
STATE OF HAWAI'I, Plaintiff-Appellee,
v.
MARISA MIEKO NAKANISHI, Defendant-Appellant.
No. 29761.
Intermediate Court of Appeals of Hawaii.
February 25, 2010.
On the briefs:
Earle A. Partington, for Defendant-Appellant.
Loren J. Thomas, for Plaintiff-Appellee.

SUMMARY DISPOSITION ORDER
NAKAMURA, Chief Judge, LEONARD, J., and Circuit Court Judge CHAN, in place of FOLEY and FUJISE, JJ., all recused.
Defendant-Appellant Marisa Mieko Nakanishi (Nakanishi) appeals from the Judgment entered on March 11, 2009, in the District Court of the First Circuit, Honolulu Division (District Court).[1] Nakanishi was convicted of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) and (b) (Supp. 2009) (OVUII).
On appeal, Nakanishi contends the District Court erred by denying her motion to dismiss the charge because the written complaint failed to state an essential element of the offense, i.e., that Nakanishi operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway.
Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Nakanishi's point of error as follows:
"[T]he operation of a vehicle on a public way, street, road, or highway is an attendant circumstance of the offense of OVUII, and is therefore an element of the offense." State v. Wheeler, 121 Hawai'i 383, 393, 219 P.3d 1170, 1180 (2009). The failure to allege that Nakanishi was driving a vehicle upon a public way, street, road, or highway at the time of the offense rendered the charge deficient. Id.
Therefore, the District Court's March 11, 2009 Judgment is vacated and this case is remanded to the District Court for dismissal of the OVUII charge without prejudice.
NOTES
[1]  The Honorable William A. Cardwell presided.
