Got a jury duty request in the mail? Is it worth your time? That is a question 12 jurors are asking themselves after a jury of peers found a Kona man “Guilty as charged” of Habitually Operating a Vehicle Under the Influence of an Intoxicant last month. After hearing the case presented by both sides and rendering a unanimous guilty verdict from 12 jurors. Kona Presiding Judge Robert D.S. Kim decided he did not agree with the decision and overturned the jury’s verdict and acquitted 25-year-old Kona man Tyson I. Zwicker of Habitually Operating a Vehicle Under the Influence of an Intoxicant.

Prosecuting Attorney Kelden Waltjen announced that a Kona the Circuit Court Judge has set aside a jury’s unanimous “Guilty” verdict that found a Kona man, 25-year-old Tyson I. Zwicker, guilty as charged of Habitually Operating a Vehicle Under the Influence of an Intoxicant in last months trail. The case stemmed from an incident that occurred on December 3, 2021, on Luhia Street in Kona.

“Members of our community sat through this trial, listened to the testimony, considered the evidence, and subsequently returned a guilty verdict,” said Prosecuting Attorney Kelden Waltjen. “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.”

On May 27, 2022, 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 five (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 ten (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 ten (10) year period of the offense of Operating a Vehicle Under the Influence of an Intoxicant.

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.