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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000684
                                                               25-APR-2016
                                                               12:16 PM




                              SCWC-12-0000684

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

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

                                     vs.

                         RICK J. FISHER,
                Petitioner/Defendant-Appellant.
________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0000684; CASE NO. 1DTA-11-04714)

                        SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

            Petitioner/Defendant-Appellant Rick J. Fisher (Fisher)

seeks review of the Intermediate Court of Appeals’ (ICA) July

14, 2014 Judgment on Appeal, entered pursuant to its June 16,

2014 Summary Disposition Order, which affirmed the District

Court of the First Circuit’s (district court) Notice of Entry of

Judgment and/or Order and Plea/Judgment entered on July 20,
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


2012.1    The district court found Fisher guilty of Operating a

Vehicle Under the Influence of an Intoxicant (OVUII), in

violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(1)

and/or (3) (Supp. 2012).2       We accepted Fisher’s Application for

Writ of Certiorari, and we now affirm the ICA’s Judgment on

Appeal and the district court’s Judgment.

            On certiorari, Fisher contends (1) he was subject to

custodial interrogation and should have been informed of his

Miranda rights guaranteed by Article I, Section 10 of the Hawaiʻi

Constitution; (2) his statutory right to an attorney was

violated; (3) his due process rights under Article I, Section 5

of the Hawaiʻi Constitution were violated when the police told

him that he “shall” be subject to up to 30 days in jail if he

did not take a breath, blood, or urine test; and (4) the

district court improperly allowed the State to amend its


      1
            The Honorable Clarence A. Pacarro presided over the proceedings
that addressed the State’s motion to amend the complaint. The Honorable Lono
J. Lee presided over Fisher’s trial.
      2
            HRS § 291E-61 provides in relevant 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; [or]

            . . .

                  (3)   With .08 or more grams of alcohol per two
            hundred ten liters of breath. . . .

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complaint to allege the requisite mens rea for the HRS § 291E-

61(a)(1) charge and double jeopardy would bar retrial on that

charge.

            In this court’s recent summary disposition order in

State v. Kam, No. SCWC-12-0000897 (Haw. Feb. 25, 2016) (SDO), we

held that “the ICA correctly concluded that the district court

properly permitted the State to amend” an HRS § 291E-61(a)(1)

charge to allege the requisite mens rea.          Kam, SDO at 2.

Accordingly, the district court properly permitted the State to

amend Fisher’s HRS § 291E-61(a)(1) charge to allege mens rea.

            Fisher was convicted for violating both HRS § 291E-

61(a)(1) and (a)(3).      Either subsection can serve as the basis

for a conviction under HRS § 291E-61.          See State v. Caleb, 79

Hawaiʻi 336, 339, 902 P.2d 971, 974 (1995); State v. Mezurashi,

77 Hawaiʻi 94, 98, 881 P.2d 1240, 1244 (1994); State v. Grindles,

70 Haw. 528, 530-31, 777 P.2d 1187, 1189-90 (1989).             Insofar as

the HRS § 291E-61(a)(1) charge was properly amended, and insofar

as Fisher does not challenge the sufficiency of the evidence

supporting his conviction for violating HRS § 291E-61(a)(1), his

OVUII conviction still stands.        There is no need for this court

to address his argument that the breath test result supporting

his HRS § 291E-61(a)(3) conviction was obtained in violation of

his Miranda rights, his statutory right to counsel, and/or his



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due process rights.      Additionally, Fisher’s double jeopardy

argument is irrelevant because we now affirm his conviction.

            IT IS HEREBY ORDERED that the ICA’s July 14, 2014

Judgment on Appeal and the district court’s Judgment are

affirmed.

            DATED:   Honolulu, Hawaii, April 25, 2016.

Jonathan Burge                         /s/ Mark E. Recktenwald
for petitioner
                                       /s/ Paula A. Nakayama
Brian R. Vincent
For respondent                         /s/ Sabrina S. McKenna

                                       /s/ Richard W. Pollack

                                       /s/ Michael D. Wilson




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