§712A-4 Covered offenses. Offenses for which property is subject to forfeiture under this chapter are:
(a) All offenses that specifically authorize forfeiture;
(b) Murder, kidnapping, labor trafficking, gambling, criminal property damage, robbery, bribery, extortion, theft, unauthorized entry into motor vehicle, burglary, money laundering, trademark counterfeiting, insurance fraud, promoting a dangerous, harmful, or detrimental drug, commercial promotion of marijuana, methamphetamine trafficking, manufacturing of a controlled substance with a child present, promoting child abuse, promoting prostitution, solicitation of a minor for prostitution, habitual solicitation of prostitution, or electronic enticement of a child that is chargeable as a felony offense under state law;
(c) The manufacture, sale, or distribution of a controlled substance in violation of chapter 329, promoting detrimental drugs or intoxicating compounds, promoting pornography, promoting pornography for minors, or solicitation of prostitution near schools or public parks, which is chargeable as a felony or misdemeanor offense, but not as a petty misdemeanor, under state law; and
(d) The attempt, conspiracy, solicitation, coercion, or intimidation of another to commit any offense for which property is subject to forfeiture. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1991, c 166, §1; am L 1993, c 196, §1; am L 1996, c 104, §6; am L 1997, c 277, §3; am L 1998, c 155, §4 and c 307, §1; am L 1999, c 18, §19; am L 2002, c 200, §4 and c 240, §§5, 11; am L 2006, c 7, §1; am L 2011, c 146, §2; am L 2013, c 247, §4]
COMMENTARY ON §712A-4
Act 277, Session Laws 1997, amended this section to include the offense of trademark counterfeiting in the offenses for which property is subject to forfeiture under the chapter. The legislature found that trademark counterfeiting was a recurring problem in Hawaii for retail boutiques and trademark products of the University of Hawaii, and that tourists are often the target for the scams. The legislature believed that the Act would safeguard not only consumers from the sale of counterfeit products, but would also protect the reputation and quality of trademarks and ensure that trademarks are used for their legitimate and intended purposes. House Standing Committee Report No. 1620, Senate Standing Committee Report No. 759.
Act 155, Session Laws 1998, made insurance fraud an offense subject to the property forfeiture law. The purpose of Act 155 was to minimize insurance fraud and maximize savings to Hawaii's consumers by clarifying insurance fraud laws and strengthening effective enforcement. House Standing Committee Report No. 1259-98, Senate Standing Committee Report No. 2554.
Act 307, Session Laws 1998, amended this section to authorize forfeiture of a person's property if the person is caught breaking into a motor vehicle. The legislature found that forfeiture of property has proven to be a successful deterrent to criminal activity. Including unauthorized entry into a motor vehicle as one of the offenses under this section should provide an effective deterrent to the class C felony. Because unauthorized entry into a motor vehicle included the elements of theft, criminal property damage, and burglary, already covered by the forfeiture law, the legislature found that unauthorized entry into a motor vehicle should also be covered. Conference Committee Report No. 98.
Act 18, Session Laws 1999, amended this section by deleting the brackets around "trademark counterfeiting,". Act 277, Session Laws 1997, amended this section by adding trademark counterfeiting as an offense for which property is subject to forfeiture. Acts 155 and 307, Session Laws 1998, amended this section, adding new offenses for which property is subject to forfeiture; Act 155, insurance fraud and Act 307, unauthorized entry into motor vehicle. Act 155 amended the 1997 version of this section. However, Act 307 used the pre-1997 version of the section for amendment, omitting the reference to trademark counterfeiting. The deletion of the brackets around "trademark counterfeiting." by Act 18, Session Laws 1999, ratified the revisor's replacement of "trademark counterfeiting." House Standing Committee Report No. 900, Senate Standing Committee Report No. 1239.
Act 200, Session Laws 2002, amended this section to subject to forfeiture, property used in promoting child abuse and electronic enticement of a child. The legislature found that Act 200 addressed the problem of utilizing computer technology in committing crimes against children. Senate Standing Committee Report No. 2867, Conference Committee Report No. 36-02.
Act 240, Session Laws 2002, amended this section by including sexual exploitation of a minor within covered offenses subject to forfeiture of property upon conviction. Conference Committee Report No. 79-02.
Act 7, Session Laws 2006, amended this section by adding unlawful methamphetamine trafficking and manufacturing of a controlled substance with a child present to the offenses that are subject to forfeiture. Act 7 clarified that the offenses were originally intended to be a part of the Penal Code's section on forfeiture. Senate Standing Committee Report No. 2559, House Standing Committee Report No. 1115-06.
Act 146, Session Laws 2011, amended this section by adding labor trafficking to the offenses for which property is subject to forfeiture.
Act 146 established, among other things, a class A and class B felony offense for labor trafficking, an offense for nonpayment of wages, and an offense for unlawful conduct with respect to documents. The legislature found that Hawaii is one of only five states without a specific labor trafficking statute, yet labor trafficking has occurred at an unprecedented level in the State. Act 146 sent an unmistakable warning to individuals and entities engaged in labor trafficking and provided a clearer and more structured means for law enforcement agencies to protect and aid trafficking victims. Also, Act 146 would be a catalyst for law enforcement agencies, service providers, and other state agencies and community organizations to engage in needed training and education on labor trafficking. Conference Committee Report No. 77.
Act 247, Session Laws 2013, amended this section by adding the offenses of promoting prostitution, solicitation of a minor for prostitution, habitual solicitation of prostitution, and solicitation of prostitution near schools or public parks under the State’s forfeiture laws. The legislature found that Act 247 strengthened the laws and penalties for crimes that exploit children subjected to prostitution. Furthermore, by amending, among other things, the State’s forfeiture laws, Act 247 discouraged individuals from engaging in solicitation of prostitution. Conference Committee Report No. 64.
Case Notes
Unless the offense is one of those enumerated in paragraphs (b) through (d), the offense must "specifically authorize forfeiture" as required by paragraph (a) in order to render the taking of the property lawful; thus, where neither Hawaii administrative rule §13-95-70 nor §13-95-71 specifically authorized forfeiture, appellate court erred in vacating circuit court's orders and judgments regarding forfeiture of boat. 119 H. 245, 195 P.3d 1177 (2008).
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