State v. Gomes

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

No. 29809
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JAMES SCOTT GOMES, Defendant-Appellant *
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APPEAL FRoM THE DIsTR1cT coURT oF THE F:RsT cIRcU1T
KANs0HE DIvIsI0N
(HPD Traffic N@. iDTA~09-00313>

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

Defendant-Appellant James Scott Gomes (Gomes) appeals

the judgment entered on April 28, 2009, in the District Court of

the First Circuit, Kan€ohe Division (district court)F

Gomes was convicted of Operating a vehicle Under the
Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes § 29lE-6l(a) (Supp. 2009).

On appeal, Gomes contends the written complaint and
oral charge were insufficient because they failed to state an
essential element of the charge, i.e., that Gomes operated or
assumed actual physical control of a vehicle upon a public way,
street, 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 Gomes's point of error as follows:

Prior to trial, Gomes moved to dismiss the charge

because it failed to allege all the essential elements of the
The district court denied Gomes's motion. "[T]he
or highway

OVUII offense.

operation of a vehicle on a public way, street, road,

is an attendant circumstance of the offense of OUVII, and is

therefore an element of the offense." State v. Wheeler,

1 Per diem District Court Judge Philip Doi presided.

NOT FOR PUBLICATION IN WEST'S HAWAI°I REPORTS AND PACIFIC REPORTER

121 Hawai‘i 383, 393, 2l9 P.Zd ll70, 1180 (2009). The failure to
allege that Gomes was driving a vehicle upon a public way,
street, road, or highway at the time of the offense rendered the
charge deficient. ld;

Therefore,

IT IS HEREBY ORDERED THAT the April 28, 2009 judgment
of the District Court of the First Circuit, Kan€ohe Division is
vacated and the matter is remanded to the district court with
instructions to dismiss the charge without prejudice.

DATED: Honolulu, HawaFi, February 25, 2010.

On the briefs:

Walter J. Rodby,

for Defendant-Appellant.
Chief Judge

Loren J. Thomas,

Deputy Prosecuting Attorney, § z ° ‘

City and County of Honolulu,
for Plaintiff-Appellee. Associate Judge