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LAW LseHARy NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER NO. 299l5 IN THE INTERMEDIATE COURT OF APPEALS oF THE STATE 01=' HAWAI‘I tva cm_ STATE oF HAWAI‘I, Plaintiff-Appellee, v. § JOSEPH ELLIOT, Defendant-Appellant §§ 5 L-`M rs EWA DIVISION co (CASE NO. lDTA-08-lO230) é$ no 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. UE"!M =-»»»< NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER public way, street, road, or highway at the time of the offense rendered the charge deficient.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