State v. SKOCHKO

N()'I` F()R PUBLICATI()N IN WEST'S HAWAI‘I REP()R'I`S AND PACIFIC REPORTER

NO. 29708
IN THE lNTERMEDIATE COURT OF APPEALS ma
OF THE STATE OF HAWAIf[ §§

STATE OF HAWAfI, Plaintiff»Appellee, v.
GREGORY SKOCHKO, Defendant~Appellant

APPEAL FRoM THE DIsTR:cT coURT oF THE FIRsT cIRcUIT
<cAsE No. iDTA~08~07834)

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

Defendant~Appellant Gregory Skochko (Skochko) appeals
from the Judgment filed on February 26, 2009 in the District
Court of the First Circuit, Honolulu Division (district court).l
The district court convicted Skochko of Operating a Vehicle Under
the Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 29lE-6l(a)(l) and (3) and (b)(l) (Supp.
2008).

on appeal, Skochko contends the district court erred by
denying his oral motion to dismiss the charge because the written
complaint and oral charge failed to state an essential element of
the offense, i.e that Skochko operated or assumed actual physical
control of a vehicle upon a public Way, street, road, or
highway.2

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

1 The Honorable William A. Cardwell presided.

2 In Skochko‘s second point of error, he contends the district court
erred by convicting him, but he presents no argument to support his claim.
Therefore, the point of error is Waived. Hawafi Rules of Appellate Procedure
Rule 28(b)(7).

NOTFORPUBLHDVHONlN\NE§FSHAW%FIREPORTSANDPACHUCREPORTER

well as the relevant statutory and case law, we resolve Skochko'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." State v.
Wheeler, l2l HaWaFi 3S3, 393, 219 P.3d ll70, ll8O (2009). The
failure to allege that at the time of the offense, Skochko was
driving a vehicle upon a public way, street, road, or highway
rendered the charge deficient. ld;

Therefore,

IT IS HEREBY ORDERED that the JUdgm€Ht filed On
February 26, 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, 20l0.
On the briefs:

Timothy I. MacMaster (
for Defendant-Appellant. CZL3,42/:;ZZ;¢:;%n¢¢"_#

Donn Fudo, Chief Judge

Deputy Prosecuting Attorney,

City and County of Honolulu,
Associate Judge

for Plaintiff~Appellee.

Associate Judg