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State v. Kahawai2/6/2004
We hold that a sentencing court may not impose discretionary conditions of probation pursuant to Hawai'i Revised Statutes (HRS) § 706-624(2) (1993) unless there is a factual basis in the record indicating that such conditions "are reasonably related to the factors set forth in [HRS § ] 706-606" and insofar as **726 *463 such "conditions involve only deprivations of liberty or property[,]" that they "are reasonably necessary for the purposes indicated in [HRS § ] 706-606(2)[.]" HRS § 706-624(2). Such a basis was lacking with respect to three conditions of probation for Petitioner/Defendant-Appellant Margaret H. Kahawai (Petitioner) imposed by the family court of the third circuit [FN1] (the court). Because the Intermediate Court of Appeals (ICA) affirmed two of the conditions and approved the third subject to amendment, see State v. Kahawai, 103 Haw. 481, 487-488, 83 P.3d 744, 750- 751, 2003 WL 22969301 (App.2003), certiorari was granted on January 22, 2004.
FN1. The Honorable Terence T. Yoshioka presided.
I.
Petitioner was charged with contacting her ex-husband, Chanley Kahawai, "and/or visiting and/or remaining within 300 yards" of his residence twice on October 11 and once on October 12, 2001, in violation of a protective order issued on July 3, 2001. In a bench trial held on April 12, 2002, Petitioner was convicted of Violation of an Order for Protection, Hawai'i Revised Statutes § 586-5.5 (1993). During sentencing Petitioner waived a pre-sentence investigation report (PSI). Respondent/Plaintiff-Appellee State of Hawai'i (the prosecution) requested an alcohol and substance abuse assessment and treatment, as necessary, as conditions of probation:
Also the State feels that, according to information that has been provided to the State, an alcohol and substance abuse assessment and whatever treatment that might be recommended by that assessment would be appropriate. State feels that if a PSI had been conducted, that there would have been input from various parties regarding the necessity for the substance abuse and alcohol assessment and treatment.
Petitioner objected on the ground that nothing had been presented during the trial that warranted an alcohol and drug assessment:
The court heard that there was [sic] very specific reasons and very specific circumstances. The circumstances do not include any indication of any substance abuse or alcohol problems or involvement in any of these violations. We didn't hear anything at all to suggest that she was under the influence during any of these events.
Nevertheless, in sentencing Petitioner to probation, the court imposed three special conditions relating to alcohol and substance abuse. The three conditions were as follows:
(3) You shall obtain a substance abuse assessment from a qualified evaluator selected by your Probation Officer and to faithfully and regularly undertake the course of treatment, if any, recommended by the assessment until you are clinically discharged.
(4) You shall submit yourself to random testing for drugs and/or for alcohol within three (3) hours after your Probation Officer has requested such testing. You will be considered to have tested positive for the substance which the Probation Officer referred you for testing if you fail to take the test. You shall always have with you sufficient monies to pay for the testing.
(5) You shall not use any narcotic drugs or controlled substances without first obtaining a prescription for such drugs or substance.
Petitioner appealed from the April 16, 2002 Judgment, contending that the court improperly imposed probation conditions 3, 4, and 5.
A majority of the ICA, [FN2] in a published opinion, affirmed conditions 3 and 5, but vacated condition 4 and remanded for its amendment and re-entry in
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