State v. Larsen ( 2010 )

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AN]) PACIFIC REPORTER
NO. 29885
IN THE INTERMEDIATE COURT OF APPEALS
oF THE sTATE oF HAWAI‘I
STATE oF HAWAI‘I, Plaintiff-Appellee, v.
ARIC P. LARSEN, Defendant-Appellant
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APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-08-O9599)
SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Aric P. Larsen (Larsen) appeals
from the Judgment entered against him on May 2l, 2009, in the
District Court of the First Circuit, Honolulu Division (District
Larsen was convicted of Operating a Vehicle Under the
Court).F
in violation of Hawaii
Influence of an Intoxicant (OVUII),
and (b) (Supp. 2009).
Revised Statutes § 291E-6l(a)
that the
On appeal, Larsen contends, inter alia,
District Court erred by denying his motion to dismiss the charge
because the written complaint and oral charge for OVUII failed to
state an essential element of the offense, i.e., that Larsen
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
we
the arguments advanced and the issues raised by the parties,
resolve Larsen's points 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
State v.
OVUII, and is therefore an element of the offense."
The Honorable Len0re H. Lee presided.
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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPOIRTS AND PACIFIC REPORTER
Whee1er, 121 HaWaiH_383, 393, 219 P.3d 1170, 1180
failure to allege that Larsen was driving a vehicle upon
way, street, road, or highway at the time of the offense
Id. the charge must
the charge deficient. Accordingly,
dismissed for lack of jurisdiction. we need not address
other points of error.
Therefore, the District Court's May 2l,
(2009).
The
a public
rendered
be
Larsen's
2009 Judgment
is vacated and this case is remanded to the District Court for
dismissal of the OVUII charge without prejudice.
Honolulu, HawaFi, April 28, 20lO.
Presiding Judge ‘
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DATED:
On the briefs:
Timothy I. Mac Master
for Defendant-Appellant
Anne K. Clarkin
Deputy Prosecuting Attorney
for Plaintiff~Appellee
Associate Jud