§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 at the place of the arrested person's detention (A) at any time
for a reasonable period for the first time after the arrest, and (B) thereafter
at reasonable intervals and for a reasonable time;



(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]



 



Cross References



 



  See Const. Art. I, §7.



  Detention for examination, see §803-5.



 



Rules of Court



 



  See HRPP rule 5.



 



Law Journals and Reviews



 



  Suppression of Evidence Without the Aid of the Fourth, Fifth,
and Sixth Amendments.  8 HBJ 109.



 



Case Notes



 



  Forty-eight hour law.  Noncompliance, in itself, has no
effect on voluntariness of confession.  37 H. 189, aff'd 163 F.2d 490; 43 H.
347; 45 H. 622, 372 P.2d 365.



  McNabb-Mallory rule does not apply.  209 F.2d 75, aff'g 39 H.
167; 47 H. 158, 385 P.2d 830; 48 H. 204, 397 P.2d 558.



  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.



  Applicability of Escobedo v. Illinois, 378 U.S. 478, and Miranda
v. Arizona, 384 U.S. 436: See 49 H. 504, 506 note 3, 421 P.2d 305; 49 H. 522,
423 P.2d 438; 50 H. 42, 46, 430 P.2d 330.



  Give Miranda warnings before custodial interrogation.  56 H.
366, 537 P.2d 8.



  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.



  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.



  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.



  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.



  Mentioned:  61 H. 291, 602 P.2d 933.