” as the pur- Second, statutory and the scheme bidden, did not legislature or that envi- pose support statute the clear of the of- sage possession of trace amounts § 712-1243. unambiguous language of HRS fact, under 712-1243. fense quantities minimum select- comparing the legislature specifically appears drug” “dangerous legislature for ed to make trace amounts sufficient aimed quantities selected and the minimum offenses conviction. warrant offenses, clear for it becomes other related (3) “dan- consciously treated legislature that the language within subsection The gerous drugs” heightened with a level legisla- also § 712-1243 demonstrates Commentary severity. to Sections The policy. tolerance ture’s intent have zero §§ 712-1241 explains amendment, that HRS 1241 to 1250 added In its 1996 offenses to 1250 “set forth four different began words “[n]ot- with the a clause drugs intoxicating com- relating to contrary,” withstanding to the law 1) pounds. promoting a offenses are: mandatory provided for minimum terms of The. 2) drug; promoting harmful dangerous involving for imprisonment offenses metham- 3) 712-1243(3) drug; drug; promoting phetamines. HRS detrimental 4) compounds.” 1996). intoxicating (added promoting by Act Laws This Session Commentary §§ to 1250. on HRS 712-1241 legislature’s sweeping language evidences offenses, only sec- different Of the four aggressively determination eliminate the “dangerous drugs” include pertaining society. tions our See Cisneros v. use of Compare HRS “any language. amount” Ridge Alpine Group, 508 U.S. §§ §§ 712-1244 712-1241 to with HRS (stating 123 L.Ed.2d 572 S.Ct. “ n ] to 1250. [than clearer ‘notwith- statement (cita- imagine” standing’ clause] is difficult statutory scheme further legislature’s omitted)). quotations tions and internal “any possession amount” that the indicates violation of to be an indismissible history intended Finally, legislative of HRS Vance, 61 Haw. act. As noted State v. legisla- § 712-1243 court of the advises the (1979), § 712-1243 602 P.2d 933 “HRS examining “In addition to ture’s intent. statutory pro- part designed courts, statute, of a scheme when language in a inter- punishment statutes, more severe vide to extrinsic aids preting resort drugs.... statu- greater quantities determining intent. legislative One ave- Legislature history tory design indicates that the legislative use as an nue is the Putnam, carefully precise amount interpretive considered the tool.” 93 Hawai‘i legislative purpose to consti- possessed of a that need be P.3d at 1244. The “respond under the relevant statute is to ‘abuse tute offense of HRS ” harm,’ Viernes, scheme of 92 Hawai'i at but that devised them entire and social (quoting in- P.2d at Hse. basis amounts Conf. sanctions on the Journal, Rep. No. in 1972 House 602 P.2d Comm. 61 Haw. volved.” stated, meaning had in mind when it previously have anoAer has This court question. adopted language in But "we do statutory the rejected approach to But we have an only recognition [a clear] with Ae that [interpretation] which to the words of so showing limits us statute, they may appear contrary how data no matter clear of intentions recognize upon perfunctory we justify 'plain review. For the mean- a limitation on would duty primary interpreting statutes] [in “our statutory language.” ing’ of Ae legislature the intention of the to ascertain Aguilar, 67 Haw. P.2d 839 Kaiama de- implement that to the fullest intention omitted). (1985) (internal Accordingly, citations gree,” ... material evi- and where "there is unambiguous meaning despite plain the intent, dencing legislative purpose Aere amount,” phrase "in I shall noneAeless the refuge court in ‘strict for a to seek no reason proper proceed aids to ensure to consider other construction,’ popular 'plain meaning,' or 'the legislative intent of the of HRS determination ” Ae words.’ sense of § 712-1243. history of stat- [Ae turn to the We therefore might legislature whether the ute] to ascertain 1040), construction, pi’operty statutory and to “counter increased accordance with (quoting compelled § and violent Id. Haw. crimes.” the court is 712- favor HRS 970). statute, L. 702-236, Sess. Act To effectuate these specific § over HRS goals, legislature statutory created a general statute. language

scheme and ineon- used would trovertibly quantities set the minimum II. “any amount.” In addition to and in light the above Turning now to whether a conflict there is analysis, Viernes should be overruled be- § § between HRS 712-1243 and HRS following cause the Viernes court made 702-236, § now examine HRS (1) inadvertently applied errors: the court provides part: in relevant (2) standard; quantity the usable the court De minimis infractions. The court legislative misunderstood the intent of HRS if,, prosecution dismiss a having regard to 702-1243; § misapplied the court alleged nature the conduct and the §HRS 703-236. circumstances, nature of the attendant finds that the defendant’s conduct: ironically, upon very Somewhat it was analysis outlined in I that section the Vance (b) actually Did not cause or threaten the rejected quan- and Viernes courts the usable harm prevented by evil tity standard. The Vance court examined defining only law the offense or did so statutory legislative scheme determine an extent trivial to too warrant the con- intent, and concluded that “the direct and conviction; demnation of § unambiguous language [HRS 712-1243] (e) Presents such other extenuations prohibits judicially [the court] from amend- reasonably it cannot regarded as envi- provision to quantity include a usable saged forbidding Vance, 306-07, standard.” 61 Haw. at offense. 943-44; Viernes, P.2d at see also 92 Hawai'i (2) The court prosecu- shall dismiss a (examining legis- 988 P.2d at 199 1(c) tion 712-1243; under subsection of this section history § rejecting lative HRS filing without standard). a written of its statement quantity usable Viernes reasons. stating pointed agreed, out in “[a]s determination of the amount of a Application § of HRS 702-236 would result drug necessary to constitute offense falls in judgment or order of dismissal. Juxta- puiview solely legislature.” within of the posing 712-1243 and Viernes, 92 Hawai'i at 988 P.2d at 199. however, reveals irreconcilable conflict. realize, Viernes court gravamen What the failed to how- of the offense created ever, application is that of the de knowing pos- 712-1243 is and unlawful nothing a disguised statute is more than drug. session of a dangerous The statute application of specifies implies quantity neither the “usable standard.” nor that a defendant possess must To reach the conclusion that .001 particular quantity of a dan- Thus, minimis, gerous drug. prove methamphetamine was the state must only knowing, unlawful of a Viernes court first determined such dangerous drug, the-quantity amount “was infinitesimal and was neither added).3 possessed (emphasis relevant insofar as it estab- usable nor Id. saleable.” disproves any prevailed lishes or these elements. For the State to have pos- As prove 712-1243 makes criminal the have needed drug, session a dangerous it cannot be

reasonably argued that thereby even a minuscule The would “usable.” State have Thus, quantity negate penal liability. satisfy required quantity been to “usable case, grams In methamphetamine the instant the circuit held that court that .018 of substance minimis); methamphetamine Oughterson, .002 is (1st Cr. No. substance not de Cir.Haw., 10, 1999) Fukagawa, (holding not de minimis. Cr. No. 99- Dec. that .012 Cf. 0020(2) (2d Cir.Haw., 31, 1999) minimis). Aug. (holding grdms of cocaine substance is de 84 reject- They neglect particular drags found.”

standard”' that the Viernes court itself of the larger to consider that context ed. ed drug trafficking, pre use is future deterred augment logic, To its inconsistent § cisely by making illegal, it as 712- HRS quantity took the Viernes court then “usable does, possess drugs. legislature to 1243 The step prosecution further. standard” one The drug supply attack drafted laws that both the argued had “inasmuch that as the and the demand side distribution. injected could be 712-1243, “Promoting § a dan HRS entitled smoked, 6, it at 134 n. 988 was useable.” Id. degree,” gerous drug in third no leaves responded at P.2d 200 n. 6. The court legislature possession that the views doubt differentiating substances” between “usable parcel part proliferation of the as a narcotic.” See “substances useable drags, problem. possession re Where differentiating was whether id. factor amount, gardless squarely what the produce or not the could an “ef- substance control, legislature sought to it cannot be Thus, only required Id. court not fect.” possession of trace concluded that “mere usable, that the be but that it also substance dangerous drugs not cause amounts” of does produce is no an effect. See id. There sought harm or evil to be or threaten the only legislative qualifier possession that of “a prevented. produce usable amount that will be effect” short, hard- Accordingly, forbidden. count’s creation narcotics can “[t]raffic offense,” impermissible judicial ly to minimis of such a standard was be said be a de State legislation. Schofill, 63 Haw. 370 v. Caldeira, Jr., (citing v. Haw. 61 State and Viernes courts miscon Vance (1979)), P.2d of trace 930 § legislative 712- strued intent of HRS not to amounts is too trivial warrant convic- part 1243. Both focused courts on the Accordingly, possession dangerous tion. provides de that an minimis statute they drugs, whether not a future use have may “[d]id offense de be minimis where saleable, to was intended or are themselves actually not cause or the harm threaten § An an offense HRS 712-1243. be under sought prevented by evil the law defin be interpretation favorable addicts ing or did so to an too offense extent illegally dealing in cannot those narcotics trivial to warrant the condemnation of convic reasonably be given. 702-236(l)(b). § tion.” The error dicta, § upon misapplied 702- made the Vance which the The Viernes court relied, 702-236, § determining entitled “De Viernes court 236. HRS infractions,” applied legislature since the wanted to curtail the use was intended minimis, narcotics, not quantities too used small to be are infractions underly- pose danger con do the sort of societal amounts are de minimis. The Vance, templated. at rationale of 702-236 indicates See Haw. “microscopic” (suggesting P.2d at 944 intended “to make the that a power amount “unusable as to dismiss a discre- or “infinitesimal” that is court’s tionary upon finding that a narcotic ... with the the conduct inconsistent statutory infraction.” rationale of of narcotics deminimis [sic.] scheme constituted control.”); Viernes, Commentary Supplementary 92 Hawai'i at (quoting (quoting Rep. at Com. No. P.2d 61 Haw. Sen. Conf. 944). Journal, 741; Although Hse. Conf. 602 P.2d at the courts them 1972 Senate Journal, Rep. recognized to be No. 1972 House “[t]he selves evil Com. 1042) added). Thus, (emphasis pur- use for the 702-1243] controlled is the [HRS min- poses transfer for of HRS the term “de narcotic and their sale or ” use,” added), (emphasis applies “conduct” or ultimate id. imis to the defendant’s “infraction,” give an isolated ele- goal failed to full of control not to effect material crime, wit, ling applica More- drugs.” of narcotic ment of “amount.” “use tion, over, Park, adopted very ap the courts took the narrow State “totality for deter- proach “future use of the circumstances” test that it would control the pipe happened to the mining is to be treated as the rest the whether offense Park, A by police? it the de minimis State infraction. 55 before was confiscated (1974) (stat- can that it Haw. 525 P.2d reasonable inference be drawn by can ing previously [§ ] that “before the code’s be was used either the defendant case, the de applied party. By applying in a criminal all of properly the or some other situation, defendant’s minimis statute bearing upon the to such a the court relevant facts effectively rewarding cir- conduct and the nature of the attendant would the less) (as regarding opposed to cumstances the commission of the who uses more the judge.”)4. drug. offense should be shown to the

The Viernes court erred by applying Second, permitting application of the drug possessed, § 702-236 to the amount of minimis statute to drug possession has cases And rather than to the defendant’s conduct. becomes distorted trials so the issue Park’s “totality apply than of the cir- rather recoverable, drug was what amount of test, only quan- it examined cumstances” drug has. For what “discernible effect” analy- tity Based on its issue. case, example, in the instant the defense’s sis, the Viernes Court incorrectly thus held an “il- expert distinguished between witness that “the circuit court did not abuse its dis- “therapeutic licit dose” and a dose.” He use grams determining cretion in stated, pursuant was de minimis making assumption I’m here that the 702-1243.” 92 Hawai'i at euphoria. seeking the elation and abuser 135, 988 P.2d at 200. why person—I don’t think I don’t see you They are treat- could call abusive.

III. thing, ing obesity. therapeutic That’s a so Viernes overruling indepen- An is also making I am definition here mental policy dently compelled by public they going euphoria. consider- or are for the elation weigh in Policy ations. considerations favor basis, minimum that the On this he estimated precluding application 702-236 methamphetamine required for a amount of possession di’ug cases. experience “nonuser” to “the desired effect First, charge euphoria” was within a “start- dismissal of a of elation See de minimis would not “range grams. to .1” ing fail to further the dose” of .05 laws, also plurality 99 Hawai'i at legislative goals behind the but intended drug problem 217.5The could not have would fact exacerbate the crimi- In an arena where to be eliminated. cases where become quanti- culpability based on glass pipe, is found in a nal is determined residue legislatively designat- question reasonably posed: than those can What ties other complainant prosecutor; of the or 4. Some of these factors that should be consid- tives may by judge question which reveal the na- under the other data ered on this 236(l)(b) following: degree culpability in the offense s should include the ture code’s defendant-appellee. background, experience committed each and character of Park, defendants-appellees 525 P.2d at 591. indicate 55 Haw. these of, known, ought knew to have whether attorney (Supp. Fukagawa, its requirements the defense asked of HRS s 11-193 Read, witness, 1972); your expert knowledge part expert "Doctor on the of these eighteen milligrams grams consequences opinion or .018 defendants-appellees to be euphoric pharmacological upon produce effect the violation of the incurred statute; them 99-0020(2) Fukagawa, concerning Cr. No. the late an illicit user?” (2d the circumstances Cir.Haw., 31, 1999). Aug. Oughterson, filing expense; the re- of these statements of witness, evil, attorney expert “Tak- any, sulting asked its harm or if caused or threat- defense user, infractions; minimum dose probable impact what is the a naive ened these community; upon a CNS nervous [central amount that could create of these violations ...,” your system] euphoric effect and “Given of the infractions terms of seriousness reviewed, mind, course, you your bearing literature that punishment, research suspended proper saleable?” punishment ....012 or .005 the cases; can be either Cir.Haw., circumstances, (1st any, Dec. mitigating Oughterson, Cr. No. 10, 1999). offender; possible improper mo- to each fact, five-foot, legislature sought In the to eight-inch, ed.6 avoid a ble to the 115-pound experts by specifically making battle the adult Defendant in the instant ease. “any criminal amount.” For court to Acoba, J., dissenting 99 Hawai'i through establish the minimum standard requires P.3d at imagination 234. It little parade require law would case the court to “expert testimony” how envision thresholds legisla substitute its wisdom for that of the create the kind of uneven administration of ture. justice that courts must avoid. Finally, applied the test were Third, application of HRS 702-236 to appropriate refer to amount partic- for a drug possession cases is destined to lead to use, require ular defendant’s it would testi- absurd, contradictory, if not If results.7 ex- mony involving past drug the defendant’s use pert testimony permitted crim- establish case, example, or habits. For in the instant thresholds, culpability inal the result could stated, expert “depend- the defense’s witness

well differ from courtroom courtroom and ing upon it, person how much a has used it expert expert. example, For in- get will take more to the same effect.”8 case, expert stant the defense’s witness testi- evidence, however, Introduction of such more, “bigger people require fied that bring would court close to if not within people require smaller less.” Justice Acoba constitutionally prohibited regarding area states, defendant’s status as an addict. See Robin- light In pro- of the unrebutted evidence California, son U.S. S.Ct. trial, amount, (1962). duced as conserva- 8 L.Ed.2d 758 tively expert estimated [defense’s wit- IV. ness] would be .05 ... as a first “average-sized” person, time dose for an The Viernes court misconstrued HRS only qualification who was not a user. The ignoring legislature’s clear on that amount purpose drafting rejects [defense’s elicited from it. It all of the expert Vance, witness] was that a reasoning “little less” relevant a. offers produce eighty-pound would in an appears effect substitute rationale that inconsistent person—clearly qualification applica- legislative not goals statutory and with basic note, scenarios, usurped ignoring 6. As a has courtroom while the realities of what is is, legislative authority occurring practice—that ap- to establish the minimum that trial and quantities pellate frequently culpability, misapplying for criminal courts are but such the de quantities currently minimis statute to being dismiss cases based on the are in fact established quantity my that is recovered. See single person. dis- Professor Read was the supra (describing cussion n. 1 case, Viernes, other cases on expert witness in the instant Third, appeal). ineffectual, hypothetical I find the Fukagawa, Hawai'i at 988 P.2d at plurality necessarily suggests for the 99-0020(2) (2d Cir.Haw., 31, 1999), Aug. Cr. No. officer, police that it finds it conceivable that the (1st Oughterson, and in Cr. No. 99-1326 Cir. receiving methamphetamine, when would Haw., 10, 1999). effect, Dec. Professor Read require protections also of the de minimis- judge has become and the in all of Accordingly, persuaded statute. I am not drug possession these cases. plurality adequately presented hypo- has prevents overruling thetical that agree plurality’s following I7. cannot with the Viernes. hypothetical: example, "For in a case where the evidence demonstrates that a defendant had Fukagawa, 8.In Dr. Read testified as to the ef: knowingly quantity methamphet- recovered a "average person.” fects normal On cross- police amine with the intent to deliver it to the examination, established that Dr. evidence of a crime when he was arrested and for, alia, Read had not accounted inter “[defen- charged possessing 'any danger- amount' of a history.” Fukagawa, dant’s] use Cr. No. drug, ous dismissal as a de minimis offense 99-0020(2) (2d Cir.Haw., 31, 1999). Aug. clearly Plurality be warranted.” 99 Ha- Oughterson, prosecution's expert tes- witness First, question wai'i at at 219. tified that "Cocaine’s one of those that’s whether such an individual would even be . really highly responses,” variable in its to which charged by prosecution—to my knowledge, asked, prosecuting attorney him- "[A] imagined hypothet- never has the situation weight self is a main variable? ... And their Second, transpired. ical ever I am dubious Oughterson, and their tolerance and all of that?” protect against unlikely (1st Cir.Haw., 10, 1999). the court should seek to Cr. No. 99-1326 Dec. First, majority opinion no as to the interpretation. unambiguously It also over- there is holding though affirming in this main basis for trial court ease. rules the Moon, regard, plurality, In that I stating overruling believe the gingerly avoids J., C.J., joined Nakayama, is incorrect. Finally, on to the ease itself. it latches Vance, relying in on attendant circumstances dicta heedless of the rule trial spoken clearly and were not relevant the decision of the where the has court, in unambiguously, plurality to re- on the the court not elect effect exercises only appellate no- that was write the statute. Because I am of the level discretion exercise, Revised not be trial court’s to see Hawaii tion that error once committed should (HRS) (1993), § and which respectfully I Statutes 702-236 perpetuated, dissent. grounds on from it did exercise different LEVINSON, justifies plurality its hold- Dissenting Opinion those on which the J. herein, forth attendant ing. As set the first (1) on agree I with Justice Acoba that: merely drug par- circumstance reiterated the case, in this the circuit court abused record aphernalia possession charged, and the latter denying in motion its discretion Carmichael’s two, charge driving the influ- under II to dismiss Count of the indictment— liquor, all of not chal- ence of which were charging promoting dangerous him with a lenged appeal. on degree third in violation HRS (1993 Second, all dis respect, § & min- with due I must Supp.1999)—as 712-1243 de (1993), position Ramil that pursuant agree § see with the imis HRS 702-236 Justice dissenting apply Hawaii statute to the opinion Acoba’s 99 the de minimis does Justice (2) 88, 227; contrary promoting dangerous at 53 P.3d to Justice offense of view, (methamphetamine) degree, in the thud Ramil’s “there is no conflict between (1993 712-1243(1) and, 712-1243, Supp.1999). § § § and & 702-236 HRS HRS view, no given my conflict between HRS accordingly, both to be there statutes are id.; 712-1243, minim- appropriate,” §§ 702-236 and and the de application, where see (3) may apply, for the reasons set “in absence circum- is statute of attendant justices join in this harm or forth two ‘[cause or] stances threaten the herein. Unless majority part opinion, is no sought prevented by there [HRS be evil ” respect a ratio opinion too on this court “[do] so to an extent 1243]’ Ramil rebutting position of Justice trivial to warrant the condemnation of convic- nale Vance, 702-236(l)(b), tion,” v. supporting holding State see 291, (1979), that is 61 Haw. 602 P.2d 933 of a substance an amount controlled Viernes, P.2d 195 92 Hawai'i 988 that.it cannot sold or used v. “so minuscule State (1999). way as to have discernible such human body,” on the see State effect Third, light precepts set forth Viernes, 130, 134, P.2d 92 Hawai'i 988 sought to evils Vance and the (1999) (citing Haw. State v. 61 199 702-236(l)(b), the abrogated by (1979)), P.2d consti- 944 (1) drug not possession of an amount of a minimis infraction as a matter tutes de (2) useable, produc- capable of saleable or ie. law, dissenting opinion at see Justice Acoba’s effect, or pharmacological an illicit however, emphasize, nei- 3. I wish in a involvement linked to the defendant’s dissenting opinion read Justice Aeoba’s ther time, support drag habit crime rule, bright establishing a as a univer- as line establishing qualification for the threshold matter, factu- to which infractions are sal does not defendant’s conduct either and which ally minimis as matter of law proscribed harm to be cause the not, necessarily par- nor to the subscribe are too to an extent does so regarding analysis ticulars of Justice Acoba’s agree- While to warrant conviction. trivial general propositions. foregoing three to the guidelines is not reached ment in de min- of the court’s discretion exercise ACOBA, Opinion Dissenting J. cases, preclude this does not imis foregoing three utilizing pertinent in trial courts from points Four are this case. discretion, male, Defendant, twenty-year-old employing factors in their since to rested “clearly driving intoxicating exceed[ ] do so would not the bounds under the influence of ' disregard[ principles ] reason or rules or liquor. During booking proce- Defendant’s practice of law or to the substantial detri station, police glass the Wailuku dure Mara, litigant.” party ment of State v. containing pipe crystal- a “white to brown” (citing Hawai'i substance, straw, plastic line small and two Alston, State v. Haw. scrapers metal were recovered Defen- (1994)). 157, 168 P.2d dant. The white-to-brown la- substance was weigh ter determined to Fourth, the facts raise serious case methamphetamine,” dangerous “contain a questions and fact of law as to whether drug. particular “knowing- defendant in a can case ly” possess pro- unmeasurable amount 12, 1999, April charged On Defendant was drug in Notwith- hibited found residue. (1) grand jury in a Maui indictment with law, standing any question of the issue driving intoxicating under the influence of defendant, fact, whether a as a matter of (Count (2) I), liquor promoting dangerous knowingly possessed such an amount cannot drug (methamphetamine) degree, in the third legally be foreclosed. 712-1243(1) (Count II), § violation HRS (3) prohibited drug para- acts related to I. (“to (Count ”) wit, phernalia glass pipe ... appropriate As to the result to be reached III). § HRS 712-1243 states relevant case, in this I would hold that the circuit part: (the court) court of circuit the second abused (1) person A pro- commits the offense of denying its § discretion in the 702-236 moting dangerous de- the third Defendant-Appellant motion of Kalawaianui gree person knowingly possesses the (Defendant) F. as Carmichael to dismiss de any dangerous any dmg in amount. minimis, § charge against possessing dangerous him of any amount. (3) any Notwithstanding law to the con- light of the unrebutted evidence received trary, if the commission the offense court, weighing con residue .002 promoting dangerous drug in the third methamphet taining unknown amount of degree under this section involved ie., useable, capa amine was not or saleable possession or of methamphet- distribution producing pharmacological ble of illicit amine, person convicted shall be sen- (1) effect. hold that is no would also there to an impris- tenced indeterminate term of § conflict between HRS 702-236 and HRS years mandatory onment of five with a § given 712-1243 and be both are to statutes imprisonment, minimum term of application, appropriate, where length of which not shall be less than absence attendant circumstances thirty days. or sought “threaten the harm evil be added.) (Emphasis offense[,]”

prevented by law defining the 702-236(l)(b), a drug an amount of June On filed a motion Defendant “so it cannot or minuscule that be sold used to dismiss Count II of the indictment on the way such a as to have discernible ground alleged that his conduct constituted body[,]” effect on the human de minimis under offense 702- (citing Hawai'i at P.2d at 199 236(1)(b). 702-236(1) §HRS states: 944), qualifies 61 Haw. at P.2d at if, The court dismiss 712-1243. minimis violation HRS having regard to the nature of the conduct alleged and the nature the attendant

II. circumstances, it finds the defendant’s A. conduct: 13,1999, (a) February Depart- customary On Maui Was within a Police license tol- (MPD) erance, Christopher expressly ment Horton ar- Officer which was re- fused qualified testify whose interest was Wood was expert as an infringed is not inconsistent identification agreed field. It was purpose defining of the law testify, witness, she would if called as a that: offense; (1) she tested pipe the residue found in the (b) seized; (a) actually Did not the residue weighed cause or threaten the (b) prevented by grams,

harm or evil to be methamphetamine, “contain[ed]” defining (c) law or did so eye. visible the naked offense only to an extent too trivial to warrant addition, parties stipulated that a copy of conviction; the condemnation laboratory Wood, report prepared by (e) (Exhibit containing findings 4), Presents such other extenuations that such No.

it cannot reasonably regarded into received evidence. envisaged by in forbid- University The defense then called of Ha- ding the offense. wai'i Pharmacology, Emeritus Professor of added.) (Emphasis supporting In a memo- Read, Ph.D., George expert W. as its witness randum, that, argued he under HRS in pharmacology.1 According to Read’s own 236(l)(b), possession of .002 of meth- testimony vitae, and his curriculum he is amphetamine was a de minimis infraction professor emeritus of pharmacology at the because that amount could not sold or University Medicine; of Hawai'i School of he legitimate used for purposes. either or illicit degree received his biology Bachelor’s Alternatively, that, Defendant contended un- from University, Stanford degree Master’s 702-236(l)(c), der HRS the infinitesimal physiology from University, Stanford recovered, coupled amount with other fac- in pharmacology Ph.D. University from of tors, such as prescribed the harshness of the Medicine; Hawai'i School of and he was five-year sentence—a prison indeterminate chairman legislative of a drug task force on possibility term without probation— of abuse serves on the Hawai'i Commission charge. warranted of dismissal Abuse, Drug on and has served as its chair- 29, 1999, Plaintiff-Appellee On June State man duly qualified several times. (the prosecution) Hawai'i an opposing filed expert Read as an in pharmacology. memorandum contending that Defendant’s requirements criminal conduct did meet the Read pharmacology testified that is “the 702-1243(1), knowing pos- because study of drugs organism, actions of in an session of amount was the man, humans,” especially and he relied on prevented by harm to be the statute. “studies drugs related to the effects of either maintained “the evi- people animals!,] on experimental simulat- negate in this possi- dence ease does not ing they effects people.” would have on He bility were for the Defen- had approximately fifty written articles relat- personal although dant’s use ... [a]nd pharmacological to his studies and has appeared previously substance to have been expert as an approximate- testified witness in (usea- smoked, there was still measurable ly fifty cases. ble) quantity methamphetamine within the pipe.” According prosecution, to the the to- explained methamphetamine Read is a tality of weighed the circumstances in favor (CNS) stimulant, system central nervous denying Defendant’s motion. doses, which acts on Increasing the brain. Read, as recounted results CNS stimu-

B. and, dosage lation in a range, certain will July produce hearing euphoria. On at the elation Extrapolating on the motion, parties stipulated sources,2 both that Julie data from various Read concluded expert 1. Read was also the Pharmacological witness in man & Gilmans The Basis of (9th ed.1996); Ellinwood, referred to in the text. Therapeutics E.H. As- infra Amphetamine sault and Homicide Associated with Read, According his sources include: Drill's Abuse, (1971); Psychiatry 127 Am J. R.A. Medicine, (J.R. ed., Pharmacology in DiPalma 3d Lehne, (1998); Pharmacology Nursing Care 1965); Hardman, Limbird, ed. J.G. L.E. P.B. Overdose, (K.R. Poisoning Drug & Olson Molinoff, Ruddon, Gilman, R.W. & A.G. Cood- pilots on combat required for a Read also related amount the minimum duiing ... II had received experience “sort of missions World War

“nonuser” methamphetamine methamphetamine .01 and from between euphoria or elation” doses “range starting although dose” grams fight fatigue, fall within “a .04 Read, explained by grams.” According .1 As acceptable .05 to use.” “a borderline necessary Read, extrapolation was because dosages for illicit use had been record- concerning percent- unavailability of data grams .4 to 2.216 ranging ed research, drugs purchased on ages of contaminants day. Based on the studies streets, placed in individual the amounts minimum effective Read concluded that the inhalations, the amount pipes, the number average sized illicit use dose for inhalation, from each absorbed grams,” although “around .05 would be administration, and toler- duration of weighing eighty pounds for “a woman dose drug. individual for the ance of the ... bit lower.” be little conclusion, reaching Read relied his him, bought on According to the “amount therapeutic concerning dos- and studies data usually ... far from hundred the street (those having ages However, he percent pure.” effect”) reportedly amounts “desirable study hun- posited in his was based on “one Read, According taken illicit users. percent pure drug.” As Read under- dred response” “dose it, typically stood laboratories “measure -whichsim- pharmacology standard term ... gross weight sample] so when [of drag to the ply amount of the relates the residue,] weigh something ... as the [such and it is an established produces, effect it drug.” weight is not the entire pharmacology accepted standard case, respect instant Read With you get, you give, more the more effect methamphetamine grams of opined that .002 you a low dose where can start such granules. equivalent to a few salt would be increasing you get no effect and then the. However, substance was residue since the you begin to see an effect. dose would scraped from Defendant’s which had been Read, therapeutic legal As related presumably already pipe, Read be- smoked methamphetamine obe- for are treat uses “almost all residue would consist of lieved the hyper- sity, narcolepsy, and attention deficit inactive, very drug.” little inert material (ADHD) in children. Obese active disorder conclusion, grams opined that .002 In Read persons generally between .01 and receive methamphetamine was not an effective pill form grams .04 dose, unsaleable, incapable and was illicit was narcoleptics weight purposes, re- for control “pharmacological producing effect”: grams .03 and .05 to combat ceive between ADHD re- sleep, Q. children the desire Doctor ATTORNEY] [DEFENSE grams to Read, .005 and .015 reduce ceive between two your expert opinion would hyperactivity. toward their tendencies milligrams or .002 be an effective dose or illicit dose? from court about wheth- questioning methamphetamine pills manufactured are er A. No. milligrams, than five in amounts smaller Q. Why not? ... [grams] explained “that Read it not be effec- A. Because would even ADHD.” He [with] would be for children require for these other actions range for ADHD tive that the dose further noted average talking about rarely less. We are [is] “ADHD “is for children” because that—well, in a adults,” I don’t think even dosage for an adult. treated ADHD, a noticea- there would be up,” ... al- child for to be “scaled adult have extremely It is an small dosage ble difference. though variability in is “correct” age.” amount. “body ... more than size (1957). Pharmacology ed.1994); Payne, Pinger, A Manual W.A. D.B. Hahn & R.R. Solimán, Hahn, (2d ed.1995); Drugs and T. E.J. Q. cross-examination, milligrams Would .002 or two reported On Callinan be usable as an item for sale? degree that he had not received from an college physical accredited anybody

A. I the area or don’t know would want to sciences, buy they it if anything. assigned can’t it for chemical he was use never ease, laboratory might mean in give knowledge we a Defendant’s and his rats, physician dose that size to a photos but case was explain- “[t]he limited buy we would it never because we would what is that the evidence was recovered.” purity. buy not know its We decision, In its the court indicated the companies where purity. we know absolute following: Q. your expert opinion, could two THE COURT: We know the Vance case milligrams produce pharmacological á ef- cocaine, talking ivas about for which on a fect user? mandatory sentencing. there’s no We do A. in a Not human. prohib- know the in addition to cross-examination, On es- iting possession drug, amount of tablished that “if drug very is not effective methamphetamine, requires in fact manda- route, by the oral takes far less tory jail partic- terms for of this effect; inhalational route” to obtain an drug, reemphasized ular so it its intent old, tall, years Defendant was “20 5'8" serious and that weighed [pounds]”; that Read had not potential society very for harm to our “personally methamphetamine”; used high. police had reports prior Read reviewed the was—well, In this amount that case the hearing Defendant, but had not met had step. let me take a I think the de minimis not weight,” “look[ed] ... [Defendant’s] essentially standard is for a intended situa had observed'Defendant “under the influ- person tion such as where borrows the methamphetamine,” ence of and had no “fa- person car of another and then are miliarity ... with Defendant’s use his- they find arrested and some small amount added.) tory, any.” (Emphasis ashtray something like hearing July Also at the that,[3] or circumstances that don’t indicate prosecutor called MPD Officer Michael Calli- actively smoking, ingest nan as a witness. Callinan stated that he drug using drug.l4] the the participated had in over three hundred inves- just—I Not that it is don’t think it 'is tigations involving illegal narcotics' and had provide bright intended to line for conducted over one hundred narcotics inves- amount, certain apparent and also it is tigations involving methamphetamine. He Supreme using that even the the Convrt explained typically illicit users utilize wrong terminology, say that is to the word drug paraphernalia glass like Defendant’s Apparently, appropri- narcotic. that’s not (Exhibits straws, pipe, 1, scrapers and metal drug methamphet- ate use with the for respectively). Callinan, and 3 According to interpreting amine. I am to mean “the is loaded into the system. effects on the central nervous pipe usually with a cut straw into the ball that, pipe.” explained about, well, and to expert [sic] He The talked what he product,” use, when user is “low on the user means how street much does it take to “will scraper scrape get [use the metal high, problematical, to] which is bunch, grouping variables, residue into a you or small because have all these what be, ... then resmoke the might .they residue.” their tolerance how much course, "knowing” posses- apparent "actively,” 3. Of in the absence of It is not what the term drugs, court, indicate, sion of the the borrower of the car would used denotes. theAs facts subject liability not be criminal unless the smoking, ingesting, using Defendant was not possession liability offense of was a strict offense. any drug apprehension. at the time of his Ac- hypothetical posed the court is one in cordingly, qualified Defendant for de minimis guilty, which the borrower would not be example. treatment under this which case the de minimis statute would not apply. 92 know, “clearly exceeded] court in- whether

weigh, pure how it is. We for disregai'd[ed] rules or stance, of reason or therapeutic amount is as bounds that a practice substan principles of law or to the .0025, apparently pills are low as litigant.” v. party State tial detriment of treatment available in that amount for for 577, 584, 994 P.2d 516 Klinge, 92 Hawai'i disorder, hard to so it is attention deficit omitted); (2000) (citations v. see also State say just meant to be concerned .002 is 288, 292, Sacoco, P.2d 45 Haw. talking about when we’re about metham- (1961). court I must conclude that phetamine, and I think I have to take into denying Defendant’s abused its discretion consideration the circumstances here. dismiss. motion to that this was a What is in evidence is commonly smoking pipe used V. pipe residtie in a methamphetamine, smoke commonly people can used charge De prosecution’s decision just methamphetamine, and don’t feel based on fendant with totality of this of the circumstances methamphetamine in residue l’ecovei'ed that I should exercise discretion of case glass pipe essentially converts the crime and find that was Court drug parapher prohibited acts related infraction, going am minimus so I [sic] separate charges—promoting a nalia into two order, Prepare deny the motion. relating pi’ohibited acts dangerous please. pi’esenee of drug paraphernalia. The glass pipe added.) in the within the l'esidue denying (Emphases A written order pipe plainly to the identification of the l'elates subsequently filed the motion to dismiss Kupi dmg paraphernalia. v. 23,1999. See State July hea, Hawai'i C. (2002) (“[I]t is not the intrinsic nature detei’minative, culpable thing but the that is 29, 1999, July withdrew his On Defendant used, thing mind which the state of with plea original plea guilty of not and entered use, possessed ‘convert[s] with intent to part plea agreement of no contest as pi’ohibited drug parapherna [thing] into agree- prosecution. part As ” Lee, 80, 109, (Quoting 75 Haw. lia.’ State ment, right appeal Defendant reserved his (Some (1993). P.2d brackets raised in this case. The the issues Thus, added, prose original.))). some plea pursu- accepted no contest Defendant’s drug para for the cution utilizes evidence plea agreement, ant to in accordance with charge proof of phernalia to establish Procedure Rule Hawaii Rules of Penal drug promotion chai’ge, although the amount 11(a)(2). September the court On as to be unmeasur is so infinitesimal Defendant. sentenced able. prosecutions providing dismissal of In for III. actual- conduct did not where the defendant’s appeals July Defendant the 1999 order proscribed harm ly or threaten the cause denying dismiss II of the his motion to Count sense, § very in trivial 702-236 did so a ground that the court indictment on the policy reciprocal principle of the reflects the arguments in abused its discretion. Since protecting underlying penal the code II, only judg- the briefs relate to Count the “specific which constitute against offenses on Counts ment and sentences x’endered Commentary on harms to social interests.” question and III must be affirmed. The connection, this § In that 701-103. in conduct at issue whether Defendant’s Vance, court, charge un- in indicated that a II to a de minimis offense. Count amounted involving “possession of § 712-1243 der HRS dangerous drug” microscopic trace of IV. subject to dismissal under HRS may be actually caus[ing] or § as “not for í-eviewing In a trial coui't’s decision sought prevent- to disci’etion, threatening] harm we must determine abuse of 702-236, § [doing] only § court must [HRS 712-1243] ed so to Under HRS “regard trivial to warrant conduct extent too condemnation have the nature alleged of conviction.” 61 Haw. at 602 P.2d at attendant cir- the nature Here, 944. the nature of the con- eumstances[.]” alleged possession duct amount specific drugs While the involved Vance § dangerous drug. of a 712- See HRS secobarbital, were cocaine and see id. at 1243(1). It is uncontroverted Defendant 943, and, thus, P.2d at drugs,” “narcotic possessed weigh- a white-to-brown substance noted, methamphet- as the the fact that containing an indetermi- pre- is not a amine narcotic would not obviously nate amount—but less than .002 application principles clude of the set forth grams—of methamphetamine. pos- “[T]he explained, Vance. Id. As Read the term microscopic session of a amount combina- depres- “narcotic” refers to a that is a indicating inability tion with other factors sant,5 although the term has into a “evolved” [drug] may constitute a use sell de drug. definition for an In “addict[ive]” Vance, minimis infraction.” 61 Haw. at analysis generally this court’s con- then, Conversely, posses- 602 P.2d at 944. application § cerned “a literal of’ sion, along demonstrating with circumstances “for of a accompanying ability to use or to sell or microscopic dangerous drug,” trace of a id. drug, disqualify to distribute the added), (emphasis 602 P.2d at 944 defendant from minimis consideration. and, therefore, pertained “danger- to all such id. See drugs,” only drugs ous those which could said to a narcotic have or addictive effect. may also Other “attendant circumstances” disqualify a from de minimis con- defendant sideration, 702-236(l)(b), pursuant VI. to HRS they implicate “harm or evil motion, rejecting Defendant’s the court regard dangerous be controlled.” With considered attendant “circumstances” that general, legislature had in mind “pipe commonly smoking was for used secondary prevent purpose, which was to methamphetamine, in a [and] residue to obtain prompted crimes the need more pipe commonly by people can be used dangerous drugs, legislature be- smoke The former [it].” circumstance reit- highly lieved was caused abuse of addic- nothing pipe than that erates more drugs. Commentary §§ 712- tive on HRS drug paraphernalia charged III. Count 1241to 712-1250.6 circumstance, apparently relying The latter (as part testimony, Ramil did effect,” responded, “Right. cotic Read Just the is, drug if use of the is discon- opposite. why narcolepsy.” That's it is used tinued, symptoms occur severe withdrawal only by which can be relieved more Commentary §§ 6. As the on HRS 712-1241 to drug. high tolerance The combination aof regard dangerous drugs, 712-1250 states with to liability physical level and addictive creates a [tjhese drugs are the most fearsome in their lead, may dependence in the user which and in potential physical for and men- destruction led, many user to commit crimes cases has being. well categoiy tal The this are money buy to obtain needed to more narcotics. high a tolerance level which characterized added.) (Footnotes omitted.) (Emphases requires greater greater the user to use property arid ‘to counter increased violent VII. ” Viernes, 134, 92 Hawaii at crimes.’ that, regard, In that Vance established (quoting P.2d at 199 1996 Haw. Sess. L. Act dangerous drug] [of “where the amount 970). 308, at microscopic or is is infinitesimal and [is] Thus, as in this court’s view in Vance unusable[,] possibility ... fact of unlaw- Viernes, legislative history, as well as the ful ... at exist[.]” use does 61 Haw. statutory accompanying scheme and its com- Thus, inability 602 P.2d at 944. “an to use mentary, primary that: harm reflect may ... constitute a de minimis infraction sought prevented proscrib- to and evil meaning § ... within the of HRS abuse; ing drug-related offenses is warranting] charge dismissal of the other- dangerous drugs, to the correlative abuse secondary sought a harm to § and evil be wise sustainable under 712-1243.” prevented prompted by such is crime abuse.7 words, although possession Id. In other Accordingly, disqualifying attendant circum- “any amount” of “techni- may stances also exist is evi- where there 712-1243,” cally rnay violates HRS that a in- dence defendant committed crime pursuant [be] “nonetheless de minimis to drugs.8 order obtain more § 702-236.” 92 Hawai'i at no

There is evidence of sale or distribu- 135, 988 P.2d at 200. here, dangerous drug tion or of sec- The court was in its correct assessment ondary swpra, effects of nature described bright that this court has not “a. established ruling, and neither the court in its nor the establishing quantity any par- line” what prosecution appeal, on indicate so. also See and, hence, drug ticular is “useable” outside Rather, court, supra note 4. and the scope of de minimis consideration and briefs, parties in their focus on whether or and, thus, quantity what drug ap- is “unuseable” not the amount of the involved consti- propriate amount. tuted useable for such consideration. avoid- example purchase 7. An of attendant circumstances dence trial and the was never con “actually the harm cause[s] threaten[s] or evil summated. See id. at 621 P.2d at 367-68. law[,j” sought prevented by to be statute, however, By "distribution” includes defendant, 702-236(l)(b), is a case where the agreement offer or sell controlled substance. apprehended committing who is in the course of appeal, See I-IRS 712-1240. On this court robbery, may armed have committed a crime to observed, analysis, without that the circuit court drug "feed” his habit. In a incident search should not have dismissed indictment on the arrest, pipe containing this cocaine residue is ground that the defendant’s conduct constituted recovered, together scraper lighter, with a and a Schofill, a de minimis infraction. See 63 Haw. at but, money other than the obtained as a result of regard, 621 P.2d at In 370. this this court robbery, no other cash is recovered. Also merely charged noted that the offense constituted person recovered from the of the defendant is a felony, punishable imprisonment a class A for which, telephone lishes, number estab- twenty years, period and asserted that phone drug is the number of a known hardly "[t]raffic narcotics can be said to be a example, dealer. attendant circum- added). (emphasis de minimis offense.” Id. suggest stances would that the defendant inapposite the context of a robbery have committed the in order to maintain Schofill merely possesses addition, who a trace secondary amount of a con his one of the social prevented by harms trolled substance. cited State v. Cal Schofill deira, (1979). 61 Haw. 602 P.2d 930 Cal deira, however, involving not a case the de 8. To the extent that Justice Ramil relies on Slate statute, but whether two defendants (1980), Schofill, 63 Haw. 621 P.2d 364 subject sentencing were enhancements be proposition in narcotics can "[t]raffic promot respect cause of their recidivism with offense,” hardly be said to be a de minimis id. at 286-87, ing controlled See id. at substances. readily 621 P.2d at that case is distin rejected P.2d at 931. This court the defendants’ Schofill, guishable. the defendant was con engaging drug trafficking contention was promoting dangerous drug victed of in the first opportunity a "nonviolent” crime and took degree for his involvement as a middle-man be length discuss at some the violence wreaked on police tween a source and an undercover officer. society by pushers engaged wholesalers cocaine, involved was the amount was 287-89, in the trade. See id. 602 P.2d at ounce, quarter price of an Thus, point. Caldeira not 931-33. $550.00. P.2d at See id. 366-67. cocaine, however, No was introduced into evi “bright approach,” defining amount from Read was that a “little anee a line elicited in an drug possessed produce eighty- a less” would an effect what amount of constitutes offense, pound person—clearly qualification ap- a not recogni- criminal rests on this court’s five-foot, plicable eight-inch, legislature, enacting tion that -1243, pound adult §§ Defendant the instant case. 712-1241 to “devised [the] entire pro- [for scheme of sanctions the offenses of specific In facts this reference to the moting drugs] on the dangerous basis of the ease, testimony that Read’s unrebutted was involved[, prohibiting] ... amounts us t]hus grams methamphetamine .002 not would judicially amending [HRS 712-1243] from “produce pharmacological effect on a [hu- quantity to include a useable standard.” ... man and “that even in a adult] user” Vance, 307, 602 P.2d at 61 Haw. at 944. This ADHD, [not] child for there would be Viernes, proposition was be- reaffirmed Despite this noticeable testimo- difference.” cause of the amount of a “the determination stated, ny, say .002 “[I]t the court is hard drug necessary to constitute an falls offense just [grams] is to be not meant concerned solely purview legislature.” within of the then, effect, that about.” ruled The P.2d at 200. 92 Hawai'i at “therapeutic an amount than that of even less added), (emphasis as amount low as .0025” VIII. ADHD, administered to children would prohibited on In drawing a distinction have the effect Defendant. between unusea- amounts, view, my no support this has ble court said in this determination useable that, hearing. Vance the amount of narcotics in the adduced at the "[w]here evidence possessed an amount which can is be used Moreover, prosecution’s laboratory re- narcotic, probability very high of use port grams gross .002 was indicates that society protection demands weight of that “contained residue meth- proscribed.” 61 Haw. thus, and, weight amphetamine” was not the added). (emphasis It P.2d Similarly itself. amount, follows from Vance that a useable opinion that ille- uncontroverted was Read’s disqualifies a defendant from HRS gal pure not found methamphetamine is consideration, pro- is one which state, supporting conclusion that subject drug’s characteristically duces the actually quantity methamphetamine in the or, effect, desired narcotic effect: Finally, was residue further diluted. Read case, according this the uncontroverted that, smoking, “the concluded after residue Read, euphoria testimony of one or elation. inactive, material, that’s inert so left at 134 n. P.2d See 92 Hawai'i going it to be all pipe, is from almost (“The suggest n. court did at 199 6 Vance not (Em- very drug.” little inert material with posed poten- ‘useable’ substance added.) phasis evil, but, rather, only tial those substances sum, prosecution adduced no evi- ”) a narcotic.’ ‘which can used as Analo- controverting Read’s conclusion dence then, gously, methamphet- amount containing grams an unknown .002 of residue disqualify a amine which defendant much .002 methamphetamine, amount of less consideration would be pure methamphetamine, grams of under amount,” is, minimal “useable case, was saleable circumstances of produce pharmaco- amount sufficient undisputed tes- or useable. on Read’s Based by an illicit logical user. effect timony, all of the because almost residue inactive, material, inert the amount meth- IX. amphetamine had to be less than would have in this According to the evidence adduced grams. .002 case, amount, conservatively estimat- Read, would be .05 “of one ed X. drug,” as per pure a first-time hundred cent argues that this case “average-sized” dose for an who was only qualification involves double the metham- not a user. 96 (2) Viernes,9

phetamine at in court in upon reaching issue metham- itself relied its conclu phetamine grams Only in the amount of .0025 sion. then can we assess or whether ADHD, (3) “clearly for -with not available children the court’s decision exceed[ed] dose, inhaled, disregarded] smaller if will in the bounds of or result reason rules (4) ingested, principles more if Klinge, effect than individ- of law.” 92 at Hawai'i 584, (citation levels, (5) omitted). uals 994 have different tolerance P.2d at If 516 could facts argued upon by be inferred that the residue was not or relied saved the trial However, considered, for court overriding pre- ignore future use. are this court would (or misuse) cept judge’s the trial adduced from the evidence at use of that the hear- dis ing grams usurp was that of a cretion and it. residue contain- We would then be ing methamphetamine not substituting reasoning our saleable own and, so, by useable within the court’s doing exercising adult HRS 702- would be 236 framework set forth Vance and con- discretion reserved the trial court. Additionally, accept- firmed Viernes. even opinion, Chief justifying Justice Moon’s value, these contentions face there was the trial court’s decision based on reasons (3), i.e., argument no evidence as to court, not utilized underscores inhaling what was left in the lack of trial reason in the court’s actual the .002 of residue would have by substituting grounds decision for it effect,” (4), i.e., “pharmacological argument judge. announced the trial With all due “tolerance,” prov- Defendant’s level respect, opinion I essentially sup- his believe en, atypical response, result in an or plants judge’s thinking the trial with his own. (5), e., argument i that whatever “future use” As supra, discussed Defendant did adduce put the residue would to would result in satisfying considerable evidence his bur- “pharmacological effect.” given by den and the basis the court for

denying sup- the de minimis motion was not ported by the evidence. XL plurality contends that Defendant XII. produce failed to controverting evidence “(1) respect With to whether the following de minimis attendant circumstances: Car- applies, statute respectfully I must possession multiple disagree michael’s items associ- By with plain Justice Ramil. its language, with ated and distribution use of meth- prohibits 712-1243 amphetamine driving his at excessive “any methamphetamine. amount” of speed The in immediately prior being appre- normally of a hended; tent statute is be obtained arresting officer’s deter- See, language statute itself. mination that appeared Carmichael im- e.g., Aplaca, State v. 96 Hawai'i paired.” 25 Plurality, Hawaii at 99 53 P.3d (2001); Rauch, P.3d State v. 94 219. The attendant first circumstance (2000). Hawai'i P.3d It merely reflects the fact that Defendant was is not controverted charged possession. paraphernalia plain Ramil, J., unambiguous, see dis The second and third circumstances relates note, opinion but, senting/concurring separate charge to the and unassociated no alcohol, more so than HRS 702-236. driving appar- under the influence of immaterial, ently thought irrelevant inas- they

much as were not adressed the trial A. court in findings. its oral Ramil §§ Justice reasons

When we whether a trial consider and 702-236 should be construed in and, such, applying pari materia, has abused its discretion or re are irrec- statute, fusing conflict; therefore, apply the de it is oncilable according necessary Ramil, statute, “specific” examine factors the trial Justice Similarly, amphetamine. 9. die .001 in Viernes was the n. See Hawai'i at 134 gross weight of the residue not of the melh- at 199 n. 712-1243, “gener- § B. should control over the statute, § § al” HRS 702-236. HRS 1-16 pari The in materia rule relates primarily materia, pari that “[l]aws does state in an ambiguous to statute. See construction of matter, subject upon or shall the same 1-16; also 2B § see Sutherland Statu HRS with other” construed reference to each Construction, (“The tory 51.03, § at 202 rule may that in “[w]hat is clear one statute in pari generally of is materia used when explain called in aid to is doubtful in what ambiguity there is doubt or in some the another.” are considered to be in “Statutes consideration.”). wording of statute under the pari they to materia when the relate same mentioned, disagree As I do not that the thing, persons or to the class of same ambiguous wording statutes not or them are things, or purpose or have the same ob- Hence, doubtful. the to need to refer either Statutory Construc- ject.” Sutherland 2B § §or HRS 702-236 712-1243 order ed.2000). 51.03, (6th tion § 201-02 at interpret not Nor the other does arise. do the subject the same matter. statutes address course, statutes, Of the relatedness of the “ out, points As Justice Ramil ‘where there is they appear Hawaii that both Penal the “plainly irreconcilable” conflict between a (HPC) that Code both arise within general specific concerning statute the single prosecution, is the context of not matter, subject specific will same be fa pari are they of determinative whether ”10 Ramil, J., dissenting/concurring vored.’ materia with “There is one another. more to 81, opinion at 99 Hawai'i 53 P.3d at 220 problem simply finding out than whether Putnam, 362, (quoting State v. 93 Hawai'i related, statutes different are since all 373, (2000) (other 1239, 3 P.3d 1250 citations component related as statutes are elements omitted)). However, § 712-1243 HRS does system. object single legal of all supercede § not HRS 702-236 because legal ordering statutes is the of relation- subject do not relate to same matter.11 51.03, Id. ships.” regard, § at 202. In that pari an materia con- §§ we do not believe HRS 702-236 and reflect dif- 712-1243 objectives. applicable. fering legislative struction is As indicated in observe, however, cited, phrase language 10. Justice Ramil contends that within I 712-1243, amount!,]” is, § "|n]otwithstanding any HRS "in "creates that trary,” to the law con- policy 82, 221, solely of a inference zero tolerance id. at 53 P.3d at with deals quantity mandatory leaves no for discussion imposition room term minimum Ramil, J., dissenting/concur- possessed.” imprisonment promoting those convicted of 81, ring opinion 99 Hawaii at P.3d at 220. dangerous drug degree. "Any 53 third law to Ramil, refers, then, According given to Justice this clear indi- contrary” sentencing laws and 'any "possession cation that is intend- generally, including § amount’ not to laws HRS 702-236. act[J” ed to be an indismissible violation 82, 221, application id. at 53 P.3d at of HRS law, developed 11. As in our case the reference to 702-236, judgment § which "would in a result subject applied in "same matter” as context of dismissal!,]” 83, 222, 53 P.3d or order of id. at at narrowly, requiring the HPC viewed has been argued It is creates irreconcilable conflict. substantially similar identical issues not that, "[tjhus, statutory in accordance con- by simply invoked inclusion in the HPC itself. struction, compelled to Kalama, the court is favor HRS 60, 66, See 94 State v. Hawai'i 8 P.3d 712-1243, statute, specific § § 1224, ("This over HRS 702- 1230 is construction con 83, general statute." Id. 53 P.3d at at by pari reading firmed an in materia of HRS analysis infra, per- 222. do not Based on —733(l)(b), §§ 707-734 and both of which con ceive a conflict. exposure person's genitals cern another Putnam, 370-71, according person.”); policy,” 93 This "zero tolerance Jus Hawai'i at 3 P.3d d Ramil, (construing §§ at 625, tice further evinced the 1996 amend 1247-48 HRS an 706-667 712-1243, sentencing); § ment which added the both of which relate to State v. HRS Dudoit, ”[n]otwithstanding words trary” to the con 90 P.2d law Hawai'i 708 701-101, (1999) ("Construed mandatory together, §§ term of im and a minimum HRS 701-102, 701-107, prisonment, dissenting opinion 53 P.3d at define [which 701-108 ‘offense,’] 712-1243(3) (1972), (quoting § added the term establish the term ‘of HRS fense,’ 972), HPC, employed 1996 Haw. Sess. L. Act as well refers to the history legislative pur which indicates the commission of the crime or violation and not to " procedural pose 'respond transpire 712-1243 as a result of is to events ’ ” harm,” commission, e.g., prosecution, P.3d "abuse and social id. at conviction Viernes, (quoting (upon adjudication (Footnote omitted.)). guilt), sentencing.” 92 Hawai'i at omitted)). (other at 199 citation purpose pe there no conflict between the two statutes legislative “[t]he truism relating to and intoxicat follows from the that HRS nal statutes statute, subject § 712- ing compounds—including operative unless the 712-1243, here, respond 1243—is to to ‘abuse and social violated.12 has been ” Hence, harm.’ 92 Hawai'i at P.2d at application the de minimis however, responds a> reject, dif on the fact statute does not but rests mitigating legislative purpose—that of ferent has crime. committed the the defendant statutes, including, of criminal but the effects underlying premise application for the 712-1243, to, § the not limited HRS when then, 702-236, is of § of that violation HRS by sought to controlled the statute is evil be the involved has In affirm- statute occurred. trivial. absent or violation See HRS exists, culpability providing but that such § 702-236. imposed that a conviction should not be scheme, Accordingly, statutory not either conduct of the defendant does objec- encompasses legislative both of these cause harm circumscribed tives, poli- not a “zero does evince tolerance” or so to an too trivial to that it does extent availability of the cy, which would abolish the condemnation, § 702-236 em- warrant HRS dispensation in the de contained minimis policy complement bodies intended to 307, 61 Haw. 602 provisions. See at offenses, disposition including all un- of one (“[T]he possession at 944 of a micro- P.2d 712-1243, § that der would result HRS scopic amount in combination with other fac- Therefore, § conduct. HRS> 702- violative indicating inability to use tors or sell the but, § 236 clash with not HRS 712-1243 does narcotic, may infrac- constitute a de minimis it, fact of culpability. like confirms § meaning within of 702- tion 236[.]”), 92 Hawai'i at (“[I]f quantity of a C.

P.2d at 199 controlled it is minuscule that cannot be substance so It is said that Viernes should overruled way as to or used in such a have sold policy “public based on considerations.” body, human it fol- discernible on the effect Ramil, J., opinion 99 dissentmg/concurring abuse, that cannot lead to lows P.3d at first of Hawaii at 224. The harm, property and violent social or proposition these considerations rests on the crimes.”). “applying [where the de minimis statute § § 712-1243 and HRS As HRS pipe present] is ... would effec- residue policies, prescribing one separate address tively person ... who uses reward[ ] prohibited in connection with conduct less) (as drug.” Id. opposed more other, pros- dismissal possession and of 224. 53 P.3d at has once conduct been estab- ecution such lished, past in the are not concerned someone some time While foriiorañ statutory objectives. enough drugs pipe in a That smoked with the same have 702-236(l)(b) § Any analysis yields it re- under HRS because other inconsistent Declaring applied. § when sult was to warrant the of "too trivial condemnation other, statute, general superceded by as a Id. at P.2d at 272. The conviclion." HPC, arguably specific statutes within would "rejected trial court had defendant’s assertion mean that statute could never the de minimis 702—236(1)(b) |HRS] § him from shielded example, apply to criminal conviction. For reasoning prosecution, actions that defendant's 707-727(1)(b)(Supp.2001) it a HR'S makes 707-727(1)(a) and that fell the terms of within (custodial in the de- crime interference second legislative comply in- a conviction would "intentionally knowingly gree) people court, P.2d tent." Id. at at 271. This custody any person ... ... take[ ] from lawful however, that the defendant’s actions determined custody authority law to the entrusted condemnation, and were to warrant too trivial a con- another trary or an institution.” Under had abused the trial court its discretion analysis, person who invites a minor into charge against dismissing him. See id. home whom he or she knows has fled from his Therefore, although prohib- Akina’s behavior custody provide the minor with foster in order haven, language plain ited under the crime. a safe would be convicted However, Akina, de minimis stat- court, court considered the Akina 73 Haw. in State (1992), applicable. such ute found behavior residue, it, when,- marijuana might reasonably suggest who leave trace seeds smoked speculative. entirely occupant what amount or another and in defendant formerly disqualification apartment possessed permit To from de minimis and used mar- ijuana, justify on that basis run counter that inference would not their consideration sale.”). use, presumption possession notion that present to our inno- arrest for applies any potential posses- past objectives as to cence believe it would contravene the underlying sion the defendant for which there is no 702-236 to rest a blanket itself, except rejection involving possession the residue in a case evidence culpability unproven of a should rest on the evidence ob- trace amounts on an necessarily assumption A speculative prior possession tained. offense re- proof quires speculation greater more than mere amount. that, likely some time in the recent that, policy The second concern is in not past, probably a defendant had his “any standard, adhering amount” to an there possession. or her of] would be trials [where] “distortion People Sullivan, 562, Cal.App.2d In v. issue what amount of re- 234 becomes was drug 524, coverable, Cal.Rptr. (1965), what

44 ‘discernible effect’ that 526 the defendant Ramil, J., drug only dissenting/concurring with of nar has.” was arrested trace amounts 85, opinion at drug paraphernalia. cotic on assorted In 99 Hawaii 53 P.3d at 224. However, reversing possession unlikely, at knowing conviction for is inasmuch narcotic, applied prosecution’s proof of a the court case law that tidal burden of re- garding of a impercep held “that is the elements 712-1243 had whére narcotic offense, including possession eye requi- to the human can and the presence tible and its mind, 712-1243; analysis, see only through be detected site state of chemical (1993), disposed are not of is insufficient to a con HRS the evidence sustain by possession for known narcotic.” of viction of the the amount found. Aguilar, (referring People 525 223 amount an Id. at to v. The becomes issue when (1964)). Cal.App.2d Cal.Rptr. 35 In defendant has filed motion under HRS 516 702-236, generally at prosecution’s with disagreeing contention decided respect with die possessed “knowingly,” narcotic trial. Even if evidence to that the trial, upon minimis factors are adduced at the fact that ad evi- based the defendant extensive, using day, drugs in the dence of such factors would not be mitted earlier appellate court noted with disfavor the conse because are often related to the circum- arrest, any potential of unto- quences which would such an stances result from may through be ward effects avoided a cau- approach: necessary. if tionary instruction logic The of this contention would convert past possession of recent of nar- evidence posited is policy third consideration proof present possession cotics into of possibility “application [the .... accept narcotics Were we to evidence drug possession statute] minimis cases past possession recent narcotics as contradictory, if not ab destined lead proof equivalent present possession surd, the result could well [because] results narcotics, every charge then we could ad- differ from to courtroom ex courtroom currently who was the influ- [under dict expert pert expert” testimony estab possession of a narcotics] ence Ramil, culpability lishes criminal thresholds. narcotic, since he must have had [or she] J., dissenting/concurring opinion 99 Hawai'i possession of narcotic in the recent (footnote omitted). at 225 In 53 P.3d in past order to come under its influence. Vance, recognized legisla this court that the Fein, prohibited People 526. also 4 Cal.3d the amount of Id. at See v. ture determines Cal.Rptr. proscribed. 94 484 P.2d 583 for which (1971), Vance, superceded Haw. at on other 602 P.2d statute See Lissauer, Viernes, grounds People In this court stated in 944. adhered to that, Cal.Rptr. proposition, confirming Cal.App.3d 422 n. fundamental (“Although presence pointed two burnt “[a]s out the determination phar- ble, producing an illicit necessary capable of drug to consti i.e. amount of a of the effect, defen- purview macological linked solely within the falls tute offense support in a involvement crime 92 Hawai'i dant’s legislature.” of the added). foregoing three (emphasis at the time. The P.2d at 200 habit may readily employed the trial factors be view, my the variations results in de exercising them discretion courts may Ramil be minimized concern Justice cases, inasmuch as to do so of the three the trial court’s consideration of discretion. not constitute abuse would Vance, Viernes, and the factors identified history § 712-1243. legislative of HRS See XIV. page page

supra 99 Hawaii would Any perceived variations results pos- amount light of the unmeasurable particular consequence cir- then be a sessed, questions as a matter of arise serious Also, I individual eases. do cumstances of knowingly could law as to whether Defendant expert pharmacological that a not believe pos- amount. Even were possess such every necessarily required in ease amount not re- of an unmeasurable session was not to establish that substance order law, question as a matter of solvable or saleable. useable particular defen- as to whether a remains presented is that fourth consideration fact, dant, knowingly pos- as a matter of history prior use defendant’s amount contained an unmeasurable sessed brought trial in order to show out at legally That cannot be fore- residue. issue Ramil, J., use. dis- tolerance See closed; possession not to hold so would make senting/concurring opinion 99 Hawaii at liability. “knowing” but one of strict offense However, application 53 P.3d at 225. (1993) (explaining 702-212 See HRS only in generally § 702-236 arises requirements” of the HPC of mind “the state pretrial to dismiss on de course of a motion apply ... crime defined [a] “do not grounds and introduction of such Code, insofar as a than this statute other may appro- in a trial prior use be avoided purpose impose absolute liabili- legislative priate court order. respect ty or with for such offense appears”) plainly element thereof XIII. long ago this court announced XV. applied de minimis statute Considering adduced the evidence 307, 602 61 Haw. at offenses. See challenge lack of hearing, and the so, doing no than P.2d at 944. In it did more credibility, I would hold that Read’s scope acknowledge the of HRS motion exceed- of Defendant’s court’s denial to all which extends offenses. Therefore, I would of reason. ed the bounds sought legislative this court to harmonize the (1) July court’s 1999 order vacate objectives (2) motion and denying Defendant’s Vance, holding that de light § 712-1243 in judgment insofar as relates and sentence applied can be where minimis consideration case and II. I would remand the to Count methamphetamine possessed the amount of an order dis- that the court enter instruct produce illicit would not effect. See Sep- II and that it amend the missing Count P.2d at 199. Hawaii at Garnered judgment and sentence ac- tember then, history, I conclude that the from this cordingly.13 qualification establishing that the threshold does not cause the defendant’s conduct either proscribed

harm to be trivial

§ 712-1243 so to an extent too or does possession of an

to warrant conviction is drag not usea-

amount of saleable denying to dismiss on the motion its discretion that the court abused 13. Because believe

53 P.3d 240 TELLER, Plaintiff-Appellee,

Mei Li TELLER, Jr.,

Howard Scott

Defendant-Appellant.

No. 22440.

Supreme of Hawai'i. Court

Aug. 2002. Sept.

Reconsideration Denied 702-236(1)(c). 702-236(1)(b), respect to HRS grounds in HRS set forth arguments parties do not consider the Officer Callinan’s relat- As Justice notes the Viernes court), legislative history regarding underlying constituting facts ed dangerous adopted by legislature in promoting drug. the offense of amendments Combined, they secondary support finding purpose. that De- 1996 confirms this See 712-1243, Ramil, J., opinion prereq- dissenting/eoncurring 6. fendant violated HRS amendments, “in- for invocation of but In those uisite per disqualification dispen- penalties pos- not for a se creased the attendant methamphetamines sation 702-236. session or distribution afforded under HRS responding “high." to the court's comment amounts each time to achieve the same view, point drugs, "from a scientific it would be importantly, the ex- More all the impossible extent, to have a nar- highly ception addictive; are of cocaine to some

Case Details

Case Name: State v. Carmichael

Court Name: Hawaii Supreme Court

Date Published: Sep 9, 2002

Citation: 53 P.3d 214

Docket Number: 22871

Court Abbreviation: Haw.