Two Different Bites at the Same Apple

State v. Spearman (February 21, 2013)
Background. Sarah Spearman was charged with operating a vehicle while under the influence of an intoxicant. The complaint advanced two theories: driving with an amount sufficient to impair her normal mental faculties or ability to care for her person and guard against casualty and with .08 or more grams of alcohol per 210 liters of breath. HRS § 291E-61(a)(1)&(3). The complaint did not state the state of mind for the first theory. At the arraignment, Spearman moved to dismiss the complaint on the grounds that no mens rea was included. The motion was denied and the case went to trial.
At trial, the witnesses for the prosecution testified that Spearman blew into the Intoxilyzer 8000 and the results came to "0.251 . . . percent of alcohol liters per 2/10ths breath." After the prosecution rested, Spearman moved for a judgment of acquittal and moved to strike all testimony relating to the breath test and its results. The district court interpreted the motion for acquittal to apply only to the theory under HRS § 291E-61(a)(3) and noted that the officer "testified in fact it was not .251 grams of alcohol per two hundred ten liters of breath. It was something I don't even understand. . . . It's up to her to testify to [the units of measurement]. She tried and failed." The motion for acquittal was granted as to (a)(3). Spearman, however, was found guilty of violating HRS § 291E-61(a)(1). She appealed.
While the case was on appeal before the ICA, the HSC came down with State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012), which required the mens rea in charging instruments for OUI offenses based on HRS § 291E-61(a)(1). The ICA vacated the judgment and remanded the case with specific instructions to dismiss the case without prejudice as to the count that was left on appeal. In a footnote, the ICA stated that because the district court acquitted Spearman of the theory under HRS § 291E-61(a)(3), the Double Jeopardy Clause prohibited the prosecution from re-charging her under that theory. Spearman was granted certiorari.
Double Jeopardy and Re-trials on Different Theories of OUI. There are different ways for the prosecution to prove operating a vehicle while under the influence of an intoxicant through liquor. One way is by proving that the driver had an amount sufficient to impair that person's mental faculties or ability to guard against casualty. The other way is by proving an alcohol content of 0.08 in breath or blood. HRS § 291E-61(a). These are alternative theories for the same, single count. State v. Dow, 72 Haw. 56, 806 P.2d 402 (1991). Double jeopardy protects the accused "against a second prosecution for the same offense after acquittal." Id. at 58-59, 806 P.2d at 404. But not all acquittals are the same for purposes of double jeopardy. Some are in form only.
For example, in a motion for acquittal, the court may only enter a judgment of acquittal for "one or more offenses." HRPP Rule 29(a). That means that a court cannot just acquit under a single theory of OUI. According to the HSC, it's all or nothing. In Dow, the trial court granted a motion to acquit on one theory, but not the other. Id. at 63, 806 P.2d at 406. There, the HSC held that this was an "acquittal in form only" and "Dow was not twice placed in jeopardy for the same offense when he was retried following a mistrial on the (a)(2) count, despite the trial court's entry of judgment of acquittal on the (a)(1)." Id. at 65-66, 806 P.2d at 407.
"Acquittal in Form Only . . ." The HSC held that Spearman's case was similar. Although the district court entered a judgment of acquittal for one theory--the 0.08 BAC theory--it proceeded to hear the prosecution for the other theory. Like Dow, this was an "acquittal in form only." And so, there was no violation of the Double Jeopardy Clause and no error in allowing the prosecution to re-try under the alternative theory under HRS § 291E-61(a)(1).
ICA's Footnote was Inconsistent with Lemalu. The ICA, in a footnote, observed that because the district court acquitted Spearman of the 0.08 theory under HRS § 291E-61(a)(3), the Double Jeopardy Clause prohibited re-prosecution of that exact same theory. The HSC noted that this note was wrong.
The Double Jeopardy Clause did not prevent the prosecution from re-trying a case under both theories when there was a "judgment of acquittal" for only a single theory of the OUI offense. State v. Lemalu, 72 Haw. 130, 131-32, 809 P.2d 442, 443 (1991). In that sense, the ICA's footnote at first blush would be inconsistent with the holding in Lemalu.
. . . but Lemalu Inconsistent with Mundon. Recently, in State v. Mundon, __ Hawai'i __, __ P.3d ___ (2012). The HSC acknowledged the doctrine of "collateral estoppel" which derives from the Double Jeopardy protections: "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. In adopting this doctrine, the HSC questioned the validity of Lemalu as it would be inconsistent with the new doctrine. The HSC now took the opportunity to expressly overrule Lemalu.
The prosecution cannot re-try under both theories of OUI if the trial court acquits the defendant of a single theory (even if it is in form only). The HSC explained that an acquittal under just one theory of OUI is an issue of ultimate fact. Here, the district court ultimately determined that the prosecution did not prove that Spearman was operating a vehicle with a breath-alcohol content of 0.08 or more grams of alcohol per two hundred ten liters of breath. Accordingly, the prosecution is collaterally estopped from re-trying that theory. Moreover, the prosecution cannot present any evidence about Spearman's breath-alcohol content at the trial for the other theory. Cf. State v. Mezurashi, 77 Hawai'i 94, 96, 881 P.2d 1240, 1243 (1994); see also Statev. Kalaola, 124 Hawai'i 43, 62, 237 P.3d 1109, 1128 (2010) ("Double Jeopardy forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.").

Bottom Line: Retrial on One Theory.
In the end, the case was remanded for retrial of a single theory of OUI.


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