 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Tiedemann4/27/1990
In a jury trial, defendant-appellant Lois P. Tiedemann (Defendant) was found guilty of driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(1) and -4(a)(2) (1985). On appeal, Defendant contends that the trial court reversibly erred on several grounds with respect to jury instructions and the admission of evidence. We hold that the court's instruction dealing with the statutory inference in HRS § 291-5(a) was prejudicially inadequate and constituted plain error. We therefore vacate the judgment of conviction and remand for a new trial.
I.
On September 5, 1987, Honolulu police officers responded to a report of a traffic accident at the intersection of Ala Wai Boulevard and Kalaimoku Street. Arriving at the scene at about 4:30 a.m., police officer Rosalie Ortiz (Officer Ortiz) saw a Toyota van in the Ala Wai Canal and Defendant lying on a bench with a blanket draped over her. Officer Ortiz spoke to Defendant who identified herself as the driver of the van and explained how the wheels of the van locked and the van ended in the canal. The officer smelled liquor on Defendant's breath and observed that Defendant's eyes were red and her speech slurred. Upon Defendant's failure to properly perform the field sobriety tests, Officer Ortiz arrested Defendant for DUI at about 5:10 a.m.
At the Honolulu Police Station, Defendant consented to and was administered an Intoxilyzer breath test at 6:15 a.m. The test result indicated a blood alcohol concentration of 0.151 percent.
The complaint charged Defendant with two counts of DUI. Count I charged Defendant with operating a vehicle while under the influence of intoxicating liquor (HRS § 291-4(a)(1)), while Count II charged her with operating a vehicle with 0.10 percent or more, by weight of alcohol in her blood (HRS § 291-4(a)(2)). The jury convicted Defendant on both counts.
II.
With respect to Count II, the trial court, without any objection from Defendant, instructed the jury as follows:
In any criminal prosecution for driving -- for a violation of driving under the influence , ten-hundredths percent or more by weight of alcohol in the defendant's blood would within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the defendant's blood or breath shall be competent evidence that the defendant was under the influence of intoxicating liquor at the time of the alleged violation.
June 7, 1989 Transcript at 142.
Defendant contends that although the instruction tracks the language of HRS § 291-5(a) (1985), the trial court committed plain error in failing to instruct the jury regarding the inference contained therein. We agree.
HRS § 291-5(a) provides that a blood alcohol level of 0.10 percent or more "in the defendant's blood within three hours after the
time of the alleged violation . . . shall be competent evidence that the defendant was under the influence of intoxicating liquor at the time of the alleged offense." (Emphasis added.) In State v. Wetzel,7 Haw. App. 532, 782 P.2d 891 (1989), we stated that the legislature enacted HRS § 291-5(a) to facilitate proving DUI under HRS § 291-4(a)(2). We held that by the use of the term "competent evidence," the legi
Page 1 2 Hawaii DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|