***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***




                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0000682
                                                               03-MAR-2016
                                                               09:19 AM
                             SCWC-12-0000682

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

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

                                     vs.

        LINN M. KIYUNA, Petitioner/Defendant-Appellant.
________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-12-0000682; CASE NO. 1DTA-11-05236)

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


      Petitioner/Defendant-Appellant Linn M. Kiyuna seeks review

of the Intermediate Court of Appeals’ (“ICA”) May 5, 2015

Judgment on Appeal, entered pursuant to its April 7, 2015

Summary Disposition Order, which affirmed the District Court of

the First Circuit’s (“district court”) July 6, 2012 Notice of

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

court judgment”).1     The district court found Kiyuna guilty of

Operating a Vehicle Under the Influence of an Intoxicant

(“OVUII”), in violation of Hawaii Revised Statutes (“HRS”)


      1
           The Honorable Lono Lee presided.
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


§ 291E-61(a)(1) and/or (4) (2007).2         This court accepted Kiyuna’s

Application for Writ of Certiorari, and we now affirm the ICA’s

Judgment on Appeal and the district court judgment.

      On certiorari, Kiyuna contends that (1) his Miranda rights

under Article I, Section 10 of the Hawaiʻi 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; and (3) the

district court improperly allowed the State to amend its

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

61(a)(1) charge.

      In this court’s recent summary disposition order in 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



      2
           HRS § 291E-61(a)(1) and (4) provide 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]

                 . . . .

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


                                      2
***   NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER   ***


v. Kam, SCWC-12-0000897 (Haw. Feb. 25, 2016) (SDO) at 2.

Accordingly, the district court properly permitted the State to

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

      Kiyuna was convicted for violating both HRS § 291E-61(a)(1)

and (a)(4).    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.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)(1) charge was properly amended, and insofar as

Kiyuna does not challenge the sufficiency of the evidence

supporting his conviction for violating HRS § 291E-61(a)(1), his

OVUII conviction still stands.        There is no need for this court

to address his argument that the blood test results supporting

his HRS § 291E-61(a)(4) conviction were obtained in violation of

his Miranda rights and/or his statutory right to counsel.

      IT IS HEREBY ORDERED that the ICA’s May 5, 2015 Judgment on

Appeal and the district court judgment are affirmed.

           DATED:    Honolulu, Hawaii, March 3, 2016.

Jonathan Burge                         /s/ Mark E. Recktenwald
for petitioner
                                       /s/ Paula A. Nakayama
Brian R. Vincent                       /s/ Sabrina S. McKenna
for respondent
                                       /s/ Richard W. Pollack

                                       /s/ Michael D. Wilson

                                      3
