Haw. Rev. Stat. § 702-236: De minimis infractions.

(1) The court may dismiss a prosecution if, having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds that the defendant's conduct:

(a) Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the offense;

(b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

(c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense.

(2) The court shall not dismiss a prosecution under subsection (1)(c) of this section without filing a written statement of its reasons. [L 1972, c 9, pt of §1]

Revision Note

In subsection (1)(a), "or" deleted pursuant to §23G-15.

COMMENTARY ON §702-236

Following the suggestion of the Model Penal Code,[1] this Code allows the court to dismiss de minimis infractions of the law. An obvious example of an area where such discretion might appropriately be exercised is the field of minor sex offenses, where a rejected partner might seek revenge through the penal process.

While it has been claimed that the determination of whether the defendant's conduct is "within a customary license or tolerance," or caused harm "to an extent too trivial to warrant the condemnation of conviction," will vary not only on the merits of the case but according to the differing inclinations of judges, the answer does not lie, as it has been suggested, in requiring the prosecutor's consent.[2] The prosecutor has exercised the prosecutor's prosecutorial discretion by bringing the charge against the defendant. Furthermore, prosecutors, like judges, differ in their assessment of the same standards.