State v. Look

• Court: Hawaii Intermediate Court of Appeals
• Decided: June 23, 2010
• Docket: 29956
• Status: Published

Opinion

!JWUBHARY NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER No. 29956

IN THE INTERMEDIATE coURT oF APPEALs

oF THE sTATE oF HAwArI

§§

STATE OF HAWAfI, Plaintiff-Appellee, §§

VS_ DK

JULIA M. LOOK, Defendant-Appellant §§

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIH :

HONOLULU DIVISION

z a

(Case No.

lDTA-09-OOl66)

\\

SUMMARY DISPOSITION ORDER (By: Nakamura, Chief Judge, Foley, and Leonard, JJ.)

Defendant-Appellant Julia M. Look (Look) appeals from the Judgment filed on June 29,

2OO9,F in the District Court of the First Circuit

(district court).W

Look was convicted of operating a vehicle under the influence of an intoxicant (OVUII), in violation of Hawaii

Revised Statutes §§ 291E-6l(a)(l) and (b)(1) (Supp. 2008).

On appeal, Look argues that the district court erred by denying her motion to dismiss the OVUII charge because the

(HRS)

written complaint and oral charge failed to state an essential element of the offense, namely, that Look operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway.W

l/

- The bar code affixed to the Judgment bears the date June 26, but the Judgment is file-stamped June 29,

2009, 2009.

2/

The Honorable William A. Cardwell presided. 3/

Look moved pretrial to dismiss the OVUII charge as insufficient and the district court denied Look's motion before trial.

GIVH.A

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Upon careful review of the record and the briefs submitted by the parties, we resolve Look's point of error as follows:

"[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 HawaiH.383, 393, 219 P.3d 1170, 1180 (2009). The OVUII charge brought against Look was insufficient because it failed to allege that Look operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway. lQ;

Therefore, d

IT IS HEREBY ORDERED that the district court's Judgment filed on June 29, 2009, is vacated, and this case is remanded to the district court with instructions to dismiss the OVUII charge without prejudice.

DATED: Honolulu, HawaFi, June 23, 2010.

On the briefs: ' %‘ %éa/)o,b(,“’_{

James S. Tabe Chief Judge

Deputy Public Defender éL2;Méz§W;?

for Defendant-Appel1ant

Loren J. Thomas

Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee