State v. GRIMAN

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29762
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAfI

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STATE OF HAWAfI, Plaintiff-Appellee,
BRIAN T. GRIMAN, Defendant-Appellant

HONOLULU DIVISION

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
lDTA-08-104l9)

(Case No.

SUMMARY DISPOSITION ORDER
and Ginoza, JJ.)

(By: Nakamura, Chief Judge, Leonard,

Defendant-Appellant Brian T. Griman (Griman) appeals
from the Judgment filed on March ll, 2OO9,W in the District

Court of the First Circuit (district court).W
Griman was convicted of operating a vehicle under the

influence of an intoxicant (OVUII), in violation of Hawaii
§§ 291E-61(a)(l) and (b)(l) (Supp. 2008).

Revised Statutes (HRS)
On appeal, Griman argues that the district court erred

by 1) denying his motion to dismiss the OVUII charge because it
failed to state an essential element of the offense, namely, that
Griman operated or assumed actual physical control of a vehicle
upon a public way, street, road, or highway;F and 2) imposing a

sentence that included a ninety-day license suspension when
Griman's driver's license had been administratively revoked and

Griman's challenge to the administrative revocation was still

pending.
y The bar code affixed to the Judgment bears the date March 10, 2009,
but the Judgment is file-stamped March 1l, 2009.

W The Honorable william A. Cardwell presided.
9 Griman moved pretrial to dismiss the OVUII charge as insufficient and

the district court denied Griman's motion before trial.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the briefs
submitted by the parties, we resolve Griman's arguments on appeal
follows:

1. "[T]he operation [or the 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
HaWaifi 383, 393, 219 P.3d ll70, 1180 (2009); The OVUII charge
brought against Griman was insufficient because it failed to
allege that Griman operated or assumed actual physical control of
a vehicle upon a public way, street, road, or highway. ;Q;

2. Because we conclude that Griman's OVUII charge was
insufficient, we need not address his claim that the district
court erred in imposing a sentence that included a ninety-day
license suspension.

IT IS HEREBY ORDERED THAT the district court's Judgment
filed on March 11, 2009, is vacated, and this case is remanded to
the district court with instructions to dismiss the OVUII charge
without prejudice. 3

DATED; Honolulu, Hawai‘i, may 24, 201_0. `

On the briefs:

Earle A. Partington
(Law Office of Earle A. Partington)
for Defendant-Appellant

Stephen K. Tsushima

Deputy Prosecuting Attorney
City and County of Honolulu
for Plaintiff-Appellee

Associate Judge