  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30720
                                                              30-APR-2012
                                                              08:24 AM




                             NO. SCWC-30720

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I
________________________________________________________________

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

                                    vs.

        REW T. SHINSATO, Petitioner/Defendant-Appellant.
________________________________________________________________

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (ICA NO. 30720; CASE NO. 1DTA-10-00597)

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

          Petitioner Rew T. Shinsato (“Shinsato”) seeks review of

the Intermediate Court of Appeal’s August 2, 2011 Judgment on

Appeal, entered pursuant to its June 29, 2011 Summary Disposition

Order, which affirmed the District Court of the First Circuit’s

June 22, 2010 Judgment and Notice. The District Court adjudged

Shinsato guilty of Operating a Vehicle Under the Influence of an

Intoxicant, in violation of Hawai#i Revised Statutes (“HRS”)
   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

§§ 291E-61(a)(1) and (a)(3)(2007).1         We accepted Shinsato’s

application for writ of certiorari and now affirm the ICA’s

Judgment on Appeal.

            On certiorari, Shinsato contends that the ICA gravely

erred in holding that mens rea need not be alleged in either an

HRS § 291E-61(a)(1) or an HRS § 291E-61(a)(3) charge.             In State

v. Nesmith, we recently held that (1) mens rea must be alleged in

an HRS § 291E-61(a)(1) charge in order to provide fair notice of

the nature and cause of the accusation; and (2) mens rea need not

be alleged (or proven) in an HRS § 291E-61(a)(3) charge, as the

legislative intent to impose absolute liability for an HRS §

291E-61(a)(3) offense plainly appears.          State v. Nesmith, ____

Hawai#i ___, ___ P.3d ____ (2012).        Accordingly, the ICA gravely

erred in holding that mens rea need not be alleged in an HRS §

291E-61(a)(1) charge.      Therefore, Shinsato’s HRS § 291E-61(a)(1)

charge was deficient for failing to allege mens rea.

      1
        HRS § 291E-61(a) provided, at the time of the alleged offense, the
following:
            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;
            (2) While under the influence of any drug that impairs the
            person’s ability to operate the vehicle in a careful and
            prudent manner;
            (3) With .08 or more grams of alcohol per two hundred ten
            liters of breath; or
            (4) With .08 or more grams of alcohol per one hundred
            milliliters or cubic centimeters of blood.



                                      2
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          However, the District Court adjudged Shinsato guilty of

violating both HRS §§ 291E-61(a)(1) and (a)(3).           Subsections

(a)(1) and (a)(3) can each serve as the basis for a conviction

under HRS § 291E-61.     See State v. Grindles, 70 Haw. 528, 530-31,

777 P.2d 1187, 1189-90 (1989); State v. Caleb, 79 Hawai#i 336,

339, 902 P.2d 971, 974 (1995); State v. Mezurashi, 77 Hawai#i 94,

98, 881 P.2d 1240, 1244 (1994).       Insofar as the HRS § 291E-

61(a)(3) charge was sufficient, and insofar as Shinsato does not

challenge the sufficiency of the evidence as to that basis, his

conviction still stands.

          IT IS HEREBY ORDERED that the ICA’s Judgment on Appeal

is affirmed.

          DATED: Honolulu, Hawai#i, April 30, 2012.


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

Keith M. Kaneshiro,                      /s/ James E. Duffy, Jr.
Prosecuting Attorney,
and Anne K. Clarkin,                     /s/ Sabrina S. McKenna
Deputy Prosecuting Attorney,
for respondent/plaintiff-
appellee




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