reglab/statecodes huggingface dataset:
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-31 Search warrant; defined.

Cross References
See Const. art. I, §7.
Rules of Court
Search and seizure, see HRPP rule 41.
§803-31 Search warrant; defined.
A search warrant is an order in writing or issued otherwise pursuant to section 803-33.5 made by a judge or other magistrate, directed to an officer of justice, commanding the officer to search for certain articles supposed to be in the possession of, or anticipated to be in the possession of, one who is charged with having obtained them illegally, or who keeps them illegally, or with the intent of using them as the means of committing a certain offense. A search warrant may identify an individual or entity authorized pursuant to section 803-37 to provide technical assistance to the officer. [PC 1869, c 48, §2; RL 1925, §3959; RL 1935, §5411; RL 1945, §10716; RL 1955, §255-16; HRS §708-31; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1998, c 65, §2; am L 2017, c 196, §1; am L 2019, c 117, §2]
Case Notes
Void warrant. 4 H. 584 (1883).
This is a definition and warrant may issue to obtain article from one not accused. 6 H. 684 (1888).
Liquor. 28 H. 173 (1925).
Requirements of probable cause based upon hearsay construed. 60 H. 205, 588 P.2d 909 (1978).
Section (pre-1998) does not permit the issuance of an anticipatory search warrant. 87 H. 80, 951 P.2d 1243 (1998).
Where 1998 amendment to section did not express a legislative intent that it be applied retroactively, amendment does not apply retroactively. 88 H. 433, 967 P.2d 265 (1998).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-32 Purposes.

§803-32 Purposes.
The power of granting this writ is one in the exercise of which much is necessarily left to the discretion of the magistrate, but, except in cases where this power is elsewhere specially granted by statute, search warrants can be granted only for the following purposes:
(1) To seize any article or thing the possession of which is prohibited by law;
(2) To discover property taken by theft or under false pretenses, or found and fraudulently appropriated;
(3) To seize forged instruments in writing, or counterfeit coin intended to be passed, or the instruments or materials prepared for making them;
(4) To seize arms or munitions prepared for the purpose of insurrection or riot;
(5) To discover articles necessary to be produced as evidence or otherwise on the trial of any one accused of a criminal offense. [PC 1869, c 48, §3; am L 1876, c 52, §1; RL 1925, §3960; am L Sp 1933, c 16, §1; RL 1935, §5412; RL 1945, §10717; RL 1955, §255-17; HRS §708-32; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-33 Affidavit.

§803-33 Affidavit.
A search warrant can be granted in no case but on an affidavit setting forth sufficient facts in the opinion of the magistrate to justify the issuing of the warrant. [PC 1869, c 48, §4; RL 1925, §3961; RL 1935, §5413; RL 1945, §10718; RL 1955, §255-18; HRS §708-33; ren L 1972, c 9, pt of §1]
Case Notes
Necessity of. 3 H. 393 (1872); 4 H. 584 (1883).
Nighttime search requires higher standard than probable cause. 56 H. 366, 537 P.2d 8 (1975).
Probable cause shown by affidavit can rest on hearsay, but some underlying circumstances should be set forth. 60 H. 205, 588 P.2d 909 (1978).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-34 Contents.

§803-34 Contents.
The warrant shall be in writing, signed by the judge or magistrate, with the judge's or magistrate's official designation, or issued pursuant to section 803-33.5, and shall be directed to a sheriff or other officer of justice, and commanding the sheriff or other officer to search for and bring before the judge or magistrate the property or articles specified in the affidavit, to be disposed of according to justice, and also to bring before the judge or magistrate for examination the person in whose possession the property or articles may be found. The warrant shall identify any individual or entity authorized pursuant to section 803-37 to provide technical assistance to the sheriff or officer. [PC 1869, c 48, §5; RL 1925, §3962; RL 1935, §5414; RL 1945, §10719; RL 1955, §255-19; HRS §708-34; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1989, c 211, §10; am L 1990, c 281, §11; am L 2017, c 196, §2; am L 2019, c 117, §3]
Case Notes
Absolute certainty, that objects sought are where the affidavit alleges, is not required. 56 H. 366, 537 P.2d 8 (1975).
See 3 H. 393 (1872).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-35 Deputies or police officers may serve.

§803-35 Deputies or police officers may serve.
If the search warrant is directed to a sheriff or chief of police, it may be executed by the sheriff or chief of police or any of the sheriff's deputies or the chief's police officers. An individual or entity authorized pursuant to section 803-37 to provide technical assistance may assist a deputy or police officer. [PC 1869, c 48, §6; RL 1925, §3963; RL 1935, §5415; RL 1945, §10720; RL 1955, §255-20; HRS §708-35; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1989, c 211, §10; am L 1990, c 281, §11; am L 2017, c 196, §3]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-36 Notice to applicant.

§803-36 Notice to applicant.
Before executing the warrant the officer shall give notice to the person who applied for it, that the person may be present and identify the property if found. [PC 1869, c 48, §7; RL 1925, §3964; RL 1935, §5416; RL 1945, §10721; RL 1955, §255-21; HRS §708-36; ren L 1972, c 9, pt of §1; gen ch 1985]
Case Notes
Must be given before service. 3 H. 393 (1872).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-38 Munitions of war.

§803-38 Munitions of war.
If there is reasonable cause to believe that arms or munitions of war are collected in any place for the purpose of insurrection or riot, or any other unlawful purpose, a search warrant may be issued in such case, with or without an order to the officer executing the same to bring before the judge or magistrate issuing the same the person in whose possession the arms or munitions of war may be found. And in case the warrant contains no such order, the arms or munitions of war shall, if found, be brought before the judge, or magistrate, and be secured by the judge or magistrate. The judge or magistrate shall as soon as may be cause a notice to be published in some newspaper, describing the articles seized and giving notice of a time and place of a hearing, to take place not less than four and not more than five weeks from the publication of the notice, at which time and place all parties claiming the articles may appear and prove ownership. If no appearance is made at the hearing, and no action is brought previous to the time of the hearing for the recovery of the goods by the parties claiming the goods, the same shall be forfeited to the State. But if any parties appear at the hearing claiming the goods, or bring action before the time of the hearing for the recovery thereof, their claim shall be heard. If in the opinion of the court the claims are not satisfactorily proved, or if they are proved, but the court finds reasonable cause to believe that the articles were collected for the purpose of insurrection, or riot, or for any other unlawful purpose, the same shall be forfeited to the State. In any hearing the burden of proof shall be upon the claimant to show that the arms or munitions of war were not collected or procured for the purpose of insurrection or riot or other unlawful purpose.
In the case of any seizure of articles by search warrant under this section, no claimant shall be entitled to the delivery of the articles before judgment in an action for the recovery thereof, under chapter 654 or any other law. [L 1893-4, c 34, §1; RL 1925, §3966; RL 1935, §5418; RL 1945, §10723; RL 1955, §255-23; HRS §708-38; ren L 1972, c 9, pt of §1; gen ch 1985]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-43 Devices to intercept wire, oral, or electronic communications and advertising of same prohibited; penalty; forfeiture.

§803-43 Devices to intercept wire, oral, or electronic communications and advertising of same prohibited; penalty; forfeiture.
Any person, other than a provider of wire or electronic communication service and its duly authorized officers, employees, and agents, or any person acting under color of law, who, in this State, intentionally manufactures, assembles, possesses, or distributes, or who attempts to distribute, any electronic, mechanical, or other device, knowing or having reason to know that the device or the design of the device renders it primarily useful for the purpose of surreptitious interception of wire, oral, or electronic communications, or who intentionally places an advertisement of any such device or promotes the use of any such device in any newspaper, magazine, handbill, or other publication, shall be guilty of a class C felony. Any such electronic, mechanical, or other device in violation of this section shall be subject to seizure and forfeiture under chapter 712A. [L 1978, c 218, pt of §2; am L 1986, c 303, §3; am L 1989, c 164, §5; am L 2006, c 200, pt of §4]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-44 Application for court order to intercept wire, oral, or electronic communications.

§803-44 Application for court order to intercept wire, oral, or electronic communications.
The attorney general of this State, or a designated deputy attorney general in the attorney general's absence or incapacity, or the prosecuting attorney of each county, or a designated deputy prosecuting attorney in the prosecuting attorney's absence or incapacity, may make application to a designated judge or any other circuit court judge or district court judge, if a circuit court judge has not been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, in the county where the interception is to take place, for an order authorizing or approving the interception of wire, oral, or electronic communications, and the court may grant in conformity with section 803-46 an order authorizing or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, if the interception might provide or has provided evidence of:
(1) Murder;
(2) Kidnapping;
(3) Labor trafficking in the first degree;
(4) Labor trafficking in the second degree;
(5) Felony criminal property damage involving the danger of bodily injury as defined in section 707-700;
(6) Distribution of dangerous, harmful, or detrimental drugs;
(7) Conspiracy to commit one or more of the above; or
(8) Involvement of organized crime and any of the following felony offenses:
(A) Extortion;
(B) Bribery of a juror, witness, or police officer;
(C) Receiving stolen property;
(D) Gambling;
(E) Money laundering; and
(F) Sex trafficking. [L 1978, c 218, pt of §2; am L 1986, c 303, §4; am L 1989, c 164, §6; am L 2006, c 200, pt of §4; am L 2011, c 146, §3; am L 2016, c 206, §18]
Revision Note
In paragraph (6), "or" deleted pursuant to §23G-15.
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-44.5 Application for a pen register or a trap and trace device.

§803-44.5 Application for a pen register or a trap and trace device.
(a) The attorney general of this State or the prosecuting attorney for each county, or a subordinate designated to act in either's absence or incapacity, may apply in writing under oath or equivalent affirmation to a designated judge or any other circuit court judge or district court judge, if a circuit court judge has not been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, for an order or an extension of an order to authorize the installation and use of a pen register or a trap and trace device.
(b) The application shall include:
(1) The identity of the official making the application and the law enforcement agency conducting the investigation; and
(2) The facts and circumstances relied upon by the applicant to conclude that there is probable cause to believe that information will be obtained through the installation and use of a pen register or trap and trace device that will constitute the fruits, instrumentalities, or evidence of a crime covered under this part. [L 1989, c 164, pt of §2; am L 2006, c 200, pt of §4]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-44.6 Issuance of an order for a pen register or a trap and trace device.

§803-44.6 Issuance of an order for a pen register or a trap and trace device.
(a) Upon an application for an order authorizing the installation and use of a pen register or a trap and trace device, the designated judge shall satisfy itself that there are sufficient facts and circumstances contained within the application that there is probable cause to believe that the information to be obtained through the installation and use of a pen register or a trap and trace device will constitute the fruits, instrumentalities, or evidence of a crime or is relevant to an ongoing criminal investigation.
(b) If the designated judge is so satisfied, the order issued shall specify:
(1) The identity, if known, of the person to whom is leased or in whose name is listed the telephone line, cellular telephone, or electronic device or service to which the pen register or trap and trace device is to be attached;
(2) The identity, if known, of the person who is the subject of the criminal investigation;
(3) The number and, if known, the physical location of the telephone line, cellular telephone, or electronic device or service to which the pen register or the trap and trace device is to be attached, and, in the case of a trap and trace device, the geographical limits of the trap and trace order;
(4) A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates; and
(5) Upon the request of the applicant, the information, facilities, and technical assistance necessary to accomplish the installation of the pen register or trap and trace device that the provider of wire communication service is directed to furnish to the applicant.
(c) An order authorizing installation and use of a pen register or a trap and trace device shall be for a period not to exceed sixty days. Extension of an order may be granted, but only upon a reapplication for an order and a finding of probable cause to justify continuing use of a pen register or trap and trace device. The period of the extension shall be for a period not to exceed sixty days.
(d) An order authorizing the installation and use of a pen register or a trap and trace device shall direct that:
(1) The order be sealed until otherwise ordered by the court; and
(2) The person owning or leasing the telephone line, cellular telephone, or electronic device or service to which the pen register or trap and trace device is attached, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber or to any other person, unless otherwise ordered by the court. [L 1989, c 164, pt of §2; am L 2006, c 200, pt of §4; am L 2016, c 28, §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-44.7 Application for authorization to install and use a mobile tracking device.

§803-44.7 Application for authorization to install and use a mobile tracking device.
(a) A search warrant or court order must be obtained from the designated judge or any other circuit court judge or district court judge, if a circuit court judge has not been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, to install a mobile tracking device. The order may authorize the use of that device within the jurisdiction of the court and outside that jurisdiction, if the device is installed in that jurisdiction.
(b) If, upon application to the designated judge for a court order, the designated judge should satisfy itself that there are sufficient facts and circumstances contained within the application to establish probable cause to believe that the use of a mobile tracking device will discover the fruits, instrumentalities, or evidence of a crime or is relevant to an ongoing criminal investigation.
(c) If the designated judge is so satisfied, it shall issue an order specifying:
(1) The identity, if known, of the person who is the subject of the investigation;
(2) The number of mobile tracking devices to be used and the geographical location(s) where the devices are to be installed; and
(3) The identity, if known, of any person who may have a privacy interest in the point of installation of the mobile tracking device.
(d) An order authorizing installation and use of a mobile tracking device shall not exceed sixty days. Extensions of the orders may be granted only upon reapplication establishing probable cause to justify the continued use of a mobile tracking device. The period of the extension shall not exceed sixty days.
(e) The order shall direct that the order be sealed until otherwise directed by the court. [L 1989, c 164, pt of §2; am L 2006, c 200, pt of §4]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-47.5 Disclosure of contents of communication while in electronic storage.

§803-47.5 Disclosure of contents of communication while in electronic storage.
(a)(1) A person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and
(2) A person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication that is carried or maintained on that service:
(A) On behalf of, and is either received by means of computer processing of communications or by electronic transmission, from a subscriber or customer of the service; and
(B) Solely for the purpose of providing storage or computer processing services to the subscriber or customer, if the provider is not authorized to access the contents of those communications for purposes of providing any services other than storage or computer processing.
(b) A person or entity may divulge the contents of a communication:
(1) To an addressee or intended recipient of the communication or an agent of the addressee or intended recipient;
(2) As otherwise authorized by a court order or search warrant;
(3) With the lawful consent of the originator, addressee, or intended recipient of the communication, or the subscriber in the case of a remote computing service;
(4) To a person employed or authorized or whose facilities are used to forward the communication to its destination;
(5) As may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service; or
(6) To a law enforcement agency, if the contents:
(A) Were inadvertently obtained by the service provider; and
(B) Appear to pertain to the commission of a crime. [L 1989, c 164, pt of §1; am L 2006, c 200, pt of §4]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-47.8 Delay of notification.

§803-47.8 Delay of notification.
(a) A governmental entity may as part of a request for a court order include a provision that notification be delayed for a period not exceeding ninety days if the court determines that notification of the existence of the court order may have an adverse result.
(b) An adverse result for the purpose of subsection (a) of this section is:
(1) Endangering the life or physical safety of an individual;
(2) Flight from prosecution;
(3) Destruction of or tampering with evidence;
(4) Intimidation of a potential witness; or
(5) Otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(c) Extensions of delays in notification may be granted up to ninety days per application to a court. Each application for an extension must comply with subsection (e) of this section.
(d) Upon expiration of the period of delay of notification, the governmental entity shall serve upon, or deliver by registered mail to, the customer or subscriber a copy of the process or request together with notice that:
(1) States with reasonable specificity the nature of the law enforcement inquiry; and
(2) Informs the customer or subscriber:
(A) Information maintained for the customer or subscriber by the service provider or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;
(B) Notification of the customer or subscriber was delayed;
(C) The governmental entity or court that made the certification or determination upon which the delay was made; and
(D) The provision of this part that allowed the delay.
(e) A governmental entity may apply to the designated judge or any other circuit judge or district court judge, if a circuit court judge has not yet been designated by the chief justice of the Hawaii supreme court, or is otherwise unavailable, for an order commanding a provider of an electronic communication service or remote computing service to whom a search warrant, or court order is directed, not to notify any other person of the existence of the search warrant, or court order for such period as the court deems appropriate not to exceed ninety days. The court shall enter the order if it determines that there is reason to believe that notification of the existence of the search warrant, or court order will result in:
(1) Endangering the life or physical safety of an individual;
(2) Flight from prosecution;
(3) Destruction of or tampering with evidence;
(4) Intimidation of potential witnesses; or
(5) Otherwise seriously jeopardizing an investigation or unduly delaying a trial. [L 1989, c 164, pt of §1; am L 2006, c 200, pt of §4]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-47.9 Cost reimbursement.

§803-47.9 Cost reimbursement.
(a) A government entity obtaining the contents of communications, records, or other information shall pay to the person or entity providing or assembling the information a fee for reimbursement or costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. The reimbursable costs shall include any costs due to necessary disruption of normal operations of any electronic communication service or remote computing service that was occasioned by the governmental needs.
(b) The amount of the fee provided by subsection (a) shall be as mutually agreed by the governmental entity and the person or entity providing the information or, in the absence of agreement, shall be as determined by the designated court that issued the order for production of the information or the court before which a criminal prosecution relating to the information would be brought, if no court order was issued for production of the information.
(c) The requirement of subsection (a) does not apply with respect to records or other information maintained by a communication common carrier that relate to telephone toll records and telephone listings obtained under section 803-47.6. However, the court may order a payment as described in subsection (a), if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider. [L 1989, c 164, pt of §1; am L 2006, c 200, pt of §4]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-48 Recovery of civil damages authorized.

§803-48 Recovery of civil damages authorized.
Any person whose wire, oral, or electronic communication is accessed, intercepted, disclosed, or used in violation of this part shall[:]
(1) Have a civil cause of action against any person who accesses, intercepts, discloses, or uses, or procures any other person to access, intercept, disclose, or use the communications[;] and
(2) Be entitled to recover from any such person:
(A) The greater of[:]
(i) The sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation[;] or
(ii) Statutory damages of the greater of $100 a day for each day of violation or $10,000;
(B) Punitive damages, where appropriate; and
(C) A reasonable attorney's fee and other litigation costs reasonably incurred.
The aggrieved person may also seek and be awarded such preliminary, and other equitable or declaratory relief as may be appropriate. A good faith reliance on a court order shall constitute a complete defense to any civil action brought under this part. [L 1978, c 218, pt of §2; am L 1986, c 303, §8; am L 1989, c 164, §10; am L 2006, c 200, pt of §4]
Revision Note
In the first sentence, (1) and (2) reformatted as paragraphs (1) and (2) and (A)(i) and (ii) reformatted as clauses (i) and (ii) pursuant to §23G-15.
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-48.5 Injunction against illegal interception. Whenever it appears that any person is engaged or is about to engage in any act that constitutes or will constitute a felony violation of this part, the attorney general may initiate a civil action in a circuit court of this State to enjoin the violation. The court shall proceed as soon as practicable to the hearing and make a determination of the action; provided that at any time before final determination, the court may enter a restraining order or take any other action that is warranted to prevent a continuing and substantial injury to the State or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Hawaii rules of civil procedure; except that, if an indictment, information, or criminal complaint has been returned against the respondent, discovery shall be governed by the Hawaii rules of penal procedure. [L 2006, c 200, §2]

§803-48.5
Injunction against illegal interception.
Whenever it appears that any person is engaged or is about to engage in any act that constitutes or will constitute a felony violation of this part, the attorney general may initiate a civil action in a circuit court of this State to enjoin the violation. The court shall proceed as soon as practicable to the hearing and make a determination of the action; provided that at any time before final determination, the court may enter a restraining order or take any other action that is warranted to prevent a continuing and substantial injury to the State or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Hawaii rules of civil procedure; except that, if an indictment, information, or criminal complaint has been returned against the respondent, discovery shall be governed by the Hawaii rules of penal procedure. [L 2006, c 200, §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-49 Severability.

§803-49 Severability.
If any portion or subsection of this part or the application thereof to any person or circumstances is invalid, such invalidity shall not affect other sections or applications of the part which can be given effect without the invalid section or application, and to this end the provisions of this part are declared to be severable. [L 1978, c 218, pt of §2; ree L 2006, c 200, pt of §4]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-1 Bail defined.

Law Journals and Reviews
Risky Business: Assessing Dangerousness in Hawai €˜i. 24 UH L. Rev. 63 (2001).
§804-1 Bail defined.
Bail, or the giving of bail, is the signing of the recognizance by the defendant and the defendant's surety or sureties, conditioned for the appearance of the defendant at the session of a court of competent jurisdiction to be named in the condition, and to abide by the judgment of the court. [PC 1869, c 50, §1; am L 1917, c 149, §1; RL 1925, §3977; RL 1935, §5430; RL 1945, §10731; RL 1955, §256-1; HRS §709-1; ren L 1972, c 9, pt of §1; am L 1980, c 50, §4; gen ch 1985; am L 1987, c 139, §4]
Cross References
See Const. art. I, §12.
Rules of Court
Proceedings following arrest, see HRPP rule 5(a).
Bail; bond, see HRPP rule 46.
Case Notes
Right to bail is secured under specific provisions, rather than general constitutional provision relating to liberty. 9 H. 171 (1893).
See 36 H. 188, 192 (1942).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-2 Unclaimed bail money.

§804-2 Unclaimed bail money.
All money deposited by way of bail or bond, in any proceeding before any court, that has not been declared forfeited, and not claimed within two years after the final disposition of the cause of action in which the money was deposited, shall be presumed abandoned under chapter 523A. [L 1929, c 138, §1; RL 1935, §5431; RL 1945, §10732; am L 1949, c 323, §1; RL 1955, §256-2; am L Sp 1959 2d, c 1, §14; am L 1963, c 114, §1; HRS §709-2; ren L 1972, c 9, pt of §1; am L 2006, c 87, §1]
Note
L 2006, c 87, §2 provides:
"SECTION 2. This Act [approved May 10, 2006] shall apply to all bail money held at the time of its enactment, or at any time thereafter."
Case Notes
Cited: 36 H. 188, 193 (1942).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-5 By whom allowed.

§804-5 By whom allowed.
In cases where the punishment for the offense charged may be imprisonment for life not subject to parole, or imprisonment for a term more than ten years with or without fine, a judge or justice of a court of record, including a district judge, shall be competent to admit the accused to bail, in conformity with sections 804-3 to 804-6. In all other cases, the accused may be so admitted to bail by any judge or justice of a court of record, including a district judge, and in cases, except under section 712-1207, where the punishment for the offense charged may not exceed two years' imprisonment with or without fine, the sheriff, the sheriff's deputy, the chief of police or any person named by the chief of police, or the sheriff of Kalawao, regardless of the circuit within which the alleged offense was committed, may admit the accused person to bail. The court shall impose conditions of release or bail that are the least restrictive conditions required to ensure the accused's appearance and to protect the public. [L 1892, c 32, §3; RL 1925, §3980; am L 1931, c 231, §1; am L 1933, c 30, §1; RL 1935, §5434; RL 1945, §10735; RL 1955, §256-5; am L 1957, c 282, §9; am L 1963, c 85, §3; HRS §709-5; am L 1970, c 188, §39; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1994, c 181, §1; am L 1998, c 149, §4; am L 2019, c 179, §17]
Rules of Court
Proceedings following arrest, see HRPP rule 5(a).
Bail; bond, see HRPP rule 46.
Case Notes
Since this section provides chief of police or designee with independent authority and discretion to admit persons charged with misdemeanor offenses to bail in accordance with §804-9, senior judge of family court lacked authority to issue a bail schedule divesting police of that authority and discretion. 75 H. 357, 861 P.2d 1205 (1993).
See 18 H. 500 (1907).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-6 Bail bond after conviction.

§804-6 Bail bond after conviction.
Unless otherwise ordered by the court the bail bond given by any defendant prior to the defendant's conviction, shall, in cases where bail after conviction is permitted either absolutely or by order of the court, be continued as the bail of the defendant after conviction, and until the final determination of any subsequent proceedings in the cause. [L 1892, c 32, §4; RL 1925, §3981; RL 1935, §5435; RL 1945, §10736; RL 1955, §256-6; HRS §709-6; ren L 1972, c 9, pt of §1; gen ch 1985]
Rules of Court
Bail; bond, see HRPP rule 46.
Case Notes
Condition of bond; notice to principals. 19 H. 5 (1908).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-7 Release after bail.

§804-7 Release after bail.
The judiciary, in consultation with the department of corrections and rehabilitation and the department of the attorney general, shall establish and administer a statewide program that permits the posting of monetary bail seven-days-a-week for defendants who remain in the custody of the director of corrections and rehabilitation. This program shall be made available to any defendant for whom a monetary amount of bail has been set by the police, other law enforcement agency, or the court. The judiciary may contract with a single vendor to administer the program. The vendor may charge users of the program a service fee. Upon posting of bail, the defendant shall be released from custody forthwith. [PC 1869, c 50, §4; RL 1925, §3982; RL 1935, §5436; RL 1945, §10737; RL 1955, §256-7; HRS §709-7; ren L 1972, c 9, pt of §1; am L 2019, c 179, §18; am L 2022, c 278, §29]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-7.2 Violations of conditions of release on bail, recognizance, or supervised release.

§804-7.2 Violations of conditions of release on bail, recognizance, or supervised release.
(a) Upon verified application by the prosecuting attorney alleging that a defendant has intentionally violated the conditions of release on bail, recognizance, or supervised release, the judicial officer named in section 804-5 shall issue a warrant directing the defendant be arrested and taken forthwith before the court of record for hearing.
(b) Upon verified application by a pretrial officer of the intake service center that a defendant has intentionally violated the conditions of release on bail, recognizance, or supervised release, the court may issue an order pertaining to bail to secure the defendant's appearance before the court or a warrant directing that the defendant be arrested and taken forthwith before the court of record for hearing.
(c) A law enforcement officer having reasonable grounds to believe that a released felony defendant has violated the conditions of release on bail, recognizance, or supervised release, may, where it would be impracticable to secure a warrant, arrest the defendant and take the defendant forthwith before the court of record. [L 1978, c 217, pt of §1; am L 1987, c 139, §2; am L 2016, c 231, §63]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-7.3 Sanctions for violation of conditions of release on bail, recognizance, or supervised release.

§804-7.3 Sanctions for violation of conditions of release on bail, recognizance, or supervised release.
After hearing, and upon finding that the defendant has intentionally violated reasonable conditions imposed on release on bail, recognizance, or supervised release, the court may impose different or additional conditions upon defendant's release or revoke defendant's release on bail, recognizance, or supervised release. [L 1978, c 217, pt of §1; am L 1987, c 139, §3]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-7.4 General conditions of release on bail.

§804-7.4 General conditions of release on bail.
Any person released on bail, recognizance, supervised release or conditional release shall be released subject to the following conditions:
(1) The person shall not commit a federal, state or local offense during the period of release;
(2) The person shall appear for all court hearings unless notified by the person's attorney that the person's appearance is not required; and
(3) The person shall remain in the State of Hawaii unless approval is obtained from a court of competent jurisdiction to leave the jurisdiction of the court. [L 1987, c 139, §9(1); gen ch 1992]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-7.5 Right to a prompt hearing; release or detention.

§804-7.5 Right to a prompt hearing; release or detention.
(a) For the purposes of this section, "prompt hearing" means a hearing that occurs at the time of the defendant's arraignment, or as soon as practicable.
(b) Upon formal charge and detention, a defendant shall have the right to a prompt hearing concerning:
(1) Release or detention; and
(2) Whether any condition or combination of conditions will reasonably ensure:
(A) The defendant's appearance as required; and
(B) The safety of any other person and the community.
(c) At the hearing, the defendant shall have the right to be represented by counsel and, if financially unable to obtain representation, to have counsel appointed. The defendant shall be afforded an opportunity to testify at the hearing. The defendant and the prosecution shall both be afforded an opportunity to present information by proffer or otherwise.
(d) The rules concerning the admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing.
(e) The defendant may be detained pending completion of the hearing. [L 2019, c 179, §15]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-8 No bail where wounding may terminate in death.

§804-8 No bail where wounding may terminate in death.
Where the offense is the illegal infliction of a wound, or any other injury that may terminate in the death of the person injured, the magistrate or court cannot discharge the prisoner if it appears that there is a probability that death will ensue in consequence of the injury. In that case, the party shall be committed for further examination, until the consequences of the injury can be ascertained. [PC 1869, c 50, §5; RL 1925, §3983; RL 1935, §5437; RL 1945, §10738; RL 1955, §256-8; HRS §709-8; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-9 Amount.

§804-9 Amount.
The amount of bail rests in the discretion of the justice or judge or the officers named in section 804-5 and shall be set in a reasonable amount based upon all available information, including the offense alleged, the possible punishment upon conviction, and the defendant's financial ability to afford bail. The bail amount should be so determined as not to suffer the wealthy to escape by the payment of a pecuniary penalty, nor to render the privilege useless to the poor. PC 1869, c 50, §6; RL 1925, §3984; am imp L 1933, c 30, §1; RL 1935, §5438; RL 1945, §10739; RL 1955, §256-9; HRS §709-9; ren L 1972, c 9, pt of §1; am L 2019, c 179, §20
Cross References
See Const. art. I, §12.
Case Notes
Section means no more than that bail shall be in a reasonable amount, considering the financial status of defendant and the possible punishment. 56 H. 447, 539 P.2d 1197 (1975).
No abuse of discretion in setting bail at $75 for person arrested for simple trespass. 64 H. 130, 637 P.2d 1105 (1981).
Since §804-5 provides chief of police or designee with independent authority and discretion to admit persons charged with misdemeanor offenses to bail in accordance with this section, senior judge of family court lacked authority to issue a bail schedule divesting police of that authority and discretion. 75 H. 357, 861 P.2d 1205 (1993).
Trial court abused its discretion by not tailoring bail to defendant's individual circumstances, pending appeal of defendant's conviction, where: (1) bail was initially set at $200 when defendant was facing the possibility of one year in jail, but trial court increased bail amount to $2,000 cash only after ultimately sentencing defendant to thirty days' imprisonment; (2) defendant was nineteen years of age and determined by trial court to be indigent; (3) trial court raised defendant's bail simply because defendant was a recent arrival to Hawaii; (4) the increase in bail was directly contradicted by trial court's comments that treatment for anger management, substance abuse, or mental health was not appropriate for defendant; (5) trial court apparently increased bail amount based on defendant's father's ability to pay; and (6) there was evidence on the record that trial court improperly used the maximum amount of the fine applicable to defendant to determine the amount of bail. 136 H. 471, 363 P.3d 319 (2015).
Cited:
76 H. 219, 873 P.2d 98 (1994).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-9.5 Unsecured bail.

§804-9.5 Unsecured bail.
(a) The court may order the defendant released upon the execution of an unsecured financial bond for all or part of the bail amount by the defendant and any additional obligors as may be required by the court, upon the deposit of cash or other security as described in section 804-11.5 for any remaining bail amount not covered by the unsecured financial bond, and subject to any other conditions of release that will reasonably assure the appearance of the defendant in court as required and protect the public.
(b) In the event that a defendant fails to appear in court as required or breaches any other condition of release, the court shall enter an order of forfeiture of the unsecured financial bond.
(c) In granting or denying unsecured bail, the court may consider:
(1) The defendant's:
(A) Employment status and history;
(B) Family relationships, specifically the nature and extent of those relationships;
(C) Past and present residences;
(D) Character and reputation;
(E) Ties to the community;
(F) Financial circumstances; and
(G) Prior criminal record, if any, and any prior failures to appear in court;
(2) The agreement of any person to assist the defendant to appear in court when required and to satisfy the conditions of release;
(3) The results of an empirical and validated pretrial risk assessment;
(4) The offense charged and any potential sentence; and
(5) Any other facts the court finds relevant to the defendant's likelihood to appear in court and satisfy the conditions of release. [L 2019, c 277, §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-10.5 Sureties; qualification.

§804-10.5 Sureties; qualification.
(a) In determining the sufficiency of a surety or sureties, the court shall consider the surety's or sureties':
(1) Character;
(2) Reliability;
(3) Place of residence; and
(4) Financial and employment circumstances.
(b) No person shall be sufficient surety who:
(1) Has been convicted of perjury for submitting a false statement under section 804-11.5;
(2) Does not satisfy the requirements of section 804-11.5; or
(3) Does not satisfy the requirements of article 9A, chapter 431, if posting an insurance bond as defined in section 431:1-210(1). [L 1987, c 139, §9(2); am L 1993, c 181, §2; am L 2006, c 154, §46]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-11 One surety sufficient; when.

§804-11 One surety sufficient; when.
A single surety is sufficient, if the surety offers cash, a credit or debit card authorization, stocks, bonds, or real property in accordance with section 804-11.5; otherwise, there shall be two or more sureties. [PC 1869, c 50, §9; RL 1925, §3987; RL 1935, §5441; RL 1945, §10741; RL 1955, §256-11; HRS §709-11; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1987, c 139, §6; am L 2004, c 71, §2]
Case Notes
Property ownership requirement not applicable to surety company. 26 H. 236 (1922).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-12 Bond for minor.

§804-12 Bond for minor.
When the person admitted to bail is a minor the bond shall notwithstanding be valid. [PC 1869, c 50, §11; RL 1925, §3988; RL 1935, §5442; RL 1945, §10742; RL 1955, §256-12; HRS §709-12; ren L 1972, c 9, pt of §1; am L 1980, c 195, §1]
Cross References
Minors, see §571-32(f).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-13 Insufficient bail.

§804-13 Insufficient bail.
If, owing to mistake or misrepresentation, insufficient bail has been taken, or if the sureties afterwards become insufficient, the accused may be ordered to find sufficient sureties by any magistrate and on the accused's refusal, the accused may be committed for trial. [PC 1869, c 50, §12; RL 1925, §3989; RL 1935, §5443; RL 1945, §10743; RL 1955, §256-13; HRS §709-13; ren L 1972, c 9, pt of §1; gen ch 1985]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-14 Discharge of sureties.

§804-14 Discharge of sureties.
Those who may have become bail for anyone, may at any time discharge themselves, by surrendering him to the custody of any sheriff or chief of police or his authorized subordinate. [PC 1869, c 50, §14; RL 1925, §3990; am imp L 1933, c 30, §1; RL 1935, §5444; am L 1939, c 104, §7; am L 1943, c 62, §21 and c 64, §22; RL 1945, §10744; RL 1955, §256-14; HRS §709-14; ren L 1972, c 9, pt of §1; am L 1989, c 211, §10; am L 1990, c 281, §11]
Case Notes
Where principal was surrendered, surety entitled to return of bond whether principal was actually surrendered by surety or police. 81 H. 324, 916 P.2d 1225 (1996).
Because §804-51 governs situations in which judgment of forfeiture has been entered, and such a judgment was entered against petitioner, §804-51 and not this section applied to recovery of the bail bond by petitioner. 131 H. 9, 313 P.3d 698 (2013).
Pursuant to §804-51, once the court forfeits a bail bond, this section is limited by the thirty-day search period contained within §804-51. 131 H. 9, 313 P.3d 698 (2013).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 804. Bail; Bond to Keep the Peace › 804-15 Recognizance.

§804-15 Recognizance.
In all cases where a magistrate either commits for trial or bail the accused, the magistrate may cause each of the witnesses who has been examined and has testified to any material fact or circumstance in the case to enter into a recognizance, with or without surety, at the magistrate's discretion, in a sum fixed by the magistrate, conditioned for the witness' appearance at the sitting of the court at which the accused is bound or committed to appear. If a witness refuses to sign the recognizance when required, the witness may be committed to jail by the order of the magistrate, and shall be confined until the witness is brought before the court to testify, or until the witness gives the recognizance. [PC 1869, c 50, §13; RL 1925, §3991; RL 1935, §5445; RL 1945, §10745; RL 1955, §256-15; HRS §709-15; ren L 1972, c 9, pt of §1; gen ch 1985]
Rules of Court
Deposition of witness, see HRPP rule 15(a).
Case Notes
Defendant cannot attack this section as unconstitutional; not error to decline to order sheriff to allow counsel for defense to have private interview with certain witnesses for prosecution who are in custody. 11 H. 293 (1898).