”’Mark Bennett, the state attorney general, testified on S.B. 3233, relating to the illegal use of controlled substances before the Senate Committee on Judiciary and Hawaiian Affairs and Health on Saturday, Feb. 7, 2004, at the Hawaii State Capitol Auditorium.”’

The Department of the Attorney General recognizes and appreciates the work of the Joint Task Force and the obvious time and effort that went into this bill.

Nevertheless, we must oppose portions of this bill, and we note that we believe Hawaii’s police chiefs and prosecutors will also oppose portions of this bill.

The purpose of this bill is to add and amend various laws relating to criminal conduct for drug related offenses, amend laws relating to arrest and search warrants for drug offenses, amend laws relating to first time nonviolent drug offender diversion to substance abuse treatment, add tort liability for drug dealers, add new laws relating to employer sponsored substance abuse treatment and prevention programs and employer reimbursement for substance abuse treatment, amend the zero tolerance rule for public school students who are charged with drug offenses, amend existing law to provide parity in health insurance benefits for crystal methamphetamine addiction, amend the duties of the Office of Community Services to include coordination of the drug abatement efforts between public, private and community organizations, add new laws on civil commitment for substance abuse outpatient treatment, add new laws to facilitate the development of drug rehabilitation homes for recovering addicts, and add responsibility for methamphetamine removal to the responsibilities of the Department of Health.

We note that portions of section 3 of the bill raise issues relating to Apprendi v. New Jersey, 530 U.S. 466 (2000), and the bill should make clear that the factual findings necessary for increased punishment need to be proven beyond a reasonable doubt to the trier of fact.

In addition, section 3 of the bill, in combination with sections 5 and 6 of the bill, removes mandatory minimum terms for those convicted of felony possession of large amounts of methamphetamine, and we oppose this change in the law. Individuals do not possess large quantities of methamphetamine for mere “personal use.”
We adamantly oppose sections 10, 11, and 12 of the bill.

The administration and the Law Enforcement Coalition have proposed changes to the law, affecting the same sections addressed in section 10, 11, and 12 of the bill. These changes are proposed in HB 2369/SB 2844, particularly in sections 2, 5, and 6 of HB 2369/SB 2844.
We believe, first of all, that the proposals in HB 2369/SB 2844 better protect the community, while allowing true first-time offenders a chance for immediate rehabilitation.

We also believe, however, that procedurally, HB 2369/SB 2844, and the provisions in that bill, should be heard at the same time this bill is considered, so that the “competing” versions of the same statutes to be changed can be considered on their respective merits at the same time. We particularly note the following.

Section 10 of the bill continues the present law which bars any “first-time” parole revocation for drug possession or use. We believe that this removal of discretion from the Parole Board makes little sense, and in fact gives parolees advance knowledge that they will have “one free bite at the apple.” This, we believe, actually interferes with the likelihood that parolees will succeed. The Parole Board needs the ability to revoke violators, even though it may ultimately choose not to revoke certain “first-time” violators.
We believe Section 11 is clearly objectionable to the law enforcement community.

Repeat offenders, even if convicted of drug offenses, should not get probation. This section would actually reverse the well-reasoned decision of the Hawaii Supreme Court that the mandatory sentencing provisions of the Hawaii Penal Code require those drug users with multiple felony convictions to be sent to jail. State of Hawaii v. Smith, Slip Opinion, No. 25726, Dec. 26, 2003.

The Hawaii Supreme Court’s decision made legal and policy sense. Why should a drug user with multiple felony convictions not serve even one day of jail when any other criminal with multiple prior offenses would be given a mandatory prison sentence? In addition, if the intent of the bill is not to provide benefit to those who are convicted of other felonies in addition to drug offenses, the bill should plainly say so, or run the risk of being interpreted in a contrary manner.

Section 12 of the bill continues the present law which bars any “first-time” probation revocation for drug possession or use. We believe that this removal of discretion from sentencing judges makes little sense, and in fact gives probationers advance knowledge that they will have “one free bite at the apple.” Probation is already a privilege, a second mandatory privilege is unnecessary. We also believe it would actually interfere with the likelihood that probationers will succeed. Sentencing judges need the ability to revoke violators, even though they may ultimately choose not to revoke certain “first-time” violators.

Sections 14 and 15 of the bill are well-intentioned, but are unlikely to be effective in preventing the suppression of evidence seized pursuant to federal warrants/affidavits, if that is their intention. If the Hawaii Supreme Court rules that the evidence has been obtained in conformance with the United States Constitution, but in violation of the Hawaii Constitution, statutory sections authorizing the use of evidence obtained pursuant to federal warrants will be ineffective. A state legislature cannot overrule a state supreme court with legislation.

A Hawaii Supreme Court ruling that certain activities or evidence gathering is in violation of the state constitution can be overruled only by an amendment to the state constitution. The Law Enforcement Coalition has proposed just such an amendment in HB 2376/SB 2851, and this amendment has the support of every prosecuting attorney and every chief of police in Hawaii.

Moreover, to the extent the bill authorizes in (section 14), the use of federal affidavits to actually obtain a state arrest warrant, in practice, that ability already exists. An affidavit by a federal officer can, in practice, be used to try to obtain a state arrest warrant. The portion of the bill that states that a federal arrest warrant shall be deemed “sufficient” to obtain a particular type of state arrest warrant is unclear in its wording, but does not purport to (and could not constitutionally) insulate the state arrest and/or state warrant from state constitutional challenge.

With regard to section 15, the concerns are the same. Appropriate federal affidavits can already be used to help obtain state warrants, but no state law could protect a state search warrant from state constitutional challenge, if the state court ultimately found the state warrant insufficient.

We do note that in the administration’s electronic surveillance bill, HB 2370/SB 2845, the following language: “All otherwise admissible electronic surveillance evidence obtained pursuant to a federal order authorizing the electronic surveillance shall be admissible in Hawaii courts,” would be effective, because evidence obtained pursuant to a federal surveillance order is (in our view) necessarily obtained in conformance with the Hawaii constitution.

We do not comment in this written testimony on certain portions of the bill, which we believe will be addressed by other State officials. It is our hope, however, that Administration bills, sponsored by the State Law Enforcement Coalition, addressing issues of public safety, will receive appropriate hearings and consideration.

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