Poinography!

December 31, 2008

Creating a felony by County ordinance?

Filed under: Hawaii State Politics,Neighbor Island Politics — Doug @ 9:06 am

I am curious about this West Hawaii Today article about road rage. I don’t recall this ever being done, and I wonder if it can be done at the County level.

Council Chairman J Yoshimoto, Hilo, said Monday he plans to work with the Police Department to create an ordinance that would possibly make road rage a felony offense.

He said he has heard many stories from residents about some motorists becoming enraged on the highway and intimidating other drivers that prompted him to pursue additional penalties for those guilty of such infractions.

Police Chief Lawrence Mahuna — who will retire on Wednesday — said he recently spoke briefly with Yoshimoto about the subject.

Mahuna said there is a state law that covers aggressive driving [Really? I could not find one.], which is considered a misdemeanor, but nothing on the books that specifies “road rage.”

Unfortunately, I have been unable to find the Revised Ordinances of Hawaii County online. Is there such a thing? [META: Is there a County with a more amateurish web presence?! Sheesh.] However, the Honolulu ROs are here, and the relevant Chapter for Honolulu does not spell out specific offenses and penalties (beyond describing where certain speed limits are in effect). Basically, I am under the impression that there is no County-level penal code—in any County. This would make even more sense for felonies, which are punished by imprisonment of more than a year, since the Counties do not have their own prisons, only jails.

The HRS is somewhat schizophrenic on this matter. First it says the Counties can write “rules of the road” beyond the HRS, but then the next section of the HRS delineates exactly what powers are granted to the Counties.

Can Hawaii County create a felony by ordinance? I dunno.

11 Comments »

  1. I’m pretty sure the counties cannot pass felony punishment legislation- they are limited to misdemeanors- “$500 fine and/or six months in jail” type offenses.

    And the absence of the various “county codes” from the web is an absolute crime that keeps us in the dark as to what the law actually is.. On Kaua`i of course this is done so county officials can violate it at will and I suspect the Big Island is worse because the people are more timid about complaining about their government there.

    And don’t get me going about the lack administrative rules – at least if we saw them on-line we’d know which administrators are just making it up as they go along with arbitrary and capricious decision making.

    Comment by Andy Parx — December 31, 2008 @ 9:49 am

  2. It looks like counties are not authorized to assess felony penalties for violations of their ordinances.

    Under HRS §46-1.5 General powers and limitation of the counties -
    (13) Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State;

    (14) Each county shall have the power to:
    (D) Fix a penalty for the violation of any ordinance, which penalty may be a misdemeanor, petty misdemeanor, or violation as defined by general law.

    (Note: A “violation” does not constitute a crime and conviction of a violation authorizes no other sentence than a fine, or fine and forfeiture or other civil penalty. §701-107 Grades and classes of offenses).

    Comment by Charley Foster — December 31, 2008 @ 12:04 pm

  3. How did I miss this?

    Comment by damon — December 31, 2008 @ 12:15 pm

  4. The counties may create misdemeanor and petty misdemeanor offenses but do not appear to have the authority to create felony offenses:

    HRS 46-1.5, “General powers and limitations of the counties,” provides in subsection (14)(D) that “Each county shall have the power to . . . [f]ix a penalty for the violation of any ordinance, which penalty may be a misdemeanor, petty misdemeanor, or violation as defined by general law.” (sorry, by the time I finished this post, Charley had already posted this citation; oh well, here it is again).

    Many of the criminal offenses establish by the Revised Ordinances of Honolulu (ROH) are found in ROH Chapter 40 (e.g., intoxicating liquor penalties, ROH 40-1.3, ephedrine penalties, ROH 40-13.3, laser pointer penalties, ROH 40-15.4, etc.).

    There are petty misdemeanors in the Honolulu Traffic Code as well (e.g., 15-4.2, failure to obey police officer, 15-13.14, stripping parts off a motor vehicle, etc.). ROH 15-26.9 establishes fines for violations of Honolulu traffic ordinances not specifically set by the ordinance defining the offense.

    There do not seem to be any felony offenses in the ROH (probably because of HRS 46-1.5).

    There does not seem to be an offense of “aggressive” driving under state law:

    The HRS prohibits reckless driving, (HRS 291-1; petty misdemeanor), racing on highways, (HRS 291C-103; violation, petty misdemeanor, or misdemeanor depending on the specific violation), excessive speeding, (291C-105; petty misdemeanor), generally, but not “aggressive” driving specifically.

    The Hawaii County does not have “Revised Ordinances” like Honolulu. Its ordinances are codified in the “Hawaii County Code” which may be found at:

    http://co.hawaii.hi.us/countycode/County_Code_All_Chapters.pdf.

    Most administrative rules for state agencies amy be found here: http://hawaii.gov/lrb/desk/hi3.html. Administrative rule management is one of the primary jobs of the Lt. Governor but, unfortunately, the current occupant of that office does seem to know it or, if he does, devotes no attention/resources to it.

    Where sentences of imprisonment are served does not seem to be related to whether the offense is established by the State or one of the counties:

    Unlike the mainland where felony sentences are served in state prisons and sentences for lesser offenses are served in county jails, the counties in Hawaii do not have their own jails. The community correctional centers located in the four counties are state institutions that hold pretrial detainees (those who cannot make or are denied bail), whatever the grade of offense with which they are charged, defendants sentenced to less than a year in prison, and defendants transitioning from serving longer/felony sentences at places like Halawa or on the mainland, and are about to be paroled, or are on work-furlough, etc. Thus, sentences of imprisonment under one year are served in the community correctional centers, whether imposed by state law or county code/ordinance.

    Happy New Year!

    Comment by Ted — December 31, 2008 @ 3:36 pm

  5. Doug, the answer to your META question, as far as I can tell, is “no”

    Comment by John — December 31, 2008 @ 4:16 pm

  6. Investigation of whether, in fact, there is a more amateurish web presence here:
    http://hikinginkona.blogspot.com/2008/12/most-amateurish-web-presence-not.html

    Comment by John — December 31, 2008 @ 8:23 pm

  7. I’d say that Hawaii & Kauai counties are tied. At last check, at least the Hawaii County website, like Maui & C/C Honolulu, allows you to access reasonably current tax maps & download or print them. Not so Kauai, where they’re charging you to get hard copies. They’ve even disabled the TMK function for the real property website so you can’t see (or print) the parcel(s) you’re looking at. Nothing like to sticking it to the citizen & taxpayer, eh, County of Kauai? Lame, lame, lame.

    Comment by wlsc — January 1, 2009 @ 7:47 am

  8. Aloha Doug, fair point on the meta question, and I enjoyed the piling on from Kona. Would that be a blog pile? Anyway, since becoming county public relations specialist in December, I and others have been designing a new site that should address your concerns and be online sometime this month. Best wishes to you for 2009.

    Comment by hunter bishop — January 1, 2009 @ 8:41 am

  9. Also, Doug, to be fair, a link to the Revised Hawaii County Code(ordinances)is on the existing County Web site. It’s kind of buried but it’s there. http://www.hawaii-county.com/countycode.html

    DOUG: Mahalo, Hunter. Hopefully, your work on the County website will show some results in the near future.

    Comment by hunter bishop — January 1, 2009 @ 8:58 am

  10. Maybe the new council chair should check with his own staff to see about these things before he suggests them and looks foolish. Oh, that’s right, he replaced the previous county clerk, a law school professor, probably because he didn’t like hearing what the law permits and odes not. Sounds a bit like our outgoing president. Facts are inconvenient in politics.

    Comment by Ted — January 1, 2009 @ 12:55 pm

  11. After you get 10 comments, it becomes an official blog pile.

    Comment by damon — January 1, 2009 @ 8:41 pm

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