State v. GRIMAN , 230 P.3d 434 ( 2010 )

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
BRIAN T. GRIMAN, Defendant-Appellant.

No. 29762.

Intermediate Court of Appeals of Hawaii.

May 24, 2010.

On the briefs:

Earle A. Partington, (Law Office of Earle A. Partington) for Defendant-Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

SUMMARY DISPOSITION ORDER

NAKAMURA, Chief Judge, LEONARD, and GINOZA, JJ.

Defendant-Appellant Brian T. Griman (Griman) appeals from the Judgment filed on March 11, 2009,^[1] in the District Court of the First Circuit (district court).^[2]

Griman was convicted of operating a vehicle under the influence of an intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) §§ 291E-61(a)(1) and (b)(1) (Supp. 2008).

On appeal, Griman argues that the district court erred by 1) denying his motion to dismiss the OVUII charge because it failed to state an essential element of the offense, namely, that Griman operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway;^[3] and 2) imposing a sentence that included a ninety-day license suspension when Griman's driver's license had been administratively revoked and Griman's challenge to the administrative revocation was still pending.

Upon careful review of the record and the briefs submitted by the parties, we resolve Griman's arguments on appeal follows:

1. "[T]he operation [or the assumption of actual physical control] 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 Hawai'i 383, 393, 219 P.3d 1170, 1180 (2009). The OVUII charge brought against Griman was insufficient because it failed to allege that Griman operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway. Id.

2. Because we conclude that Griman's OVUII charge was insufficient, we need not address his claim that the district court erred in imposing a sentence that included a ninety-day license suspension.

IT IS HEREBY ORDERED THAT the district court's Judgment filed on March 11, 2009, is vacated, and this case is remanded to the district court with instructions to dismiss the OVUII charge without prejudice.

NOTES

[1] The bar code affixed to the Judgment bears the date March 10, 2009, but the Judgment is file-stamped March 11, 2009.

[2] The Honorable William A. Cardwell presided.

[3] Griman moved pretrial to dismiss the OVUII charge as insufficient and the district court denied Griman's motion before trial.