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State v. Fukagawa12/30/2002
citing grounds not depended on by the court in its decision to reject Defendant's motion, has, on the appellate level, erroneously exercised the discretion reserved only to the court on the trial level. See Hawaii Revised Statutes (HRS) § 702-236 (1993). Thus, I respectfully dissent.
I.
The following are the undisputed circumstances of the case. On March 5, 1998, Defendant was stopped for speeding by an officer of the Maui Police Department. The officer detected a strong odor of liquor coming from Defendant's breath. Defendant was arrested. His breath test at the station house showed a BAC of 0.135%. At the station house, a glass pipe was recovered from Defendant's left pants pocket. Defendant was later indicted for driving under the influence (DUI) of intoxicating liquor, for promoting a dangerous drug in the third degree, and for possession of drug paraphernalia.
On July 1, 1999, at the hearing on the motion, both parties stipulated that the residue found in the pipe seized was tested, that the residue weighed .018 grams, that it "contain methamphetamine," and that the residue was visible to the naked eye. No evidence was adduced concerning the amount of methamphetamine in the residue.
In a memorandum in support of his motion to dismiss Count II, promoting a dangerous drug in the third degree, HRS § 712-1243(1) (1993), Defendant argued that, under HRS § 702-236(1)(b), possession of .018 grams of methamphetamine was a de minimis infraction because that amount could not be sold or used for either legitimate or illicit purposes.
On June 10, 1999, Plaintiff-Appellee State of Hawaii (the prosecution) filed an opposition memorandum contending that Defendant's criminal conduct did meet the requirements of HRS § 712-1243(1) because knowing possession of the drug in any amount was the harm sought to be prevented by that statute.
In relevant part, HRS § 702-236(1) states:
De minimis infractions. (1) The court may dismiss a prosecution if, having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds that the defendant's conduct:
. . . .
(b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense.
(Emphasis added.)
A.
The defense called University of Hawaii Emeritus Professor of Pharmacology, George W. Read, Ph.D., as its expert witness. The court duly qualified Read as an expert in the field of pharmacology. Read's testimony established that: (1) pharmacology is "the study ofchemicals on living organisms and any effect of the drug on all aspects of it"; (2) "dose response" is "a classical fundamental form of pharmacology, and dose response relationship merely states that the more of a drug you give, the more effect you get from it"; (3) he relied on data and studies concerning methamphetamine dosages for therapeutic uses and amounts of methamphetamine reportedly taken by illicit users; (4) average dosage amounts and three current legal therapeutic uses of methamphetamine are .01 to .04 grams for treating obesity, .05 to .06 grams for narcolepsy, and .005 to .015 grams for attention deficit hyperactive disorder (ADHD) in children; (5) during World War II, pilots on combat missions received between .01 and .04 grams to fight fatigue; and (6) dosages for illicit use had been recorded as ranging from .4 grams to 1.7 grams a day.
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