SB2762

SECTION 1. The legislature finds that the State's existing bail system lacks clarity of forfeiture and reinstatement procedures. Additionally, the pretrial bail system would benefit from revisions and updates to ensure equitable access to bail for individuals accused of crimes in the State.

Accordingly, the purpose of this Act is to:

(1) Allow a court to consider relevant evidence and make a determination to grant, deny, or set conditions of bail;

(2) Require that a defendant is to be presumed entitled to bail unless certain conditions are met;

(3) Require a court to set aside the forfeiture of bail if the defendant voluntarily appears before the court or is surrendered by the surety or bail agent within ninety days after a failure to appear;

(4) Require a court to obtain the consent of the surety or bail agent to reinstate bail;

(5) Clarify qualifications for bail agents, insurers, and sureties;

(6) Clarify the process for the discharge of bail agents, insurers, and sureties;

(7) Allow a court discretion to determine whether the forfeiture of bail is appropriate;

(8) Require a motion by the principal to set aside an order of forfeiture to provide the surety or insurer with prompt notice affording opportunity to join the motion; and

(9) Allow courts discretion to reinstate a bond or recognizance or return the bond or recognizance to the appropriate party after vacating a judgment of forfeiture.

SECTION 2. Chapter 804, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§804- Judicial discretion in bail proceedings. (a) The court shall have discretion to consider relevant evidence and make a determination to grant, deny, or set conditions of bail, including the form and amount as provided in section 804‑9.

(b) A defendant shall be presumed entitled to bail unless the court finds that:

(1) No condition or combination of conditions will reasonably assure the defendant's appearance;

(2) The defendant poses a risk to:

(A) Public safety;

(B) The safety of a witness or other persons;

(D) The legal rights of others;

(3) The defendant previously breached the conditions of bail in a prior case or in the instant case; or

(4) Bail is otherwise prohibited by law.

§804- Prompt return of a defendant; forfeiture set-aside; reinstatement of bail. (a) When a defendant voluntarily appears before the court or is surrendered by the surety or bail agent within ninety days after a failure to appear, the court shall enter an order setting aside the forfeiture.

(b) If, after voluntary appearance or surrender, the court determines that the defendant may be released on bail, the existing bond may be reinstated only with the consent of the surety or bail agent provided in writing or on-record before the court. Upon reinstatement, the surety shall remain liable on the original bond.

(c) Nothing in this section shall limit the court's authority to impose additional or different conditions of release or to deny reinstatement."

SECTION 3. Section 804-1, Hawaii Revised Statutes, is amended to read as follows:

"§804-1 [~~Bail defined.~~ ~~Bail, or the giving of bail, is~~] Definitions. As used in this chapter:

"Bail" or "the giving of bail" means 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.

"Bail agent" means a producer or agent who is licensed to execute bail bonds and is legally authorized to act on behalf of a surety and the court to locate and apprehend a defendant who flees or otherwise fails to appear in court as ordered.

"Bail bond" means a written financial guarantee provided to the court by a bail agent, defendant, or other party that may be forfeited if the defendant fails to appear in court as ordered.

"Insurer" means a party who assumes the risk of default for the benefit of a bail agent.

"Peace bond" means a court-required surety bond to guarantee that a defendant will not violate a court order to refrain from engaging in specified conduct, violating the law, or breaching the peace.

"Surety" means a party who provides a line of credit to a bail agent to deposit with the court as bailment that may be forfeited if a defendant fails to appear as ordered as consideration for payment of a risk premium."

SECTION 4. Section 804-10.5, Hawaii Revised Statutes, is amended to read as follows:

"§804-10.5 [~~Sureties; qualification.~~] Bail agents, insurers, and sureties; qualifications. (a) In determining the sufficiency of a bail agent, insurer, or surety [~~or sureties~~], the court shall consider the bail agent's, insurer's, or surety's [~~or sureties'~~]:

(1) Character;

(2) Reliability;

(3) Place of residence; and

(4) Financial and employment circumstances.

(b) No person or entity shall be a sufficient bail agent, insurer, or 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)."

SECTION 5. Section 804-14, Hawaii Revised Statutes, is amended to read as follows:

"§804-14 Discharge of bail agents, insurers, or sureties. [~~Those who may have become bail for anyone,~~] A bail agent acting on behalf of a surety or insurer, or a surety or insurer acting on their own behalf and on behalf of a bail agent, may at any time discharge themselves, by surrendering [~~him~~] the defendant to the custody of any sheriff or chief of police or [~~his~~] the sheriff's or chief's authorized subordinate[.] and by filing a motion with the court as follows:

(1) If the defendant has not breached the terms of bail or pre-release, the bail agent, insurer, or surety may move to discharge for other reasons; provided that all fees and expenses charged are returned to the defendant or other appropriate persons and reasonable assistance is provided to the defendant to secure alternate sources of bail;

(2) If the defendant breaches any condition of bail or pre-release other than failure to appear, the bail agent, insurer, or surety shall notify the court. The court may order the bail agent, insurer, or surety to surrender the defendant to law enforcement. Upon return of the defendant to custody, the court may, upon motion, grant discharge and determine if the defendant may seek an alternate source of bail;

(3) If the defendant fails to appear for any hearing or trial as ordered by the court, the bail agent, insurer, or surety may move to seek discharge of their obligations and duties after the defendant has been returned to custody of law enforcement; or

(4) If the court increases the bail amount due to the defendant's conduct, the bail agent, insurer, or surety may decline the additional bail amount. If equity dictates, the court may grant the bail agent, insurer, or surety discharge and allow the defendant to seek alternate sources of bail."

SECTION 6. Section 804-41, Hawaii Revised Statutes, is amended to read as follows:

"§804-41 Discharge of bail agent, insurer, or surety[.] who provide peace bonds. At any time before the breach of the condition of the bond, the bail agent, insurer, or surety may discharge [~~oneself~~] themselves from their collective obligations by surrendering the principal into the hands of any sheriff or the chief of police or the sheriff's or chief's authorized subordinate[.] and by filing a motion with the court seeking discharge for reasons other than breach; provided that the bail agent, insurer, or surety shall provide the defendant with reasonable assistance to secure alternate sources of bail before a motion to discharge may be granted."

SECTION 7. Section 804-51, Hawaii Revised Statutes, is amended to read as follows:

"§804-51 Procedure. (a) Whenever the court, in any criminal cause, forfeits any bond or recognizance given in a criminal cause, the court [~~shall~~] may, subject to the court's determination whether the forfeiture is appropriate in the instant case, immediately enter up judgment in favor of the State and against the principal or principals, surety or sureties, and surety insurer or surety insurers on the bond, jointly and severally, for the full amount of the penalty thereof, and, if the court determined that forfeiture is appropriate, shall cause execution to issue thereon immediately after the expiration of [~~thirty~~] ninety days from the date that notice is given via personal service or certified mail, return receipt requested, to the surety or sureties or the surety insurer or surety insurers on the bond, of the entry of the judgment in favor of the State, unless before the expiration of [~~thirty~~] ninety days from the date that notice is given to the surety or sureties or the surety insurer or surety insurers on the bond of the entry of the judgment in favor of the State, a motion or application of the principal or principals, surety or sureties, surety insurer or surety insurers, or any of them, showing good cause why execution should not issue upon the judgment, is filed with the court[.]; provided that where a bond has been ordered forfeited and the bail was secured by the principal from a surety, and if applicable an insurer, any motion by the principal to set aside an order of forfeiture shall provide the surety or insurer with prompt notice affording opportunity to join the motion. If the motion or application, after a hearing held thereon, is sustained, the court shall vacate the judgment of forfeiture and[~~, if~~] may either:

(1) Reinstate the bond or recognizance pursuant to the requirements of this chapter; or

(2) If the principal surrenders or is surrendered pursuant to section 804-14 or section 804-41, return the bond or recognizance to the principal, surety, or surety insurer, whoever shall have given it, less the amount of any cost, as established at the hearing, incurred by the State as a result of the nonappearance of the principal or other event on the basis of which the court forfeited the bond or recognizance.

If the motion or application, after a hearing held thereon, is overruled, execution shall forthwith issue and shall not be stayed unless the order overruling the motion or application is appealed from as in the case of a final judgment. If the motion or application, after a hearing held thereon, is granted, the State may appeal the order granting the motion or application as in the case of a final judgment.

(b) This section shall be considered to be set forth in full in words and figures in, and to form a part of, and to be included in, each and every bond or recognizance given in a criminal cause, whether actually set forth in the bond or recognizance, or not."

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2762
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII