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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000245
                                                              01-MAY-2012
                                                              09:13 AM



                          NO. SCWC-10-0000245

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                    vs.

          JAMES B. FLYNN, Petitioner/Defendant-Appellant.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
         (ICA NO. CAAP-10-0000245; CASE NO. 1DTA-10-02865)

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

           Petitioner/Defendant-Appellant James B. Flynn (Flynn)

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

October 26, 2011 judgment on appeal, which affirmed the district

court of the first circuit’s (district court) December 15, 2010

notice of entry of judgment.1        The district court found Flynn

guilty of Operating a Vehicle Under the Influence of an

Intoxicant (OVUII), in violation of Hawai#i Revised Statutes

(HRS) §§ 291E-61(a)(1) and (a)(3) (Supp. 2009), as a first-time


     1
           The Honorable Clyde Sumida presided.
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offender under HRS § 291E-61(b)(1) (Supp. 2009).2               We accepted

        2

        At the time of the alleged offense, HRS § 291E-61 provided, 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[.]

                    . . .

              (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;

                                                                       continue...

                                          2
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Flynn’s application for writ of certiorari and now affirm the

judgment of the ICA.

              Flynn’s 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 both HRS §§ 291E-61(a)(1) and

(a)(3).      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 and to inform the accused of the nature and cause

of the accusation.      In Nesmith, the State’s failure to allege

mens rea in the OVUII charge under HRS § 291E-61(a)(1) rendered

the charge fatally defective.         However, because both subsections

(a)(1) and (a)(3) may serve as the basis for a conviction under

HRS § 291E-61 and the State adequately alleged the charge of




     2
         ...continue
                              (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;

                        (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), (a)(3), and (b)(1) (Supp. 2009).

                                       3
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OVUII under the alternative subsection (a)(3), we affirmed

Nesmith’s conviction.

            The same holds true in the instant case.         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, Flynn’s HRS § 291E-61(a)(1) charge fails to fully

define the OVUII offense in unmistakable terms readily

comprehensible to persons of common understanding and is,

therefore, fatally deficient.       Flynn’s OVUII conviction under the

deficient (a)(1) charge cannot stand.         However, insofar as

Flynn’s conviction under the alternative charge based upon

subsection HRS § 291E-61(a)(3) is sufficient, and insofar as

Flynn does not challenge the sufficiency of the evidence as to

that basis, his OVUII conviction under subsection (a)(3) stands.

            IT IS HEREBY ORDERED that the ICA’s judgment is

affirmed.

            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




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