HACR Concerns and Requested Amendments for the Attorney General-Drafted Cannabis Legalization Bills

HACR Concerns and Requested Amendments for the Attorney General-Drafted Cannabis Legalization Bills

Cannabis prohibition has done a tremendous amount of harm — tearing families apart, marking tens of thousands of Hawai‘i residents with criminal records that derail lives, and risking the health and safety of those buying and selling cannabis on the illicit market. We embrace legalization as a way to stop inflicting those harms, contribute to a diversified economy, and to create an alternative approach rooted in equity and reparative justice.

The Attorney General’s office, which does not support legalization, drafted a legalization bill that “mandate[s] that the Hawaii cannabis authority make the protection of public health and public safety its highest priorities.” SB 3335, SD 2 provides, "Whenever the protection of public health and public safety is inconsistent with other interests sought to be promoted, the protection of public health and public safety shall be paramount."

We heartily support protecting health and safety as part of legalization. However, singular focus has resulted in an approach that is overly focused on law enforcement and re-criminalization, and that will continue to do life-changing damage to responsible cannabis consumers for behavior that endangers no one. We urge an approach to cannabis legalization that focuses far more on education, reinvesting in communities, reparative justice, and building an equitable and inclusive industry — and that avoids ramping up law enforcement and criminalizing innocuous behavior. 

We appreciate that some of our concerns have been addressed in the Senate committee process. But several more changes are still needed. We strongly urge the following revisions, in no particular order:

  • Per se DUI Provision. Remove the outrageous and unscientific per se “driving under the influence” limit of 10 nanograms per milliliter of THC for adults and medical patients,[1] and any trace amount for those under 21. Due to significant variations among individuals in THC levels at times of impairment, particularly between regular consumers and novice users, this will criminalize patients and other sober drivers long after impairment wears off. It would also make it difficult to convict cannabis-impaired drivers testing below the threshold.  Rather than criminalizing sober drivers, Hawai’i should invest in more DRE and ARIDE-trained officers. It should also have a robust public education campaign on the dangers and illegality of impaired driving.
  • Open Containers. Remove the broad open container law, which would jail individuals for up to 30 days and/or impose a fine of up to $2,000 for a driver or passenger who possesses in the passenger area a cannabis package that has ever been opened, loose cannabis, or any pipe.
  • Expungement and Resentencing. Include clear language for the creation of a state-initiated expungement and re-sentencing process. Justice is not simply achieved through legalization, but by also undoing the harms caused by the criminalization of cannabis. Government-initiated expungement and resentencing can provide retroactive relief for individuals criminalized for cannabis activity and dismantle the racial injustices that the criminal legal system has perpetuated during cannabis prohibition.
  • Law Enforcement Staffing Largesse. As introduced, SB 3335 included a staggering 25 new positions in cannabis-related law enforcement. SD 2 has blanks to allow for discussion.
  • Revenue Allocation. Reduce or remove the excessive allocations to law enforcement. SD 2 allocates at least 50% of the tax revenue to law enforcement and regulatory costs, not counting fees. It also commingles social equity and health education funding with additional law enforcement grants, with no guarantee that any amount be reserved for social equity. The bill should increase allocations to social equity and community reinvestment to at least 60% of the excise tax and provide funding for the state’s General Fund.
  • Social Equity Licensing. Mandate the issuance of a significant number of small and social equity licenses in the first licensing round. Based on extrapolations from a market demand study in Maryland and the small cultivation canopy limit in the bill, there should be at least 100 growers, 60 manufacturers, and 60 retail stores. At least half of each should be reserved for social equity applicants. 
  • Storage. Remove the requirement that cannabis to always be stored in a sealed container, which applies even if adults live alone with no minors in the household.
  • Consumption Restrictions. Remove the ban on any consumption of cannabis in a public place or a vehicle, which would apply even to those using cannabis medicinally in a parked vehicle. Imposing a civil fine for public smoking would be more appropriate.
  • Compliance Language. Revise the language that only creates an exception to criminal codes if a person is acting in “strict compliance.”
  • Cannabis Authority Composition. Replace the unpaid, part-time board, and instead empower an agency head and create an advisory board. Appointments should be divided between the governor, Senate president, and speaker. To ensure they are committed to their mission, the executive director, chief officers, and appointees to the board must not have previously opposed legalization. In addition, law enforcement and former law enforcement should not be on the board if there is a board. 
  • Youth Criminalization. The bill re-criminalizes minors in possession and imposes excessive penalties for providing cannabis to those 18-20. While we certainly agree it should remain illegal to provide cannabis (other than medical cannabis), imposing even harsher penalties than the status quo is unreasonable.
  • Cannabis Odor as Pretext for Searches. Add protections to clarify that the odor of cannabis, on its own, does not establish probable cause for a warrantless search.

We urge significant amendments to SB 3335 to ensure legalization is rooted in justice and equity, not an overly punitive approach that ramps up law enforcement.

[1] SB 3335, SD 2 change the threshold to 10 ng/mL, which is still unscientific and would criminalize drivers long after impairment wears off.