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SB2762
THE SENATE
S.B. NO.
2762
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII
A BILL FOR AN ACT
relating
to bail
.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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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;
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(2)
�
Require
that a defendant is to be presumed entitled to bail unless certain conditions
are met;
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(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;
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(4)
�
Require
a court to obtain the consent of the surety or bail agent to reinstate bail;
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(5)
�
Clarify
qualifications for
bail agents,
insurers, and sureties;
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(6)
�
Clarify the process for the discharge of bail
agents, insurers, and sureties;
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(7)
�
Allow a court discretion to
determine
whether the forfeiture of bail is appropriate;
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(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
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(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.
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SECTION 2.
�
Chapter 804, Hawaii Revised Statutes, is amended by adding two new
sections to be appropriately designated and to read as follows:
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"
�
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.
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(b)
�
A defendant shall be presumed entitled to bail unless the court finds
that:
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(1)
�
No
condition or combination of conditions will reasonably assure the defendant's
appearance;
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(2)
�
The
defendant poses a risk to:
���������
(A)
�
Public safety;
���������
(B)
�
The safety of a witness or other persons;
���������
(C)
�
Property; or
���������
(D)
�
The legal rights of others;
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(3)
�
The
defendant previously breached the conditions of bail in a prior case or in the
instant case; or
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(4)
�
Bail
is otherwise prohibited by law.
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�
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.
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(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.
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(c)
�
Nothing in this section shall limit the court's authority to impose
additional or different conditions of release or to deny reinstatement.
"
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SECTION
3
.
�
Section 804-1, Hawaii Revised Statutes, is
amended to read as follows:
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"
�804-1
�
[
Bail defined.
�
Bail, or the giving of bail, is
]
Definitions.
�
As
used in this chapter:
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"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.
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"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.
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"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.
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"Insurer" means a party who
assumes the risk of default for the benefit of a bail agent.
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"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.
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"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.
"
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SECTION
4
.
�
Section 804-10.5, Hawaii Revised Statutes, is
amended to read as follows:
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"
�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'
]:
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(1)
�
Character;
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(2)
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Reliability;
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(3)
�
Place
of residence; and
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(4)
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Financial
and employment circumstances.
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(b)
�
No person
or entity
shall be
a
sufficient
bail agent,
insurer, or
surety who:
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(1)
�
Has
been convicted of perjury for submitting a false statement under section
804-11.5;
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(2)
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Does
not satisfy the requirements of section 804-11.5; or
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(3)
�
Does
not satisfy the requirements of article 9A, chapter 431, if posting an
insurance bond as defined in section 431:1-210(1).
"
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SECTION
5
.
�
Section 804-14, Hawaii Revised Statutes, is
amended to read as follows:
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"
�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:
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(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;
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(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;
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(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
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(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.
"
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SECTION
6
.
�
Section 804-41, Hawaii Revised Statutes, is
amended to read as follows:
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"�
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.
"
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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.
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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."
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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.
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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.
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SECTION 10.
�
Statutory material to be repealed is bracketed and stricken.
�
New statutory material is underscored.
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SECTION 11.
�
This Act shall take effect upon its approval.
INTRODUCED BY:
_____________________________
Report Title:
Bail;
Bond; Recognizance; Sureties; Bail Agents; Insurers; Qualifications; Discharge;
Forfeiture; Reinstatement
Description:
Allows a
court to
consider relevant evidence and make a determination to grant,
deny, or set conditions of bail.
�
Requires that a defendant is to be presumed entitled to bail unless
certain conditions are met.
�
Requires 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.
�
Requires
a court to obtain the consent of the surety or bail agent to reinstate
bail.
�
Clarifies qualifications for
bail agents, insurers, and sureties.
�
Clarifies the process for the discharge of bail
agents, insurers, and sureties.
�
Allows a
court discretion to
determine
whether the forfeiture of bail is appropriate.
�
Requires 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.
�
Allows courts discretion to reinstate
a bond or recognizance or return the bond or recognizance to the appropriate
party after vacating a judgment of forfeiture.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.