State v. LIESEMEYER

NOT FOR PUBLICATION IN VVEST'S HA\N’AI‘I REPOR'I`S AND PAClFIC REPGRTER

NO. 29848

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIT

'z:;z

Plaintiff-Appellee,

STATE oF HAWAI‘:,
V.
scoTT A. LIESEMEYER, Defendanx:-Appellanr: °°‘

Honolulu Division
1DTA-09-OO391)

APPEAL FROM THE DISTRICT COURT OF THE FlRST CIRCUlT
(HPD Traffic No.

SUMMARY DISPOSITION ORDER
(By: Nakamura, Chief Judge, Foley, and Leonard, JJ.)

Defendant-Appellant Scott A. Liesemeyer (Liesemeyer)
in the

appeals from the Judgment filed on April 28, 2009,
District Court of the First Circuit, Honolulu Division (district

court).W

Liesemeyer was convicted of Operating a vehicle Under
2008).

(OVUII), in violation of Hawaii

the Influence of an Intoxicant
and (b)(l) (Supp.

Revised Statutes §§ 291E-61(a)(l)

On appeal, Liesemeyer contends that the district court
erred by denying his motion to dismiss the OVUII charge because
the written complaint and the oral charge failed to state an
essential element of the offense, namely, that Liesemeyer
operated or assumed actual physical control of a vehicle upon a

public way, street, road, or highway.W

w The Honorable William A. Cardwell presided.
Liesemeyer moved pretrial to dismiss the charge as insufficient and

2/

the district court denied Liesemeyer's motion before trial.

N()T F()R PUBLICATION lN VVEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the briefs
submitted by the parties, we resolve Liesemeyer‘s point of error
as follows:

"[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
HaWaiU_383, 393, 219 P.3d ll70, ll8O (2009). The OVUII charge
brought against Liesemeyer was insufficient because it failed to
allege that Liesemeyer operated or assumed actual physical
control of a vehicle upon a public way, street, road, or highway.
l_<l_-_

Therefore,

IT IS HEREBY ORDERED THAT the April 28, 2009, Judgment
of the district court is vacated, and this case is remanded to
the district court with instructions to dismiss the OVUII charge
without prejudice.

DATED: Honolulu, Hawafi, March l9, 20l0.

On the briefs:

Timothy I. Mac Master

for Defendant-Appellant Chief Judge
Donn Fudo ~

Deputy Prosecuting Attorney ‘
City and County of Honolulu Associate Judge

for Plaintiff-Appellee