State v. Drill

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NOT FOR PU"BLICATION IN WES'I"S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29814

1N THE INTERMED1ATE coURT oF APPEALs
oF THE sTATE oF HAwArI mg
Plaintiff-Appellee,

v.
GABRIEL H. DRILL, Defendant-Appellant.

sTATE oF HAwAfI,

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APPEAL FRoM THE DIsTRIcT coURT oF THE FIRsT cI§b
(CAsE No. 1DTA-08-09633)

SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley, Leonard, JJ.)

Defendant-Appellant Gabriel H. Drill (Drill) appeals
in the

from the portion of the Judgment entered on April 8, 2009,
District Court of the First Circuit (district court)N that
pertains to Drill's conviction and sentenced on the charge of

operating a vehicle under the influence of an intoxicant (OVUII),

in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) and

(b)(3) (Supp. 2008).
On appeal, Drill argues that the district court erred

by denying his motion to dismiss the OVUII charge because the

written complaint and oral charge failed to state an essential
element of the offense, namely, that Drill operated or assumed
actual physical control of a vehicle upon a public way, street,

road, or highway.W
Plaintiff-Appellee State of Hawafi (State) concedes

error based on State v. Wheeler, 121 HawaiH.383, 219 P.3d 1170

(2009), and it requests that Drill's OVUII conviction be vacated

and that the case be remanded to the district court with
instructions to dismiss the OVUII charge without prejudice.

V The Honorable William A. Cardwell presided.
2/

- Drill moved pretrial to dismiss the OVUII charge as insufficient and
the district court denied Drill's motion before trial.

NH""€EA

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER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 Drill's point of error on
appeal 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." Wheeler, 121 Hawafi at
393, 219 P.3d at 1180. The OVUII charge brought against Drill
was insufficient because it failed to allege that Drill operated
and/or assumed actual physical control of a vehicle upon a public
way, street, road, or highway. ld;

Therefore,

IT IS HEREBY ORDERED that the portion of the district
court’s April 8, 2009, Judgment that pertains to Drill's
conviction and sentence on the OVUII charge is vacated, and the
case is remanded to the district court with instructions to

dismiss the OVUII charge without prejudice.

DATED= Honolulu, Hawai‘i, August 30, 2010.
On the briefs:
Setsuko Regina Gormley

Deputy Public Defender 52 ' cQ/ ;Zz §
.

for Defendant-Appellant

Chief Jud e y
Stephen K. Tsushima ,,_
Deputy Prosecuting Attorney ~ ` éz>
for City and County of Honolulu '%’/
e

for Plaintiff-Appellee Associate Jud