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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000069
                                                              01-MAY-2012
                                                              09:29 AM




                          NO. SCWC-10-0000069

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

         TOMMY W. BULLARD, Petitioner/Defendant-Appellant.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
         (ICA NO. CAAP-10-0000069; CASE NO. 1DTA-10-01412)

                    SUMMARY DISPOSITION ORDER
   (By: Recktenwald, C.J., Nakayama, Duffy, and McKenna, JJ.;
      with Acoba, J., Concurring and Dissenting Separately)

           Petitioner/Defendant-Appellant Tommy W. Bullard

(Bullard) seeks review of the Intermediate Court of Appeals’

(ICA) August 26, 2011 judgment on appeal, which affirmed the

district court of the first circuit’s (district court)

September 7, 2010 judgment of conviction and sentence.1            The

district court found Bullard guilty of Operating a Vehicle Under

the Influence of an Intoxicant (OVUII), in violation of Hawai#i

Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2009), as a first-


     1
           The Honorable Lono J. Lee presided.
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time offender under HRS § 291E-61(b)(1) (Supp. 2009).2               We

      2
            At the time of the alleged offense, HRS § 291E-61 provided in
pertinent part:

            (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[.]

            . . .

            (b)     A person committing the offense of operating a vehicle under
                    the influence of an intoxicant shall be sentenced as follows
                    without possibility of probation or suspension of sentence:

                    (1)   Except as provided in paragraph (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 a
                                category (1), (2), or (3) license under section
                                286-102(b) that allows the person to drive for
                                limited work-related purposes and to participate
                                in substance abuse treatment 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;

                                                                      continue...

                                         2
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accepted Bullard’s application for writ of certiorari

(Application) and now vacate the judgment of the ICA and remand

to the district court with instructions to dismiss without

prejudice.

              Bullard’s first six questions presented summarily

contend that the ICA erred in concluding that the State was not

required to allege mens rea in his OVUII charge under HRS § 291E-

61(a)(1).      In State v. Nesmith, ___ Hawai#i ___, ___ P.3d ___

(2012), we held that an OVUII charge under HRS § 291E-61(a)(1)

must allege mens rea in order to fully define the offense in

unmistakable terms readily comprehensible to persons of common

understanding in order to inform the accused of the nature and

cause of the accusation.

              Here, following Nesmith, the ICA erred by concluding

that mens rea need not be alleged in a HRS § 291E-61(a)(1)

charge.      Without such allegation, Bullard’s HRS § 291E-61(a)(1)

charge fails to fully define the OVUII offense in unmistakable

terms readily comprehensible to persons of common understanding




     2
         ...continue
                        (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[.]

HRS §§ 291E-61(a)(1) and (b)(1) (Supp. 2009).

                                      3
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and is, therefore, fatally deficient.3         Accordingly, Bullard’s

OVUII conviction under the deficient (a)(1) charge cannot stand.

            IT IS HEREBY ORDERED that: (1) the ICA’s judgment

affirming the district court’s judgment of conviction and

sentence is vacated; and (2) the case is remanded to the district

court with instructions to dismiss without prejudice.

            DATED:   Honolulu, Hawai#i, May 1, 2012.

Timothy I. MacMaster                /s/ Mark E. Recktenwald
for petitioner/defendant-
appellant                           /s/ Paula A. Nakayama

Delanie D. Prescott-Tate,           /s/ James E. Duffy, Jr.
Deputy Prosecuting
Attorney, for respondent/           /s/ Sabrina S. McKenna
plaintiff-appellee




      3
            Because we vacate the ICA’s judgment based on Bullard’s first six
questions presented, we do not reach his remaining points of error.

                                      4
