   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-10-0000253
                                                               30-APR-2012
                                                               08:37 AM


                           NO. SCWC-10-0000253

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

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

                                     vs.

          EMILIO SORIA, Petitioner/Defendant-Appellant.
________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
         (ICA NO. CAAP-10-0000253; CASE NO. 1DTA-10-05767)

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

            Petitioner Emilio Soria (“Soria”) seeks review of the
Intermediate Court of Appeal’s September 9, 2011 Judgment on
Appeal, entered pursuant to its August 17, 2011 Summary
Disposition Order, which affirmed the District Court of the First
Circuit’s December 6, 2010 Judgment and Notice.            The District
Court adjudged Soria guilty of Operating a Vehicle Under the
Influence of an Intoxicant, in violation of Hawai#i Revised
Statutes (“HRS”) § 291E-61(a)(1)(2007).1          We accepted Soria’s

      1
        HRS § 291E-61(a)(1) provided, at the time of the alleged offense, the
following:
            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 . . . [w]hile
            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[.]
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

application for writ of certiorari and now vacate the ICA’s
Judgment on Appeal and remand this case to the District Court
with instructions to dismiss Soria’s Complaint without prejudice.
          On certiorari, Soria contends that the ICA gravely
erred in holding that mens rea need not be alleged in an HRS §
291E-61(a)(1) charge.     In State v. Nesmith, however, we recently
held that 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.    State v. Nesmith, ____ Hawai#i ___, ___ P.3d
____ (2012).   Therefore, Soria’s HRS § 291E-61(a)(1) charge was
deficient for failing to allege mens rea, and the ICA gravely
erred in holding otherwise.
          IT IS HEREBY ORDERED that the ICA’s Judgment on Appeal
is vacated, and this case is remanded to the District Court with
instructions to dismiss the Complaint without prejudice.
          DATED: Honolulu, Hawai#i, April 30, 2012.

Timothy I. MacMaster                     /s/ Mark E. Recktenwald
for petitioner/
defendant-appellant                      /s/ Paula A. Nakayama

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




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