State v. Larsen

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AN]) PACIFIC REPORTER

NO. 29885
IN THE INTERMEDIATE COURT OF APPEALS

oF THE sTATE oF HAWAI‘I

STATE oF HAWAI‘I, Plaintiff-Appellee, v.

ARIC P. LARSEN, Defendant-Appellant

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APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-08-O9599)

SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)

Defendant-Appellant Aric P. Larsen (Larsen) appeals

from the Judgment entered against him on May 2l, 2009, in the

District Court of the First Circuit, Honolulu Division (District

Larsen was convicted of Operating a Vehicle Under the

Court).F
in violation of Hawaii

Influence of an Intoxicant (OVUII),
and (b) (Supp. 2009).

Revised Statutes § 291E-6l(a)
that the

On appeal, Larsen contends, inter alia,

District Court erred by denying his motion to dismiss the charge

because the written complaint and oral charge for OVUII failed to

state an essential element of the offense, i.e., that Larsen

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
we

the arguments advanced and the issues raised by the parties,
resolve Larsen's points of error as follows:

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

road, or highway is an attendant circumstance of the offense of
State v.

OVUII, and is therefore an element of the offense."

The Honorable Len0re H. Lee presided.

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPOIRTS AND PACIFIC REPORTER

Whee1er, 121 HaWaiH_383, 393, 219 P.3d 1170, 1180

failure to allege that Larsen was driving a vehicle upon

way, street, road, or highway at the time of the offense

Id. the charge must

the charge deficient. Accordingly,

dismissed for lack of jurisdiction. we need not address

other points of error.

Therefore, the District Court's May 2l,

(2009).

The
a public
rendered
be

Larsen's

2009 Judgment

is vacated and this case is remanded to the District Court for

dismissal of the OVUII charge without prejudice.

Honolulu, HawaFi, April 28, 20lO.

Presiding Judge ‘

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DATED:
On the briefs:

Timothy I. Mac Master
for Defendant-Appellant

Anne K. Clarkin
Deputy Prosecuting Attorney
for Plaintiff~Appellee

Associate Jud