REPORT TITLE:
Gambling


DESCRIPTION:
Makes certain actions punishable as gambling offenses and
provides for terms of imprisonment, probation, and bail.

 
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THE SENATE                              S.B. NO.           1395
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO GAMBLING.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 712-1220, Hawaii Revised Statutes, is
 
 2 amended by adding a new definition to be appropriately inserted
 
 3 and to read as follows:
 
 4      ""Specified kinds of places or areas associated with illegal
 
 5 gambling activity" means areas or locations, whether public or
 
 6 private, where illegal gambling is being conducted including
 
 7 cockfight pits or gambling dens."
 
 8      SECTION 2.  Section 712-1221, Hawaii Revised Statutes, is
 
 9 amended to read as follows:
 
10      "�712-1221  Promoting gambling in the first degree.(1)  A
 
11 person commits the offense of promoting gambling in the first
 
12 degree if the person knowingly advances or profits from gambling
 
13 activity by:
 
14      (a)  Engaging in bookmaking to the extent that the person
 
15           receives or accepts in any seven-day period more than
 
16           five bets totaling more than $500; or
 
17      (b)  Receiving in connection with a lottery, or mutuel
 
18           scheme or enterprise, money or written records from a
 
19           person other than a player whose chances or plays are
 

 
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 1           represented by such money or records; or
 
 2      (c)  Receiving or having become due and payable in
 
 3           connection with a lottery, mutuel, or other gambling
 
 4           scheme or enterprise, more than $1,000 in any seven-day
 
 5           period played in the scheme or enterprise.
 
 6      (2)  [Promoting gambling in the first degree is a class C
 
 7 felony.] Any person violating this section shall be guilty of a
 
 8 class C felony and shall be sentenced to a mandatory term of six
 
 9 months imprisonment which shall be imposed in addition and not in
 
10 lieu of any other applicable mandatory minimum.  The terms of
 
11 imprisonment shall be imposed immediately, regardless of whether
 
12 the defendant appeals the conviction, except as provided in
 
13 subsection (3).
 
14      (3)  As an option to the mandatory term of six months
 
15 imprisonment, if the court finds the option is warranted based
 
16 upon the defendant's record, the court may place the defendant on
 
17 probation for a period not to exceed five years, subject to the
 
18 mandatory condition that the defendant refrain from being present
 
19 at specified kinds of places or areas associated with illegal
 
20 gambling activity.  Upon any violation of this probation
 
21 restriction by the defendant, the court, after hearing, shall
 
22 revoke the defendant's probation and immediately impose the
 
23 mandatory six months term of imprisonment.
 

 
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 1      (4)  Any person charged under this section may be admitted
 
 2 to bail, pursuant to section 804-4, subject to the mandatory
 
 3 condition that the defendant refrain from being present at
 
 4 specified kinds of places or areas associated with illegal
 
 5 gambling activity.  Notwithstanding any other provision of law to
 
 6 the contrary, any person who violates these bail restrictions
 
 7 shall have the person's bail revoked after hearing and shall be
 
 8 imprisoned forthwith."
 
 9      SECTION 3.  Section 712-1222, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "�712-1222  Promoting gambling in the second degree.(1)  A
 
12 person commits the offense of promoting gambling in the second
 
13 degree if the person knowingly advances or profits from gambling
 
14 activity.
 
15      (2)  [Promoting gambling in the second degree is a
 
16 misdemeanor.] Any person violating this section shall be guilty
 
17 of a misdemeanor and shall be sentenced to a mandatory term of
 
18 thirty days imprisonment which shall be imposed in addition to
 
19 and not in lieu of any other applicable mandatory minimum.  The
 
20 terms of imprisonment shall be imposed immediately, regardless of
 
21 whether the defendant appeals the conviction, except as provided
 
22 in subsection (3).
 
23      (3)  As an option to the mandatory term of thirty days
 

 
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 1 imprisonment, if the court finds the option is warranted based
 
 2 upon the defendant's record, the court may place the defendant on
 
 3 probation for a period not to exceed one year, subject to the
 
 4 mandatory condition that the defendant refrain from being present
 
 5 at specified kinds of places or areas associated with illegal
 
 6 gambling activity.  Upon any violation of this probation
 
 7 restriction by the defendant, the court, after hearing, shall
 
 8 revoke the defendant's probation and immediately impose the
 
 9 mandatory thirty-day term of imprisonment.
 
10      (4)  Any person charged under this section may be admitted
 
11 to bail, pursuant to section 804-4, subject to the mandatory
 
12 condition that the defendant refrain from being present at
 
13 specified kinds of places or areas associated with illegal
 
14 gambling activity.  Notwithstanding any other provision of law to
 
15 the contrary, any person who violates these bail restrictions
 
16 shall have the person's bail revoked after hearing and shall be
 
17 imprisoned forthwith."
 
18      SECTION 4.  Section 712-1223, Hawaii Revised Statutes, is
 
19 amended to read as follows:
 
20      "�712-1223  Gambling.(1)  A person commits the offense of
 
21 gambling if the person knowingly advances or participates in any
 
22 gambling activity.
 
23      (2)  [Gambling is a misdemeanor.] Any person violating this
 

 
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 1 section shall be guilty of a misdemeanor and shall be sentenced
 
 2 to a mandatory term of thirty days imprisonment which shall be
 
 3 imposed in addition to and not in lieu of any other applicable
 
 4 mandatory minimum.  The terms of imprisonment shall be imposed
 
 5 immediately, regardless of whether the defendant appeals the
 
 6 conviction, except as provided in subsection (3).
 
 7      (3)  As an option to the mandatory term of thirty days
 
 8 imprisonment, if the court finds the option is warranted based
 
 9 upon the defendant's record, the court may place the defendant on
 
10 probation for a period not to exceed one year, subject to the
 
11 mandatory condition that the defendant refrain from being present
 
12 at specified kinds of places or areas associated with illegal
 
13 gambling activity.  Upon any violation of this probation
 
14 restriction by the defendant, the court, after hearing, shall
 
15 revoke the defendant's probation and immediately impose the
 
16 mandatory thirty-day term of imprisonment.
 
17      (4)  Any person charged under this section may be admitted
 
18 to bail, pursuant to section 804-4, subject to the mandatory
 
19 condition that the defendant refrain from being present at
 
20 specified kinds of places or areas associated with illegal
 
21 gambling activity.  Notwithstanding any other provision of law to
 
22 the contrary, any person who violates these bail restrictions
 
23 shall have the person's bail revoked after hearing and shall be
 

 
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 1 imprisoned forthwith."
 
 2      SECTION 5.  Section 712-1224, Hawaii Revised Statutes, is
 
 3 amended to read as follows:
 
 4      "�712-1225  Possession of gambling records in the second
 
 5 degree.(1)  A person commits the offense of possession of
 
 6 gambling records in the second degree if the person knowingly
 
 7 possesses any writing, paper, instrument, or article: 
 
 8      (a)  Of a kind commonly used in the operation or promotion
 
 9           of a bookmaking scheme or enterprise; or 
 
10      (b)  Of a kind commonly used in the operation, promotion, or
 
11           playing of a lottery or mutuel scheme or enterprise. 
 
12      (2)  [Possession of gambling records in the second degree is
 
13 a misdemeanor.] Any person violating this section shall be guilty
 
14 of a class C felony and shall be sentenced to a mandatory term of
 
15 six months imprisonment which shall be imposed in addition to and
 
16 not in lieu of any other applicable mandatory minimum.  The terms
 
17 of imprisonment shall be imposed immediately, regardless of
 
18 whether the defendant appeals the conviction, except as provided
 
19 in subsection (3).
 
20      (3)  As an option to the mandatory term of six months
 
21 imprisonment, if the court finds the option is warranted based
 
22 upon the defendant's record, the court may place the defendant on
 
23 probation for a period not to exceed five years, subject to the
 

 
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 1 mandatory condition that the defendant refrain from being present
 
 2 at specified kinds of places or areas associated with illegal
 
 3 gambling activity.  Upon any violation of this probation
 
 4 restriction by the defendant, the court, after hearing, shall
 
 5 revoke the defendant's probation and immediately impose the
 
 6 mandatory six-month term of imprisonment.
 
 7      (4)  Any person charged under this section may be admitted
 
 8 to bail, pursuant to section 804-4, subject to the mandatory
 
 9 condition that the defendant refrain from being present at
 
10 specified kinds of places or areas associated with illegal
 
11 gambling activity.  Notwithstanding any other provision of law to
 
12 the contrary, any person who violates these bail restrictions
 
13 shall have the person's bail revoked after hearing and shall be
 
14 imprisoned forthwith."
 
15      SECTION 6.  Section 712-1225, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "�712-1225  Possession of gambling records in the second
 
18 degree.(1)  A person commits the offense of possession of
 
19 gambling records in the second degree if the person knowingly
 
20 possesses any writing, paper, instrument, or article: 
 
21      (a)  Of a kind commonly used in the operation or promotion
 
22           of a bookmaking scheme or enterprise; or 
 
23      (b)  Of a kind commonly used in the operation, promotion, or
 

 
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 1           playing of a lottery or mutuel scheme or enterprise. 
 
 2      (2)  [Possession of gambling records in the second degree is
 
 3 a misdemeanor.] Any person violating this section shall be guilty
 
 4 of a misdemeanor and shall be sentenced to a mandatory term of
 
 5 thirty days imprisonment which shall be imposed in addition to
 
 6 and not in lieu of any other applicable mandatory minimum.  The
 
 7 terms of imprisonment shall be imposed immediately, regardless of
 
 8 whether the defendant appeals the conviction, except as provided
 
 9 in subsection (3).
 
10      (3)  As an option to the mandatory term of thirty days
 
11 imprisonment, if the court finds the option is warranted based
 
12 upon the defendant's record, the court may place the defendant on
 
13 probation for a period not to exceed one year, subject to the
 
14 mandatory condition that the defendant refrain from being present
 
15 at specified kinds of places or areas associated with illegal
 
16 gambling activity.  Upon any violation of this probation
 
17 restriction by the defendant, the court, after hearing, shall
 
18 revoke the defendant's probation and immediately impose the
 
19 mandatory thirty-day term of imprisonment.
 
20      (4)  Any person charged under this section may be admitted
 
21 to bail, pursuant to section 804-4, subject to the mandatory
 
22 condition that the defendant refrain from being present at
 
23 specified kinds of places or areas associated with illegal
 

 
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 1 gambling activity.  Notwithstanding any other provision of law to
 
 2 the contrary, any person who violates these bail restrictions
 
 3 shall have the person's bail revoked after hearing and shall be
 
 4 imprisoned forthwith."
 
 5      SECTION 7.  Section 712-1226, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "�712-1226  Possession of a gambling device.(1)  A person
 
 8 commits the offense of possession of a gambling device if the
 
 9 person manufactures, sells, transports, places, possesses, or
 
10 conducts or negotiates any transaction affecting or designed to
 
11 affect ownership, custody, or use of any gambling device, knowing
 
12 it is to be used in the advancement of gambling activity which is
 
13 not social gambling. 
 
14      (2)  [Possession of a gambling device is a misdemeanor.] Any
 
15 person violating this section shall be guilty of a misdemeanor
 
16 and shall be sentenced to a mandatory term of thirty days
 
17 imprisonment which shall be imposed and in addition to and not in
 
18 lieu of any other applicable mandatory minimum.  The terms of
 
19 imprisonment shall be imposed immediately, regardless of whether
 
20 the defendant appeals the conviction, except as provided in
 
21 subsection (3).
 
22      (3)  As an option to the mandatory term of thirty days
 
23 imprisonment, if the court finds the option is warranted based
 

 
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 1 upon the defendant's record, the court may place the defendant on
 
 2 probation for a period not to exceed one year, subject to the
 
 3 mandatory condition that the defendant refrain from being present
 
 4 at specified kinds of places or areas associated with illegal
 
 5 gambling activity.  Upon any violation of this probation
 
 6 restriction by the defendant, the court, after hearing, shall
 
 7 revoke the defendant's probation and immediately impose the
 
 8 mandatory thirty-day term of imprisonment.
 
 9      (4)  Any person charged under this section may be admitted
 
10 to bail, pursuant to section 804-4, subject to the mandatory
 
11 condition that the defendant refrain from being present at
 
12 specified kinds of places or areas associated with illegal
 
13 gambling activity.  Notwithstanding any other provision of law to
 
14 the contrary, any person who violates these bail restrictions
 
15 shall have the person's bail revoked after hearing and shall be
 
16 imprisoned forthwith."
 
17      SECTION 8.  Section 712-1228, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "�712-1228  Gambling offenses; prima facie evidence.(1)
 
20 Proof that a person knowingly possessed any gambling record
 
21 specified in sections 712-1224 and 712-1225 or any gambling
 
22 device in section 712-1226 is prima facie evidence that the
 
23 person possessed the record or device with knowledge of its
 

 
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 1 contents and character.
 
 2      (2)  In any prosecution under this part in which it is
 
 3 necessary to prove the occurrence of a sporting event, a
 
 4 published report of its occurrence in any daily newspaper,
 
 5 magazine, or other periodically printed publication of general
 
 6 circulation, shall be admissible in evidence and shall constitute
 
 7 prima facie evidence of the occurrence of the event.
 
 8      (3)  Proof that a person knowingly was present at specified
 
 9 kinds of places or areas associated with illegal gambling
 
10 activity specified in sections 712-1221, 712-1222, 712-1223,
 
11 712-1224, 712-1225, and 712-1226 is prima facie evidence that the
 
12 person was present at such premises or areas with the knowledge
 
13 that illegal gambling activity was being conducted there."
 
14      SECTION 9.  Section 804-4, Hawaii Revised Statutes, is
 
15 amended to read as follows:
 
16      "�804-4 When a matter of right.(a)  If the charge is for
 
17 an offense for which bail is allowable under section 804-3, the
 
18 defendant may be admitted to bail before conviction as a matter
 
19 of right; provided that bail shall be allowed for any person:
 
20      (1)  [charged] Charged under section 712-1207 only subject
 
21           to the mandatory condition that the person observe
 
22           geographic restrictions that prohibit the defendant
 
23           from entering or walking along the public streets or
 

 
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 1           sidewalks of Waikiki during the hours from 6 p.m. to 6
 
 2           a.m.; or
 
 3      (2)  Charged under section 712-1221, 712-1222, 712-1223,
 
 4           712-1224, 712-1225, or 712-1226, only subject to the
 
 5           mandatory condition that the person refrain from being
 
 6           present at specified kinds of places or areas
 
 7           associated with illegal gambling activity.
 
 8      (b)  The right to bail shall continue after conviction of a
 
 9 misdemeanor, petty misdemeanor, or violation, and release on bail
 
10 may continue, in the discretion of the court, after conviction of
 
11 a felony until the final determination of any motion for a new
 
12 trial, appeal, habeas corpus, or other proceedings that are made,
 
13 taken, issued, or allowed for the purpose of securing a review of
 
14 the rulings, verdict, judgment, sentence, or other proceedings of
 
15 any court or jury in or by which the defendant has been
 
16 arraigned, tried, convicted, or sentenced; provided that:
 
17      (1)  No bail shall be allowed after conviction and prior to
 
18           sentencing in cases where bail was not available under
 
19           section 804-3, or where bail was denied or revoked
 
20           before conviction;
 
21      (2)  No bail shall be allowed pending appeal of a felony
 
22           conviction where a sentence of imprisonment has been
 
23           imposed; [and]
 

 
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 1      (3)  No bail shall be allowed pending appeal of a conviction
 
 2           for a violation of section 712-1207, unless the court
 
 3           finds, based on the defendant's record, that the
 
 4           defendant may be admitted to bail subject to the
 
 5           mandatory condition that the person observe geographic
 
 6           restrictions that prohibit the defendant from entering
 
 7           or walking along the public streets or sidewalks of
 
 8           Waikiki during the hours from 6 p.m. to 6 a.m.; and
 
 9      (4)  No bail shall be allowed pending appeal of a conviction
 
10           for a violation of section 712-1221, 712-1222,
 
11           712-1223, 712-1224, 712-1225, or 712-1226, unless the
 
12           court finds, based on the defendant's record, that the
 
13           defendant may be admitted to bail subject to the
 
14           mandatory condition that the defendant refrain from
 
15           being present at specified kinds of places or areas
 
16           associated with illegal gambling activity.
 
17 Notwithstanding any other provision of law to the contrary, any
 
18 person who violates these bail restrictions shall have the
 
19 person's bail revoked after hearing and shall be imprisoned
 
20 forthwith.
 
21      [(b)] (c)  The court shall order that a person who has been
 
22 found guilty of an offense and sentenced to a term of
 
23 imprisonment, and who has filed an appeal or a petition for a
 

 
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 1 writ of certiorari, be detained, unless the court finds:
 
 2      (1)  By clear and convincing evidence that the person is not
 
 3           likely to flee or pose a danger to the safety of any
 
 4           other person or the community if released; and
 
 5      (2)  That the appeal is not for purpose of delay and raises
 
 6           a substantial question of law or fact likely to result
 
 7           in reversal or an order for a new trial.
 
 8 If the court makes these findings, the court shall order the
 
 9 release of the person in accordance with section 804-7.1.  No
 
10 defendant entitled to bail, whether bailed or not, shall be
 
11 subject, without the defendant's written consent, to the
 
12 operation of any sentence passed upon the defendant, while any
 
13 proceedings to procure a review of any action of the trial court
 
14 or jury in the premises are pending and undetermined, except as
 
15 provided in section 641-14(a) [or], section 712-1207[.] or
 
16 section 712-1221, 712-1222, 712-1223, 712-1224, 712-1225, or
 
17 712-1226."
 
18      SECTION 10.  Section 804-5, Hawaii Revised Statutes, is
 
19 amended to read as follows:
 
20      "�804-5 By whom allowed.  In cases where the punishment for
 
21 the offense charged may be imprisonment for life not subject to
 
22 parole, or imprisonment for a term more than ten years with or
 
23 without fine, a judge or justice of a court of record, including
 

 
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 1 a district judge, shall be competent to admit the accused to
 
 2 bail, in conformity with sections 804-3 to 804-6.  In all other
 
 3 cases, the accused may be so admitted to bail by any judge or
 
 4 justice of a court of record, including a district judge, and in
 
 5 cases, except under section 712-1207[,] or section 712-1221,
 
 6 712-1222, 712-1223, 712-1224, 712-1225, or 712-1226, where the
 
 7 punishment for the offense charged may not exceed two years'
 
 8 imprisonment with or without fine, the sheriff, the sheriff's
 
 9 deputy, the chief of police or any person named by the chief of
 
10 police, or the sheriff of Kalawao, regardless of the circuit
 
11 within which the alleged offense was committed, may admit the
 
12 accused person to bail."
 
13      SECTION 11.  This Act does not affect rights and duties that
 
14 matured, penalties that were incurred, and proceedings that were
 
15 begun, before its effective date.
 
16      SECTION 12.  If any provision of this Act, or the
 
17 application thereof to any person or circumstance is held
 
18 invalid, the invalidity does not affect other provisions or
 
19 applications of the Act which can be given effect without the
 
20 invalid provision or application, and to this end the provisions
 
21 of this Act are severable.
 
22      SECTION 13.  Statutory material to be repealed is bracketed.
 
23 New statutory material is underscored.
 

 
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 1      SECTION 14.  This Act shall take effect upon its approval.
 
 2 
 
 3                              INTRODUCED BY:______________________
 

 
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