Possession of a Controlled Substance in Hawaii

All states, including Hawaii, regulate the possession of controlled substances, though each differs in its exact scheduling of drugs and the penalties for illegal possession. This article discusses Hawaii's laws on illegal possession of controlled substances for personal use only. Drug sales and possession with intent to sell carry harsher penalties.

How Hawaii Classifies Controlled Substances

Hawaii divides controlled substances into five schedules—Schedules I to V. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule V drugs are the least dangerous and the least addictive. Below are examples of drugs placed into each schedule.

Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, and psilocybin.

Schedule II includes drugs such as raw opium, codeine, oxycodone, morphine, cocaine, fentanyl, carfentanil, and meth.

Schedule III includes drugs such as pentobarbital, ketamine, anabolic steroids, and buprenorphine.

Schedule IV includes drugs such as barbital, diazepam (Valium), flunitrazepam (Rohypnol), lorazepam (Ativan), and tramadol.

Schedule V includes therapeutic medicines containing low amounts of codeine or other narcotics combined with non-narcotic active ingredients.

(Haw. Rev. Stat. §§ 329-14, 329-16, 329-18, 329-20, 329-22 (2023).)

Hawaii's Illegal Drug Possession Laws

Illegal drug possession falls under Hawaii's drug "promotion" laws. The state divides promotion offenses into three categories—those involving:

• dangerous drugs, which include Schedule I and II drugs (except marijuana) and GHB
• harmful drugs, which include Schedule III and IV drugs and marijuana concentrate, and
• detrimental drugs, which include Schedule V drugs and marijuana.

Penalties depend on the type and amount of drug possessed. Repeat offenders may face extended terms of imprisonment.

Penalties for Illegal Possession of Dangerous Drugs (Schedule I and II) in Hawaii

Some of the harshest penalties apply to illegal possession of dangerous drugs.

Promoting a Dangerous Drug in the First Degree

A person commits a class A felony by illegally possessing (1) one ounce or more of meth, heroin, morphine, or cocaine, or (2) one and one-half ounce or more of any other dangerous drugs. Class A felony penalties include up to 20 years of prison time and fines of up to $50,000.

Promoting a Dangerous Drug in the Second Degree

Class B felony penalties apply to illegal possession of:

• 25 or more capsules, tablets, or dosage units of a dangerous drug(s)
• one-eighth ounce or more of a preparation containing meth, heroin, morphine, or cocaine, or
• one-fourth ounce or more of a preparation containing any other dangerous drug.

A person convicted of a class B felony faces 5 to 10 years of prison time and a maximum fine of $25,000.

Promoting a Dangerous Drug in the Third Degree

All other possession offenses involving dangerous drugs not described above are class C felonies, punishable by one to five years in prison and a $10,000 fine.

(Haw. Rev. Stat. §§ 712-1241, 712-1242, 712-1243 (2023).)

Penalties for Illegal Possession of Harmful Drugs (Schedule III and IV and Hashish) in Hawaii

Felony and misdemeanor penalties apply to illegal possession of harmful drugs.

Promoting a Harmful Drug in the First Degree

Illegal possession of the following harmful drugs is a class A felony:

• 100 or more capsules, tablets, or dosage units of harmful drugs or marijuana concentrate, or
• one ounce or more of a preparation containing any harmful drug or marijuana concentrate.

Class A felonies carry penalties of up to 20 years' prison time and a $50,000 fine.

Promoting a Harmful Drug in the Second Degree

It's a second-degree offense to illegal possess:

• 50 to 99 capsules, tablets, or dosage units of harmful drugs or marijuana concentrate, or
• one-eighth ounce or more of a preparation containing any harmful drug or marijuana concentrate.

This offense carries Class B felony penalties of 5 to 10 years of prison time and a $25,000 fine.

Promoting a Harmful Drug in the Third Degree

A person commits a class C felony for illegally possessing 25 to 49 capsules, tablets, or dosage units of harmful drugs or marijuana concentrate. A conviction means one to five years of incarceration and a maximum $10,000 fine.

Promoting a Harmful Drug in the Fourth Degree

All other illegal possession crimes relating to harmful drugs are misdemeanors, punishable by up to a year in jail and $2,000 in fines.

(Haw. Rev. Stat. §§ 712-1244, 712-1245, 712-1246, 712-1246.5 (2023).)

Penalties for Illegal Possession of Detrimental Drugs (Schedule V and Marijuana) in Hawaii

The least severe penalties apply to illegal possession of detrimental drugs.

Promoting a Detrimental Drug in the First Degree

It's a class C felony to possess:

• 400 or more capsules or tablets containing a Schedule V drug
• one ounce or more of a preparation containing a Schedule V drug
• one pound or more of any preparations containing marijuana, or
• 25 or more marijuana plants.

Class C felonies carry one to five years' incarceration and a $10,000 fine.

Promoting a Detrimental Drug in the Second Degree

A person commits a misdemeanor by illegally possessing:

• 50 to 399 capsules or tablets containing a Schedule V drug
• one-eighth ounce or more of a preparation containing a Schedule V drug, or
• one ounce or more of any preparations containing marijuana.

A conviction can mean up to a year in jail, plus $2,000 in fines.

Promoting a Detrimental Drug in the Third Degree

A person who possesses three grams or less of marijuana commits a violation, punishable by a fine of $130. All other illegal possession offenses involving a Schedule V drug or marijuana in any amount not listed above are petty misdemeanors, which carry a 30-day jail sentence and up to $1,000 in fines.

(Haw. Rev. Stat. §§ 712-1247, 712-1248, 712-1249 (2023).)

Will First-Time Offenders for Drug Possession Get Jail Time in Hawaii?

It depends. Hawaii offers a number of sentencing alternatives that may avoid jail time and, sometimes, a conviction. First-time offenders generally qualify, but these alternatives hinge on compliance with the court's terms. And, for the most part, these alternatives are one-time deals. For instance, a defendant gets one shot at discharge and dismissal.

Conditional Discharge and Dismissal

A person who's found guilty of, or pleads guilty to, a second- or third-degree drug possession offense (except second-degree dangerous drugs) may qualify for conditional discharge. The person can't have any prior drug convictions. Under this program, the court holds off on entering a conviction and instead places the defendant on probation. If successful on probation, the court will discharge the person and dismiss the case, meaning there's no conviction. This is a one-time opportunity.

(Haw. Rev. Stat. § 712-1255 (2023).)

Probation for First- and Second-Time Offenders

A person facing their first or second conviction for drug possession or use may qualify for probation and treatment—if the court determines the person is nonviolent and would benefit from dependency treatment. Instead of sending the defendant to serve time behind bars, the judge places the defendant on probation with treatment as a condition. A defendant who successfully completes probation and treatment can ask the judge to expunge their conviction.

(Haw. Rev. Stat. § 706-6225 (2023).)

Drug Courts

Many judicial districts have specialty courts, including drug courts. Drug court doesn't avoid a conviction, but it offers intensive supervision and support to offenders suffering from addiction. Drug courts are run by a team of professionals, including judges, attorneys, probation officers, and treatment providers, who work together to aid in the defendant's recovery. A defendant will face both sanctions and incentives as part of the program.

Possible Defenses to Drug Possession Charges in Hawaii

Defendants facing controlled substance charges have several defense strategies available to them.

Actual innocence. Defendants charged with a drug-related crime have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "the alleged conduct did not occur."

Lack of knowledge. Defendants can try to show the jury that they did not have knowledge of the controlled substance being in their possession. For example, if a hitchhiker gets a ride from a passing car and the police locate a bag of heroin under the hitchhiker's seat, the defense will argue the defendant had no knowledge of the bag hidden under their seat.

Unlawful search and seizure. A common defense in drug possession cases includes asking the court to exclude evidence of the drugs at trial based on an unlawful search or seizure by police. Without evidence of the drugs, a prosecutor's case might fall apart, resulting in a reduction of charges or a dismissal altogether. Defense teams do this by scrutinizing and calling out faulty or suspect police methods used in gathering or handling the evidence.

Overdose immunity. A Good Samaritan who seeks medical assistance for someone facing a drug overdose cannot be arrested or charged with drug possession charges. This immunity extends to the person experiencing the overdose as well. (Haw. Rev. Stat. § 329-43.6 (2023).)

Talk to a Lawyer

If you've been charged with a drug-related offense in Hawaii, contact a local criminal defense attorney as soon as possible. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.