reglab/statecodes huggingface dataset:
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801. Rights of Accused › 801-1 Indictment, complaint, or information.

§801-1 Indictment, complaint, or information.
(a) No person shall be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictment, complaint, or information, except for offenses within the jurisdiction of a district court or in summary proceedings for contempt. For any felony offense to be tried and sentenced upon complaint, a finding of probable cause after a preliminary hearing, or a waiver of the probable cause determination at the preliminary hearing, shall be required.
(b) If initiation of a felony prosecution is sought via an indictment by a grand jury or a finding of probable cause after a preliminary hearing, and is denied, initiation of a felony prosecution for the same offense using the same or an available alternative charging method or by seeking a different judge or jury shall not be permitted unless:
(1) Additional material evidence is presented;
(2) The initial hearing was before a grand jury and there is a subsequent finding of grand jury misconduct or grand jury counsel misconduct; or
(3) A court, upon application of the prosecutor, finds good cause to allow a subsequent presentation; provided that this paragraph shall not apply if prosecutors have previously sought a subsequent presentation for good cause. [PC 1869, c 2, §2; RL 1925, §3931; RL 1935, §5352; RL 1945, §10684; RL 1955, §253-4; HRS §705-4; ren L 1972, c 9, pt of §1; am L 2023, c 1, §2]
Cross References
See Const. art. 1, §10.
Rules of Court
Indictment, information, or complaint, see HRPP rule 7.
Applicability of rules, see HRPP rules 1, 54.
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801. Rights of Accused › 801-2 Witnesses; defense.

§801-2 Witnesses; defense.
In the trial of any person on the charge of any offense, he shall have a right to meet the witnesses, who are produced against him, face to face; to produce witnesses and proofs in his own favor; and by himself or his counsel, to examine the witnesses produced by himself, and cross- examine those produced against him; and to be heard in his defense. [PC 1869, c 2, §3; RL 1925, §3932; RL 1935, §5355; RL 1945, §10686; RL 1955, §253-6; HRS §705-6; ren L 1972, c 9, pt of §1]
Cross References
See Const. art. I, §14.
Rules of Court
Presence of defendant, see HRPP rule 43.
Depositions, discovery and inspection, subpoenas, see HRPP rules 15, 16, 17.
Applicability of rules, see HRPP rules 1, 54.
Case Notes
Confrontation may be waived. 33 F.2d 396 (1929); 23 H. 421, 423 (1916); 37 H. 477 (1947).
Constitutional privilege of being confronted by one's accusers includes knowing what they are saying. 7 H. 319 (1888).
Cross-examination, within discretion of trial court. 34 F.2d 86 (1929); 39 H. 635 (1953).
When a party fails to avail himself of the opportunity to cross-examine, he forfeits such right. 44 H. 82, 352 P.2d 611 (1960).
No reversal for error in restricting cross-examination unless the error was prejudicial. 47 H. 185, 389 P.2d 146 (1963).
Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying. 78 H. 115 (App.), 890 P.2d 702 (1995).
See 7 H. 319 (1888); 12 H. 189 (1899).
Cited: 134 H. 361, 341 P.3d 567 (2014).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801. Rights of Accused › 801-3 Jury list, witnesses.

§801-3 Jury list, witnesses.
Any person indicted for a crime punishable with imprisonment for life not subject to parole shall, on demand upon the clerk by the person or the person's counsel, have a list of the jurors returned delivered to the person, and shall also have process to summon such witnesses as are necessary for the person's defense. [L 1876, c 40, §42; RL 1925, §4022; RL 1935, §5356; RL 1945, §10687; RL 1955, §253-7; am L 1957, c 282, §6; HRS §705-7; ren L 1972, c 9, pt of §1; gen ch 1993]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801. Rights of Accused › 801-4 Fees not payable by defendant.

§801-4 Fees not payable by defendant.
It shall not be lawful to take, demand, or receive any court fees for the issuing of any process for or on behalf of any person charged with, or indicted for, any felony or as accessory thereto, or with or for any misdemeanor in any court of criminal jurisdiction; nor shall it be lawful to take, demand, or receive any fees from any such person for taking any recognizance of bail, or issuing any writ of habeas corpus, or recording any appearance, or plea to any information, or for discharging any recognizance taken from any such person, or surety or sureties for them, but all costs may be ordered to be paid by the person charged and convicted as part of the judgment. [L 1876, c 40, §35; RL 1925, §4027; RL 1935, §5360; RL 1945, §10688; RL 1955, §253-8; HRS §705-8; ren L 1972, c 9, pt of §1]
Case Notes
Costs as part of sentence. 6 H. 732, 737 (1869).
On appeal accrued costs must be paid. 18 H. 341 (1907).
Costs can only be taxed as part of punishment, not separately. 23 H. 766, 769 (1917).
Where costs are ordered paid on conviction they must be taken into account in imposing maximum penalty. 38 H. 258 (1948).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801D. Rights of Victims and Witnesses in Criminal Proceedings › 801D-1 Legislative intent.

§801D-1
Legislative intent.
In recognition of the civic and moral duty of victims and witnesses of crimes to cooperate fully and voluntarily with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation to state and local law enforcement efforts and the general effectiveness and well-being of the criminal justice system of this State, the legislature declares its intent, in this chapter, to ensure that all victims and witnesses of crimes are treated with dignity, respect, courtesy, and sensitivity and that the rights extended in this chapter to victims and witnesses of crime are honored and protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants. [L 1988, c 261, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801D. Rights of Victims and Witnesses in Criminal Proceedings › 801D-2 Definitions.

§801D-2
Definitions.
In this chapter:
"Crime" means an act or omission committed by an adult or juvenile that would constitute an offense against the person under the Penal Code of this State.
"Homicide victim" means a person whose death was caused by another person under part II of chapter 707.
"Major developments" means arrest or release of the suspect by the police, case deferral by the police, referral to the prosecutor by the police, rejection of the case by the prosecutor, preliminary hearing date, grand jury date, trial and sentencing dates, and the disposition of the case.
"Surviving immediate family members" means surviving grandparents, parents, siblings, spouse, reciprocal beneficiary, children, and any legal guardian of the homicide victim.
"Victim" means a person against whom a crime has been committed by either an adult or a juvenile.
"Witness" means a person whose testimony or knowledge is desired in any proceeding or investigation by a grand jury or in a criminal investigation, action, prosecution, or proceeding. [L 1988, c 261, pt of §1; am L 1997, c 383, §71]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801D. Rights of Victims and Witnesses in Criminal Proceedings › 801D-3 Eligibility of victims.

§801D-3
Eligibility of victims.
A victim has the rights afforded by this chapter and is eligible for the services under this chapter only if the victim reported the crime to police within three months of its occurrence or discovery, unless the victim had justification to do otherwise. [L 1988, c 261, pt of §1; gen ch 1992]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801D. Rights of Victims and Witnesses in Criminal Proceedings › 801D-5 Responsibility for rights and services.

§801D-5
Responsibility for rights and services.
(a) Each county is responsible for the enforcement of rights under section 801D-4. The courts shall fashion all decisions and orders to enhance the recognition of these rights and the provision of these services, to the extent that they will not conflict with the constitutional rights of the defendant.
(b) Neither the failure of any state or county officer or employee to carry out the requirements of this section nor compliance with it shall subject the state or county officer or employee to liability in any civil action. However, such failure may provide a basis for such disciplinary action as may be deemed appropriate by competent authority. [L 1988, c 261, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801D. Rights of Victims and Witnesses in Criminal Proceedings › 801D-6 Intergovernmental cooperation.

§801D-6
Intergovernmental cooperation.
The county prosecutor, the police, local social service agencies, the courts, and all other agencies involved in the criminal justice system shall all cooperate with each other to ensure that victims and witnesses of crime receive the rights and services to which they are entitled under this chapter. [L 1988, c 261, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 801D. Rights of Victims and Witnesses in Criminal Proceedings › 801D-7 Televised testimony.

§801D-7
Televised testimony.
Victims and witnesses shall have the right to testify at trial by televised two-way closed circuit video to be viewed by the court, the accused, and the trier of fact. [L 1997, c 320, §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-1 Right to representation by public defender or other appointed counsel.

§802-1 Right to representation by public defender or other appointed counsel.
(a) Any indigent person who is:
(1) Arrested for, charged with, or convicted of an offense or offenses punishable by confinement in jail or prison or for which the person may be or is subject to the provisions of chapter 571;
(2) Threatened by confinement, against the indigent person's will, in any psychiatric or other mental institution or facility;
(3) The subject of a petition for assisted community treatment under chapter 334; or
(4) The subject of a petition for involuntary medical treatment under chapter 353,
shall be entitled to be represented by a public defender. If, however, conflicting interests exist, or if the public defender for any other reason is unable to act, or if the interests of justice require, the court may appoint other counsel.
(b) The appearance of the public defender in all judicial proceedings shall be subject to court approval.
(c) The appearance of a public defender in all hearings before the Hawaii paroling authority or other administrative body or agency shall be subject to the approval of the chairperson of the Hawaii paroling authority or the administrative head of the body or agency involved. [L 1971, c 185, pt of §1; HRS §705C-1; ren L 1972, c 9, pt of §1 and am L 1972, c 44, §1(a); am L 1973, c 76, §1; am L 1976, c 92, §8; am L 1984, c 251, §2; gen ch 1985, 1993; am L 2011, c 72, §3; am L 2015, c 231, §5; am L 2021, c 58, §9]
Revision Note
In the first paragraph, (1) to (4) reformatted as paragraphs (1) to (4) and "or" deleted in paragraphs (1) and (2) pursuant to §23G-15.
Case Notes
Failure of appointed counsel to give timely notice of appeal did not foreclose defendant's right to appeal. 57 H. 268, 554 P.2d 236 (1976).
Defendant waived right to counsel by not reporting to public defender during five weeks between arraignment and trial. 62 H. 298, 614 P.2d 397 (1980).
Indigent defendant charged with offense punishable by term of imprisonment entitled at trial to be assisted by appointed counsel. 80 H. 246 (App.), 909 P.2d 574 (1995).
Defendant did not waive right to court-appointed counsel where defendant requested substitute court-appointed counsel and was not afforded reasonable opportunity to show good cause for a substitute court-appointed counsel. 80 H. 262 (App.), 909 P.2d 590 (1995).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-2 Notification of right to representation.

§802-2 Notification of right to representation.
In every criminal case or proceeding in which a person entitled by law to representation by counsel appears without counsel, the judge shall advise the person of the person's right to representation by counsel and also that if the person is financially unable to obtain counsel, the court may appoint one at the cost to the State. [L 1971, c 185, pt of §1; HRS §705C-2; ren L 1972, c 9, pt of 1; gen ch 1985]
Case Notes
Failure to advise indigent pro se defendant of right to counsel and to have one appointed at cost to State reversible error. 80 H. 246 (App.), 909 P.2d 574 (1995).
No waiver by indigent defendant of right to counsel where trial court failed to conduct the necessary inquiry with defendant to ensure that defendant had knowingly and intelligently waived right to be represented by counsel at trial and to have one appointed if indigent. 80 H. 246 (App.), 909 P.2d 574 (1995).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-3 Request for appointment of counsel.

§802-3 Request for appointment of counsel.
Any person entitled to representation by a public defender or other appointed counsel may at any reasonable time request any judge to appoint counsel to represent the person. [L 1971, c 185, pt of §1; HRS §705C-3; ren L 1972, c 9, pt of §1 and am L 1972, c 44, §1(b); gen ch 1985]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-4 Determination of indigency.

§802-4 Determination of indigency.
Unless otherwise ordered by the court, the determination of indigency shall be made by a public defender, subject to review by the court. Such determination shall be based upon an appropriate inquiry into the financial circumstances of the person seeking legal representation and an affidavit or a certificate signed by such person demonstrating the person's financial inability to obtain legal counsel. A person shall waive the person's right to counsel by refusing to furnish any information pertinent to the determination of indigency. [L 1971, c 185, pt of §1; HRS §705C-4; ren L 1972, c 9, pt of §1 and am L 1972, c 44, §1(c); gen ch 1985]
Case Notes
Factors to be considered in determination of indigency. 56 H. 23, 525 P.2d 1108 (1974).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-6 Subsequent ability to pay counsel.

§802-6 Subsequent ability to pay counsel.
If at any time after counsel is appointed, the court having jurisdiction in the matter is satisfied that the defendant is financially able to obtain counsel or to make partial payment for the representation, the court may terminate the appointment of counsel, unless the person so represented is willing to pay therefor. If appointed counsel continues the representation, the court shall direct payment for such representation as the interests of justice may dictate. Any payments directed by the court shall be general fund realizations.
If at any time after the counsel's appointment counsel should have reason to believe that a defendant is financially able to obtain counsel or to make partial payment for counsel, it shall be the counsel's duty to so advise the court so that appropriate action may be taken. [L 1971, c 185, pt of §1; HRS §705C-6; ren L 1972, c 9, §1; gen ch 1985]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-7 Litigation expenses.

§802-7 Litigation expenses.
The court may, upon a satisfactory showing that a criminal defendant is unable to pay for transcripts or witness fees and transportation, or for investigatory, expert or other services, and upon a finding that the same are necessary for an adequate defense, direct that such expenses be paid from available court funds or waived, as the case may be; provided that where the defendant is represented by the state public defender or by other counsel appointed by the court except for such other counsel appointed by the court for reasons of conflict of interest on the part of the public defender, the public defender shall pay for or authorize payment for the same, if the public defender determines that the defendant is unable to pay for the same and that the same are necessary for an adequate defense, and if there is a dispute as to the financial ability of the defendant such dispute shall be resolved by the court. In cases where other counsel have been appointed by the court for reasons of conflict of interest, the court may, upon the requisite showing of inability to pay and a finding that such expenses are necessary for an adequate defense as set forth above, direct that such expenses be paid from available court funds or waived, as the case may be. [L 1971, c 185, pt of §1; HRS §705C-7; ren L 1972, c 9, pt of §1 and am L 1972, c 44, §1(d); am L 1976, c 131, §3; am L 1979, c 174, §1]
Case Notes
Defendant requesting services on basis of indigency is entitled to hearing. 61 H. 203, 600 P.2d 1383 (1979).
Where defendant is unable to pay for necessary defense services, defendant may be eligible for court payment even though represented by private counsel. 61 H. 203, 600 P.2d 1383 (1979).
Although the language of this section suggests that the court has discretion to direct that transcript expenses are paid, the balance of the pertinent statutory language indicates that once a satisfactory showing of need for the transcripts and inability to pay has been made, the court should direct that such expenses be paid, unless alternative means for timely obtaining the transcripts are available. This is evident as this section mandates that the public defender's office is required to furnish the relevant transcripts upon making the same findings as the court. 131 H. 333, 319 P.3d 252 (2013).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-8 Office of the state public defender.

§802-8 Office of the state public defender.
An office of state public defender is hereby created within the department of budget and finance for administrative purposes. [L 1971, c 185, pt of §1; HRS §705C-8; ren L 1972, c 9, pt of §1; am L 1980, c 302, pt of §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-9 Defender council.

§802-9 Defender council.
The governor shall appoint a defender council consisting of five members, who shall serve at the governor's pleasure. There shall be at least one member from each of the counties of the State. The chairperson of the council shall be selected by its members. Each member shall serve without pay and shall be reimbursed for necessary expenses incurred while attending meetings and while in the discharge of the member's responsibilities. The council shall be the governing body of the office of the state public defender. [L 1971, c 185, pt of §1; HRS §705C-9; ren L 1972, c 9, pt of §1; gen ch 1985, 1993]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-11 Appointment of state public defender.

§802-11 Appointment of state public defender.
The state public defender shall be appointed by the defender council without regard to chapters 76 and 89. The state public defender's appointment shall be for a term of four years except as otherwise provided herein, and until the state public defender's successor is appointed and qualified. The state public defender shall be qualified to practice law before the supreme court of this State. Effective July 1, 2005, the state public defender shall be paid a salary set at eighty-seven per cent of the attorney general. The state public defender shall devote full time to the performance of the state public defender's duties and shall not engage in the general practice of law. [L 1971, c 185, pt of §1; HRS §705C-11; ren L 1972, c 9, pt of §1; am L 1975, c 58, §22; am L 1982, c 129, §19; gen ch 1985; am L 1986, c 128, §18; am L 1987, c 226, §1; am L 1989, c 329, §15; am L 2002, c 148, §46; am L 2005, c 226, §14]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802. Counsel and Other Services for Indigent Criminal Defendants › 802-12 Organization of office; assistance.

§802-12 Organization of office; assistance.
Subject to the approval of the defender council, the state public defender may employ assistant state public defenders and other employees, including investigators, as may be necessary to discharge the function of the office. Assistant state
1
public defenders shall be qualified to practice before the supreme court of this State. Assistant state public defenders shall be appointed without regard to chapter 76 and shall serve at the pleasure of the state public defender. All other employees may be appointed in accordance with chapter 76. An assistant state public defender may be employed on a part-time basis, and when so employed, the assistant public defender may engage in the general practice of law, other than in the practice of criminal law. [L 1971, c 185, pt of §1; HRS §705C-12; ren L 1972, c 9, pt of §1 and am L 1972, c 44, §1(e); gen ch 1985; am L 2000, c 253, §150; am L 2006, c 300, §16]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802E. Court Advisement of Aliens Entering Guilty Plea › 802E-1 Legislative findings and intent.

§802E-1 Legislative findings and intent.
The legislature finds that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant's counsel was unaware of the possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction. It is further the intent of the legislature that at the time of the plea no defendant shall be required to disclose the defendant's legal status to the court. [L 1988, c 382, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802E. Court Advisement of Aliens Entering Guilty Plea › 802E-2 Court advisement concerning alien status required prior to the commencement of trial, entry of a plea of guilty or nolo contendere, or admission of guilt or sufficient facts.

§802E-2 Court advisement concerning alien status required prior to the commencement of trial, entry of a plea of guilty or nolo contendere, or admission of guilt or sufficient facts.
Prior to the commencement of trial, entry of a plea of guilty or nolo contendere, or admission of guilt or sufficient facts to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:
If you are not a citizen of the United States, whether or not you have lawful immigration status, you have the right to receive advice from your attorney about the specific impact that this case will have, if any, on your immigration status. The entry of a guilty or nolo contendere plea, admission of guilt or sufficient facts, or conviction, deferred judgment, or deferred sentence may have the consequences of your immediate detention, deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. In some cases, detention and deportation from the United States will be required. Your lawyer must investigate and advise you about these issues prior to the commencement of trial, entry of a guilty or nolo contendere [plea], or admission of guilt or sufficient facts to any offense punishable as a crime under state law, other than those offenses designated as infractions. You are not required to disclose your immigration or citizenship status to the court.
Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. [L 1988, c 382, pt of §1; am L 2013; c 279, §2]
Case Notes
Where trial court failed to recite on the record the advisement concerning alien status to defendant as required by the plain language of this section, and the standard set forth in §802E-3 mandates that the trial court either advise the defendant as required by this section or "vacate the judgment and permit the defendant to withdraw the plea of nolo contendere and enter a plea of not guilty", judgment vacated and defendant permitted to withdraw nolo contendere plea and enter a plea of not guilty. 108 H. 162, 118 P.3d 645 (2005).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802E. Court Advisement of Aliens Entering Guilty Plea › 802E-3 Failure to advise; vacation of judgment.

§802E-3 Failure to advise; vacation of judgment.
If the court fails to advise the defendant as required by sections 802E-2 and 802E-4 and the defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, on defendant's motion, the court shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement. [L 1988, c 382, pt of §1; am L 2013, c 279, §3]
Case Notes
Where trial court failed to recite on the record the advisement concerning alien status to defendant as required by the plain language of §802E-2, and the standard set forth in this section mandates that the trial court either advise the defendant as required by §802E-2 or "vacate the judgment and permit the defendant to withdraw the plea of nolo contendere and enter a plea of not guilty", judgment vacated and defendant permitted to withdraw nolo contendere plea and enter a plea of not guilty. 108 H. 162, 118 P.3d 645 (2005).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 802E. Court Advisement of Aliens Entering Guilty Plea › 802E-4 Court advisement concerning alien status required at the commencement of arraignment and plea hearing.

§802E-4 Court advisement concerning alien status required at the commencement of arraignment and plea hearing.
At the commencement of the court session for arraignment and plea hearings for an offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to all defendants present:
If you are not a citizen of the United States, whether or not you have lawful immigration status, your case may have severe and irreversible consequences, including immediate detention, deportation, or exclusion from admission or denial of naturalization to the United States. Your attorney must advise you regarding the possible consequences this case may have on your immigration status. You are not required to disclose your immigration or citizenship status to the court.
[L 2013, c 279, §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-1 Arrest; by warrant.

§803-1 Arrest; by warrant.
No arrest of any person shall be made without first obtaining a warrant or other process therefor from some magistrate, except in the cases provided in this chapter or otherwise provided by law. [PC 1869, c 49, §1; RL 1925, §3967; RL 1935, §5400; RL 1945, §10701; RL 1955, §255-1; HRS §708-1; ren L 1972, c 9, pt of §1; am L 2006, c 28, § §1, 3]
Cross References
See Const. art. I, §7.
Rules of Court
Application for arrest warrant, see HRPP rule 3.
Obtaining the appearance of defendant, see HRPP rule 9.
Case Notes
When warrant not necessary. 7 H. 454 (1888).
Authority to issue warrant of arrest on charge of fraud implies power to discharge when fraud is disproved. 8 H. 187 (1890).
Defined. 23 H. 250 (1916).
(Cited as §708-33.) Affidavit for arrest warrant submitted with affidavit for search warrant can be considered to determine probable cause for search warrant. 56 H. 366, 537 P.2d 8 (1975).
Defendant's warrantless arrest for a petty misdemeanor, made twenty days after the alleged crime was committed, was unlawful; if police believe that waiting days or weeks to arrest a defendant is the most appropriate action under the circumstances, then the police cannot rely on §803-5 and must obtain a warrant pursuant to this section. 107 H. 1, 108 P.3d 304 (2005).
Cited: 37 H. 189, 199 (1945), aff'd 163 F.2d 490 (1947); 42 H. 367, 391 (1958).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-2 By oral order.

§803-2 By oral order.
Where a breach of the peace or other offense has been committed, and the offender endeavors to escape, the offender may be arrested by virtue of an oral order of any magistrate, or without the order, if no magistrate is present. [PC 1869, c 49, §2; RL 1925, §3968; RL 1935, §5401; RL 1945, §10702; RL 1955, §255-2; HRS §708-2; 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 › 803-3 By person present.

§803-3 By person present.
Anyone in the act of committing a crime, may be arrested by any person present, without a warrant. [PC 1869, c 49, §3; RL 1925, §3969; RL 1935, §5402; RL 1945, §10703; RL 1955, §255-3; HRS §708-3; ren L 1972, c 9, pt of §1]
Attorney General Opinions
A police officer may arrest without a warrant if the police officer has probable cause to believe an offense is being committed in the police officer's presence, even though it be a violation. Att. Gen. Op. 76-4.
Case Notes
Arrest without warrant, legal. 14 H. 586 (1903).
Police officer may arrest for a misdemeanor without warrant if, based on personal knowledge, police officer has probable cause to believe offense is being committed in police officer's presence. 56 H. 383, 538 P.2d 320 (1975).
This authority extends to misdemeanors. 56 H. 675, 548 P.2d 268 (1976).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-4 On suspicion.

§803-4 On suspicion.
Whenever a crime is committed, and the offenders are unknown, and any person is found near the place where the crime was committed, either endeavoring to conceal oneself, or endeavoring to escape, or under such other circumstances as to justify a reasonable suspicion of the person being the offender, the person may be arrested without warrant. [PC 1869, c 49, §4; RL 1925, §3970; RL 1935, §5403; RL 1945, §10704; RL 1955, §255-4; HRS §708-4; ren L 1972, c 9, pt of §1; gen ch 1985]
Cross References
See Const. art. I, §7.
Case Notes
Held legal. 22 H. 597 (1915).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-5 By police officer without warrant.

§803-5 By police officer without warrant.
(a) A police officer or other officer of justice, may, without warrant, arrest and detain for examination any person when the officer has probable cause to believe that such person has committed any offense, whether in the officer's presence or otherwise.
(b) For purposes of this section, a police officer has probable cause to make an arrest when the facts and circumstances within the officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a crime has been or is being committed. [PC 1869, c 49, §5; RL 1925, §3971; RL 1935, §5404; RL 1945, §10705; RL 1955, §255-5; HRS §708-5; ren L 1972, c 9, pt of §1; am L 1980, c 105, §1; am L 1981, c 186, §1; am L 1982, c 221, §1]
Cross References
See Const. art. I, §7.
Detention for examination, see §803-9.
Rules of Court
Proceedings following arrest, see HRPP rule 5.
Case Notes
Search without warrant. 278 F.2d 386 (1960).
Held legal. 9 H. 522 (1894); 14 H. 586 (1903); 22 H. 597, 602 (1915); 37 H. 189 (1945), aff'd 163 F.2d 490 (1947); 48 H. 204, 397 P.2d 558 (1964).
Police officer may arrest for a misdemeanor without warrant if, based on personal knowledge, police officer has probable cause to believe offense is being committed in police officer's presence. 56 H. 383, 538 P.2d 320 (1975).
No reason to conclude that warrantless arrests for "violation" are proscribed. 64 H. 130, 637 P.2d 1105 (1981).
Probable cause existed for arrest. 67 H. 174, 681 P.2d 984 (1984).
Defendant's warrantless arrest for a petty misdemeanor, made twenty days after the alleged crime was committed, was unlawful; if police believe that waiting days or weeks to arrest a defendant is the most appropriate action under the circumstances, then the police cannot rely on this section and must obtain a warrant pursuant to §803-1. 107 H. 1, 108 P.3d 304 (2005).
As subsequent events can neither support nor invalidate the existence of probable cause at the time of the search or seizure, the invalidation of defendant's prior conviction (and probation order) on appeal did not retroactively invalidate probable cause for an arrest based on violation of that probation order; thus, there were no changed circumstances that required the trial court to allow withdrawal of defendant's no contest plea to prevent manifest injustice and thus no abuse of discretion in the denial of defendant's motion. 109 H. 458, 128 P.3d 340 (2006).
In light of facts known to the police at time of arrest, the police reasonably believed that passenger seated in right rear seat of car violated §134-6(c) (1991) either as a principal or accomplice. 9 H. App. 551, 851 P.2d 926 (1993).
Cited: 56 H. 675, 548 P.2d 268 (1976).
See 35 H. 232, aff'd 119 F.2d 936 (1941).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-7 Use of force; duty to intervene and report unnecessary or excessive force.

§803-7 Use of force; duty to intervene and report unnecessary or excessive force.
(a) In all cases where the person arrested refuses to submit or attempts to escape, a degree of force may be used by a law enforcement officer as is necessary to compel the person to submission.
(b) A law enforcement officer who reasonably believes that another law enforcement officer is using unnecessary or excessive force on an arrestee that violates an applicable law or departmental policy shall have a duty to:
(1) Immediately intervene to prevent the use of unnecessary or excessive force by the other law enforcement officer; provided that the intervention can be safely accomplished; and
(2) Report the incident to the other law enforcement officer's supervisor as soon as practicable.
(c) Each relevant department director and county police department chief shall submit an annual report of incidents reported pursuant to subsection (b) to the legislature no later than January 31 of each year. The reporting period of each report shall be from January 1 to December 31 of the year immediately before the year of the report submission. The annual report shall:
(1) Summarize the facts and the nature of each reported incident; and
(2) Specify the disciplinary action, if any, that was imposed in connection with a reported incident.
(d) As used in this section, "law enforcement officer" means any public servant, whether employed by the State or county, vested by law with a duty to maintain public order or to make arrests for offenses or to enforce the criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses. [PC 1869, c 49, §7; RL 1925, §3973; RL 1935, §5406; RL 1945, §10707; RL 1955, §255-7; HRS §708-7; ren L 1972, c 9, pt of §1; gen ch 1985; am L 2023, c 55, §2]
Cross References
Justifiable use of force, see §703-307.
Case Notes
Breaking gate, when proper. 1 H. 72 (1852).
Officer not liable for injuries inflicted in use of reasonably necessary force to preserve peace and maintain order or to overcome resistance to the officer's authority. 24 H. 477, 482 (1918); 30 H. 487 (1928). See 9 H. 522 (1894).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-8 Weapons on person arrested.

§803-8 Weapons on person arrested.
He who makes an arrest may take from the party arrested all offensive weapons which he may have about his person, and shall deliver them to the magistrate, to be disposed of according to law. [PC 1869, c 49, §8; RL 1925, §3974; RL 1935, §5407; RL 1945, §10708; RL 1955, §255-8; HRS §708-8; ren L 1972, c 9, pt of §1]
Cross References
See Const. art. I, §7.
Case Notes
See 9 H. 522 (1894).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-10 Penalty.

§803-10 Penalty.
Any person violating or failing to comply with section 803-9 shall be fined not more than $500 or imprisoned not more than one year, or both. [L 1927, c 261, §2; RL 1935, §5409; RL 1945, §10710; RL 1955, §255-10; HRS §708-10; ren L 1972, c 9, pt of §1]
Case Notes
See 43 H. 347 (1959).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-11 Entering house to arrest.

§803-11 Entering house to arrest.
Whenever it is necessary to enter a house to arrest an offender, and entrance is refused, the officer or person making the arrest may force an entrance by breaking doors or other barriers. But before breaking any door, the officer or person shall first demand entrance in a loud voice, and state that the officer or person is the bearer of a warrant of arrest; or if it is in a case in which arrest is lawful without warrant, the officer or person shall substantially state that information in an audible voice. [PC 1869, c 49, §10; RL 1925, §3976; RL 1935, §5410; RL 1945, §10711; RL 1955, §255-11; HRS §708-11; ren L 1972, c 9, pt of §1; gen ch 1985]
Cross References
See Const. art. I, §7.
Case Notes
Breaking gate, when proper. 1 H. 72 (1852).
Section not implicated where entry is gained through an open door without use of force. 83 H. 13, 924 P.2d 181 (1996).
Where a ruse is accompanied by the use of force to gain entry during the execution of either a search or arrest warrant, police officers are required to comply with the knock and announce rule. 98 H. 18, 41 P.3d 174 (2002).
Because it violates the plain language of this section, the doctrine of substantial compliance, that "substantial compliance" with this section is legally sufficient in the absence of exigent circumstances, is expressly rejected. 108 H. 436, 121 P.3d 901 (2005).
Where the police opened a closed screen door and broke the threshold of defendant's dwelling prior to announcing that they bore an arrest warrant and failed to wait a reasonable time after demanding entry, this section was violated; thus, subsequent search of defendant's home and seizure of evidence therefrom were inadmissible. 108 H. 436, 121 P.3d 901 (2005).
Where officers failed to state they were bearers of an arrest warrant before "breaking" the screen door and failed to wait a "reasonable time" after demanding entrance before "breaking" the door and crossing the threshold, the officers did not satisfy the "knock and announce" rule nor did they comply with the requirements of this section and the trial court's conclusions of law to the contrary were erroneous. 108 H. 446 (App.), 121 P.3d 911 (2005).
Cited: 22 H. 597, 602 (1915), questioned 26 H. 363 (1922).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-16 Law enforcement officers of the United States Immigration and Customs Enforcement-Homeland Security Investigations or United States Customs and Border Protection; arrest powers.

§803-16 Law enforcement officers of the United States Immigration and Customs Enforcement-Homeland Security Investigations or United States Customs and Border Protection; arrest powers.
A law enforcement officer of the United States Immigration and Customs Enforcement-Homeland Security Investigations or
United States Customs and Border Protection, without a warrant, may arrest a person if:
(1) The officer is on duty;
(2) One or more of the following situations exists:
(A) The person commits an assault or other crime involving physical harm, defined and punishable under chapter 707, against the officer or against any other person in the presence of the officer;
(B) The person commits an offense against public order, defined and punishable under chapter 711, in the presence of the officer;
(C) The officer has probable cause to believe that a crime as provided in subparagraph (A) or (B) has been committed and has probable cause to believe that the person to be arrested has committed the crime;
(D) The officer has probable cause to believe that a felony has been committed and probable cause to believe that the person to be arrested has committed the felony; or
(E) The officer has received information by written, telegraphic, teletypic, telephonic, radio, or other authoritative source that a law enforcement officer holds a warrant for the person's arrest; and
(3) The special agent in charge, United States Immigration and Customs Enforcement-Homeland Security Investigations Honolulu, or the port director of the area port of Honolulu of the United States Customs and Border Protection, as the case may be, certifies to the State that the officer has received proper training within the agency to enable that officer to make arrests as provided in this section. [L 1980, c 201, §1; am L 2008, c 95, §2; am L 2022, c 13, §2]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-17 United States marshal or deputy United States marshal; arrest powers.

§803-17 United States marshal or deputy United States marshal; arrest powers.
A United States marshal or deputy United States marshal, without a warrant, may arrest a person if:
(1) The marshal or deputy marshal is on duty;
(2) One or more of the following situations exists:
(A) The person commits an assault or other crime involving physical harm, defined and punishable under chapter 707, against the marshal or deputy marshal or against any other person in the presence of the marshal or deputy marshal;
(B) The marshal or deputy marshal has probable cause to believe that a crime as provided in subparagraph (A) has been committed and has probable cause to believe that the person to be arrested has committed the crime; or
(C) The marshal or deputy marshal has received information by written, telegraphic, telephonic, radio, or other authoritative source that a law enforcement officer holds a warrant for the person's arrest; and
(3) The head of the Hawaii district office for the United States [Marshals] Service certifies to the State that the marshal or deputy marshal has received proper training within the agency to enable that officer to enforce or administer this section. [L 2008, c 95, §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-21 Fugitive criminal; surrender by master of vessel.

§803-21 Fugitive criminal; surrender by master of vessel.
If any person commits any offense on shore, and the offender escapes on board any vessel, the commanding officer of the vessel shall surrender the offender to any officer of the police who may demand his surrender, either with or without a warrant, on production of his commission or appointment; and if the commanding officer refuses to surrender the offender, he shall be fined not less than $50, nor more than $1,000. [PC 1869, c 66, §10; RL 1925, §854; RL 1935, §1754; RL 1945, §10712; RL 1955, §255-12; HRS §708-21; ren L 1972, c 9, pt of §1]
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-22 Secreting prisoners on board; penalty.

§803-22 Secreting prisoners on board; penalty.
If the commanding officer of any vessel secretes, or allows to be secreted, on board the vessel, any prisoner amenable to, or convicted under the laws of the State, or conveys the prisoner out of the jurisdiction of the State, the commanding officer shall be fined not less than $50, nor more than $1,000; and the vessel in which the prisoner is conveyed is liable to a like fine, for the payment of which the vessel may be seized, condemned, and sold. [PC 1869, c 66, §11; RL 1925, §855; RL 1935, §1755; RL 1945, §10713; RL 1955, §255-13; HRS §708-22; 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 › 803-23 Searching vessels without warrant; penalty.

§803-23 Searching vessels without warrant; penalty.
It shall be lawful for the sheriff or a police officer, to search any vessel for deserters, criminals, or other offenders, without a warrant, on producing to the commanding officer of the vessel the sheriff's or police officer's commission or appointment as sheriff or police officer; and the commanding officer of a vessel who refuses any sheriff or police officer, access to the vessel or any part thereof shall be fined not less than $10 nor more than $1,000. [PC 1869, c 66, §12; RL 1925, §856; RL 1935, §1756; RL 1945, §10714; RL 1955, §255-14; am L 1963, c 85, §3; HRS §708-23; ren L 1972, c 9, pt of §1; gen ch 1985; am L 1989, c 211, §10; am L 1990, c 281, §11]
Case Notes
Custom officers not permitted to search without warrant in warehouse. 5 H. 565 (1886).
2023 Hawaii Revised Statutes › Title 38. Procedural and Supplementary Provisions › 803. Arrests, Search Warrants › 803-24 War vessels excepted.

§803-24 War vessels excepted.
Nothing contained within sections 803-21 to 803-23, shall be so construed as to apply to ships of war, or other vessels commanded by officers bearing the commissions of foreign states, and not subject to search by the law and usage of nations. [PC 1869, c 66, §13; RL 1925, §857; RL 1935, §1757; RL 1945, §10715; RL 1955, §255-15; HRS §708-24; ren L 1972, c 9, pt of §1]