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State v. Dwight Dow10/3/1990
Defendant Dwight Dow (Defendant) appeals his conviction by a jury of driving under the influence of intoxicating liquor (DUI) under Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985) (driving with a blood alcohol level of 0.10 percent or more) in a second trial, after the trial judge acquitted him of DUI under HRS § 291-4(a)(1) (driving under the influence) in the first trial. The dispositive issue on appeal is whether the constitutional principle of double jeopardy proscribed the second trial. We hold that the second trial placed Defendant twice in jeopardy and reverse the judgment of conviction.
I.
The complaint charged Defendant with DUI under both HRS § 291-4(a)(1) (Count I) and HRS § 291-4(a)(2) (Count II). A trial before a jury commenced on June 8, 1987. After the State of Hawaii (State) rested, the trial court granted Defendant's Hawaii Rules of Penal Procedure (HRPP) Rule 29(a) motion for judgment of acquittal as to Count I.
Since the jury was unable to reach a verdict, the court declared a mistrial as to Count II. On November 30, 1987, the court filed a written judgment of acquittal as to Count I.
On August 2, 1988, Defendant filed a motion to dismiss Count II on the ground of double jeopardy. On August 23, 1988, after a hearing on the motion, the court orally denied the motion.
The second trial commenced on February 21, 1989. The jury found Defendant guilty of Count II. After the entry of the judgment of conviction, Defendant appealed.
II.
The double jeopardy clause of the Fifth Amendment of the United States Constitution embodies the common law principle that a person "shall not be brought into danger of his life or limb for one and the same offense more than once[.]" 21 Am. Jur. 2d
Criminal Law § 243, at 437-38 (1981) (footnote omitted). The Fifth Amendment double jeopardy prohibition is applicable to the states through the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969); State v. Bannister , 60 Haw. 658, 661, 594 P.2d 133, 135 (1979). The Hawaii Constitution also includes a double jeopardy clause.
The constitutional guarantee against double jeopardy "protects against a second prosecution for the same offense after acquittal." North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969) (footnote omitted). The double jeopardy bar applies "whether the acquittal was by jury verdict or by a direction of the court, either after the prosecution has completed its case or after all evidence is in." United States v. Bernhardt , 840 F.2d 1441, 1447 (9th Cir.), cert. denied , 488 U.S. 954, 109 S. Ct. 389, 102 L. Ed. 2d 379 (1988).
III.
Under HRS § 291-4(a), DUI is a single offense provable by two alternative means -- by subsections (a)(1) or (a)(2). State v. Grindles , 70 Haw. 528, 531, 777 P.2d 1187, 1190 (1989).
Here, the DUI complaint consisted of two counts, but alleged only one offense. In the first trial, the trial court entered a HRPP Rule 29(a) judgment of acquittal as to Count I. That judgment, in effect, acquitted Defendant of the HRS § 291-4(a) DUI offense. The Rule 29(a) judgment of acquittal triggered a double jeopardy bar. United States v. Martin L
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