CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000702; CASE NO. 1DTA-11-02146)
*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Electronically Filed Supreme Court SCWC-11-0000702 21-FEB-2013 09:55 AM
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, and POLLACK, JJ. OPINION OF THE COURT BY MCKENNA, J.
At issue in this appeal is whether double jeopardy *fn1 bars the re-prosecution of a defendant for violating Hawaii Revised Statutes ("HRS") Â§ 291E-61 (2007 & Supp. 2009) *fn2 ("Operating a Vehicle under the Influence of an Intoxicant" or "OVUII"), following a "judgment of acquittal" on the HRS Â§ 291E-61(a)(3) method of proof in an initial trial in which both HRS Â§Â§ 291E- 61(a)(1) and (a)(3) methods of proof were tried. We reaffirm that a "judgment of acquittal" on the HRS Â§ 291E-61(a)(3) method of proof in an OVUII trial is "in form only," but that it serves as a factual finding that the State has not met its burden of proving the requisite breath alcohol content. Based on our recent holding in State v. Mundon, ___ Hawaii ___, ___ P.3d ___ (2012)(adopting the "collateral estoppel" principle from Ashe v. Swenson, 397 U.S. 436 (1970)), however, the collateral estoppel principle embodied in the double jeopardy clause prohibits the State from re-litigating breath alcohol content, whether in a re- prosecution of the defendant on the HRS Â§ 291E-61(a)(3) method of proof, or as part of the State's evidence in a subsequent trial on the HRS Â§ 291E-61(a)(1) method of proof. We therefore expressly overrule State v. Lemalu, 72 Haw. 130, 139, 809 P.2d 442, 447 (1991), which held otherwise. The collateral estoppel principle, however, would not prohibit the State from re-charging the defendant on the HRS Â§ 291E-61(a)(1) method of proof, following a dismissal without prejudice based on the failure of the Complaint to allege mens rea. See State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). Consequently, we affirm the ICA's Judgment on Appeal.
On May 16, 2011, the State charged Spearman via Complaint with violating HRS Â§ 291E-61(a)(1) and/or (a)(3), but the Complaint did not allege mens rea. After the State orally read the Complaint to Spearman, Spearman's counsel moved to dismiss the Complaint because it failed to allege mens rea. The district court*fn3 denied the motion, and trial commenced.
Among the State's witnesses was a Honolulu Police Department officer who testified that she administered the breath alcohol test, using the Intoxilyzer 8000, to Spearman, who "blew a 0.251 . . . percent of alcohol liters per two tenths breath." After the State rested, Spearman's counsel moved for a judgment of acquittal and to strike all testimony about breath alcohol content. The district court interpreted this statement as a "motion for judgment of acquittal as to the A-3." The district court pointed out that the officer "testified that in fact it was not .251 grams of alcohol per two hundred ten liters of breath. It was something that I didn't even understand. . . . It's up to her to testify to [the units of measurement]. She tried and failed." The district court then granted "the motion to judgment of acquittal as to the A-3."
Spearman chose not to testify. The defense then rested, and the district court found Spearman guilty of violating HRS Â§ 291E- 61(a)(1) only. Spearman appealed, on the basis that the Complaint was legally deficient for failing to allege mens rea. While Spearman's appeal was pending before the ICA, we issued our opinion in Nesmith, which held that an HRS Â§ 291E- 61(a)(1) charge must allege mens rea in order to give the accused fair notice of the nature and cause of the accusation. 127 Hawaii at 50, 54, 276 P.3d at 619, 623. In disposing of Spearman's appeal, the ICA *fn4 accordingly held, "Pursuant to Nesmith, we conclude that Spearman's HRS Â§ 291E-61(a)(1) charge was deficient for failing to allege mens rea." State v. Spearman, CAAP-11-0000702 (June 27, 2012)(SDO) at 2. It then vacated the judgment of the district court and remanded the case "with instructions to dismiss without prejudice the portion of the complaint alleging a violation of HRS Â§ 291E-61(a)(1)." Id. at 3 (footnote omitted). The ICA also footnoted the following observation: "We note that because the District Court acquitted Spearman with respect to the alleged HRS Â§ 291E-61(a)(3) violation, the protection against double jeopardy would preclude Plaintiff-Appellee State of Hawaii from re[-]prosecuting Spearman for violating HRS Â§ 291E-61(a)(3)." Id. at 3, n.3.
On certiorari, Spearman presents the following point-by-
point argument: First, OVUII consists of a single offense (HRS Â§ 291E-61) for which there are four alternative methods of proof (HRS Â§ 291E-61(a)(1), (2), (3), and (4)). For this proposition, Spearman cites State v. Grindles, 70 Haw. 528, 777 P.2d 1187 (1989). Second, once the State failed to validly charge the HRS Â§ 291E-61(a)(1) method of proof and failed to prove the HRS Â§ 291E-61(a)(3) method of proof, the district court should have found Spearman not guilty of the offense of OVUII or at least dismissed the entire case with prejudice. Third, the ICA's footnote 3 did not go far enough: not only should double jeopardy bar the State from re-prosecuting Spearman on the HRS Â§ 291E-61(a)(3) method of proof, it should also bar the State from re-prosecuting her on the HRS Â§ 291E-61(a)(1) method of proof.
In other words, a dismissal without prejudice on the HRS Â§ 291E- 61(a)(1) method of proof was an improper remedy; the proper remedy was a dismissal of the entire HRS Â§ 291E-61 Complaint. Consequently, Spearman requests that this court "reverse and vacate the District Court's Judgment of Conviction and Sentence on the entire HRS Â§ 291E-61 charge herein."
The following sub-sections discuss several of our past cases, which dispose of Spearman's ...