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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-30718
                                                                 03-MAY-2012
                                                                 08:39 AM




                               NO. SCWC-30718

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                      vs.

         KEVIN M. YAMAHATA, Petitioner/Defendant-Appellant.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (ICA NO. 30718; HPD TRAFFIC 1DTA-10-02094)

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

           Petitioner/Defendant-Appellant Kevin M. Yamahata, seeks

review of the Intermediate Court of Appeal’s September 12, 2011

Judgment on Appeal, entered pursuant to its August 22, 2011

Summary Disposition Order (“SDO”).          State v. Yamahata, No. 30718,

2011 WL 3671969 (App. Aug. 22, 2011) (SDO).            The SDO affirmed the

District Court of the First Circuit’s August 11, 2011 Order and

Notice of Entry of Order.        The District Court1 adjudged Yamahata

guilty of Operating a Vehicle Under the Influence of an



     1
           The Honorable William Cardwell presided.
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Intoxicant “OVUII,” in violation of Hawai#i Revised Statutes

(“HRS”) § 291E-61(a)(1) and (a)(3).2          We accepted Yamahata’s

application for writ of certiorari and now affirm the ICA’s

Judgment on Appeal.

           On certiorari, Yamahata contends that the ICA gravely

erred in holding that mens rea need not be alleged in either an

HRS § 291E-61(a)(1) or an HRS § 291E-61(a)(3) charge.               In State

v. Nesmith, we recently held that (1) mens rea must be alleged in

an HRS § 291E-61(a)(1) charge in order to provide fair notice of

the nature and cause of the accusation; and (2) mens rea need not

be alleged (or proven) in an HRS § 291E-61(a)(3) charge, as the



     2
           HRS § 291E-61(a) provided, at the time of Yamahata’s offense:

                 (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;

                  (2)   While under the influence of any drug that
                        impairs the person’s ability to operate the
                        vehicle in a careful and prudent manner;

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

                  (4)   With .08 or more grams of alcohol per one
                        hundred milliliters or cubic centimeters of
                        blood.

           HRS § 291E-61(a) (Supp. 2010).




                                       2
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legislative intent to impose absolute liability for an HRS §

291E-61(a)(3) offense plainly appears.           State v. Nesmith, ___

Hawai#i ___, ___ P.3d ___ (2012).          Accordingly, the ICA gravely

erred in holding that mens rea need not be alleged in an HRS §

291E-61(a)(1) charge.       Therefore, Yamahata’s HRS § 291E-61(a)(1)

charge was deficient for failing to allege mens rea.

           However, the District Court adjudged Yamahata guilty of

violating both HRS §§ 291E-61(a)(1) and (a)(3).             Subsections

(a)(1) and (a)(3) can each 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.2d 971, 974 (1995); State v. Mezurashi, 77 Hawai#i 94,

98, 881 P.2d 1240, 1244 (1994).         Insofar as the HRS § 291E-

61(a)(3) charge was sufficient, and insofar as Yamahata does not

challenge the sufficiency of the evidence as to that basis, his

conviction still stands.

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

is affirmed.

           DATED: Honolulu, Hawai#i, May 3, 2012.
Timothy I. MacMaster for                /s/ Mark E. Recktenwald
petitioner/defendant-
appellant                               /s/ Paula A. Nakayama

Delanie D. Prescott-Tate,               /s/ James E. Duffy, Jr.
Deputy Prosecuting Attorney,
for respondent/plaintiff-               /s/ Sabrina S. McKenna
appellee

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