§803-9 Examination after arrest; rights of
arrested person. It shall be unlawful in any case of arrest for
examination:
(1) To deny to the person so
arrested the right of seeing, at reasonable intervals and for a reasonable time
at the place of the person's detention, counsel or a member of the arrested
person's family;
(2) To unreasonably refuse or
fail to make a reasonable effort, where the arrested person so requests and
prepays the cost of the message, to send a telephone, cable, or wireless
message through a police officer or another than the arrested person to the counsel
or member of the arrested person's family;
(3) To deny to counsel, whether
retained by the arrested person or a member of the arrested person's family, or
to a member of the arrested person's family, the right to see or otherwise
communicate with the arrested person for a reasonable period at the place of
the arrested person's detention:
(A) At any time for a first communication
after the arrest; and
(B) At reasonable intervals thereafter;
(4) In case the person arrested
has requested that the person see an attorney or member of the person's family,
to examine the person before the person has had a fair opportunity to see and
consult with the attorney or member of the person's family;
(5) To fail, within forty-eight
hours of the arrest of a person on suspicion of having committed a crime,
either to release or to charge the arrested person with a crime and take the
arrested person before a qualified magistrate for examination. [PC 1869, c 49,
§9; am L 1915, c 25, §1; RL 1925, §3975; am L 1927, c 261, §1; RL 1935, §5408;
am L 1941, c 168, §1; RL 1945, §10709; am L 1953, c 185, §1; RL 1955, §255-9;
HRS §708-9; ren L 1972, c 9, pt of §1; gen ch 1985; am L 2015, c 35, §31]
Cross References
See Const. art. I, §7.
Detention for examination, see §803-5.
Rules of Court
Proceedings following arrest, see HRPP rule 5.
Law Journals and Reviews
Suppression of Evidence Without the Aid of the Fourth, Fifth,
and Sixth Amendments. 8 HBJ, no. 4, at 109 (1972).
Case Notes
Forty-eight hour law. Noncompliance, in itself, has no
effect on voluntariness of confession. 37 H. 189 (1945), aff'd 163 F.2d 490
(1947); 43 H. 347 (1959); 45 H. 622, 372 P.2d 365 (1962).
McNabb-Mallory rule does not apply. 209 F.2d 75 (1953),
aff'g 39 H. 167 (1951); 47 H. 158, 385 P.2d 830 (1963); 48 H. 204, 397 P.2d 558
(1964).
Where defendant is legally arrested after indictment by grand
jury, it is immaterial whether a prior arrest was in violation of paragraph
(5). 45 H. 221, 365 P.2d 202 (1961).
Applicability of Escobedo v. Illinois, 378 U.S. 478 (1964),
and Miranda v. Arizona, 384 U.S. 436 (1966): See 49 H. 504, 506 note 3, 421
P.2d 305 (1966); 49 H. 522, 423 P.2d 438 (1967); 50 H. 42, 46, 430 P.2d 330
(1967).
Give Miranda warnings before custodial interrogation. 56 H.
366, 537 P.2d 8 (1975).
Police failed to make a reasonable effort to contact an
attorney pursuant to paragraph (2) as requested by defendant when they did
nothing more than call attorney's listed number on two different occasions,
although informed that the number was not in service; however, under
circumstances of case, this violation of this section did not warrant
suppression of defendant's subsequent statements. 96 H. 224, 30 P.3d 238
(2001).
Where, in response to alternatives presented by detectives,
petitioner's reply that petitioner wanted an attorney was sufficiently precise
to put detectives on notice of their obligations under paragraph (2),
detectives making no effort to follow up on petitioner's request to talk to an
attorney, and examination of petitioner before petitioner had fair opportunity
to see and consult with one, violated this section. 101 H. 209, 65 P.3d 156
(2003).
District court and intermediate court of appeals erred in
determining that the defendant was not entitled to counsel under this section
when given Honolulu police department form 396K, titled "Use of
Intoxicants While Operating a Vehicle Implied Consent for Testing", when
they relied on the fact that the defendant was not in an "interrogation
situation" and that refusing to submit to testing is nontestimonial.
Because neither police interrogation nor a testimonial statement is required to
trigger the protections of this section, the defendant was entitled to avail
himself of these protections following his arrest. 139 H. 453, 393 P.3d 1005
(2017).
Where defendant did not testify at the hearing on the motion
to suppress evidence relating to the defendant's failure to submit to blood
alcohol concentration testing and the record lacked any evidence indicating
that the defendant's decision to refuse to submit to testing was the result of
incorrect advisement of the defendant's statutory right to access counsel or
that his decision to refuse was precipitated by the absence of an attorney,
defendant failed to prove by a preponderance of the evidence a connection
between the violation of his rights under this section and his subsequent
refusal to submit to alcohol concentration testing. Thus, the district court
did not err in denying the defendant's motion to suppress the evidence. 139 H.
453, 393 P.3d 1005 (2017).
Where police gave defendant incorrect information relating to
protections afforded under this section by stating that defendant was not
entitled to an attorney before submitting to alcohol concentration testing,
police violated the defendant's statutory right to access counsel. 139 H. 453,
393 P.3d 1005 (2017).
The request of an arrested person to "see an attorney"
under paragraph (4) requires any examination of the arrested person to
immediately cease; trial court wrongly concluded that defendant's right under
paragraph (4) to have "a fair opportunity" to consult with an
attorney was violated where police failed to refer defendant to the public
defender's office once defendant stated defendant wanted to see an attorney.
101 H. 344 (App.), 68 P.3d 618 (2002).
Under paragraph (2), there is no duty on the part of police
to make a telephone call to an attorney for the arrested person unless and
until the arrested person requests the call to be made; the trial court erred
in concluding that the police were duty-bound under paragraph (2) to contact
the public defender's office on defendant's behalf even though defendant had
made no such request. 101 H. 344 (App.), 68 P.3d 618 (2002).
Mentioned: 61 H. 291, 602 P.2d 933 (1979).
Notes of Decisions
Cited in
20
cases (
2 in the last 5 years), 1979–2023 · leading case:
State v. Edwards, 30 P.3d 238 (Haw. 2001).
State v. Edwards, 30 P.3d 238 (Haw. 2001).
· cites it 80× “” Wiese testified that “[he] had seen [HRS § 803-9 2 ]” in the course of doing his job.”
State v. Scalera., 393 P.3d 1005 (Haw. 2017).
· cites it 166× “5 In a memorandum in support of his motion, Scalera argued that evidence in his case should be suppressed because he was “preemptively and illegally denied” the right to consult with counsel as provided by HRS § 803-9. Specifically, Scalera alleged that the implied consent form…”
State v. Yong Shik Won, 372 P.3d 1065 (Haw. 2015).
· cites it 24× “rounds were asserted for suppression of the BAC test: (1) Won was misled and inadequately advised as to his rights “surrounding the chemical test, in violation of not only existing Hawaiʻi appellate precedent but also his Due Process rights”; (2) Won’s constitutional right to be…”
State v. Yong Shik Won, 332 P.3d 661 (Haw. App. 2014).
· cites it 22× “In addition, Won argues that the results of his breath test should have been suppressed because the police violated his statutory right to an attorney under HRS § 803-9 (1993); 4 misinformed him of his statutory right to an attorney; and misinformed him of the sanctions for…”
State v. Ababa, 65 P.3d 156 (Haw. 2003).
· cites it 55× “Q You are familiar, I guess, with HRS 803-9, right? A Somewhat, yes, sir. *214 However, no one indicated to Petitioner that a specific request, as defined by Detective Weise, was required: THE COURT: Q Mr.”
State v. Ababa, 68 P.3d 618 (Haw. App. 2002).
· cites it 36× “Q You are familiar, I guess, with HRS 803-9, right? A Somewhat, yes, sir. Detective Wiese testified that at approximately 1:00 p.”
Castro v. Admin. Dir. of the Courts, 40 P.3d 865 (Haw. 2002).
· cites it 12× “The language of HRS § 803-9 is important because, like Pattioay and unlike Wilson and Garcia , the statute at issue states that the police act unlawfully if they fail to make a reasonable effort to contact the requested counsel.”
State v. McKnight., 319 P.3d 298 (Haw. 2013).
· cites it 4× “13 In addressing McKnight’s motion to suppress, the circuit court found that Agent Domingo had also violated HRS §§ 803-9(2) and (4) by failing to make reasonable efforts to contact an attorney and refusing to allow McKnight to call his mother prior to questioning.”
State v. Kaeka, 653 P.2d 96 (Haw. App. 1982).
· cites it 14× “Second, even assuming a violation of HRS § 803-9(4), such statutory violation (right to consult with a family member) as contrasted to a constitutional violation (right to consult with an attorney) would not result in the application of the exclusionary rule.”
Deangelo v. Souza., 520 P.3d 253 (Haw. 2022).
· cites it 13× “His continued custody under 12(g) violated the Hawaiʻi and United States Constitutions, as well as HRS § 803-9(5), he argued. Deangelo wanted to be released.”
State v. Vance, 602 P.2d 933 (Haw. 1979).
· cites it 2× “12 No allegation was raised below that the detention of the appellant exceeded the forty-eight hour limit set by HRS § 803-9. The statutory provision states in relevant part as follows: It shall be unlawful in any case of arrest for examination: ***** (5) To fail within…”
State v. Vallesteros, 933 P.2d 632 (Haw. 1997).
· cites it 2× “HRS § 803-9 (1993) provides in pertinent part: Examination after arrest; rights of arrested person.”
— Haw. Rev. Stat. § 803-9(1) — 1 case
State v. Scalera., 393 P.3d 1005 (Haw. 2017).
“5 In a memorandum in support of his motion, Scalera argued that evidence in his case should be suppressed because he was “preemptively and illegally denied” the right to consult with counsel as provided by HRS § 803-9. Specifically, Scalera alleged that the implied consent form…”
— Haw. Rev. Stat. § 803-9(2) — 8 cases
State v. Edwards, 30 P.3d 238 (Haw. 2001).
“” Wiese testified that “[he] had seen [HRS § 803-9 2 ]” in the course of doing his job.”
State v. Ababa, 65 P.3d 156 (Haw. 2003).
“Q You are familiar, I guess, with HRS 803-9, right? A Somewhat, yes, sir. *214 However, no one indicated to Petitioner that a specific request, as defined by Detective Weise, was required: THE COURT: Q Mr.”
State v. Scalera., 393 P.3d 1005 (Haw. 2017).
“5 In a memorandum in support of his motion, Scalera argued that evidence in his case should be suppressed because he was “preemptively and illegally denied” the right to consult with counsel as provided by HRS § 803-9. Specifically, Scalera alleged that the implied consent form…”
Castro v. Admin. Dir. of the Courts, 40 P.3d 865 (Haw. 2002).
“The language of HRS § 803-9 is important because, like Pattioay and unlike Wilson and Garcia , the statute at issue states that the police act unlawfully if they fail to make a reasonable effort to contact the requested counsel.”
State v. Ababa, 68 P.3d 618 (Haw. App. 2002).
“Q You are familiar, I guess, with HRS 803-9, right? A Somewhat, yes, sir. Detective Wiese testified that at approximately 1:00 p.”
— Haw. Rev. Stat. § 803-9(4) — 4 cases
State v. Edwards, 30 P.3d 238 (Haw. 2001).
“” Wiese testified that “[he] had seen [HRS § 803-9 2 ]” in the course of doing his job.”
State v. Kaeka, 653 P.2d 96 (Haw. App. 1982).
“Second, even assuming a violation of HRS § 803-9(4), such statutory violation (right to consult with a family member) as contrasted to a constitutional violation (right to consult with an attorney) would not result in the application of the exclusionary rule.”
State v. Ababa, 68 P.3d 618 (Haw. App. 2002).
“Q You are familiar, I guess, with HRS 803-9, right? A Somewhat, yes, sir. Detective Wiese testified that at approximately 1:00 p.”
State v. Ababa, 65 P.3d 156 (Haw. 2003).
“Q You are familiar, I guess, with HRS 803-9, right? A Somewhat, yes, sir. *214 However, no one indicated to Petitioner that a specific request, as defined by Detective Weise, was required: THE COURT: Q Mr.”
— Haw. Rev. Stat. § 803-9(5) — 3 cases
Deangelo v. Souza., 520 P.3d 253 (Haw. 2022).
“His continued custody under 12(g) violated the Hawaiʻi and United States Constitutions, as well as HRS § 803-9(5), he argued. Deangelo wanted to be released.”
— Haw. Rev. Stat. § 803-9(6) — 1 case
State v. Scalera., 393 P.3d 1005 (Haw. 2017).
“5 In a memorandum in support of his motion, Scalera argued that evidence in his case should be suppressed because he was “preemptively and illegally denied” the right to consult with counsel as provided by HRS § 803-9. Specifically, Scalera alleged that the implied consent form…”
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