N()'l` l*`(i)l{ IPUBLIC.A'.!`ION IN WES'I"'S I:~I.»\WV.AI°I REPOR'I`S AND PACIFIC REPOR'I`ER
No. ;29"231 §§
lN THE INTERMEDIATE COURT OF APPEALS §§
oF THE STATE oF HAWA:‘I §;~3 §.:':::
s l 1 usc 333
STATE OF HAWAll, Plaintiff~Appellee, v. ms
HENRY HUANG, Defendant-Appellant gm
APPEAL FROM THE DISTRICT COURT OF THE FlRST ClRCUIT
HONOLULU DIVISION
(CASE NO. lDTA-O8~lOOOO)
SUMMARY DISPOSITION ORDER
(By: Nakamura, C.J., Foley and Fujise, JJ.)
Defendant-Appellant Henry Huang (Huang) appeals from
the Judgment filed on February 26, 2009 in the District Court of
the First Circuit, Honolulu Division (district court).1
The district court convicted Huang of Operating a
vehicle Under the Influence of an Intoxicant (OVUIl), in
violation of Hawaii Revised Statutes (HRS) § 29lE~6l(a)(l) and
(3) and (b)(l) (Supp. 2008).
On appeal, Huang contends the district court erred by
denying his oral motion to dismiss the charge because the charge
failed to state an essential element of the offense, i.e., that
Huang 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, as
well as the relevant statutory and case law, we resolve Huang'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
1 The Honorable William Cardwell presided.
NOT `l*`().l’{ PUMBI.JI,CTA'I`!ON IN WI€S'I"S HAWAI°I REI’()R”I`S AND PACIFIC RIEP()RTF.]Z
OVUIl, and is therefore an element of the offense." State v.
HhQ§l§r, 121 HaWaFi 383, 393, 219 P.3d ll70, llSO (2009}. The
failure to allege that at the time of the offense, Huang was
driving a vehicle upon a public way, street, road, or highway
rendered the charge deficient. §d;
Therefore,
IT lS HEREBY @RDERED that the Judgment 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. ' y
DATED; H@n@lulu, Hawai‘i, February 24, 2010.
On the briefs:
Craig W. Jerome,
Deputy Public Defender,
for Defendant-Appellant.
Chief Judge
Stephen K. Tsushima,
Deputy Prosecuting Attorney,
City and County of Honolulu, __,,
for Plaintiff-Appellee. &L2;aA;J¢Iz;> ¢_Z}€;§b1
Associate Judge
Associate Jud