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State v. Arakaki8/28/1987
State v. Rolison,6 Haw. App. 569, 733 P.2d 326 (1987); State v. Souza,6 Haw. App. 554, 732 P.2d 253 (1987), had been decided at the time of the trial of this case. Thus, unlike the disputed evidence in Bannister, the evidence at issue in this case was admitted, but not contrary to well-settled principles of evidence law. We therefore apply the rule that "evidentiary points that involve matters of first impression" in this state constitute "trial error and not any insufficiency of the evidence at trial." State v. Van Isler, 283 S.E.2d 836, 838 (W. Va. 1981). See also People v. Shirley, 31 Cal. 3d 18, 723 P.2d 1354, 181 Cal. Rptr. 243 (1982).
We agree with Professors LaFave and Israel that " he prosecution in proving its case is entitled to rely upon the rulings of the court and proceed accordingly[.]" W. LaFave & J. Israel, Criminal Procedure § 24.4 at 917 (1985). Otherwise, the prosecution will tend "to 'overtry' its cases -- to introduce redundant evidence of the defendant's guilt -- in order to insure itself against the risk of not being able to retry the defendant should some of its evidence be held on appeal to be inadmissible." United States v. Tranowski, 702 F.2d 668, 671 (7th Cir. 1983).
Accordingly, we hold that the trial court's admission of the intoxilyzer test result into evidence was a trial error. The Double
Jeopardy Clause does not preclude the State from retrying Defendant whose DUI conviction is being set aside because of a trial error. Burks, 437 U.S. at 15, 98 S. Ct. at 2149, 57 L. Ed. 2d at 12.
IV. CONCLUSION
Based on the foregoing reasons, we (1) affirm the insurance violation conviction under HRS § 294-8 and (2) vacate the DUI conviction under HRS § 291-4(a)(2) and remand the case for retrial.
Disposition
Affirmed in part, vacated in part and remanded.
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