Prosecuting Attorney Kelden Waltjen announced that a Kona Circuit Court Judge has set aside a jury’s unanimous “Guilty” verdict that found 25 year-old Tyson I. Zwicker of Kona guilty as charged of Habitually Operating a Vehicle Under the Influence of an Intoxicant last month.
The case stemmed from a December 3, 2021 incident that occurred on Luhia Street in Kona.
On May 27, Zwicker appeared via video in Kona Circuit Court, where the Court granted the defense’s motion for judgment of acquittal reasoning that in viewing the evidence in the light most favorable to the state, the Court determined that the prosecution failed to prove that Zwicker operated or assumed actual physical control of a vehicle as required for conviction under the applicable statute.
The Court further explained that Rule 29 of the Hawaii Rules of Penal Procedure permitted the Court to grant defense counsel’s motion for judgment of acquittal even after receiving the jury’s guilty verdict.
Habitually Operating a Vehicle Under the Influence of an Intoxicant is a class C felony which carries a maximum penalty of 5 years in prison. A “habitual operator of a vehicle under the influence of an intoxicant” is a person convicted one or more times within a 10 year period for the offense of Habitually Operating a Vehicle Under the Influence of an Intoxicant, or a person convicted two or more times within a 10 year period of the offense of Operating a Vehicle Under the Influence of an Intoxicant.
In a statement Prosecuting Attorney Kelden Waltjen said, “Members of our community sat through this trial, listened to the testimony, considered the evidence, and subsequently returned a guilty verdict. We are disappointed in the Court’s decision. This is very unusual. This result does not only frustrate law enforcement and prosecutors, but discourages our community by diminishing their role in the criminal justice system.”
The investigation was handled by Officers Eli Cayetano and Victoria De Jesus Monteiro, Kona Patrol, Hawai‘i Police Department. The case was prosecuted by Deputy Prosecuting Attorneys Kauanoe Jackson and Nicole Bowman.