A bill that would help clear Hawaii County arrest records of cases of possessing small amounts of drugs, including marijuana, is on its way to the governor’s office.
If signed into law, House Bill 132 would make it easier for the Hawaii Criminal Justice Data Center under the attorney general’s office to continue a pilot program that has already cleared 246 Hawaii island arrest records for small possessions of marijuana, according to HCJDC.
The state program under Act 62 began in June and runs until October, and requires the attorney general to reexamine Hawaii County criminal records of people who were arrested, but never charged, with possessing less than one ounce of marijuana.
The proposed HB 132 is an amendment to that law that would include individuals who have been charged with possessing less than one-eighth ounce of any Schedule V substance, or drugs that contain the lowest potential for abuse, as classified by the U.S. Drug Enforcement Administration.
Doing so is not necessarily to include more drugs allowed for record expungement, but rather to help streamline the process of clearing mainly marijuana-related arrest records, according to HCJDC.
HCJDC is leading the state-initiated reevaluation processes and said that since June it has found that arrest records only show the violated statute, not the drug that was in possession at the time.
In this case, records that could be considered for expungement simply are displayed as a charge of 712-1249 — the statute that criminalizes the possession of more than three grams of marijuana or any amount of a Schedule V drug.
That resulted in an extra step for HCJDC, which had to confirm each qualifying case with the county police department to ensure that the drug involved was marijuana.
HCJDC said it was unable to speculate if the proposed bill would increase the amount of arrests that qualify for expungement on Hawaii island, because the program is ongoing.
Rep. David Tarnas (D, Hawi-Waimea-Waikoloa) introduced the bill in January and told the Honolulu Star-Advertiser that HCJDC found it did not have the time, staff or resources to manually go through each case and confirm each drug possession.
“It was not going to be a successful pilot project unless we made this change — to expand it to include all Schedule V drugs,” Tarnas said. “So, we said, ‘Let’s do it.’”
Tarnas represents a portion of Hawaii County and initially wanted the pilot program to be enforced statewide, but the Attorney General’s Office downsized the effort to Hawaii island for feasibility, he said.
HB 132 would continue the work that would “give people a second chance,” Tarnas said.
As of March 10, 2024, there were over 50,000 Hawaii records with a charge code of 712-1249 that includes possession of less than one ounce of marijuana or less than one-eighth ounce of any Schedule V drug, according to HB 132.
The pilot program was initially launched in light of Act 273, which decriminalized the possession of three grams or less of marijuana in 2019.
“Despite the decriminalization, some persons still have prior arrest records for related charges that affect their employment and housing options,” according to HB 132.
The program allows the attorney general to annul, cancel and rescind an individual’s Hawaii County arrest record if the arrest occurred before Jan. 11, 2020, if it resulted in a single charge against 712-1249 and it does not result in a conviction.
The state Office of the Public Defender wrote in supporting testimony that an arrest outlives a “not guilty” verdict, a case dismissal or “even after a prosecutor decides not to bring charges at all.”
“Employers and landlords hire non-government companies to run background checks on applicants, and when that arrest record comes up, the applicants’ chances of getting the job or landing a place to live shrink,” OPD wrote.
But expungement petitions are often cumbersome to compile and must be initiated by arrestees, Tarnas said.
The attorney general and other legal providers hosted two free expungement clinics in Waianae and Waimanalo in September and January.
The Waianae clinic processed 119 cases, submitting 72 individual cases for expungement, and the Waimanalo clinic processed 42 cases, submitting 41 of them for expungement.
Those recent efforts should be evidence enough, Tarnas said, of why the pilot program — and HB 132 — are essential.
“There’s hundreds and hundreds of individuals out there throughout the state that would benefit from expungement,” Tarnas said. “They already lead law-abiding lives but they’ve got this burden of a criminal record that discriminates against them.”
