HAWAII POLICE DEPARTMENT
RULES AND REGULATIONS GOVERNING
INVESTIGATIONS INVOLVING THE MEDICAL AND
RELIGIOUS USE OF MARIJUANA

I. PURPOSE
To establish rules and regulations relative to investigations conducted by the Hawaii
Police Department, involving the medical and religious use of marijuana.



II.
DEFINITIONS
A. "Adequate supply" means an amount of marijuana jointly possessed between the
qualifying patient and the primary caregiver that is not more than is reasonably
necessary to assure the uninterrupted availability of marijuana for the purpose of
alleviating the symptoms or effects of a qualifying patient's debilitating medical
condition; provided that an "adequate supply" shall not exceed three mature
marijuana plants, four immature marijuana plants, and one ounce of usable
marijuana per each mature plant (Hawaii Revised Statutes Section 329-121).
B. "Debilitating medical condition" means:
1.
Cancer, glaucoma, positive status for human immunodeficiency virus, acquired
immune deficiency syndrome, or the treatment of these conditions;
2.
A chronic or debilitating disease or medical condition or its treatment that
produces one or more of the following:
(a) Cachexia or wasting syndrome;
(b) Severe pain;
(c) Severe nausea;
(d) Seizures, including those characteristic of epilepsy; or
(e) Severe and persistent muscle spasms, including those characteristic of
multiple sclerosis or Crohn's disease; or
3.
Any other medical condition approved by the Department of Health pursuant to
administrative rules in response to a request from a physician or potentially
qualifying patient (Hawaii Revised Statutes Section 329-121).
C. "Immature marijuana plants" means a marijuana plant, whether male or female, that
has not yet flowered and which does not yet have buds that are readily observed by
unaided visual examination (Hawaii Administrative Rules, Title 23, Department of
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Public Safety, Subtitle 3, Law Enforcement, Chapter 202, Medical Use of
Marijuana, Section 2).
D. "Marijuana" means all parts of the plant (genus) Cannabis whether growing or not;
the seeds thereof, the resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or preparation of the plant, its
seeds or resin. It does not include the mature stalks of the plant, fiber produced from
the stalks, oil, or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the
resin extracted therefrom), fiber oil, or cake, or the sterilized seed of the plant which
is incapable of germination. (Hawaii Revised Statutes Section 712-1240).
E. "Mature marijuana plant" means a marijuana plant, whether male or female, that has
flowered and which has buds that are readily observed by unaided visual
examination (Hawaii Administrative Rules, Title 23, Department of Public Safety,
Subtitle 3, Law Enforcement, Chapter 202, Medical Use of Marijuana, Section 2).
F. "Primary caregiver" means a person, other than the qualifying patient and the
qualifying patient's physician, who is eighteen-years-of-age or older who has agreed
to undertake responsibility for managing the well-being of the qualifying patient
with respect to the medical use of marijuana. In the case of a minor or an adult
lacking legal capacity, the primary caregiver shall be a parent, guardian, or person
having legal custody (Hawaii Revised Statutes Section 329-121).
G. "Probable cause"; means facts and circumstances within a law enforcement officer's
knowledge and of which the officer has reasonably trustworthy information that are
sufficient in themselves to warrant a person of reasonable caution in the belief that a
crime has been or is being committed (Hawaii Revised Statutes Section 803-5).
H. "Qualifying patient" means a person who has been diagnosed by a physician as
having a debilitating medical condition (Hawaii Revised Statutes Section 329-121).
I. "Usable marijuana" means the dried leaves and flowers of the plant Cannabis family
Moraceae, and any mixture of preparation thereof, that are appropriate for the
medical use of marijuana. "Usable marijuana" does not include the seeds, stalks, and
roots of the plant (Hawaii Revised Statutes Section 329-121).


III.
MEDICAL MARIJUANA GUIDELINES
The medical marijuana law places a substantial burden on law enforcement officers to
anticipate potential medical use claims in the initial stages of the investigation. Officers
are to be guided by:
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A.
Hawaii Administrative Rules, Title 23, Department of Public Safety, Subtitle 3, Law
Enforcement, Chapter 202, Medical Use of Marijuana;
B.
Sections 329-121 through 329-128 of the Hawaii Revised Statutes, as amended,
governing the medical use of marijuana, registration requirements, and the afforded
protection it may provide to the qualifying patient, primary caregiver and physician.
IV.


CONDITIONS OF USE (REGISTRATION REQUIREMENTS)
A. A qualifying patient must have a registry identification certificate from the
Department of Public Safety that identifies a patient authorized to engage in the
medical use of marijuana, the patient's physician, the patient's designated primary
caregiver, if any, and the location of the authorized marijuana plants.
B. All primary caregivers must have a valid registry identification certificate from the
Department of Public Safety that identifies a patient authorized to engage in the
medical use of marijuana, the patient's physician, the patient's designated primary
caregiver, and the location of the authorized marijuana plants. Every primary
caregiver shall be responsible for the care of only one qualifying patient at any given
time.
C.
A qualifying patient and a primary caregiver may not jointly possess more than the
"adequate supply." If a qualifying patient and a primary caregiver possess, deliver,
or produce marijuana in excess of the amounts allowed, such individuals are not
exempted from the criminal laws of the Federal and/or State governments.
D. The medical use of marijuana authorization shall not apply to the medical use of
marijuana that endangers the health or well-being of another person; in a school bus,
public bus or any moving vehicle; in the workplace of one's employment; on any
school grounds; at any public park, public beach, public recreation center, recreation
or youth center; or any other place open to the public.
V.


DETERMINING REGISTRATION STATUS
Officers investigating a possession and/or cultivation of marijuana incident should
ascertain as part of the investigation whether the person has a legal right to acquire,
possess, cultivate, or use marijuana as described in Section 329-122 of the Hawaii
Revised Statutes, as amended, Medical use of marijuana; condition of use.
A. Stops and Encounters ­ Warrantless Arrests and Searches. Before making a
warrantless arrest or warrantless search or seizure based on probable cause, an
officer shall ascertain if the person has a registry identification certificate, unless


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evidence exists of conduct that would disqualify the person from the medical use of
marijuana defense (Hawaii Revised Statutes, Chapter 329-125).
1.
An officer may confirm the claim of possessing a registry identification
certificate by a qualifying patient or primary caregiver by contacting the
Department of Public Safety. The Department of Public Safety can be
contacted by telephone, 24 hours a day, at (808) 837-8470.
2.
If the person is not present, but their identification is known, an officer shall
check with the Department of Public Safety to determine if the person is a
registered qualifying patient or primary caregiver.
3.
If the identification of the person is not known, an officer shall check with the
Department of Public Safety, to determine if the location is a registered
medical marijuana growing site.
B.
Search Warrants. Before seeking a search warrant, an officer shall check with the
Department of Public Safety, by name and/or location, to determine whether the
person under investigation has been issued a registry identification certificate.
1.
If the Department of Public Safety indicates that the person under
investigation is currently registered or that the location where marijuana is
being grown is listed as a medical marijuana growing site, no warrant should
be sought, unless evidence exists of conduct that would disqualify the person
from the medical use of marijuana defense, or probable cause exists that
another criminal offense has been or is being committed.
2.
The Affidavit for Search Warrant shall include that checks were conducted
with the Department of Public Safety and the result of such checks.
C. Marijuana Eradication. Officers participating in marijuana eradication missions
shall be guided by the above procedures and the rules and regulations governing
marijuana eradication operations and reconnaissance missions.
VI.


EXCEPTIONS
A.
If the validity of the registry identification certificate cannot be determined and the
amount of marijuana plants fall within the criteria of the Medical Use of Marijuana
Law, the officer shall seize only enough small cuttings of marijuana not to exceed
two grams, to conduct confirmatory testing and document the extent of the grow
through photography. The investigation shall be routed to the Prosecutor's Office
for disposition.


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B.
Any additional number of marijuana plants or product exceeding adequate supply
shall be considered more than is reasonably necessary and subject the entire crop of
product to criminal investigation and prosecution.


VII. PROTECTION OF MARIJUANA AND OTHER SEIZED PROPPERTY
A. Marijuana, paraphernalia, or other property seized from a qualifying patient or
primary caregiver in connection with a claimed medical use of marijuana shall be
returned immediately upon the determination by a court that the qualifying patient or
primary caregiver is entitled to the protection offered by the Medical Use of
Marijuana Law.
1.
The Hawaii Police Department shall not be responsible for the care and
maintenance of seized live marijuana plants (Hawaii Revised Statutes Section
329-127).


VIII. FRAUDULENT MISREPRESENTATION
A.
Fraudulent misrepresentation to a law enforcement official of any fact or
circumstances relating to the medical use of marijuana to avoid arrest or prosecution
shall be punishable under Section 329-128 of the Hawaii Revised Statutes.
B. Fraudulent misrepresentation to a law enforcement official of any fact or
circumstance relating to the issuance of a written certificate by a physician not
covered under Section 329-126 of the Hawaii Revised Statutes, as amended, for the
medical use of marijuana shall be punishable under Section 329-128 of the Hawaii
Revised Statutes.


IX. RELIGIOUS USE OF MARIJUANA


A. An officer shall document all claims of religious use of marijuana made by a
defendant.
1. Spontaneous utterances and statements made after the defendant is advised of
his/her rights shall be documented in a supplementary report and submitted as
part of the investigation.
2. All documents explaining the religious use of marijuana to include fliers,
identification cards, etc., voluntarily given to the investigating officer, shall be
recovered as evidence and submitted as part of the investigation.
B. Arrests, as in any other criminal case, shall be based upon probable cause.


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C. The police shall not decide whether the suspect's claimed religion is a recognized
religion within the meaning of the First Amendment and not just a belief, as this is a
legal question reserved for the courts.
D. The police shall not decide whether the suspect has satisified the legal requirements
espoused in State v. Blake, 5 Haw. App. 411, 695 P.2d 336 (1985), since these are
legal questions with respect to the determination of fact and burden of proof,
specifically reserved for the courts.


HAWAII POLICE DEPARTMENT
COUNTY OF HAWAII
By: (Signed)
JAMES S. CORREA
POLICE CHIEF
Date: 04-16-02
COUNTY OF HAWAII
By: (Signed)
HARRY KIM
MAYOR
Date: 07-19-02