State v. Elliot

LAW LseHARy

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 299l5

IN THE INTERMEDIATE COURT OF APPEALS

oF THE STATE 01=' HAWAI‘I

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STATE oF HAWAI‘I, Plaintiff-Appellee, v. §
JOSEPH ELLIOT, Defendant-Appellant §§

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(CASE NO. lDTA-08-lO230) é$

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SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Joseph R. Elliott, Jr. (E1liott)

appeals from the Judgment entered against him on May 26, 2009, in
the District Court of the First Circuit, Honolulu Division
(District Court).F Elliott was convicted of Operating a vehicle
Under the Influence of an Intoxicant (OVUII), in violation of
Hawaii Revised Statutes § 291E-61(a) and (b) (Supp. 2009).

On appeal, Elliott contends that the District Court
erred by denying his motion to dismiss the charge because the
oral charge for OVUII failed to state an essential element of the
offense, i.e., that Elliott 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

the arguments advanced and the issues raised by the parties, we

resolve Elliott's point 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
OVUII, and is therefore an element of the offense."

Wheeler, 121 Hawafi 383, 393, 219 P.3d 1170, 1180 (2009). The

Stat€ V.

failure to allege that Elliott was driving a vehicle upon a

l/ The Honorable Jeannette Castagnetti presided.

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

public way, street, road, or highway at the time of the offense
rendered the charge deficient. lQ4 Accordingly, the charge must
be dismissed for lack of jurisdiction.

Therefore, the District Court's May 26, 2009 Judgment
is vacated and this case is remanded to the District Court for
dismissal of the OVUII charge without prejudice.

DATED; Honolulu, Hawai‘i, May 13, 2010.

On the briefs: , 1 . ~*“

Setsuko Regina Gormley Presiding Judge
Deputy Public Defender

for Defendant-Appellant

Stephen K. Tsushima Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellee