Hawaii Revised Statutes, Chapter 853 — Criminal Procedure: Deferred Acceptance of Guilty Plea, Nolo Contendere Plea

Division 5. Crimes and Criminal Proceedings — Title 38. Procedural and Supplementary Provisions

Hawaii Revised Statutes as published by the Hawaii State Legislature (files updated 1/5/2026 7:15 PM).

Division 5 Crimes and Criminal Proceedings

Title 38 Procedural and Supplementary Provisions

Chapter 853 Criminal Procedure: Deferred Acceptance of Guilty Plea, Nolo Contendere Plea

§853-1 Deferred acceptance of guilty plea or nolo contendere plea; discharge and dismissal, expungement of records

(a) Upon proper motion as provided by this chapter:

(1) When a defendant voluntarily pleads guilty or nolo contendere, prior to commencement of trial, to a felony, misdemeanor, or petty misdemeanor;

(2) It appears to the court that the defendant is not likely again to engage in a criminal course of conduct; and

(3) The ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law,

the court, without accepting the plea of nolo contendere or entering a judgment of guilt and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings.

(b) The proceedings may be deferred upon any of the conditions specified by section 706-624. As a further condition, the court shall impose a compensation fee pursuant to section 351-62.6 and a probation services fee pursuant to section 706-648 upon every defendant who has entered a plea of guilty or nolo contendere to a petty misdemeanor, misdemeanor, or felony; provided that the court shall waive the imposition of a compensation or probation services fee, if it finds that the defendant is unable to pay the compensation or probation services fee. The court may defer the proceedings for a period of time as the court shall direct but in no case to exceed the maximum sentence allowable; provided that, if the defendant has entered a plea of guilty or nolo contendere to a petty misdemeanor, the court may defer the proceedings for a period not to exceed one year. The defendant may be subject to bail or recognizance at the court's discretion during the period during which the proceedings are deferred.

(c) Upon the defendant's completion of the period designated by the court and in compliance with the terms and conditions established, the court shall discharge the defendant and dismiss the charge against the defendant.

(d) Discharge of the defendant and dismissal of the charge against the defendant under this section shall be without adjudication of guilt, shall eliminate any civil admission of guilt, and is not a conviction.

(e) Upon discharge of the defendant and dismissal of the charge against the defendant under this section, the defendant may apply for expungement not less than one year following discharge, pursuant to section 831-3.2.

[L 1976, c 154, pt of §2; am L 1979, c 147, §1 and c 155, §1; am L 1980, c 232, §42; am L 1983, c 290, §2(1), (2); gen ch 1985; am L 1988, c 184, §1; am L 2000, c 115, §3; am L 2012, c 295, §2]

§853-2 Plea of guilty or nolo contendere; procedure

Upon motion made before sentence by the defendant, the prosecutor, or on its own motion, the court will either proceed in accordance with section 853-1, or deny the motion and accept the defendant's plea of guilty or nolo contendere, or allow the defendant to withdraw the defendant's plea of guilty or nolo contendere only for good cause.

[L 1976, c 154, pt of §2; am L 1983, c 290, §3; gen ch 1985]

§853-3 Violation of terms and conditions during deferment; result

Upon violation of a term or condition set by the court for a deferred acceptance of guilty plea or deferred acceptance of nolo contendere plea, the court may enter an adjudication of guilt and proceed as otherwise provided.

[L 1976, c 154, pt of §2; am L 1983, c 290, §4]

§853-4 Chapter not applicable; when

(a) This chapter shall not apply when:

(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;

(2) [Repeal and reenactment on June 30, 2026. L 2020, c 19, §15.] The offense charged is:

(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or

(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;

provided that the prohibition in this paragraph shall not apply to offenses described in section 709-906(18);

(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;

(4) The offense charged is a class A felony;

(5) The offense charged is nonprobationable;

(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;

(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;

(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;

(9) A firearm was used in the commission of the offense charged;

(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;

(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired;

(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;

(13) [Repeal and reenactment on June 30, 2026. L 2020, c 19, §15.] The offense charged is:

(A) Escape in the first degree;

(B) Escape in the second degree;

(C) Promoting prison contraband in the first degree;

(D) Promoting prison contraband in the second degree;

(E) Bail jumping in the first degree;

(F) Bail jumping in the second degree;

(G) Bribery;

(H) Bribery of or by a witness;

(I) Intimidating a witness;

(J) Bribery of or by a juror;

(K) Intimidating a juror;

(L) Jury tampering;

(M) Promoting prostitution;

(N) Abuse of family or household member except as provided in paragraph (2) and section 709-906(18);

(O) Sexual assault in the second degree;

(P) Sexual assault in the third degree;

(Q) A violation of an order issued pursuant to chapter 586;

(R) Promoting child abuse in the second degree;

(S) Promoting child abuse in the third degree;

(T) Electronic enticement of a child in the first degree;

(U) Electronic enticement of a child in the second degree;

(V) Commercial sexual exploitation pursuant to section 712-1200.5;

(W) Street prostitution and commercial sexual exploitation under section 712-1207(1)(b) or (2)(b);

(X) Commercial sexual exploitation near schools or public parks under section 712-1209;

(Y) Commercial sexual exploitation of a minor under section 712-1209.1;

(Z) Habitual commercial sexual exploitation under section 712-1209.5;

(AA) Violation of privacy in the first degree under section 711-1110.9;

(BB) Violation of privacy in the second degree under section 711-1111(1)(d), (e), (f), (g), or (h);

(CC) Habitually operating a vehicle under the influence of an intoxicant under section 291E-61.5(a);

(DD) Promoting gambling in the first degree; or

(EE) Promoting gambling in the second degree;

(14) The defendant has been charged with:

(A) Knowingly or intentionally falsifying any report required under part XIII of chapter 11, with the intent to circumvent the law or deceive the campaign spending commission; or

(B) Violating section 11-352 or 11-353; or

(15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle.

(b) The court may adopt by rule other criteria for purposes of this section.

[L 1976, c 154, pt of §2; am L 1980, c 292, §2; am L 1993, c 130, §4 and c 234, §1; am L 1996, c 201, §3; am L 1997, c 55, §1; am L 1998, c 172, §9; am L 2000, c 4, §7; am L 2004, c 85, §1; am L 2005, c 203, §25; am L 2006, c 80, §4; am L 2007, c 288, §3; am L 2008, c 171, §11; am L 2009, c 88, §13; am L 2010, c 166, §22 and c 211, §§7, 8, 13; am L 2011, c 145, §5; am L 2013, c 53, §1; am L 2014, c 114, §5; am L 2016, c 206, §20 and c 231, §68; am L 2020, c 19, §4; am L 2021, c 33, §1, c 60, §2, and c 68, §15; am L 2022, c 111, §7]