State v. Dow

• Decision Date: 13 February 1991
• Docket Number: No. 13610,13610
• Citation: 806 P.2d 402,72 Haw. 56
• Parties: STATE of Hawaii, Petitioner-Appellee, v. Dwight DOW, Respondent-Appellant.
• Court: Hawaii Supreme Court

Page 402

806 P.2d 402

72 Haw. 56

STATE of Hawaii, Petitioner-Appellee, v. Dwight DOW, Respondent-Appellant.

No. 13610.

Supreme Court of Hawai'i.

Feb. 13, 1991.

Syllabus by the Court

1. Under Hawaii Revised Statutes (HRS) § 291-4(a), driving under the influence of intoxicating liquor (DUI) is one offense that must be tried at one time; a trial court should not "acquit" a defendant of part of a DUI offense.

2. Under Rule 29(a), Hawaii Rules of Penal Procedure (HRPP), a court may not acquit a defendant of less than the entire offense of DUI.

3. Where the trial court did not intend to dismiss the entire offense of DUI when entering a judgment of acquittal on count under HRS § 291-4(a)(1), but only intended to rule against the State with respect to one method of proving DUI, the trial court in reality did not acquit defendant but instead made a factual finding.

4. Where the trial court did not have authority under HRPP 29(a) to enter a judgment of acquittal as to less than the entire offense of DUI, judgment of acquittal on the count under HRS § 291-4(a)(1) was not valid.

5. The fact that a judgment of acquittal was entered in an earlier trial is not dispositive of whether double jeopardy is implicated in a second trial; court on appeal is compelled to examine the circumstances of the judgment to decide whether the principle of double jeopardy proscribes further prosecution.

6. A trial court's characterization of its action as an "acquittal" does not necessarily make the action a true acquittal.

7. Trial court's "acquittal" of defendant on charge under HRS § 291-4(a)(1) only resolved factual elements of one method of proving DUI offense; under HRS § 291-4(a)(2), there remained to the State a completely separate method of proving the offense.

8. Where the trial court entered a judgment of acquittal on HRS § 291-4(a)(1) count, which was only part of DUI offense, judgment of acquittal was in form only and not in substance. Defendant therefore was not twice placed in jeopardy for the same offense when retried following a mistrial on the HRS § 291-4(a)(2) count.

Earle A. Partington, Partington & Foley, Honolulu, for respondent-appellant.

Charlotte Jean Duarte, Deputy Pros. Atty., Honolulu, for petitioner-appellee.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.

MOON, Justice.

We granted certiorari to review a decision of the Intermediate Court of Appeals (ICA) reversing the judgment of conviction of defendant Dwight Dow (Dow) for driving under the influence of intoxicating liquor (DUI). The issue before us is whether the constitutional principle of double jeopardy bars the retrial of a defendant who had been charged with two counts of DUI pursuant to subsections (a)(1) and (a)(2) of Hawaii Revised Statutes (HRS) § 291-4 but was "acquitted" of one of the counts. We find that under such circumstances there is no double jeopardy bar, and we reverse the ICA's decision.

I.

Dow was charged with DUI under 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) and tried before a jury. After the State rested, Dow moved for judgment of acquittal under Rule 29(a) of the Hawaii Rules of Penal Procedure (HRPP). The trial court granted the motion as to count I only, entered a "judgment of acquittal," and submitted the (a)(2) count to the jury. The jury was unable to reach a verdict on count II, and the court declared a mistrial. A second trial was scheduled on count II, and Dow filed a motion to dismiss on the ground of double jeopardy. The trial court denied the motion and trial commenced. The jury found Dow guilty of count II. After entry of the judgment of conviction, Dow appealed.

The ICA reversed, finding that since the trial court "acquitted" Dow under HRS § 291-4(a)(1) in the first trial, the second trial placed him twice in jeopardy for the same offense and thus violated the double jeopardy clauses of both the United States and Hawaii Constitutions. ¹ State v. Dow, 803 P.2d 969 (Haw.App.1990). We granted the State's application for writ of certiorari.

II.

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 (1969). The Double Jeopardy Clause applies to all acquittals, whether "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). In this case, if Dow were truly acquitted by the trial court during his first trial, a second trial would be prohibited. However, we find that Dow's acquittal was in form only; therefore the second trial, which led to his conviction, was constitutionally permissible.

III.

The DUI statute, HRS § 291-4(a) (1985), 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.

Previously, this court in State v. Wacker, 70 Haw. 332, 770 P.2d 420 (1989), treated subsection (a)(1) and (a)(2) of the DUI statute as two separate offenses. Wacker was charged under both HRS § 291-4(a)(1) and -4(a)(2). Pursuant to HRS § 701-109(2), ² both charges were tried together. At trial, Wacker was acquitted of the (a)(1) count, however, the jury was unable to reach a verdict as to the (a)(2) count. Subsequently, the trial court dismissed the (a)(2) count based upon its belief that it was required to do so under HRS § 701-111(1). ³ The Wacker court concluded that "[t]he construction placed by the court below, on HRS § 701-111(1), leads to an untenable result, which frustrates the purpose of HRS § 701-109(2)." 70 Haw. at 333, 770 P.2d at 421. The Wacker court further stated, "[b]ut for [HRS § 701-109(2) ], [Wacker] could have been tried separately on the offenses under HRS § 291-4(a)(1) and -4(a)(2)." Id. (emphasis added). Following the rationale in State v. Arakaki, 7 Haw.App. 48, 744 P.2d 783 (1987), ⁴ this court concluded that double jeopardy did not bar a retrial of the (a)(2) count and remanded the case for further proceedings.

More recently, this court has held that the DUI statute provides two alternative means of proving a single offense. State v. Grindles, 70 Haw. 528, 531, 777 P.2d 1187, 1190 (1989). In Grindles, defendant was charged with violating HRS § 291-4(a). At a bench trial, after the State's direct examination of the arresting officer, the court announced that it would bifurcate the hearing and take all testimony supporting the (a)(1) charge first. If the State made a case under that subsection, the court said it would not take evidence supporting the (a)(2) charge. The trial court found defendant guilty of violating HRS § 291-4(a)(1), and the case was concluded without further evidence regarding the (a)(2) charge.

On appeal of Grindles, this court, in a footnote, declined to adopt the "dictum" from Wacker which indicated that HRS § 291-4(a)(1) and -4(a)(2) are separate offenses. Following our pronouncement in Grindles, the statutory analysis employed in Wacker is no longer applicable. Therefore, to the extent that our opinion today is inconsistent with Wacker, we overrule the latter. We also overrule Arakaki to the extent that its analysis assumed that the separate counts under (a)(1) and (a)(2) represented two separate offenses.

In Grindles, this court found that the bifurcation of the two methods of proof provided in § 291-4(a) into separate trials violated defendant's due process right to a fair trial. In another footnote, this court commented:

We also note that bifurcation of a DUI trial into two separate hearings under HRS § 291-4(a)(1) and -4(a)(2) may subject the defendant to double jeopardy. In this case, jeopardy attached when the court began to hear the State's evidence. Appellant was not subjected to double jeopardy, however, since the trial court adjudicated him guilty at the conclusion of the State's proof under § 291-4(a)(1), and did not proceed to hold a second hearing under § 291-4(a)(2). However, in the event the defendant is acquitted under § 291-4(a)(1) and the court allows the State to proceed under § 291-4(a)(2), the defendant will have been twice placed in jeopardy for the same offense in violation of article I, section 10 of the Hawaii Constitution and the eighth [fifth] amendment to the U.S. Constitution.

70 Haw. at 533 n. 3, 777 P.2d at 1191 n. 3 (emphasis added). The ICA adopted this dictum from Grindles when it reversed Dow's conviction in the present case. ⁵ In doing so, however, the ICA overlooked the procedural context in which Grindles was decided and misplaced its reliance on the footnote in question.

This court in Grindles specifically disapproved of the bifurcation of the two methods of proof allowed by the DUI statute. While the trial court in Grindles erroneously bifurcated the DUI offense, defendant was not subjected to double jeopardy since the trial court adjudicated him guilty of the (a)(1) charge, thus negating a second hearing on the (a)(2) count. However, we predicted what the consequences of that error could have been: subjecting the defendant to double jeopardy if, after acquittal of one DUI count, there was a second trial on the other DUI count. The thrust of our decision in Grindles is that there should never be bifurcation, in any form, of the single offense of DUI. As this court held, DUI is one offense that must be tried at one time. Therefore, a trial court should not "acquit" a defendant of part of a...