State v. Baker, s. 5723
| Decision Date | 12 May 1975 |
| Docket Number | Nos. 5723,5734 and 5737,5728,5732,s. 5723 |
| Citation | 56 Haw. 271,535 P.2d 1394 |
| Parties | STATE of Hawaii, Plaintiff-Appellant, v. Thomas W. R. BAKER, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. Donald S. DIXON, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. David Bokie EVANGELISTA et al., Defendants-Appellees. STATE of Hawaii, Plaintiff-Appellant, v. Jeffrey M. SCHAEFER, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. Tommy J. MITCHELL et al., Defendants-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Ordinarily, there is a presumption of constitutionality of a statute.
2. When a statute proscribes a substance as harmful, the presumption of constitutionality applies although there are conflicting scientific views as to its harmful effects. This rule applies in marijuana cases.
3. Article I, section 5 of the State Constitution does not elevate the right of privacy to the equivalent of a first amendment right.
4. A statute proscribing the commercial distribution of harmful substances may sweep within its ambit, as an enforcement measure, the possession of the substance for personal use. This rule applies to section 1249 of the Hawaii Penal Code (Act 9, S.L.H.1972) proscribing the possession of marijuana.
5. It was within the prerogative of the legislature to decide that possession of marijuana should not be decriminalized.
Charlotte Libman, Deputy Pros. Atty., Barry Chung, Pros. Atty. City and County of Honolulu, Honolulu, for plaintiff-appellant.
Chris Peterson, Deputy Public Defender, Donald K. Tsukiyama, Public Defender, Honolulu, for defendants-appellees.
Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and R. V. LEWIS, Retired Justice, assigned by reason of vacancy.
Each of the defendants in these consolidated cases was charged in the District Court of the First Circuit under section 1249 of the Hawaii Penal Code, 1 which reads:
Sec. 1249-Promoting a detrimental drug in the third degree.
(1) A person commits the offense of promoting a detrimental drug in the third degree if he knowingly and unlawfully possesses any marijuana or any Schedule V substance in any amount.
(2) Promoting a detrimental drug in the third degree is a petty misdemeanor.
The court held the statute unconstitutional insofar as it related to the possession of marijuana with which defendants were charged, and the State appealed. 2
The following review is necessary for comprehension of the statutory scheme.
Section 1249, promoting a detrimental drug in the third degree, is part of Part IV, chapter 12, of the Penal Code. Under Part IV, the offenses of promotion of a detrimental durg in the first degree and in the second degree 3 insofar as they relate to marijuana, apply to possession of 2.2 pounds or more (first degree) or one ounce or more (second degree) of a substance containing marijuana, distribution of two ounces or more of such a substance (first degree), distribution of marijuana in any amount to a minor who is at least three years the offender's junior (first degree), and sale of any marijuana (second degree).
It thus appears that a person who does not sell or distribute marijuana and possesses less than one ounce may be charged only with third degree under section 1249, a petty misdemeanor. 4
Marijuana is defined by section 1240(6) as follows:
(6) 'Marijuana' means any part of the plant cannabis sativa, whether growing or not, including the seeds and the resin, and every alkaloid, salt, derivative, preparation, compound, or mixture of the plant, its seeds or resin, except that, as used herein, 'marijuana' does not include hashish, tetrahydrocannabinol, and any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahy-drocannabinol;
Each of the substances excepted by this definition is included within the definition of 'marijuana concentrate,' pursuant to section 1240(7). A marijuana concentrate is classified as a 'harmful drug' by section 1240(2). Under Part IV, promoting a harmful drug in the third degree is a misdemeanor, 5 in contrast with the petty misdemeanor involved here.
The most serious of the offenses set out in Part IV relates to 'dangerous drugs.' Promoting a dangerous drug in the third degree is a Class C felony. 6 The term 'dangerous drug' is defined by section 1240(1) by referring to revised HRS chapter 329 (1974 Supp.), the Uniform Controlled Substances Act, enacted by Act 10 of the 1972 session, the same session which enacted the Penal Code. This act contains five schedules of controlled substances, Schedules I and II of which relate to substances which have 'the highest (or a high) degree of danger or probable danger.' 7
It is these Schedule I and II substances, except marijuana and marijuana concentrates, which are classified as 'dangerous drugs' for purposes of Part IV of chapter 12 of the Penal Code, above referred to. Schedule III and IV substances, with marijuana concentrates, are classified as 'harmful drugs' 8 while Schedule V substances, with marijuana, are treated as 'detrimental drugs.' 9
As shown by the committee reports 10 on the bills which enacted the Penal Code and the Uniform Controlled Substances Act, the placing of controlled substances into several schedules in the Uniform Controlled Substances Act was complementary to the Federal Comprehensive Drug Abuse and Control Act of 1970 (). This was done 'to achieve uniformity between Hawaii's criminal and health laws and those of the Federal Government to enable government at all levels to control more effectively the drug abuse problem.' The legislature integrated the schedules with the Penal Code's 'approach of distinguishing the severity of offense on the basis of the amount of the substance possessed or dispensed.' 11 With particular reference to marijuana it was stated:
One area on which the Committee spent a considerable period of study was the disposition of marijuana. Your Committee finds the present sanctions in Hawaii are inconsistent with the philosophy of this Code to penalize according to the degree of social harm. Your Committee finds there is good reason to moderate present punitive statutes so that penalties are more in keeping with what is now known about the potential for abuse and social harm involved. 12
The District Court placed on the State the burden of showing clearly and convincingly that the possession of marijuana in violation of section 1249 constitutes a harm either to the individual or the community. It held the State had not met this burden and that section 1249 violated the due process clauses of the State and United States Constitutions. The primary question on appeal is whether the trial court's reversal of the ordinary presumption of constitutionality 13 was error.
Defendants contend that the State's interest in proscribing marijuana is 'patently de minimis and does not warrant the application of a penal sanction to the mere possession of marijuana for personal use.' In this argument scant attention is paid to the presumption of constitutionality.
We first consider the State's interest in proscribing marijuana. For reasons which will appear, we do not distinguish at this point between commercial distribution on the one hand, and possession for personal use, on the other. As the second part of our consideration of this matter we proceed to the question of whether the legislature was warranted in making mere possession of marijuana a petty misdemeanor, with the concomitant penal sanctions prescribed for that offense.
It is well settled that when a substance has been proscribed as harmful, the presumption of constitutionality applies although there are conflicting scientific views as to its harmful effects. This rule has been applied in marijuana cases. As stated in United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973):
* * * recent discussions of this issue suggest that the present state of knowledge of the effects of marihuana is still incomplete and marked by much disagreement and controversy. * * * It is true that the rationalization for the criminalization of marihuana has shifted over time. * * * This, however, does not negate the possibility that the justification now principally relied upon may have some merit. (pp. 353-354).
* * * the question before us is a narrow one. It is whether it can fairly be said that Congress acted irrationally in prohibiting the commercial distribution of marihuana. We believe that the answer to that question is no. * * * (p. 355).
Kiffer considered both reports of the National Commission on Marijuana. 14 Subsequently, under the Marihuana and Health Reporting Act, 15 two further federal reports were made on this subject. The earlier of these reports states in the Introduction:
* * * Despite more recent evidence, there are still important unresolved questions. One of these concerns the implications of long-term use; another the possible interactive effects of cannabis with other drugs in widespread use. * * * 16
The later report contains the following:
The preclinical findings of greatest interest and potential significance during the past two years have been a series of studies indicating that delta-9-THC (and possibly other marihuana constituents) have an effect upon certain basic cellular mechanisms * * *. Since this may interfere with basic biological processes, the preliminary data raise the possibility that the effects of marihuana, under some circumstances, may be more widespread in the organism than has been previously thought. * * * 17
We hold, as was held in Kiffer, supra, that the presumption of constitutionality applies and has not been rebutted by inconclusive reports of this nature. Acord: Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); United States v. Thorne, 325 A.2d 764 (D.C.Ap...
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