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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000685
                                                               18-APR-2016
                                                               01:05 PM




                             SCWC-12-0000685


             IN THE SUPREME COURT OF THE STATE OF HAWAI'I



                           STATE OF HAWAI'I,

                    Respondent/Plaintiff-Appellee,


                                     vs.


                        NATUITASINA CYRIL TUIA,

                    Petitioner/Defendant-Appellant.



          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

                  (CAAP-12-0000685; 1DTA-12-01552)


                     SUMMARY DISPOSITION ORDER

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


           Petitioner/Defendant-Appellant Natuitasina Cyril Tuia


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


July 3, 2014 Judgment on Appeal, entered pursuant to its June 4,


2014 Summary Disposition Order, which affirmed the District Court


of the First Circuit’s (district court) July 20, 2012 Notice of


Entry of Judgment and/or Order and Plea/Judgment (district court


judgment).    The district court found Tuia guilty of Operating a


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

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violation of Hawai'i Revised Statutes (HRS) § 291E-61(a)(1) and

(a)(3) (Supp. 2012).1       This court accepted Tuia’s Application for

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

Appeal and the district court’s judgment.

          On certiorari, Tuia contends that (1) his Miranda

rights under Article I, Section 10 of the Hawai'i Constitution

were violated when, while in custody, he was asked by the police,

without Miranda warnings, if he wanted to refuse to take a blood

alcohol test, which was likely to incriminate himself; (2) his

statutory right to an attorney was violated; (3) his due process

rights under Article I, Section 5 of the Hawai'i Constitution

were violated when the police told his that he “shall” be subject

to 30 days in jail if he did not take a blood alcohol test; and

(4) the district court improperly allowed the State to amend its


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



     1
          HRS § 291E-61(a) states 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;


                . . . . 


                (3) With .08 or more grams of alcohol per two

                hundred ten liters of breath.


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


charge.


           In this court’s recent summary disposition order in


SCWC-12-897, State v. Kam, 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.   State v. Kam, SCWC-12-0000897 (Haw. Feb. 25, 2016) (SDO) at


2.   Accordingly, the district court properly permitted the State


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


           Tuia 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. Grindles, 70

Haw. 528, 530-31, 777 P.2d 1187, 1189-90 (1989); State v. Caleb,

79 Hawai'i 336, 339, 902 P.2s 971, 974 (1995); State v.

Mezurashi, 77 Hawai'i 94, 98, 881 P.2d 1240, 1244 (1994).

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

and insofar as Tuia does not challenge the sufficiency of the

evidence supporting his conviction for violating HRS § 291E­

61(a)(1), his OVUII conviction stands.         There is no need for this

court to address his argument that the blood test results

supporting his HRS § 291E-61(a)(3) conviction were obtained in

violation of his Miranda rights, his statutory right to counsel,

and/or his due process rights.       Additionally, Tuia’s double

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jeopardy argument is irrelevant because we now affirm his


conviction.


          IT IS HEREBY ORDERED that the ICA’s July 3, 2014


Judgment on Appeal and the district court’s July 20, 2012 


judgment are affirmed. 


          DATED: Honolulu, Hawai'i, April 18, 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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