  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-30516
                                                               03-MAY-2012
                                                               08:50 AM




                              NO. SCWC-30516

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

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

                                     vs.

          LAWRENCE PAI, Petitioner/Defendant-Appellant.
________________________________________________________________

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (ICA NO. 30516; CASE NO. 1DTA-10-00706)

               AMENDED SUMMARY DISPOSITION ORDER1
  (By: Recktenwald, C.J., Nakayama, Duffy, and McKenna, JJ.;
                  with Acoba, J., dissenting)

            Petitioner Lawrence Pai (“Pai”) seeks review of the

Intermediate Court of Appeal’s July 14, 2011 Judgment on Appeal,

entered pursuant to its June 14, 2011 Summary Disposition Order,

which affirmed the District Court of the First Circuit’s April 9,

2010 Order and Notice of Entry of Order.          The District Court

adjudged Pai guilty of Operating a Vehicle Under the Influence of

an Intoxicant, in violation of Hawai#i Revised Statutes (“HRS”)




     1
         This document was initially inadvertently filed on May 2, 2012.
   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

§ 291E-61(a)(3)(2007).2      We accepted Pai’s application for writ

of certiorari and now affirm the ICA’s Judgment on Appeal.

           On certiorari, Pai contends that the ICA gravely erred

in holding that mens rea need not be alleged in an HRS § 291E-

61(a)(3) charge.     In State v. Nesmith, we agreed that 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).        Therefore, the ICA did not

gravely err in so holding.

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

is affirmed.

           DATED:    Honolulu, Hawai#i, May 3, 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




      2
         HRS § 291E-61(a)(3) provided at the time of the alleged offense, “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 . . . [w]ith .08 or more grams of alcohol per two hundred ten liters
of breath[.]”


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