State v. Akitake ( 2014 )

***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCWC-29934
10-JAN-2014
09:59 AM
NO. SCWC-29934
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
vs.
KEVIN HIROYUKI AKITAKE, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29934; CASE NO. 1DTA-08-09688)
SUMMARY DISPOSITION ORDER
(By: Acoba and McKenna, JJ., and Circuit Judge Del Rosario,
in place of Duffy, J., recused;
with Recktenwald, C.J., dissenting, with whom Nakayama, J., joins)
Petitioner/Defendant-Appellant Kevin Hiroyuki Akitake
(“Akitake”) seeks review of the Intermediate Court of Appeals’
November 9, 2011 Judgment on Appeal, entered pursuant to its
October 17, 2011 Summary Disposition Order, which affirmed the
District Court of the First Circuit’s (“district court”) June 15,
2009 Notice of Entry of Judgment and/or Order and Plea/Judgment.
The district court had adjudged Akitake guilty of Operating a
Vehicle Under the Influence of an Intoxicant (“OVUII”) in
***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
violation of Hawai'i Revised Statutes (“HRS”) §§ 291E-61(a)(1),
(a)(3), (b)(1), and (b)(2) (Supp. 2008).1
1
At the time of the alleged offense, HRS § 291E-61(a)(1), (a)(3),
(b)(1), and (b)(2) provided the following:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person operates
or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person’s normal mental faculties or
ability to care for the person and guard against casualty;
. . . .
(3) With .08 or more grams of alcohol per two hundred ten
liters of breath[.]
. . . .
(b) A person committing the offense of operating a vehicle
under the influence of an intoxicant shall be sentenced
without possibility of probation or suspension of sentence:
(1) Except as provided in (2), for the first offense, or any
offense not preceded within a five-year period by a
conviction for an offense under this section or section
291E-4(a):
(A) A fourteen-hour minimum substance abuse rehabilitation
program, including education and counseling, or other
comparable program deemed appropriate by the court;
(B) Ninety-day prompt suspension of license and privilege to
operate a vehicle during the suspension period, or the court
may impose, in lieu of the ninety-day prompt suspension of
license, a minimum thirty-day prompt suspension of license
with absolute prohibition from operating a vehicle and, for
the remainder of the ninety-day period, a restriction on the
license that allows the person to drive for limited work-
related purposes and to participate in substance abuse
programs;
(C) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) Not less than forty-eight hours and not more than five
days of imprisonment; or
(iii) A fine of not less than $150 but not more than $1,000;
(D) A surcharge of $25 to be deposited into the neurotrauma
special fund; and
(E) May be charged a surcharge of up to $25 to be deposited
into the trauma system special fund if the court so orders;
(2) For a first offense committed by a highly intoxicated
driver, or for any offense committed by a highly intoxicated
drive not preceded within a five-year period by a conviction
for an offense under this section or section 291E-4(a):
(A) A fourteen-hour minimum substance abuse rehabilitation
program, including education and counseling, or other
comparable program deemed appropriate by the court;
(B) Prompt suspension of a license and privilege to operate
a vehicle for a period of six months with an absolute
prohibition from operating a vehicle during the suspension
2
***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
On certiorari, Akitake presents the following questions:
A. Whether the ICA gravely erred in holding that the
district court did not err as a matter of law in ruling that
it had jurisdiction notwithstanding that State v. Wheeler
held that the district court had no jurisdiction as to a
charge that failed to allege “the pu[b]lic road” element[.]
B. Whether the ICA gravely erred in holding that the
district court did not abuse its discretion in continuing
Akitake’s trial to a fourth trial day?
As to Akitake’s second question presented, we find no error in
the ICA’s conclusion that the district court did not abuse its
discretion in granting the State’s motion to continue the trial
for a fourth day because it had already determined that trial
would not be completed on the third day.
As to Akitake’s first question presented, however, we
conclude that the charge failed to allege the attendant
circumstance that the defendant operated his vehicle on a public
roadway. See State v. Wheeler, 121 Hawai'i 383, 392, 219 P.3d
1170, 1179 (2009). As the charge lacked an allegation of an
attendant circumstance, which is an element of the offense of
OVUII, it failed to state the offense of OVUII. Cf. State v.
period;
(C) Any one or more of the following:
(i) Seventy-two hours of community service work;
(ii) Not less than forty-eight hours and not more than five
days of imprisonment; or
(iii) A fine of not less than $150 but not more than $1,000;
(D) A surcharge of $25 to be deposited into the neurotrauma
special fund; and
(E) May be charged a surcharge of up to $50 to be deposited
into the trauma system special fund if the court so
orders[.]
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***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
Apollonio, 130 Hawai'i 353, 358, 311 P.3d 676, 681 (2013)
(dismissing without prejudice excessive speeding complaint, the
deficiency of which was raised for the first time on appeal,
because complaint failed to allege mens rea, and could therefore
not be construed to state the offense of excessive speeding).
Akitake’s OVUII charge was deficient. Consequently, we
vacate the ICA’s Judgment on Appeal and remand this case to
the district court with instructions to dismiss Akitake’s
Complaint without prejudice.
DATED: Honolulu, Hawai'i, January 10, 2014.
R. Patrick McPherson /s/ Simeon R. Acoba, Jr.
for petitioner
/s/ Sabrina S. McKenna
James M. Anderson
for respondent /s/ Dexter D. Del Rosario
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