State v. Hanna

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29884

IN THE lNTERMED1ATE COURT OF APPEALS

oF THE sTATE 0F HAwArI

99 =L w 1.1 name
GB"JM

STATE OF HAWAFI, Plaintiff-Appe1lee, V.
RICK M. HANNA, Defendant-Appellant

APPEAL FROM THE DISTR1CT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CaSe NO. 1DTA-08-10078)

SUMMARY D1SPOSITlON ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Rick M. Hanna (Hanna) appeals the
entered on May l9, 2009, in the District Court of the

judgment,
Honolulu Division (district court).1

First Circuit,
Hanna was convicted of Operating a Vehicle Under the

(OVUII), in violation of Hawaii

Revised Statutes § 29lE-6l(a) and (b) (Supp. 2009)
Hanna contends that the district court erred

On appeal,
by denying his Motion to Dismiss the charge because the written
complaint and oral charge for OVUII failed to state an essential

that Hanna operated or assumed
street,

Influence of an Intoxicant

element of the offense, i.e.,

actual physical control of a vehicle upon a public way,

road, or highway.
Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Hanna's point of error as follows:
"[T]he operation of a vehicle on a public way,

(l)
street, road, or highway is an attendant circumstance of the
offense of OVUII, and is therefore an element of the offense."
219 P.3d 1170, 1180

state v. whee1er, 121 HawaiH_333, 393,

(2009). The failure to allege that Hanna was driving a vehicle

1 The Hon0rable William E. Cardwe1l presided.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

upon a public way, street, road, or highway at the time of the
offense rendered the charge deficient. lQ4 Therefore, the
charge must be dismissed for lack of jurisdiction.

Therefore,

IT IS HEREBY ORDERED THAT the judgment, entered on
May l9, 2009, in the District Court of the First Circuit,

Honolulu Division is vacated. The matter is remanded to the

f district court with instructions to dismiss the OVUII charge

without prejudice.

DATED; Honolulu, Hawai‘i, May 17, 2010.

On the briefs:

Timothy I. MacMaster, - ’

for Defendant-Appellant. .
. a Presiding Judge

Stephen K. Tsushima,
Deputy Prosecuting Attorney, g ~
City and County of Honolu1u,

for Plaintiff~Appellee. Associate Judge l