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State v. Lemalu4/11/1991
Defendant-appellant Aukusitino L. Lemalu (Lemalu) appeals his conviction for Driving Under the Influence of Intoxicating Liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985). Lemalu was arrested in 1987 and charged, in two separate counts, with violating HRS § 291-4(a)(1) (driving under the influence) (count I) and § 291-4(a)(2) (driving with a blood alcohol level of 0.10 percent or more) (count II). Following a jury trial, Lemalu was acquitted of count I but convicted of count II. On appeal, Lemalu asserts that the trial court erred in denying his motion to dismiss the complaint based on his contention that the use of two counts to charge a single offense of DUI rendered the complaint defective and violated his due process rights. Alternatively, Lemalu asserts that he was twice placed in jeopardy when both counts were submitted to the jury. Lemalu contends that the trial court should have required that the State elect only one count under which to proceed. We do not agree with these assertions. However, we conclude that there was substantial prejudice created by the use of particular jury instructions combined with multiple verdict forms, which may have led the jury to believe that Lemalu was charged with two separate offenses rather than one. We find such prejudice to be plain error, and therefore vacate Lemalu's conviction and remand for retrial.
I.
On December 4, 1989, before jury selection, the trial court heard Lemalu's "Motion to Dismiss Counts I and II of the Complaint" (motion to dismiss), which was based on a decision by this court issued in July 1989, State v. Grindles , 70 Haw. 528, 777 P.2d 1187 (1989), pronouncing that the DUI statute provided two alternative means of proving a single offense. At the hearing on the motion to dismiss, Lemalu argued that under Grindles he had been mischarged, since the complaint contained two counts alleging the single offense of DUI, which he submitted would lead the jury to believe that two offenses had allegedly been committed. The trial court disagreed, noting that Grindles was distinguishable from Lemalu's case because Grindles involved the bifurcation of the two methods of proving DUI into separate trials. The trial court, not convinced that Lemalu had been illegally charged, denied the motion to dismiss. After a three-day trial, both counts were submitted to the jury, which found Lemalu guilty under count II but not guilty under count I. The trial court entered a judgment of conviction as to count II, the subsection (a)(2) violation, and a judgment of acquittal as to count I, the (a)(1) violation. Lemalu timely appealed his DUI conviction under HRS § 291-4(a)(2).
II.
A.
The DUI statute, HRS § 291-4(a), provides as follows:
A person commits the offense of driving under the influence of intoxicating liquor if:
(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor; or
(2) The person operates or assumes actual physical control of the operation of any vehicle with 0.10 per cent or more, by weight of alcohol in the person's blood.
Lemalu argues that since the complaint, which set forth the DUI violation in two counts, failed to clearly show that only one offense was charged, the complaint was prejudicially defective by virtue of the suggestion to the jury that he had committed not one but two crimes.
We do not believe, however, that the two-count DUI charge in this case was fatally flawed. There is
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