State v. Roberts

NOT FOR PUBLICAT!ON IN WEST’S HAWAII REPORTS OR THE PACIFIC REP()RTER

No. 29709
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APPEAL FROM THE DISTRlCT COURT OF THE FIRST CIRCUIT
~ HONOLULU DIVISION
(CASE NO. lDTA-08-O8840)

SUMMARY DISPOSITION ORDER

(By: Nakamura, C.J., Fujise and Leonard, JJ.)

Defendant~Appellant Jessica E. Roberts (Roberts)
appeals from the Judgment entered on February 18, 2009, in the
District Court of the First Circuit (district court).9

Roberts was convicted of Operating a vehicle Under the
Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes § 29lE-6l(a)(l) and (b)(1) (Supp. 2008).

On appeal, Roberts contends that the district court
erred by denying her motion to dismiss the OVUII charge because
the written complaint and oral charge failed to state an
essential element of the offense, namely, that Roberts operated
or assumed actual physical control of a vehicle upon a public
way, street, road, or highway.W

Upon review of the record and the briefs submitted by
the parties, we resolve Roberts's point of error as follows:

"[T]he operation [or assumption of actual physical
control] of a vehicle on a public way, street, road, or highway
is an attendant circumstance of the offense of OVUII, and is
therefore an element of the offense." State v. Wheeler, 121
HaWafi 383, 393, 219 P.3d ll70, 1180 (2009). The OVUII Charge
brought against Roberts was insufficient because it failed to
allege that Roberts operated or assumed actual physical control

of a vehicle upon a public way, street, road, or highway. Id.

9 The Honorable Willam Cardwell presided.

9 Roberts moved to dismiss the charge as insufficient and the district
court denied Roberts's motion before trial.

NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS OR THE PAClFlC REPORTER

Therefore,

IT IS HEREBY ORDERED that the February l8, 2009,
Judgment of the district court is vacated and the matter is
remanded to the district court with instructions to dismiss the
charge without prejudice.

DATED: Honolulu, Hawafi, February 24, 2010.

On the briefs: § _

Timothy I. MacMaster Chief Judge
for Defendant-Appellant.

Loren J. Thomas,

Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff~Appellee.