State v. THAMDY

N()'.[` F()R PliBlilC/\'I`ION IN WEST'S HAWAI‘I RIEP()R'I`S AND P.ACII*`IC RI£I’OR'I`EI{

NO. 298].3
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAVTAI‘I

STATE CF HAWAfI, Plaintiff~Appellee, v.
KHAMSAVAN THAMDY, Defendant»Appellant

APPEAL FROM THE DISTRICT COURT OF THE FlRST ClRCUIT
HONOLULU DIVISION
(CASE NO. lDTA~O9~OOO62)

SUl\/IMARY DISPOS ITION ORDER

(By: Foley, Presiding J., Fujise, and Leonard, JJ.)

Defendant-Appellant Khamsavan Thamdy (Thamdy) appeals

from the Judgment filed on April 8, 2009 in the District Court of
the First Circuit, Honolulu Division (district court).1
The district court convicted Thamdy of Operating a

vehicle Under the Influence of an Intoxicant (OVUIl), in
violation of Hawaii Revised Statutes (HRS) § 29lE»6l(a)(l) and
(b)(4) (Supp. 2008).

On appeal, Thamdy contends the district court (l) erred

(3) and

by denying his oral motion to dismiss the charge because the
charge failed to state an essential element of the offense, i.e.,
that Thamdy operated or assumed actual physical control of a
vehicle upon a public way, street, road, or highway and (2)
plainly erred by failing to adequately advise Thamdy of his right
to testify before trial.
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, as

Per diem District Judge Lenore K.J.H. Lee presided.

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well as the relevant statutory and case law, we resolve Thamdy'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
OVUlI, and is therefore an element of the offense." State v.
Wh§§l§;, l2l Hawafi 383, 393, 219 P.3d ll70, ll80 (2009). The
failure to allege that at the time of the offense, Thamdy was
driving a vehicle upon a public way, street, road, or highway
rendered the charge deficient. ld; we need not address Thamdy‘s
other point of error.

Therefore,

IT 13 HEREBY ORDERED that the Judgment filed on
April 8, 2009 in the District Court of the First Circuit,
Honolulu Division, is vacated and this case is remanded to the
district court with instructions to dismiss the charge without
prejudice.

DATED: Honolulu, HawaFi, February 24, 20lO.

On the briefs:

Jonathan Burge é;;;4é?/7 `#,/
for Defendant~Appellant. /<;?

Presiding Judge
Brian R. Vincent,

Deputy Prosecuting Attorney,
City and County of Honolulu,

for Plaintiff-Appellee. ii icy w
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Associate Jud

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/Associate Judge