| 1 | 1 | | HOUSE OF REPRESENTATIVES H.B. NO. 965 THIRTY-FIRST LEGISLATURE, 2021 STATE OF HAWAII A BILL FOR AN ACT RELATING TO THE VIOLATION OF RULES DURING EMERGENCY PERIODS. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: |
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| 3 | 3 | | HOUSE OF REPRESENTATIVES H.B. NO. 965 |
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| 4 | 4 | | THIRTY-FIRST LEGISLATURE, 2021 |
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| 5 | 5 | | STATE OF HAWAII |
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| 7 | 7 | | HOUSE OF REPRESENTATIVES |
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| 9 | 9 | | H.B. NO. |
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| 11 | 11 | | 965 |
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| 13 | 13 | | THIRTY-FIRST LEGISLATURE, 2021 |
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| 17 | 17 | | STATE OF HAWAII |
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| 31 | 31 | | A BILL FOR AN ACT |
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| 37 | 37 | | RELATING TO THE VIOLATION OF RULES DURING EMERGENCY PERIODS. |
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| 43 | 43 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: |
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| 47 | 47 | | SECTION 1. The global pandemic has created great challenges to our health, economy, and way of life. The governor and county mayors have had to exercise their emergency powers under chapter 127A, Hawaii Revised Statutes (HRS), to impose rules in an attempt to control the spread of COVID-19. The enforcement of these rules is critical to our efforts to control the spread of COVID-19, protect the health and safety of those in our community, manage our medical resources, and restart our economy. But these enforcement efforts have placed a heavy burden upon the criminal justice system, which must be able to process these cases appropriately to allow for meaningful and effective enforcement. At this time there is concern that the criminal justice system is unable to handle the great number of cases being placed into the system. The county police departments have issued tens of thousands of citations for violations of emergency proclamations and orders. The citations must be processed through the court system, and the courts have been inundated with a high volume of cases, while operations are complicated by the pandemic. There cannot be meaningful and effective enforcement when the cases cannot be processed in a timely and appropriate manner. And that adversely impacts our ability to control the spread of COVID-19. Section 127A-29, HRS, allows the governor and the mayors to only establish misdemeanor offenses through rulemaking during emergency periods. Misdemeanor offenses must be processed through the court system. And the system was overwhelmed by the many misdemeanor citations being issued to enforce the emergency rules. The purpose of this bill is to allow the governor and the mayors to establish lesser offenses during emergency periods, including non-criminal violations or infractions, and establish a more expeditious system for the processing of these infractions which would reduce the impact on the system. By authorizing the governor and the mayors to establish lesser offenses, they will be able to promulgate consequences that may be more proportionate to the offenses. The new expeditious system will be similar to that of chapter 291D, HRS, for the adjudication of traffic infractions, and will: (1) Eliminate the court arraignment proceeding for many of the emergency period infractions; (2) Facilitate and encourage the resolution of many emergency period infractions through the payment of a monetary assessment; (3) Speed the disposition of contested cases through a hearing, similar to small claims proceedings, in which the rules of evidence will not apply and the court will consider as evidence the notice of infraction, applicable police reports, or other written statements by the police officer who issued the notice, any other relevant written material, and any evidence or statements by the defendant contesting the notice of infraction; (4) Dispense in most cases with the need for witnesses, including law enforcement officers, to be present and for the participation of the prosecuting attorney; (5) Allow judicial, prosecutorial, and law enforcement resources to be used more efficiently and effectively; and (6) Save the taxpayers money and reduce their frustration by simplifying the process. SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to title 37 to be appropriately designated and to read as follows: "CHAPTER ADJUDICATION OF EMERGENCY PERIOD INFRACTIONS § -1 Definitions. As used in this chapter: "Concurrent trial" means a trial proceeding held in the district or family court in which the defendant is tried simultaneously in a civil case for any charged emergency period infraction and in a criminal case for any related criminal offense, with trials to be held in one court on the same date and at the same time. "Emergency period infraction" means all non-compliance of rules proclaimed or ordered by the governor or a mayor pursuant to chapter 127A which are specified in the emergency proclamation or order as being an infraction subject to the adjudication process of this chapter. "Hearing" means a proceeding conducted by the district court pursuant to section -7 at which the defendant to whom a notice of infraction was issued either admits to the infraction, contests the notice of infraction, or admits to the infraction but offers an explanation to mitigate the monetary assessment imposed. "Notice of infraction" means the citation form that is issued to the defendant at or after the time of the infraction and that notifies the defendant of the civil infraction(s) the defendant is charged with committing, whatever its title or denomination. "Related criminal offense" means any criminal violation or crime, committed in the same course of conduct as an emergency period infraction, for which the defendant is arrested or charged. "Trial" means a trial conducted by the district court pursuant to the rules of the district court and the Hawaii rules of evidence. § -2 Applicability. (a) Notwithstanding any other provision of law to the contrary, all emergency period infractions, including emergency period infractions committed by minors, shall be adjudicated pursuant to this chapter, except as provided in subsection (b). This chapter shall be applied uniformly throughout the State and in all counties. No emergency period infraction shall be classified as a criminal offense. (b) Where a defendant is charged with a emergency period infraction and the infraction is committed in the same course of conduct as a criminal offense for which the offender is arrested or charged, the emergency period infraction shall be adjudicated pursuant to this chapter; provided that the court may schedule any initial appearance, hearing, or trial on the emergency period infraction at the same date, time, and place as the arraignment, hearing, or trial on the related criminal offense. Notwithstanding this subsection and subsection (c), the court shall not schedule any initial appearance, hearing, or trial on the emergency period infraction at the same date, time, and place as the arraignment, hearing, or trial on the related criminal offense where the related criminal offense is a felony or is a misdemeanor for which the defendant has demanded a jury trial. (c) If the defendant requests a trial pursuant to section -11, the trial shall be held in the district court of the circuit in which the emergency period infraction was committed. If the court schedules a concurrent trial pursuant to paragraph (1), the concurrent trial shall be held in the appropriate district or family court of the circuit in which the emergency period infraction was committed, whichever has jurisdiction over the related criminal offense charged pursuant to the applicable statute or rule of court; provided that: (1) The district or family court, for the purpose of trial, may schedule a civil trial on the emergency period infraction on the same date and at the same time as a criminal trial on the related criminal offense charged. The court shall enter a civil judgment as to the emergency period infraction and a judgment of conviction or acquittal as to the related criminal offense following such concurrent trial; and (2) If trial on the emergency period infraction is held separately from and prior to trial on any related criminal offense, the following shall be inadmissible in the prosecution or trial of the related criminal offense, except as expressly provided by the Hawaii rules of evidence: (A) Any written or oral statement made by the defendant in proceedings conducted pursuant to section -6(b); and (B) Any testimony given by the defendant in the trial on the emergency period infraction. Such statements or testimony shall not be deemed a waiver of the defendant's privilege against self-incrimination in connection with any related criminal offense. (d) In no event shall section 701-109 preclude prosecution for a related criminal offense where an emergency period infraction committed in the same course of conduct has been adjudicated pursuant to this chapter. (e) If the defendant fails to appear at any scheduled court date prior to the date of trial or concurrent trial and: (1) The defendant's civil liability for the emergency period infraction has not yet been adjudicated pursuant to section -7, the court shall enter a judgment by default in favor of the State for the emergency period infraction unless the court determines that good cause or excusable neglect exists for the defendant's failure to appear; or (2) The defendant's civil liability for the emergency period infraction has been adjudicated previously pursuant to section -7, the judgment earlier entered in favor of the State shall stand unless the court determines that good cause or excusable neglect exists for the defendant's failure to appear. (f) If the defendant fails to appear at any scheduled court date prior to concurrent trial or fails to appear for concurrent trial scheduled pursuant to subsection (c)(1), the court shall enter a disposition pursuant to the Hawaii rules of penal procedure for the criminal offense. § -3 Venue and jurisdiction. (a) All emergency period infractions shall be adjudicated in the district and circuit where the alleged infraction occurred, except as otherwise provided by law. (b) Except as otherwise provided by law, jurisdiction is in the district court of the circuit where the alleged emergency period infraction occurred. Except as otherwise provided in this chapter, district court judges shall adjudicate emergency period infractions. § -4 Notice of infraction; form; determination final unless contested. (a) The notice of infraction shall include the summons for the purposes of this chapter. Whenever a notice of infraction is issued, the defendant's signature, driver's license number or state identification number, current address, and email address shall be noted on the notice. If the defendant refuses to sign the notice of infraction, the officer shall record this refusal on the notice and issue the notice to the defendant. Individuals to whom a notice of infraction is issued under this chapter need not be arraigned before the court, unless required by rule of the supreme court. (b) The form for the notice of infraction shall be prescribed by rules of the district court which shall be uniform throughout the State; provided that each judicial circuit may include differing statutory, rule, or ordinance provisions on its respective notice of infraction. (c) A notice of infraction that is generated by the use of electronic equipment or that bears the electronically stored image of any person's signature, or both, shall be valid under this chapter. (d) The notice of infraction shall include the following: (1) A statement of the specific infraction for which the notice was issued; (2) A brief statement of the facts; (3) A statement of the total amount to be paid for each infraction, which amount shall include any fee, surcharge, or cost required by statute, ordinance, or rule, and any monetary assessment, established for the particular infraction pursuant to section -8, to be paid by the defendant, which shall be uniform throughout the State; (4) A statement of the options provided in section -5(b) for answering the notice and the procedures necessary to exercise the options; (5) A statement that the defendant to whom the notice is issued must answer, choosing one of the options specified in section -5(b), within twenty-one days of issuance of the notice; (6) A statement that failure to answer the notice of infraction within twenty-one days of issuance shall result in the entry of judgment by default for the State and may result in the assessment of a late penalty; (7) A statement that, at a hearing requested to contest the notice of infraction conducted pursuant to section -7, no officer shall be present unless the defendant timely requests the court to have the officer present, and that the standard of proof to be applied by the court is whether a preponderance of the evidence proves that the specified infraction was committed; (8) A statement that, at a hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the infraction or in consideration of a written request for mitigation, the defendant shall be considered to have committed the infraction; (9) A space in which the signature of the defendant to whom the notice was issued may be affixed; and (10) The date, time, and place at which the defendant to whom the notice was issued must appear in court, if the defendant is required by the notice to appear in person at the hearing. § -5 Answer required. (a) A defendant who receives a notice of infraction shall answer the notice within twenty-one days of the date of issuance of the notice. There shall be included with the notice of infraction a preaddressed envelope directed to the designated district court. (b) Provided that the notice of infraction does not require an appearance in person at a hearing as set forth in section -4(d)(10), in answering a notice of infraction, a defendant shall have the following options: (1) Admit the commission of the infraction in one of the following ways: (A) By mail or in person, by completing the appropriate portion of the notice of infraction or preaddressed envelope and submitting it to the authority specified on the notice together with payment of the total amount stated on the notice of infraction. Payment by mail shall be in the form of a check, money order, or by an approved credit or debit card. Payment in person shall be in the form of United States currency, check, money order, or by an approved credit or debit card; or (B) Via the Internet or by telephone, by submitting payment of the total amount stated on the notice of infraction. Payment via the Internet or by telephone shall be by an approved credit or debit card; (2) Deny the commission of the infraction and request a hearing to contest the infraction by completing the appropriate portion of the notice of infraction or preaddressed envelope and submitting it, either by mail or in person, to the authority specified on the notice. In lieu of appearing in person at a hearing, the defendant may submit a written statement of grounds on which the defendant contests the notice of infraction, which shall be considered by the court as a statement given in court pursuant to section ‑7(a); or (3) Admit the commission of the infraction and request a hearing to explain circumstances mitigating the infraction by completing the appropriate portion of the notice of infraction or preaddressed envelope and submitting it, either by mail or in person, to the authority specified on the notice. In lieu of appearing in person at a hearing, the defendant may submit a written explanation of the mitigating circumstances, which shall be considered by the court as a statement given in court pursuant to section ‑7(b). (c) When answering the notice of infraction, the defendant shall affix the person's signature to the answer and shall state the address at which the defendant will accept future mailings from the court. No other response shall constitute an answer for purposes of this chapter. § -6 Court action after answer or failure to answer. (a) When an admitting answer is received, the court shall enter judgment in favor of the State in the total amount specified in the notice of infraction. (b) When a denying answer is received, the court shall proceed as follows: (1) In the case of an infraction where the defendant requests a hearing at which the defendant will appear in person to contest the infraction, the court shall notify the defendant in writing of the date, time, and place of hearing to contest the notice of infraction. The notice of hearing shall be mailed to the address provided by defendant in the denying answer, or if none is given, to the address provided by defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notification also shall advise the defendant that, if the defendant fails to appear at the hearing, the court shall enter judgment by default in favor of the State, as of the date of the scheduled hearing, that the total amount specified in the default judgment must be paid within thirty days of entry of default judgment; and (2) When a denying answer is accompanied by a written statement of the grounds on which the defendant contests the notice of infraction, the court shall proceed as provided in section -7(a) and shall notify the defendant of its decision, including the total amount assessed, if any, by mailing the notice of entry of judgment within forty-five days of the postmarked date of the answer to the address provided by the defendant in the denying answer, or if none is given, to the address provided by defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notice of entry of judgment also shall advise the defendant, if it is determined that the infraction was committed and judgment is entered in favor of the State, that the defendant has the right, within thirty days of entry of judgment, to request a trial and shall specify the procedures for doing so. The notice of entry of judgment shall also notify the defendant, if an amount is assessed by the court for monetary assessments, fees, surcharges, or costs, that if the defendant does not request a trial within the time specified in this paragraph, the total amount assessed shall be paid within thirty days of entry of judgment. (c) When an answer admitting commission of the infraction but seeking to explain mitigating circumstances is received, the court shall proceed as follows: (1) In the case of an infraction where the defendant requests a hearing at which the defendant will appear in person to explain mitigating circumstances, the court shall notify the defendant in writing of the date, time, and place of hearing to explain mitigating circumstances. The notice of hearing shall be mailed to the address provided by defendant in the answer, or if none is given, to the address provided by defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notification also shall advise the defendant that, if the defendant fails to appear at the hearing, the court shall enter judgment by default in favor of the State, as of the date of the scheduled hearing, and that the total amount stated in the default judgment must be paid within thirty days of entry of default judgment; and (2) If a written explanation is included with an answer admitting commission of the infraction, the court shall enter judgment for the State and, after reviewing the explanation, determine the total amount of the monetary assessments, fees, surcharges, or costs to be assessed, if any. The court shall then notify the defendant of the total amount to be paid for the infraction, if any. There shall be no appeal from the judgment. If the court assesses an amount for monetary assessments, fees, surcharges, or costs, the court shall also notify the defendant that the total amount shall be paid within thirty days of entry of judgment. (d) If the defendant fails to answer within twenty-one days of issuance of the notice of infraction, the court shall take action as provided in subsection (e). (e) Whenever judgment by default in favor of the State is entered, the court shall mail a notice of entry of default judgment to the address provided by the defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notice of entry of default judgment shall advise the defendant that the total amount specified in the default judgment shall be paid within thirty days of entry of default judgment and shall explain the procedure for setting aside a default judgment. Judgment by default for the State entered pursuant to this chapter may be set aside pending final disposition of the infraction upon written application of the defendant and posting of an appearance bond equal to the amount of the total amount specified in the default judgment and any other assessment imposed pursuant to section -8. The application shall show good cause or excusable neglect for the defendant's failure to take action necessary to prevent entry of judgment by default. Thereafter, the court shall determine whether good cause or excusable neglect exists for the defendant's failure to take action necessary to prevent entry of judgment by default. If so, the application to set aside default judgment shall be granted, the default judgment shall be set aside, and the notice of infraction shall be disposed of pursuant to this chapter. If not, the application to set aside default judgment shall be denied, the appearance bond shall be forfeited and applied to satisfy amounts due under the default judgment, and the notice of infraction shall be finally disposed. In either case, the court shall determine the existence of good cause or excusable neglect and notify the defendant of its decision on the application in writing. § -7 Hearings. (a) In proceedings to contest a notice of infraction where the defendant to whom the notice was issued has timely requested a hearing and appears at such hearing: (1) In lieu of the personal appearance by the officer who issued the notice of infraction, the court shall consider the notice of infraction and any other written report made by the officer, if provided to the court by the officer, together with any oral or written statement by the defendant to whom the notice of infraction was issued; (2) The standard of proof to be applied by the court shall be whether, by a preponderance of the evidence, the court finds that the infraction was committed; and (3) After due consideration of the evidence and arguments, if any, the court shall determine whether commission of the infraction has been established. Where the commission of the infraction has not been established, judgment in favor of the defendant, dismissing the notice of infraction or any count therein with prejudice, shall be entered in the record. Where it has been established that the infraction was committed, the court shall enter judgment in favor of the State and shall assess a monetary assessment pursuant to section -8, together with any fees, surcharges, or costs. The court also shall inform the defendant of the right to request a trial pursuant to section -11. If the defendant requests a trial at the time of the hearing, the court shall provide the defendant with the trial date as soon as practicable. (b) In proceedings to explain mitigating circumstances where the defendant to whom the notice of infraction was issued has timely requested a hearing and appears at such hearing: (1) The procedure shall be limited to the issue of mitigating circumstances. A defendant who requests to explain the circumstances shall not be permitted to contest the notice of infraction; (2) After the court has received the explanation, the court shall enter judgment in favor of the State and may assess a monetary assessment pursuant to section -8, together with any fees, surcharges, or costs; (3) The court, after receiving the explanation, may vacate the admission and enter judgment in favor of the defendant, dismissing the notice of infraction or any count therein with prejudice, where the explanation establishes that the infraction was not committed; and (4) There shall be no appeal from the judgment. (c) If a defendant for whom a hearing has been scheduled, to contest the notice of infraction or to explain mitigating circumstances, fails to appear at the hearing, the court shall enter judgment by default for the State and take action as provided in section -6(e). § -8 Monetary assessments. (a) A defendant found to have committed an emergency period infraction shall be assessed a monetary assessment of $_____. (b) In addition to any monetary assessment imposed for an emergency period infraction, the court may impose additional assessments for: (1) Failure to pay a monetary assessment by the scheduled date of payment; or (2) The cost of service of a penal summons issued pursuant to this chapter; and (3) The administrative cost associated with the processing of emergency period infractions of $20 for each noncompliance with a rule in addition to any fine imposed by the court, and whether or not such fine is suspended. (c) The clerk of the district court shall deposit the administrative cost collected into the judiciary computer system special fund pursuant to section 601-3.7. (d) The court may grant to a defendant claiming inability to pay, an extension of the period in which the monetary assessment shall be paid or may impose community service in lieu thereof. § -9 Time computation. In computing any period of time prescribed or allowed by this chapter, the day of the act, event, or default from which the period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. Intermediate Saturdays, Sundays, and legal holidays shall be included. Whenever an act required to be performed under this chapter may be accomplished by mail, the act shall be deemed to have been performed on the date of the postmark on the mailed article. § -10 Powers of the district court judge hearing cases pursuant to this chapter. (a) A district court judge hearing cases pursuant to this chapter shall have all the powers of a district court judge under chapter 604, including the following powers: (1) To conduct emergency period infraction hearings and to impose monetary assessments; (2) To permit deferral of monetary assessment or impose community service in lieu thereof; (3) To dismiss a notice of infraction, with or without prejudice, or to set aside a judgment for the State; (4) To issue penal summonses and bench warrants and initiate contempt of court proceedings in proceedings conducted pursuant to section -11; (5) To issue penal summonses and bench warrants and initiate failure to appear proceedings in proceedings conducted pursuant to section -4(d)(10); and (6) To exercise other powers the court finds necessary and appropriate to carry out the purposes of this chapter. § -11 Trial and concurrent trial. (a) There shall be no right to trial unless the defendant contests the notice of infraction pursuant to section -7. If, after proceedings to contest the notice of infraction, a determination is made that the defendant committed the infraction, judgment shall enter in favor of the State. The defendant may request a trial pursuant to the Hawaii rules of evidence and the rules of the district court; provided that any request for trial shall be made within thirty days of entry of judgment. If, after appearing in person at a hearing to contest the notice of infraction, the defendant requests a trial at the conclusion of the hearing, the court shall provide the defendant with the trial date as soon as practicable. (b) At the time of trial, the State shall be represented by a prosecuting attorney of the county in which the infraction occurred. The prosecuting attorney shall orally recite the charged infraction in court prior to commencement of the trial. Proof of the defendant's commission of the infraction shall be by a preponderance of the evidence. (c) Appeals from judgments entered after a trial on the notice of infraction may be taken in the manner provided for appeals from district court civil judgments. (d) If trial on the infraction is held prior to trial on any related criminal offense, the following shall be inadmissible in the subsequent prosecution or trial of the related criminal offense: (1) Any written or oral statement made by the defendant in proceedings conducted pursuant to section -6(b); and (2) Any testimony given by the defendant in the trial on the infraction. The statement or testimony, or both, shall not be deemed a waiver of the defendant's privilege against self-incrimination in connection with any related criminal offense. (e) In any concurrent trial, the State shall be represented by a prosecuting attorney of the county in which the infraction and related crime occurred. Proof of the defendant's commission of the infraction shall be by a preponderance of the evidence, and proof of the related criminal offense shall be by proof beyond a reasonable doubt. The concurrent trial shall be conducted pursuant to the rules of the appropriate court, the Hawaii rules of evidence, and the Hawaii rules of penal procedure. § -12 Rules. (a) The supreme court may adopt rules of procedure for the conduct of all proceedings pursuant to this chapter. (b) Chapter 626 shall not apply in proceedings conducted pursuant to this chapter, except for the rules governing privileged communications, and proceedings conducted under section -11. (c) Notwithstanding section 604-17, while the court is sitting in any matter pursuant to this chapter, the court shall not be required to preserve the testimony or proceedings, except proceedings conducted pursuant to section -11 and proceedings in which the infraction is heard on the same date and time as any related criminal offense. (d) The prosecuting attorney shall not participate in emergency period infraction proceedings conducted pursuant to this chapter, except proceedings pursuant to section -11 and proceedings in which a related criminal offense is scheduled for arraignment, hearing, or concurrent trial. (e) Chapter 91 shall not apply in proceedings before the court. (f) Except as otherwise provided in section -2, chapter 571 and the Hawaii family court rules shall not apply in any proceedings conducted pursuant to this chapter." SECTION 3. Section 127A-29, Hawaii Revised Statutes, is amended to read as follows: "[[]§127A-29[]] Misdemeanors[.], petty misdemeanors, and emergency period infractions. Any person violating any rule of the governor or mayor prescribed and promulgated pursuant to this chapter and having the force and effect of law, shall, if it shall be so stated and designated in the rule, be guilty of a misdemeanor[.]or petty misdemeanor. Upon conviction, the person shall be [fined not more than $5,000, or imprisoned not more than one year, or both.]sentenced pursuant to chapter 706. The governor or mayor may also prescribe or promulgate the noncompliance with a rule as an emergency period infraction, as defined in section -1, provided that it is specified in the emergency proclamation or order as being an infraction subject to the adjudication process of chapter____. Any person who intentionally, knowingly, or recklessly destroys, damages, or loses any shelter, protective device, or warning or signal device, shall if the same was installed or constructed by the United States, the State, or a county, or is the property of the United States, the State, or a county, be fined the cost of replacement, or imprisoned not more than one year, or both. The governor or mayor, may, by rule, make further provisions for the protection from misuse of shelters, protective devices, or warning and signal devices." SECTION 4. Section 571-41, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows: "(f) The judge, or the senior judge if there is more than one, may by order confer concurrent jurisdiction on a district court created under chapter 604 to hear and dispose of cases of violation of traffic laws [or], ordinances, or emergency period rules, established pursuant to chapter 127A, by children, provision to the contrary in section 571-11 or elsewhere notwithstanding. The exercise of jurisdiction over children by district courts shall, nevertheless, be considered noncriminal in procedure and result in the same manner as though the matter had been adjudicated and disposed of by a family court." SECTION 5. Section 601-3.7, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: "(a) There is established in the state treasury a special fund to be known as the judiciary computer system special fund, which shall contain the following: (1) Moneys collected from administrative fees pursuant to section 287-3(a); (2) Fees prescribed by the supreme court by rule of court for electronic document certification, electronic copies of documents, and for providing bulk access to electronic court records and compilations of data; and (3) Fees pursuant to sections 607-4(b)(10) [and], 607‑5(c)(32)[.], and -8(b)(3)." SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $40,000 or so much thereof as may be necessary for fiscal year 2021-2022 to process and adjudicate the emergency rule infractions. The sum appropriated shall be expended by the Judiciary to effectuate the purposes of this Act. SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this Act. SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 9. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________ BY REQUEST |
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| 49 | 49 | | SECTION 1. The global pandemic has created great challenges to our health, economy, and way of life. The governor and county mayors have had to exercise their emergency powers under chapter 127A, Hawaii Revised Statutes (HRS), to impose rules in an attempt to control the spread of COVID-19. The enforcement of these rules is critical to our efforts to control the spread of COVID-19, protect the health and safety of those in our community, manage our medical resources, and restart our economy. But these enforcement efforts have placed a heavy burden upon the criminal justice system, which must be able to process these cases appropriately to allow for meaningful and effective enforcement. |
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| 51 | 51 | | At this time there is concern that the criminal justice system is unable to handle the great number of cases being placed into the system. The county police departments have issued tens of thousands of citations for violations of emergency proclamations and orders. The citations must be processed through the court system, and the courts have been inundated with a high volume of cases, while operations are complicated by the pandemic. |
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| 53 | 53 | | There cannot be meaningful and effective enforcement when the cases cannot be processed in a timely and appropriate manner. And that adversely impacts our ability to control the spread of COVID-19. |
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| 54 | 54 | | |
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| 55 | 55 | | Section 127A-29, HRS, allows the governor and the mayors to only establish misdemeanor offenses through rulemaking during emergency periods. Misdemeanor offenses must be processed through the court system. And the system was overwhelmed by the many misdemeanor citations being issued to enforce the emergency rules. |
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| 57 | 57 | | The purpose of this bill is to allow the governor and the mayors to establish lesser offenses during emergency periods, including non-criminal violations or infractions, and establish a more expeditious system for the processing of these infractions which would reduce the impact on the system. |
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| 58 | 58 | | |
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| 59 | 59 | | By authorizing the governor and the mayors to establish lesser offenses, they will be able to promulgate consequences that may be more proportionate to the offenses. |
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| 60 | 60 | | |
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| 61 | 61 | | The new expeditious system will be similar to that of chapter 291D, HRS, for the adjudication of traffic infractions, and will: |
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| 62 | 62 | | |
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| 63 | 63 | | (1) Eliminate the court arraignment proceeding for many of the emergency period infractions; |
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| 64 | 64 | | |
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| 65 | 65 | | (2) Facilitate and encourage the resolution of many emergency period infractions through the payment of a monetary assessment; |
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| 66 | 66 | | |
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| 67 | 67 | | (3) Speed the disposition of contested cases through a hearing, similar to small claims proceedings, in which the rules of evidence will not apply and the court will consider as evidence the notice of infraction, applicable police reports, or other written statements by the police officer who issued the notice, any other relevant written material, and any evidence or statements by the defendant contesting the notice of infraction; |
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| 68 | 68 | | |
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| 69 | 69 | | (4) Dispense in most cases with the need for witnesses, including law enforcement officers, to be present and for the participation of the prosecuting attorney; |
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| 70 | 70 | | |
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| 71 | 71 | | (5) Allow judicial, prosecutorial, and law enforcement resources to be used more efficiently and effectively; and |
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| 72 | 72 | | |
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| 73 | 73 | | (6) Save the taxpayers money and reduce their frustration by simplifying the process. |
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| 74 | 74 | | |
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| 75 | 75 | | SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to title 37 to be appropriately designated and to read as follows: |
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| 76 | 76 | | |
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| 77 | 77 | | "CHAPTER |
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| 78 | 78 | | |
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| 79 | 79 | | ADJUDICATION OF EMERGENCY PERIOD INFRACTIONS |
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| 80 | 80 | | |
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| 81 | 81 | | § -1 Definitions. As used in this chapter: |
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| 82 | 82 | | |
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| 83 | 83 | | "Concurrent trial" means a trial proceeding held in the district or family court in which the defendant is tried simultaneously in a civil case for any charged emergency period infraction and in a criminal case for any related criminal offense, with trials to be held in one court on the same date and at the same time. |
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| 84 | 84 | | |
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| 85 | 85 | | "Emergency period infraction" means all non-compliance of rules proclaimed or ordered by the governor or a mayor pursuant to chapter 127A which are specified in the emergency proclamation or order as being an infraction subject to the adjudication process of this chapter. |
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| 86 | 86 | | |
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| 87 | 87 | | "Hearing" means a proceeding conducted by the district court pursuant to section -7 at which the defendant to whom a notice of infraction was issued either admits to the infraction, contests the notice of infraction, or admits to the infraction but offers an explanation to mitigate the monetary assessment imposed. |
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| 88 | 88 | | |
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| 89 | 89 | | "Notice of infraction" means the citation form that is issued to the defendant at or after the time of the infraction and that notifies the defendant of the civil infraction(s) the defendant is charged with committing, whatever its title or denomination. |
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| 90 | 90 | | |
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| 91 | 91 | | "Related criminal offense" means any criminal violation or crime, committed in the same course of conduct as an emergency period infraction, for which the defendant is arrested or charged. |
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| 92 | 92 | | |
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| 93 | 93 | | "Trial" means a trial conducted by the district court pursuant to the rules of the district court and the Hawaii rules of evidence. |
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| 94 | 94 | | |
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| 95 | 95 | | § -2 Applicability. (a) Notwithstanding any other provision of law to the contrary, all emergency period infractions, including emergency period infractions committed by minors, shall be adjudicated pursuant to this chapter, except as provided in subsection (b). This chapter shall be applied uniformly throughout the State and in all counties. No emergency period infraction shall be classified as a criminal offense. |
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| 96 | 96 | | |
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| 97 | 97 | | (b) Where a defendant is charged with a emergency period infraction and the infraction is committed in the same course of conduct as a criminal offense for which the offender is arrested or charged, the emergency period infraction shall be adjudicated pursuant to this chapter; provided that the court may schedule any initial appearance, hearing, or trial on the emergency period infraction at the same date, time, and place as the arraignment, hearing, or trial on the related criminal offense. |
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| 98 | 98 | | |
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| 99 | 99 | | Notwithstanding this subsection and subsection (c), the court shall not schedule any initial appearance, hearing, or trial on the emergency period infraction at the same date, time, and place as the arraignment, hearing, or trial on the related criminal offense where the related criminal offense is a felony or is a misdemeanor for which the defendant has demanded a jury trial. |
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| 100 | 100 | | |
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| 101 | 101 | | (c) If the defendant requests a trial pursuant to section -11, the trial shall be held in the district court of the circuit in which the emergency period infraction was committed. If the court schedules a concurrent trial pursuant to paragraph (1), the concurrent trial shall be held in the appropriate district or family court of the circuit in which the emergency period infraction was committed, whichever has jurisdiction over the related criminal offense charged pursuant to the applicable statute or rule of court; provided that: |
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| 102 | 102 | | |
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| 103 | 103 | | (1) The district or family court, for the purpose of trial, may schedule a civil trial on the emergency period infraction on the same date and at the same time as a criminal trial on the related criminal offense charged. The court shall enter a civil judgment as to the emergency period infraction and a judgment of conviction or acquittal as to the related criminal offense following such concurrent trial; and |
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| 104 | 104 | | |
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| 105 | 105 | | (2) If trial on the emergency period infraction is held separately from and prior to trial on any related criminal offense, the following shall be inadmissible in the prosecution or trial of the related criminal offense, except as expressly provided by the Hawaii rules of evidence: |
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| 106 | 106 | | |
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| 107 | 107 | | (A) Any written or oral statement made by the defendant in proceedings conducted pursuant to section -6(b); and |
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| 108 | 108 | | |
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| 109 | 109 | | (B) Any testimony given by the defendant in the trial on the emergency period infraction. |
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| 110 | 110 | | |
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| 111 | 111 | | Such statements or testimony shall not be deemed a waiver of the defendant's privilege against self-incrimination in connection with any related criminal offense. |
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| 112 | 112 | | |
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| 113 | 113 | | (d) In no event shall section 701-109 preclude prosecution for a related criminal offense where an emergency period infraction committed in the same course of conduct has been adjudicated pursuant to this chapter. |
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| 114 | 114 | | |
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| 115 | 115 | | (e) If the defendant fails to appear at any scheduled court date prior to the date of trial or concurrent trial and: |
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| 116 | 116 | | |
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| 117 | 117 | | (1) The defendant's civil liability for the emergency period infraction has not yet been adjudicated pursuant to section -7, the court shall enter a judgment by default in favor of the State for the emergency period infraction unless the court determines that good cause or excusable neglect exists for the defendant's failure to appear; or |
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| 118 | 118 | | |
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| 119 | 119 | | (2) The defendant's civil liability for the emergency period infraction has been adjudicated previously pursuant to section -7, the judgment earlier entered in favor of the State shall stand unless the court determines that good cause or excusable neglect exists for the defendant's failure to appear. |
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| 120 | 120 | | |
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| 121 | 121 | | (f) If the defendant fails to appear at any scheduled court date prior to concurrent trial or fails to appear for concurrent trial scheduled pursuant to subsection (c)(1), the court shall enter a disposition pursuant to the Hawaii rules of penal procedure for the criminal offense. |
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| 122 | 122 | | |
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| 123 | 123 | | § -3 Venue and jurisdiction. (a) All emergency period infractions shall be adjudicated in the district and circuit where the alleged infraction occurred, except as otherwise provided by law. |
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| 124 | 124 | | |
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| 125 | 125 | | (b) Except as otherwise provided by law, jurisdiction is in the district court of the circuit where the alleged emergency period infraction occurred. Except as otherwise provided in this chapter, district court judges shall adjudicate emergency period infractions. |
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| 126 | 126 | | |
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| 127 | 127 | | § -4 Notice of infraction; form; determination final unless contested. (a) The notice of infraction shall include the summons for the purposes of this chapter. Whenever a notice of infraction is issued, the defendant's signature, driver's license number or state identification number, current address, and email address shall be noted on the notice. If the defendant refuses to sign the notice of infraction, the officer shall record this refusal on the notice and issue the notice to the defendant. Individuals to whom a notice of infraction is issued under this chapter need not be arraigned before the court, unless required by rule of the supreme court. |
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| 128 | 128 | | |
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| 129 | 129 | | (b) The form for the notice of infraction shall be prescribed by rules of the district court which shall be uniform throughout the State; provided that each judicial circuit may include differing statutory, rule, or ordinance provisions on its respective notice of infraction. |
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| 130 | 130 | | |
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| 131 | 131 | | (c) A notice of infraction that is generated by the use of electronic equipment or that bears the electronically stored image of any person's signature, or both, shall be valid under this chapter. |
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| 132 | 132 | | |
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| 133 | 133 | | (d) The notice of infraction shall include the following: |
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| 134 | 134 | | |
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| 135 | 135 | | (1) A statement of the specific infraction for which the notice was issued; |
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| 136 | 136 | | |
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| 137 | 137 | | (2) A brief statement of the facts; |
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| 138 | 138 | | |
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| 139 | 139 | | (3) A statement of the total amount to be paid for each infraction, which amount shall include any fee, surcharge, or cost required by statute, ordinance, or rule, and any monetary assessment, established for the particular infraction pursuant to section -8, to be paid by the defendant, which shall be uniform throughout the State; |
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| 140 | 140 | | |
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| 141 | 141 | | (4) A statement of the options provided in section -5(b) for answering the notice and the procedures necessary to exercise the options; |
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| 142 | 142 | | |
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| 143 | 143 | | (5) A statement that the defendant to whom the notice is issued must answer, choosing one of the options specified in section -5(b), within twenty-one days of issuance of the notice; |
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| 144 | 144 | | |
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| 145 | 145 | | (6) A statement that failure to answer the notice of infraction within twenty-one days of issuance shall result in the entry of judgment by default for the State and may result in the assessment of a late penalty; |
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| 146 | 146 | | |
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| 147 | 147 | | (7) A statement that, at a hearing requested to contest the notice of infraction conducted pursuant to section -7, no officer shall be present unless the defendant timely requests the court to have the officer present, and that the standard of proof to be applied by the court is whether a preponderance of the evidence proves that the specified infraction was committed; |
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| 148 | 148 | | |
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| 149 | 149 | | (8) A statement that, at a hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the infraction or in consideration of a written request for mitigation, the defendant shall be considered to have committed the infraction; |
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| 150 | 150 | | |
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| 151 | 151 | | (9) A space in which the signature of the defendant to whom the notice was issued may be affixed; and |
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| 152 | 152 | | |
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| 153 | 153 | | (10) The date, time, and place at which the defendant to whom the notice was issued must appear in court, if the defendant is required by the notice to appear in person at the hearing. |
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| 154 | 154 | | |
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| 155 | 155 | | § -5 Answer required. (a) A defendant who receives a notice of infraction shall answer the notice within twenty-one days of the date of issuance of the notice. There shall be included with the notice of infraction a preaddressed envelope directed to the designated district court. |
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| 156 | 156 | | |
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| 157 | 157 | | (b) Provided that the notice of infraction does not require an appearance in person at a hearing as set forth in section -4(d)(10), in answering a notice of infraction, a defendant shall have the following options: |
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| 158 | 158 | | |
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| 159 | 159 | | (1) Admit the commission of the infraction in one of the following ways: |
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| 160 | 160 | | |
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| 161 | 161 | | (A) By mail or in person, by completing the appropriate portion of the notice of infraction or preaddressed envelope and submitting it to the authority specified on the notice together with payment of the total amount stated on the notice of infraction. Payment by mail shall be in the form of a check, money order, or by an approved credit or debit card. Payment in person shall be in the form of United States currency, check, money order, or by an approved credit or debit card; or |
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| 162 | 162 | | |
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| 163 | 163 | | (B) Via the Internet or by telephone, by submitting payment of the total amount stated on the notice of infraction. Payment via the Internet or by telephone shall be by an approved credit or debit card; |
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| 164 | 164 | | |
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| 165 | 165 | | (2) Deny the commission of the infraction and request a hearing to contest the infraction by completing the appropriate portion of the notice of infraction or preaddressed envelope and submitting it, either by mail or in person, to the authority specified on the notice. In lieu of appearing in person at a hearing, the defendant may submit a written statement of grounds on which the defendant contests the notice of infraction, which shall be considered by the court as a statement given in court pursuant to section ‑7(a); or |
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| 166 | 166 | | |
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| 167 | 167 | | (3) Admit the commission of the infraction and request a hearing to explain circumstances mitigating the infraction by completing the appropriate portion of the notice of infraction or preaddressed envelope and submitting it, either by mail or in person, to the authority specified on the notice. In lieu of appearing in person at a hearing, the defendant may submit a written explanation of the mitigating circumstances, which shall be considered by the court as a statement given in court pursuant to section ‑7(b). |
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| 168 | 168 | | |
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| 169 | 169 | | (c) When answering the notice of infraction, the defendant shall affix the person's signature to the answer and shall state the address at which the defendant will accept future mailings from the court. No other response shall constitute an answer for purposes of this chapter. |
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| 170 | 170 | | |
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| 171 | 171 | | § -6 Court action after answer or failure to answer. (a) When an admitting answer is received, the court shall enter judgment in favor of the State in the total amount specified in the notice of infraction. |
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| 172 | 172 | | |
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| 173 | 173 | | (b) When a denying answer is received, the court shall proceed as follows: |
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| 174 | 174 | | |
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| 175 | 175 | | (1) In the case of an infraction where the defendant requests a hearing at which the defendant will appear in person to contest the infraction, the court shall notify the defendant in writing of the date, time, and place of hearing to contest the notice of infraction. The notice of hearing shall be mailed to the address provided by defendant in the denying answer, or if none is given, to the address provided by defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notification also shall advise the defendant that, if the defendant fails to appear at the hearing, the court shall enter judgment by default in favor of the State, as of the date of the scheduled hearing, that the total amount specified in the default judgment must be paid within thirty days of entry of default judgment; and |
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| 176 | 176 | | |
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| 177 | 177 | | (2) When a denying answer is accompanied by a written statement of the grounds on which the defendant contests the notice of infraction, the court shall proceed as provided in section -7(a) and shall notify the defendant of its decision, including the total amount assessed, if any, by mailing the notice of entry of judgment within forty-five days of the postmarked date of the answer to the address provided by the defendant in the denying answer, or if none is given, to the address provided by defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notice of entry of judgment also shall advise the defendant, if it is determined that the infraction was committed and judgment is entered in favor of the State, that the defendant has the right, within thirty days of entry of judgment, to request a trial and shall specify the procedures for doing so. The notice of entry of judgment shall also notify the defendant, if an amount is assessed by the court for monetary assessments, fees, surcharges, or costs, that if the defendant does not request a trial within the time specified in this paragraph, the total amount assessed shall be paid within thirty days of entry of judgment. |
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| 178 | 178 | | |
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| 179 | 179 | | (c) When an answer admitting commission of the infraction but seeking to explain mitigating circumstances is received, the court shall proceed as follows: |
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| 180 | 180 | | |
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| 181 | 181 | | (1) In the case of an infraction where the defendant requests a hearing at which the defendant will appear in person to explain mitigating circumstances, the court shall notify the defendant in writing of the date, time, and place of hearing to explain mitigating circumstances. The notice of hearing shall be mailed to the address provided by defendant in the answer, or if none is given, to the address provided by defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notification also shall advise the defendant that, if the defendant fails to appear at the hearing, the court shall enter judgment by default in favor of the State, as of the date of the scheduled hearing, and that the total amount stated in the default judgment must be paid within thirty days of entry of default judgment; and |
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| 182 | 182 | | |
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| 183 | 183 | | (2) If a written explanation is included with an answer admitting commission of the infraction, the court shall enter judgment for the State and, after reviewing the explanation, determine the total amount of the monetary assessments, fees, surcharges, or costs to be assessed, if any. The court shall then notify the defendant of the total amount to be paid for the infraction, if any. There shall be no appeal from the judgment. If the court assesses an amount for monetary assessments, fees, surcharges, or costs, the court shall also notify the defendant that the total amount shall be paid within thirty days of entry of judgment. |
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| 184 | 184 | | |
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| 185 | 185 | | (d) If the defendant fails to answer within twenty-one days of issuance of the notice of infraction, the court shall take action as provided in subsection (e). |
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| 186 | 186 | | |
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| 187 | 187 | | (e) Whenever judgment by default in favor of the State is entered, the court shall mail a notice of entry of default judgment to the address provided by the defendant when the notice of infraction was issued, or if none was provided, to the email address provided by defendant when the notice of infraction was issued. The notice of entry of default judgment shall advise the defendant that the total amount specified in the default judgment shall be paid within thirty days of entry of default judgment and shall explain the procedure for setting aside a default judgment. Judgment by default for the State entered pursuant to this chapter may be set aside pending final disposition of the infraction upon written application of the defendant and posting of an appearance bond equal to the amount of the total amount specified in the default judgment and any other assessment imposed pursuant to section -8. The application shall show good cause or excusable neglect for the defendant's failure to take action necessary to prevent entry of judgment by default. Thereafter, the court shall determine whether good cause or excusable neglect exists for the defendant's failure to take action necessary to prevent entry of judgment by default. If so, the application to set aside default judgment shall be granted, the default judgment shall be set aside, and the notice of infraction shall be disposed of pursuant to this chapter. If not, the application to set aside default judgment shall be denied, the appearance bond shall be forfeited and applied to satisfy amounts due under the default judgment, and the notice of infraction shall be finally disposed. In either case, the court shall determine the existence of good cause or excusable neglect and notify the defendant of its decision on the application in writing. |
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| 188 | 188 | | |
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| 189 | 189 | | § -7 Hearings. (a) In proceedings to contest a notice of infraction where the defendant to whom the notice was issued has timely requested a hearing and appears at such hearing: |
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| 190 | 190 | | |
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| 191 | 191 | | (1) In lieu of the personal appearance by the officer who issued the notice of infraction, the court shall consider the notice of infraction and any other written report made by the officer, if provided to the court by the officer, together with any oral or written statement by the defendant to whom the notice of infraction was issued; |
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| 192 | 192 | | |
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| 193 | 193 | | (2) The standard of proof to be applied by the court shall be whether, by a preponderance of the evidence, the court finds that the infraction was committed; and |
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| 194 | 194 | | |
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| 195 | 195 | | (3) After due consideration of the evidence and arguments, if any, the court shall determine whether commission of the infraction has been established. Where the commission of the infraction has not been established, judgment in favor of the defendant, dismissing the notice of infraction or any count therein with prejudice, shall be entered in the record. Where it has been established that the infraction was committed, the court shall enter judgment in favor of the State and shall assess a monetary assessment pursuant to section -8, together with any fees, surcharges, or costs. The court also shall inform the defendant of the right to request a trial pursuant to section -11. If the defendant requests a trial at the time of the hearing, the court shall provide the defendant with the trial date as soon as practicable. |
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| 196 | 196 | | |
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| 197 | 197 | | (b) In proceedings to explain mitigating circumstances where the defendant to whom the notice of infraction was issued has timely requested a hearing and appears at such hearing: |
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| 198 | 198 | | |
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| 199 | 199 | | (1) The procedure shall be limited to the issue of mitigating circumstances. A defendant who requests to explain the circumstances shall not be permitted to contest the notice of infraction; |
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| 200 | 200 | | |
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| 201 | 201 | | (2) After the court has received the explanation, the court shall enter judgment in favor of the State and may assess a monetary assessment pursuant to section -8, together with any fees, surcharges, or costs; |
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| 202 | 202 | | |
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| 203 | 203 | | (3) The court, after receiving the explanation, may vacate the admission and enter judgment in favor of the defendant, dismissing the notice of infraction or any count therein with prejudice, where the explanation establishes that the infraction was not committed; and |
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| 204 | 204 | | |
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| 205 | 205 | | (4) There shall be no appeal from the judgment. |
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| 206 | 206 | | |
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| 207 | 207 | | (c) If a defendant for whom a hearing has been scheduled, to contest the notice of infraction or to explain mitigating circumstances, fails to appear at the hearing, the court shall enter judgment by default for the State and take action as provided in section -6(e). |
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| 208 | 208 | | |
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| 209 | 209 | | § -8 Monetary assessments. (a) A defendant found to have committed an emergency period infraction shall be assessed a monetary assessment of $_____. |
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| 210 | 210 | | |
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| 211 | 211 | | (b) In addition to any monetary assessment imposed for an emergency period infraction, the court may impose additional assessments for: |
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| 212 | 212 | | |
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| 213 | 213 | | (1) Failure to pay a monetary assessment by the scheduled date of payment; or |
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| 214 | 214 | | |
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| 215 | 215 | | (2) The cost of service of a penal summons issued pursuant to this chapter; and |
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| 216 | 216 | | |
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| 217 | 217 | | (3) The administrative cost associated with the processing of emergency period infractions of $20 for each noncompliance with a rule in addition to any fine imposed by the court, and whether or not such fine is suspended. |
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| 218 | 218 | | |
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| 219 | 219 | | (c) The clerk of the district court shall deposit the administrative cost collected into the judiciary computer system special fund pursuant to section 601-3.7. |
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| 220 | 220 | | |
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| 221 | 221 | | (d) The court may grant to a defendant claiming inability to pay, an extension of the period in which the monetary assessment shall be paid or may impose community service in lieu thereof. |
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| 222 | 222 | | |
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| 223 | 223 | | § -9 Time computation. In computing any period of time prescribed or allowed by this chapter, the day of the act, event, or default from which the period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. Intermediate Saturdays, Sundays, and legal holidays shall be included. Whenever an act required to be performed under this chapter may be accomplished by mail, the act shall be deemed to have been performed on the date of the postmark on the mailed article. |
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| 224 | 224 | | |
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| 225 | 225 | | § -10 Powers of the district court judge hearing cases pursuant to this chapter. (a) A district court judge hearing cases pursuant to this chapter shall have all the powers of a district court judge under chapter 604, including the following powers: |
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| 226 | 226 | | |
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| 227 | 227 | | (1) To conduct emergency period infraction hearings and to impose monetary assessments; |
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| 228 | 228 | | |
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| 229 | 229 | | (2) To permit deferral of monetary assessment or impose community service in lieu thereof; |
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| 230 | 230 | | |
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| 231 | 231 | | (3) To dismiss a notice of infraction, with or without prejudice, or to set aside a judgment for the State; |
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| 232 | 232 | | |
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| 233 | 233 | | (4) To issue penal summonses and bench warrants and initiate contempt of court proceedings in proceedings conducted pursuant to section -11; |
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| 234 | 234 | | |
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| 235 | 235 | | (5) To issue penal summonses and bench warrants and initiate failure to appear proceedings in proceedings conducted pursuant to section -4(d)(10); and |
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| 236 | 236 | | |
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| 237 | 237 | | (6) To exercise other powers the court finds necessary and appropriate to carry out the purposes of this chapter. |
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| 238 | 238 | | |
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| 239 | 239 | | § -11 Trial and concurrent trial. (a) There shall be no right to trial unless the defendant contests the notice of infraction pursuant to section -7. If, after proceedings to contest the notice of infraction, a determination is made that the defendant committed the infraction, judgment shall enter in favor of the State. The defendant may request a trial pursuant to the Hawaii rules of evidence and the rules of the district court; provided that any request for trial shall be made within thirty days of entry of judgment. If, after appearing in person at a hearing to contest the notice of infraction, the defendant requests a trial at the conclusion of the hearing, the court shall provide the defendant with the trial date as soon as practicable. |
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| 240 | 240 | | |
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| 241 | 241 | | (b) At the time of trial, the State shall be represented by a prosecuting attorney of the county in which the infraction occurred. The prosecuting attorney shall orally recite the charged infraction in court prior to commencement of the trial. Proof of the defendant's commission of the infraction shall be by a preponderance of the evidence. |
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| 242 | 242 | | |
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| 243 | 243 | | (c) Appeals from judgments entered after a trial on the notice of infraction may be taken in the manner provided for appeals from district court civil judgments. |
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| 244 | 244 | | |
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| 245 | 245 | | (d) If trial on the infraction is held prior to trial on any related criminal offense, the following shall be inadmissible in the subsequent prosecution or trial of the related criminal offense: |
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| 246 | 246 | | |
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| 247 | 247 | | (1) Any written or oral statement made by the defendant in proceedings conducted pursuant to section -6(b); and |
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| 248 | 248 | | |
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| 249 | 249 | | (2) Any testimony given by the defendant in the trial on the infraction. |
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| 250 | 250 | | |
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| 251 | 251 | | The statement or testimony, or both, shall not be deemed a waiver of the defendant's privilege against self-incrimination in connection with any related criminal offense. |
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| 252 | 252 | | |
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| 253 | 253 | | (e) In any concurrent trial, the State shall be represented by a prosecuting attorney of the county in which the infraction and related crime occurred. Proof of the defendant's commission of the infraction shall be by a preponderance of the evidence, and proof of the related criminal offense shall be by proof beyond a reasonable doubt. The concurrent trial shall be conducted pursuant to the rules of the appropriate court, the Hawaii rules of evidence, and the Hawaii rules of penal procedure. |
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| 254 | 254 | | |
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| 255 | 255 | | § -12 Rules. (a) The supreme court may adopt rules of procedure for the conduct of all proceedings pursuant to this chapter. |
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| 256 | 256 | | |
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| 257 | 257 | | (b) Chapter 626 shall not apply in proceedings conducted pursuant to this chapter, except for the rules governing privileged communications, and proceedings conducted under section -11. |
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| 258 | 258 | | |
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| 259 | 259 | | (c) Notwithstanding section 604-17, while the court is sitting in any matter pursuant to this chapter, the court shall not be required to preserve the testimony or proceedings, except proceedings conducted pursuant to section -11 and proceedings in which the infraction is heard on the same date and time as any related criminal offense. |
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| 260 | 260 | | |
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| 261 | 261 | | (d) The prosecuting attorney shall not participate in emergency period infraction proceedings conducted pursuant to this chapter, except proceedings pursuant to section -11 and proceedings in which a related criminal offense is scheduled for arraignment, hearing, or concurrent trial. |
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| 262 | 262 | | |
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| 263 | 263 | | (e) Chapter 91 shall not apply in proceedings before the court. |
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| 264 | 264 | | |
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| 265 | 265 | | (f) Except as otherwise provided in section -2, chapter 571 and the Hawaii family court rules shall not apply in any proceedings conducted pursuant to this chapter." |
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| 266 | 266 | | |
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| 267 | 267 | | SECTION 3. Section 127A-29, Hawaii Revised Statutes, is amended to read as follows: |
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| 268 | 268 | | |
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| 269 | 269 | | "[[]§127A-29[]] Misdemeanors[.], petty misdemeanors, and emergency period infractions. Any person violating any rule of the governor or mayor prescribed and promulgated pursuant to this chapter and having the force and effect of law, shall, if it shall be so stated and designated in the rule, be guilty of a misdemeanor[.]or petty misdemeanor. Upon conviction, the person shall be [fined not more than $5,000, or imprisoned not more than one year, or both.]sentenced pursuant to chapter 706. |
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| 270 | 270 | | |
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| 271 | 271 | | The governor or mayor may also prescribe or promulgate the noncompliance with a rule as an emergency period infraction, as defined in section -1, provided that it is specified in the emergency proclamation or order as being an infraction subject to the adjudication process of chapter____. |
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| 272 | 272 | | |
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| 273 | 273 | | Any person who intentionally, knowingly, or recklessly destroys, damages, or loses any shelter, protective device, or warning or signal device, shall if the same was installed or constructed by the United States, the State, or a county, or is the property of the United States, the State, or a county, be fined the cost of replacement, or imprisoned not more than one year, or both. The governor or mayor, may, by rule, make further provisions for the protection from misuse of shelters, protective devices, or warning and signal devices." |
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| 274 | 274 | | |
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| 275 | 275 | | SECTION 4. Section 571-41, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows: |
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| 276 | 276 | | |
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| 277 | 277 | | "(f) The judge, or the senior judge if there is more than one, may by order confer concurrent jurisdiction on a district court created under chapter 604 to hear and dispose of cases of violation of traffic laws [or], ordinances, or emergency period rules, established pursuant to chapter 127A, by children, provision to the contrary in section 571-11 or elsewhere notwithstanding. The exercise of jurisdiction over children by district courts shall, nevertheless, be considered noncriminal in procedure and result in the same manner as though the matter had been adjudicated and disposed of by a family court." |
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| 278 | 278 | | |
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| 279 | 279 | | SECTION 5. Section 601-3.7, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows: |
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| 280 | 280 | | |
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| 281 | 281 | | "(a) There is established in the state treasury a special fund to be known as the judiciary computer system special fund, which shall contain the following: |
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| 282 | 282 | | |
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| 283 | 283 | | (1) Moneys collected from administrative fees pursuant to section 287-3(a); |
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| 284 | 284 | | |
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| 285 | 285 | | (2) Fees prescribed by the supreme court by rule of court for electronic document certification, electronic copies of documents, and for providing bulk access to electronic court records and compilations of data; and |
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| 286 | 286 | | |
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| 287 | 287 | | (3) Fees pursuant to sections 607-4(b)(10) [and], 607‑5(c)(32)[.], and -8(b)(3)." |
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| 288 | 288 | | |
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| 289 | 289 | | SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $40,000 or so much thereof as may be necessary for fiscal year 2021-2022 to process and adjudicate the emergency rule infractions. |
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| 290 | 290 | | |
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| 291 | 291 | | The sum appropriated shall be expended by the Judiciary to effectuate the purposes of this Act. |
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| 292 | 292 | | |
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| 293 | 293 | | SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this Act. |
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| 294 | 294 | | |
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| 295 | 295 | | SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. |
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| 296 | 296 | | |
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| 297 | 297 | | SECTION 9. This Act shall take effect upon its approval. |
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| 298 | 298 | | |
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| 299 | 299 | | |
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| 300 | 300 | | |
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| 301 | 301 | | INTRODUCED BY: _____________________________ |
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| 302 | 302 | | BY REQUEST |
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| 303 | 303 | | |
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| 304 | 304 | | INTRODUCED BY: |
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| 305 | 305 | | |
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| 306 | 306 | | _____________________________ |
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| 307 | 307 | | |
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| 308 | 308 | | |
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| 309 | 309 | | |
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| 310 | 310 | | BY REQUEST |
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| 311 | 311 | | |
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| 312 | 312 | | Report Title: Violation of Rules During an Emergency Period Description: Authorizes the governor and the mayors to establish lesser petty misdemeanor offenses and violations during emergency periods, including non-criminal infractions; and establishes a more expeditious system for the processing of these infractions to reduce the burden on the court system. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. |
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| 313 | 313 | | |
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| 314 | 314 | | |
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| 315 | 315 | | |
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| 316 | 316 | | |
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| 317 | 317 | | |
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| 318 | 318 | | Report Title: |
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| 319 | 319 | | |
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| 320 | 320 | | Violation of Rules During an Emergency Period |
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| 321 | 321 | | |
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| 322 | 322 | | |
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| 323 | 323 | | |
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| 324 | 324 | | Description: |
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| 325 | 325 | | |
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| 326 | 326 | | Authorizes the governor and the mayors to establish lesser petty misdemeanor offenses and violations during emergency periods, including non-criminal infractions; and establishes a more expeditious system for the processing of these infractions to reduce the burden on the court system. |
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| 327 | 327 | | |
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| 328 | 328 | | |
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| 329 | 329 | | |
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| 330 | 330 | | |
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| 331 | 331 | | |
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| 332 | 332 | | |
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| 333 | 333 | | |
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| 334 | 334 | | The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent. |
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