Judge Tosses Out Guilty Verdict for Kona Man’s Habitual DUI Offense

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A Kona man found guilty of habitual DUI last month had his verdict set aside by a judge on grounds that the state didn’t prove he operated the vehicle.

Tyson I. Zwicker, 25, was found guilty by a jury as charged of habitually operating a vehicle under the influence of an intoxicant last month from an incident that occurred on Dec. 3, 2021 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, Hawai‘i Prosecuting Attorney Kelden Waltjen stated in a news release on Wednesday evening.


“Members of our community sat through this trial, listened to the testimony, considered the evidence, and subsequently returned a guilty verdict,” Waltjen stated. “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 court further explained that Rule 29 of the Hawai‘i 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.

Habitual DUI is a class C felony which carries a maximum penalty of five 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 habitually operating a vehicle under the influence offense 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.


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