§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).