State v. NAKANISHI

NOT FOR PUBLICATION IN WEST’S HAWAI‘I REP()RTS AND PACIFIC REPORTER

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NO. 2976l §§

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IN THE INTERMEDIATE COURT OF APPEALS §§

oF THE STATE oF HAWAI‘:

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STATE OF HAWAI‘I, Plaintiff-Appellee, v. fr

MARISA MIEKO NAKANISH1, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. lDTA~O8-lO37l)
SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Leonard, J.,
and Circuit Court Judge Chan, in place of
Foley and Fujise, JJ., all recused)
Defendant~Appellant Marisa Mieko Nakanishi (Nakanishi)
appeals from the Judgment entered on March l1, 2009, in the

District Court of the First Circuit, Honolulu Division (District

Court).F Nakanishi was convicted of Operating a Vehicle Under
the Influence of an Intoxicant, in violation of Hawaii Revised
Statut€S (HRS) § 29lE-6l(a) and (b) (Supp.42OO9) (OVUII).

On appeal, Nakanishi contends the District Court erred

by denying her motion to dismiss the charge because the written
complaint failed to state an essential element of the offense,

i e., that Nakanishi operated or assumed actual physical control

street, road, or highway.

of a vehicle upon a public way,
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 Nakanishi's point of error as follows:

"[T]he operation of a vehicle on a public way, street,

or highway is an attendant circumstance of the offense of

road,
OVUII, and is therefore an element of the offense." State v.
Wheeler, 121 HawaiU_383, 393, 219 P.3d 1170, 1180 (2009). The

l/ The Honorable william A. Cardwell presided.

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

failure to allege that Nakanishi was driving a vehicle upon a
public way, street, road, or highway at the time of the offense
rendered the charge deficient. ;Q;

Therefore, the District Court's March 11, 2009 Judgment
is vacated and this case is remanded to the District Court for
dismissal of the OVUII charge without prejudice.

DATED: Honolulu, Hawafi, February 25, 2010.

On the briefs:

Earle A. Partington
for Defendant-Appellant

Loren J. Thomas
for Plaintiff-Appellee

Acting Associate judge