§706-603 DNA analysis monetary assessment; DNA registry special fund. (1) In addition to any disposition authorized by chapter 706 or 853, every defendant convicted of a felony offense shall be ordered to pay a monetary assessment of $500 or the actual cost of the DNA analysis, whichever is less. The court may reduce the monetary assessment if the court finds, based on evidence presented by the defendant and not rebutted by the State, that the defendant is not and will not be able to pay the full monetary assessment and, based on the finding, shall instead order the defendant to pay an assessment that the defendant will be able to pay within five years.

(2) Notwithstanding any other law to the contrary, the assessment and penalty provided by this section shall be in addition to, and not in lieu of, and shall not be used to offset or reduce, any fine or restitution authorized or required by law. All assessments and penalties shall be paid into the DNA registry special fund established in subsection (3).

(3) There is established a special fund to be known as the DNA registry special fund which shall be administered by the attorney general. The fund shall consist of:

(a) All assessments and penalties ordered pursuant to subsection (1);

(b) All other moneys received by the fund from any other source; and

(c) Interest earned on any moneys in the fund.

Moneys in the DNA registry special fund shall be used for the Hawaii sexual assault response and training program established pursuant to chapter 844G; costs related to testing and storage of sexual assault evidence collection kits pursuant to chapter 844G; and DNA collection, DNA testing, and related costs of recording, preserving, and disseminating DNA information pursuant to chapter 844D.

(4) Restitution shall be made before payment of the monetary assessment pursuant to section 706-651. [L 1972, c 9, pt of §1; am L 1973, c 179, §24; am L 1974, c 54, §4; am L 1979, c 3, §4 and c 105, §65; am L 1980, c 232, §37; am L 1986, c 314, §12; am L 1987, c 145, §4; am L 1991, c 231, §2; am L 1998, c 271, §1; am L 2001, c 157, §35; am L 2005, c 112, §4; am L 2016, c 231, §16; am L 2018, c 113, §3]

COMMENTARY ON §706-603

This section recognizes that in some, if not many, cases the court will need medical and psychiatric information not normally found within the scope of the pre-sentence investigation and report. It is clear that in deciding which of numerous sentencing alternatives should be employed--e.g., fine, suspended sentence, probation (and the conditions thereof), or imprisonment--the court will need and should be allowed to call upon the professional insights of medical experts. The need for such professional help has been well stated in the A.B.A. Standards:

Reliance on the trial court for such significant correctional decisions suggests the imperative need for informational services beyond the normal pre-sentence report. There will inevitably be instances in which the pre-sentence report together with other information acquired during the trial will either leave the court short of desired information or will have raised additional questions which can only be answered by an examination of the defendant's physical, emotional or mental condition. The lack of access to facilities which can supply such information will force the court to an uninformed guess as to the proper disposition.

Too much is at stake to place the court in such a position. On occasion the simple correction of a physical defect has altered the course of a seemingly incorrigible offender. The use of prison in such a context could reinforce the offender's anti-social tendencies. Similarly, the pattern of psychiatric study followed by appropriate treatment offers significant advantages over the simple detention which characterizes so many of our prisons. The system needs the ability to discover the cases where unusual factors may indicate the desirability of an unusual disposition. The availability of facilities such as are contemplated by this section is one step in providing that capability.[1]

The Code does not deal with the question of whether the State should establish one or more reception and diagnostic centers to meet the needs of sentencing courts or whether the court's needs should be met by the employment on a case-by-case basis of local physicians and psychiatrists.2 That decision will have to be made eventually, however, the Code is formulated in a manner which allows for future expansion of facilities in this area.

This section represents a needed addition to Hawaii law.

SUPPLEMENTAL COMMENTARY ON §706-603

Act 179, Session Laws 1973, amended this section to permit a convicted defendant to be remanded to an intake service center or community correctional center in addition to a clinic or hospital. This amendment was part of the implementation of the Hawaii Correctional Master Plan. (See Supplemental Commentary on §706-602.)

Act 54, Session Laws 1974, amended this section to permit the use of a certified clinical psychologist in making a pre-sentence diagnosis or evaluation. (Cf. Supplemental Commentary on §§704-404, 411, and 414.)

Act 3, Session Laws 1979, amended this section by providing for a three member examination panel (to be appointed in the same manner as the examination panels in §§704-404, 411, and 414) as the sole alternative to a single examiner. This was done to allow greater flexibility in appointing mental health professionals to the panels. Act 105 amended this section to restore language inadvertently deleted by Act 54, Session Laws 1974.

Act 232, Session Laws 1980, amended this section to restore amendments made by Act 3, §4, Session Laws 1979, which were superseded by Act 105, Session Laws 1979, under a general supersession clause.

Act 314, Session Laws 1986, amended "certified clinical psychologists" to "licensed psychologists." This change was made because psychologists are licensed and not certified and the term "clinical" does not accurately describe psychologists qualified to determine penal responsibility and fitness to proceed. Act 314 also provided an exception to the licensure requirement which recognizes that under §465-3(4), psychologists employed under government certification or civil service rules are exempt from the licensure requirement. Conference Committee Report No. 51-86.

Act 145, Session Laws 1987, permitted the department of health to set minimum standards for participation and appointment of a sanity examiner. The legislature felt this change would allow additional assurances of higher quality testimony by these examiners. Senate Standing Committee Report No. 691, House Standing Committee Report No. 1217.

Act 231, Session Laws 1991, required the court to order a defendant convicted of a sexual offense, a violent crime, or the attempt of either, to submit to blood and saliva testing to be used for a DNA identification profile which will allow law enforcement officials to identify reoffenders. The legislature weighed the balance between the defendant's right to privacy and the needs of society, and found that the needs of society to deter sexual and violent crimes outweighed the defendant's right to privacy. House Standing Committee Report No. 1018.

Act 271, Session Laws 1998, amended this section to require defendants convicted of sexual or violent offenses to provide blood samples for DNA analysis. The court is allowed to order convicted defendants to pay a monetary assessment of $500 or the actual cost of DNA analysis, whichever is less, to defray the costs of obtaining, storing, and testing the blood sample. Act 271 created a DNA registry special fund, administered by the attorney general, into which the monetary assessments are to be deposited. A person who negligently or recklessly fails to provide blood samples is guilty of a misdemeanor, and a person who intentionally or knowingly fails to provide blood samples is guilty of a class C felony.

The legislature recognized that DNA information is an increasingly valuable tool for investigating, prosecuting, and defending criminal cases. The legislature found that the development of a DNA registry is important to protect the public from further criminal acts committed by the offenders, but that the cost of the DNA sampling process is borne by police departments without state funding. The legislature agreed that convicted defendants who are required to provide DNA samples should be assessed a fee to defray the costs of testing. Conference Committee Report No. 110, Senate Standing Committee Report No. 3009.

Act 157, Session Laws 2001, amended this section, among others, to conform amendments relating to revocation of motor vehicle registrations under administrative revocation proceedings with the comprehensive law regarding driving under the influence which is to take effect on January 1, 2002. Act 157 conformed and consolidated the provisions of Act 189, Session Laws 2000, to existing law regarding driving while under the influence of alcohol or drugs, and suspension and revocation of licenses. Senate Standing Committee Report No. 1406.

Act 112, Session Laws 2005, established a statewide DNA database and data bank identification program for all convicted felons. Conference Committee Report No. 184. Act 112 amended this section by deleting the provisions regarding blood samples for DNA analysis and by requiring every convicted felon to pay a monetary assessment of $500 or the actual cost of the DNA analysis, whichever is less.

Act 231, Session Laws 2016, amended subsection (4) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).

Act 113, Session Laws 2018, amended this section to authorize use of the DNA registry special fund for the Hawaii sexual assault response and training program established pursuant to chapter 844G and the associated costs for testing and storage of sexual assault evidence collection kits. Act 113 established a Hawaii sexual assault response and training program to address the manner in which sexual assault evidence collection kits are processed and tracked and ensure that victims of sexual assault are informed of their rights under the law. The legislature found that deoxyribonucleic acid (DNA) evidence is a powerful law enforcement tool that can identify unknown suspects, connect crimes to known perpetrators, and exonerate the innocent. The legislature further found that DNA evidence is especially vital in cases of sexual assault and that Act 113 would help ensure that sexual assault evidence collection kits are tested in a timely manner. Senate Standing Committee Report No. 3038, Senate Standing Committee Report No. 3693.

Case Notes

Cited as authorizing a pre-sentence psychiatric examination. 60 H. 100, 588 P.2d 409 (1978).

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§706-603 Commentary:

1. A.B.A. Standards, comments at 229.

2. Cf. A.B.A. Standards, comments at 229-231.