N()'[` F()R PUBLICAT]ON IN WEST'S HAW'A`I‘I REPORTS AND PACIF.!C REPORTI€.IK
N0. 29677
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIY[
sTATE @F HAWAJ;‘I, Piainv;;i_ff~zlppeliee, v. _
BRENDON LEE PACHECO, Defendant-Appellant 7:5F
APPEAL FROM THE DISTRICT COURT OF THE FIRST ClRCUIT
HONOLULU DIVISION
(HPD TRAFFIC NO. lDTA-O8~O8576)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Brendon Lee Pacheco (Pacheco)
appeals from the Judgment entered on February 23, 2009, in the
District Court of the First Circuit, Honolulu Division (District
Court).F Pacheco was convicted of Operating a vehicle Under the
Influence of an Intoxicant, in violation of Hawaii Revised
Statutes (HRS) § 29lE~6l(a) and (b) (Supp. 2009) (OVUII).
On appeal, Pacheco contends the District Court erred by
denying his motion to dismiss the charge on the ground that the
written complaint and oral charge failed to state an essential
element of the offense, i.e., that Pacheco 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 Pacheco’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, 121 HaWaiH.383, 393, 2l9 P.3d ll70, ll8O (2009). The
3/ The Honorable william A. Cardwell presided.
N()T FOR P`U>BLICATI`()N' I`N WES'I"S HA\VAI‘I REPORTS AND PACIF{C REPOR'I'EIR
failure to allege that Pacheco was driving a vehicle upon a
public way, street, road, or highway at the time of the offense
rendered the charge deficient. ;Q;
Therefore, the District Court's February 23, 2009
Judgment is vacated and this case is remanded to the District
Court for dismissal of the OVUII charge without prejudice.
DATED: Honolulu, HawaFi, February l8, 2010.
On the briefs: _ ‘/
t - i
James S. Tabe Presiding Judge
Deputy Public Defender
for Defendant-Appellant
Loren J. Thomas
Deputy Prosecuting Attorney
for Plaintiff-Appellee