PART I.  GENERAL PROVISIONS

 

     §329-1 

Definitions.  As used in this chapter:

     "Abuse"

means the misuse of a substance or the use of a substance to an extent deemed

deleterious or detrimental to the user, to others, or to society.

     "Address"

means, with respect to prescriptions, the physical location where an individual

resides such as:

     (1)  Street address, city,

and state;

     (2)  Tax map key number; or

     (3)  The description of a

physical location.

     "Administer"

means the direct application of a controlled substance, whether by injection,

inhalation, ingestion, or any other means, to the body of a patient or research

subject by:

     (1)  A practitioner (or, in

the practitioner's presence or at the practitioner's direction, by a licensed

or registered health care professional acting as the practitioner's authorized

agent), or

     (2)  The patient or

research subject at the direction or in the presence of the practitioner.

     "Administrator"

means the administrator of the narcotics enforcement division of the department

of public safety.

     "Advanced

practice registered nurse with prescriptive authority" means a person

licensed under section 457-8.6 who is registered under this chapter to

administer or prescribe a controlled substance; provided that an advanced

practice registered nurse with prescriptive authority shall not be authorized

to request, receive, or sign for professional controlled substance samples.

     "Agent"

means an authorized person who acts on behalf of or at the direction of a

manufacturer, distributor, or dispenser.  It does not include a common or

contract carrier, public warehouseman, or employee of the carrier or

warehouseman.

     "Bureau"

or "DEA" means the Drug Enforcement Administration, United States

Department of Justice, or its successor agency.

     "Central fill

pharmacy" means a pharmacy located in the State that is registered

pursuant to section 329-32 to prepare controlled substance orders for

dispensing to the ultimate user pursuant to a valid prescription transmitted to

it by a registered pharmacy.

     "Central

repository" means a central repository established under section 329-102.

     "Controlled

substance" means a drug, substance, or immediate precursor in schedules I

through V of part II.

     "Counterfeit

substance" means a controlled substance which, or the container or

labeling of which, without authorization, bears the trademark, trade name, or

other identifying mark, imprint, number or device, or any likeness thereof, of

a manufacturer, distributor, or dispenser other than the person who in fact

manufactured, distributed, or dispensed the substance.

     "Deliver"

or "delivery" means the actual, constructive, or attempted transfer

or sale from one person to another of a controlled substance or drug

paraphernalia, whether or not there is an agency relationship.

     "Department"

means the department of public safety.

     "Designated

member of the health care team" includes physician assistants, advanced

practice registered nurses, and covering physicians who are authorized under

state law to prescribe drugs.

     "Designated

state agency" means the narcotics enforcement division, department of

public safety.

     "Detoxification

treatment" means the dispensing, for a specific period of time, of a

narcotic drug or narcotic drugs in decreasing doses to an individual to

alleviate adverse physiological or psychological effects incident to withdrawal

from the continuous or sustained use of a narcotic drug and as a method of

bringing the individual to a narcotic drug-free state within a specified period

of time.  There are two types of detoxification treatments:  short-term

detoxification treatment and long-term detoxification treatment;

     (1)  Short-term

detoxification treatment is for a period not in excess of thirty days; and

     (2)  Long-term

detoxification treatment is for a period more than thirty days but not in

excess of one hundred eighty days.

     "Dispense"

means to deliver a controlled substance to an ultimate user or research subject

by or pursuant to the lawful order of a practitioner, including the

prescribing, administering, packaging, labeling, or compounding necessary to

prepare the substance for that delivery.  A controlled substance is dispensed

when:

     (1)  It is compounded,

prepared, labeled and packaged pursuant to the lawful order of a practitioner

by a licensed pharmacist acting in the usual course of his professional

practice and who is either registered individually or employed in a registered

pharmacy or by a registered institutional practitioner, for delivery to the

ultimate user;

     (2)  It is compounded,

prepared, labeled and packaged for delivery to the ultimate user by a

practitioner acting in the usual course of his professional practice;

     (3)  It is prepared,

labeled, and packaged pursuant to the lawful order of a practitioner by a

registered health care professional acting as an agent of the practitioner for

delivery to the ultimate user by the practitioner; or

     (4)  It is prepackaged by a

pharmacist for use in an emergency facility for delivery to the ultimate user

by a licensed or registered health care professional pursuant to the order of a

physician.

     "Dispenser"

means a practitioner who dispenses.

     "Distribute"

means to deliver other than by administering or dispensing a controlled

substance.

     "Distributor"

means a person who distributes.

     "Drug"

means:

     (1)  Substances recognized

as drugs in the official United States Pharmacopoeia, official Homeopathic

Pharmacopoeia of the United States, or official National Formulary, or any

supplement to any of them;

     (2)  Substances intended

for use in the diagnosis, cure, mitigation, treatment, or prevention of disease

in man or animals;

     (3)  Substances (other than

food) intended to affect the structure or any function of the body of man or

animals; and

     (4)  Substances intended

for use as a component of any article specified in clause (1), (2), or (3) of

this subsection.  It does not include devices or their components, parts, or

accessories.

     "Drug

Enforcement Administration registration number" means the practitioner's

Drug Enforcement Administration controlled substance registration number.

     "Drug

paraphernalia" means all equipment, products, and materials of any kind

which are used, primarily intended for use, or primarily designed for use, in

planting, propagating, cultivating, growing, harvesting, manufacturing,

compounding, converting, producing, processing, preparing, testing, analyzing,

packaging, repackaging, storing, containing, concealing, injecting, ingesting,

inhaling, or otherwise introducing into the human body a controlled substance

in violation of this chapter.  It includes but is not limited to:

     (1)  Kits used, primarily

intended for use, or primarily designed for use in planting, propagating,

cultivating, growing, or harvesting of any species of plant which is a

controlled substance or from which a prohibited controlled substance can be

derived;

     (2)  Kits used, primarily

intended for use, or primarily designed for use in manufacturing, compounding,

converting, producing, processing, or preparing prohibited controlled

substances;

     (3)  Isomerization devices

used, primarily intended for use, or primarily designed for use in increasing

the potency of any species of plant which is a prohibited controlled substance;

     (4)  Testing equipment

used, primarily intended for use, or primarily designed for use in identifying,

or in analyzing the strength, effectiveness, or purity of prohibited controlled

substances;

     (5)  Scales and balances

used, primarily intended for use, or primarily designed for use in weighing or

measuring prohibited controlled substances;

     (6)  Diluents and adulterants;

such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, used,

primarily intended for use, or primarily designed for use in cutting prohibited

controlled substances;

     (7)  Separation gins and

sifters used, primarily intended for use, or primarily designed for use in

removing twigs and seeds from, or in otherwise cleaning or refining, prohibited

marijuana;

     (8)  Blenders, bowls,

containers, spoons, and mixing devices used, primarily intended for use, or

primarily designed for use in compounding prohibited controlled substances;

     (9)  Capsules, balloons,

envelopes, and other containers used, primarily intended for use, or primarily

designed for use in packaging small quantities of prohibited controlled

substances;

    (10)  Containers and other

objects used, primarily intended for use, or primarily designed for use in

storing or concealing prohibited controlled substances;

    (11)  Hypodermic syringes,

needles, and other objects used, primarily intended for use, or primarily

designed for use in parenterally injecting prohibited controlled substances

into the human body;

    (12)  Objects used,

primarily intended for use, or primarily designed for use in ingesting,

inhaling, or otherwise introducing prohibited marijuana, cocaine, hashish,

hashish oil, or methamphetamine into the human body, such as:

         (A)  Metal, wooden,

acrylic, glass, stone, plastic, or ceramic pipes with or without screens,

permanent screens, hashish heads, or punctured metal bowls;

         (B)  Water pipes;

         (C)  Carburetion

tubes and devices;

         (D)  Smoking and

carburetion masks;

         (E)  Roach clips: 

meaning objects used to hold burning materials, such as marijuana cigarettes,

that have become too small or too short to be held in the hand;

         (F)  Miniature

cocaine spoons, and cocaine vials;

          (G)  Chamber pipes;

         (H)  Carburetor

pipes;

         (I)  Electric pipes;

         (J)  Air-driven

pipes;

         (K)  Chillums;

         (L)  Bongs; and

         (M)  Ice pipes or

chillers.

     In determining

whether an object is drug paraphernalia, a court or other authority should

consider, in addition to all other logically relevant factors, the following:

     (1)  Statements by an owner

or by anyone in control of the object concerning its use;

     (2)  Prior convictions, if

any, of an owner, or of anyone in control of the object, under any state or federal

law relating to any controlled substance;

     (3)  The proximity of the

object, in time and space, to a direct violation of this chapter;

     (4)  The proximity of the

object to controlled substances;

     (5)  The existence of any

residue of controlled substances on the object;

     (6)  Direct or

circumstantial evidence of the intent of an owner, or of anyone in control of

the object, to deliver it to a person or persons whom the owner or person in

control knows, or should reasonably know, intend to use the object to

facilitate a violation of this chapter; the innocence of an owner, or of anyone

in control of the object, as to a direct violation of this chapter shall not

prevent a finding that the object is intended for use, or designed for use as

drug paraphernalia;

     (7)  Instructions, oral or

written, provided with the object concerning its use;

     (8)  Descriptive materials

accompanying the object which explain or depict its use;

     (9)  National and local

advertising concerning its use;

    (10)  The manner in which

the object is displayed for sale;

    (11)  Whether the owner, or

anyone in control of the object, is a legitimate supplier of like or related

items to the community, such as a licensed distributor or dealer of tobacco

products;

    (12)  Direct or

circumstantial evidence of the ratio of sales of the object or objects to the

total sales of the business enterprise;

    (13)  The existence and

scope of legitimate uses for the object in the community; and

    (14)  Expert testimony

concerning its use.

     "Electronic

prescription" means a prescription that is generated on an electronic

prescription application and transmitted as an electronic data file that

complies with all applicable requirements of title 21 Code of Federal

Regulations part 1311 and any additional rules adopted by the department.

     "Electronic

prescription application" means electronic prescription software either as

a stand-alone application or as a module in an electronic health record

application.

     "Electronic

signature" means a method of signing an electronic message that identifies

a particular person as the source of the message and indicates the person's

approval of the information contained in the message.

     "Ephedrine"

includes any synthetic compound, salt, derivative, mixture, or preparation

extracted from the plant (genus) Ephedra that contains the substance ephedrine.

     "Exception

report" means an output of data indicating schedule II controlled

substances dispensation that is outside expected norms for a practitioner

practicing a particular specialty or field of health care, for a dispenser

doing business in a particular location, or for a patient.

     "Identification

number" means, with respect to a patient:

     (1)  The patient's unique

valid driver's license number or state identification card number, followed by

the abbreviation of the state issuing the driver's license or state

identification card, or the patient's military identification number;

     (2)  If the patient is a foreign patient, the

patient's passport number;

     (3)  If the patient does not have a valid

driver's license, state identification card, or military identification, the

patient's social security number;

     (4)  If the patient is less than eighteen

years of age and has none of the identification referred to in paragraph (1),

(2), or (3), the unique number on the valid driver's license, state

identification card, military identification, or passport of the patient's

parent or guardian; or

     (5)  If the controlled

substance is obtained for an animal, the unique number of the animal's owner as

described in paragraph (1), (2), or (3).

     "Immediate

precursor" means a substance which the department of public safety has

found to be and by rule designates as being the principal compound commonly

used or produced primarily for use, and which is an immediate chemical intermediary

used or likely to be used in the manufacture of a controlled substance, the

control of which is necessary to prevent, curtail, or limit manufacture.

     "Locum tenens

practitioner" means a practitioner:

     (1)  Who is licensed in

this State and registered under section 329-32 to administer, prescribe, or

dispense a controlled substance in the course of professional practice, who

temporarily substitutes for another registered practitioner for a period not to

exceed sixty days at that other practitioner's registered place of business;

and

     (2)  Whose Drug Enforcement

Administration controlled substance registration number has not been

transferred to the State of Hawaii.

Locum tenens

practitioners are not eligible to receive an oral code number as designated by

section [328-16(k)].

     "Maintenance treatment" means the dispensing of a narcotic

drug in the treatment of an individual for dependence upon heroin or other

morphine-like drug, for a period in excess of twenty-one days.

     "Manufacture"

means the production, preparation, propagation, compounding, conversion, or

processing of a controlled substance, either directly or indirectly by

extraction from substances of natural origin, or independently by means of

chemical synthesis, or by a combination of extraction and chemical synthesis,

and includes any packaging or repackaging of the substance or labeling or

relabeling of its container, except that this term does not include the

preparation or compounding of a controlled substance by an individual for the

individual's own use or the preparation, compounding, packaging, or labeling of

a controlled substance:

     (1)  By a practitioner as

an incident to the practitioner's administering or dispensing of a controlled

substance in the course of the practitioner's professional practice, or

     (2)  By a practitioner, or

by the practitioner's authorized agent under the practitioner's supervision,

for the purpose of, or as an incident to, research, teaching, or chemical

analysis and not for sale.

     "Marijuana"

means all parts of the plant (genus) Cannabis whether growing or not; the seeds

thereof, the resin extracted from any part of the plant; and every compound,

manufacture, salt, derivative, mixture, or preparation of the plant, its seeds,

or resin.  It does not include the mature stalks of the plant, fiber produced

from the stalks, oil, or cake made from the seeds of the plant, any other

compound, manufacture, salt, derivative, mixture, or preparation of the mature

stalks (except the resin extracted therefrom), fiber, oil, or cake, or the

sterilized seed of the plant which is incapable of germination.

     "Narcotic

drug" means any of the following, whether produced directly or indirectly

by extraction from substances of vegetable origin, or independently by means of

chemical synthesis, or by a combination of extraction and chemical synthesis:

     (1)  Opium and opiate, and

any salt, compound, derivative, or preparation of opium or opiate.

     (2)  Any salt, compound,

isomer, derivative, or preparation thereof which is chemically equivalent or

identical with any of the substances referred to in clause (1), but not

including the isoquinoline alkaloids of opium.

     (3)  Opium poppy and poppy

straw.

     (4)  Coca leaves and any

salt, compound, derivative, or preparation of coca leaves, and any salt, compound,

isomer, derivative, or preparation thereof which is chemically equivalent or

identical with any of these substances, but not including decocainized coca

leaves or extractions of coca leaves which do not contain cocaine or ecgonine.

     "Opiate"

means any substance having an addiction-forming or addiction-sustaining

liability similar to morphine or being capable of conversion into a drug having

addiction-forming or addiction-sustaining liability.  It does not include,

unless specifically designated as controlled under section 329-11, the

dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts

(dextromethorphan).  It does include its racemic and levorotatory forms.

     "Opium

poppy" means the plant of the species Papaver somniferum, except its seeds.

     "Person"

means individual, corporation, government, or governmental subdivision or

agency, business trust, estate, trust, partnership or association, or any other

legal entity.

     "Pharmacist"

means a person who is licensed or holds a permit under chapter 461 to practice

pharmacy, including a pharmacy intern who is under the immediate and direct

supervision of a licensed pharmacist.

     "Physician

assistant" means a person licensed under section 453-5.3, who is

registered under this chapter to administer, prescribe, or dispense a

controlled substance under the authority and supervision of a physician

registered under section 329-33, but who is not authorized to request, receive,

or sign for professional controlled substance samples.

     "Physician-patient

relationship" means the collaborative relationship between physicians and

their patients.  To establish this relationship, the treating physician or the

physician's designated member of the health care team, at a minimum shall:

     (1)  Personally perform a

face-to-face history and physical examination of the patient that is

appropriate to the specialty training and experience of the physician or the

designated member of the physician's health care team, make a diagnosis and

formulate a therapeutic plan, or personally treat a specific injury or

condition;

     (2)  Discuss with the

patient the diagnosis or treatment, including the benefits of other treatment

options; and

     (3)  Ensure the

availability of appropriate follow-up care.

     "Poppy

straw" means all parts, except the seeds, of the opium poppy, after

mowing.

     "Practitioner"

means:

     (1)  A physician, dentist,

veterinarian, scientific investigator, or other person licensed and registered

under section 329-32 to distribute, dispense, or conduct research with respect

to a controlled substance in the course of professional practice or research in

this State;

     (2)  An advanced practice

registered nurse with prescriptive authority licensed and registered under

section 329-32 to prescribe and administer controlled substances in the course

of professional practice in this State; and

     (3)  A pharmacy, hospital,

or other institution licensed, registered, or otherwise permitted to

distribute, dispense, conduct research with respect to or to administer a

controlled substance in the course of professional practice or research in this

State.

     "Prescribe"

means to direct, designate, or order the use of a formula for the preparation

of a medicine for a disease or illness and the manner of using them.

     "Prescriber"

means one who is authorized to issue a prescription.

     "Prescription"

means an order for medication, which is dispensed to or for an ultimate user. 

"Prescription" shall not include an order for medication that is

dispensed for immediate administration to the ultimate user, such as a chart

order to dispense a drug to a bed patient for immediate administration in a

hospital.

     "Production"

includes the manufacture, planting, cultivation, growing, or harvesting of a

controlled substance.

     "State",

when applied to a part of the United States, includes any state, district,

commonwealth, territory, insular possession thereof, and any area subject to

the legal authority of the United States of America.

     "Supervising

physician" means a physician licensed to practice medicine in the State

and registered under section 329-33, who supervises a physician assistant and

retains full professional and legal responsibility for the performance of the

supervised physician assistant and the care and treatment of the patient.

     "System"

means an electronic prescription accountability system as described in part

VIII.

     "Ultimate

user" means a person who lawfully possesses a controlled substance for the

person's own use or for the use of a member of the person's household or for

administering to an animal owned by the person or by a member of the person's

household. [L 1972, c 10, pt of §1; am L 1975, c 163, §7; gen ch 1985; am L

1986, c 214, §1; am L 1988, c 259, §1; am L 1989, c 293, §1; am L 1990, c 13,

§1 and c 281, §§4, 10; am L 1991, c 159, §§3 to 6; am L 1996, c 268, §4; am L

1999, c 90, §1 and c 252, §1; am L 2001, c 203, §1; am L 2004, c 44, §4; am L

2006, c 69, §2; am L 2008, c 186, §2; am L 2009, c 169, §6; am L 2010, c 57, §3;

am L 2013, c 20, §2]

 

Law Journals and Reviews

 

  Marijuana Prohibition in Hawaii,

Steven K. Christensen, 13 HBJ No. 3 Fall 1977, pg. 9.

 

Case Notes

 

  In prosecution under §329-43.5(b),

trial court should provide jury with an instruction enumerating all fourteen

factors listed in statutory definition of drug paraphernalia.  75 H. 80, 856

P.2d 1246.

  No error in court failing to

dismiss count against defendant for possessing "everyday household items

not intended or designed for use as drug paraphernalia" as broad

definition of drug paraphernalia and multiple examples of such contraband

enumerated in this section weighed against defendant's contention that the

ordinary nature of the containers defendant possessed did not involve the harm

or evil sought to be avoided under §329-43.5 or amounted to extenuations that

would not have been envisioned by the legislature.  98 H. 196, 46 P.3d 498.