***NOT FOR PUBLICATION IN WEST’S HAWAI#I AND PACIFIC REPORTER***

                                                     Electronically Filed
                                                     Supreme Court
                                                     SCWC-10-0000243
                                                     30-APR-2012
                                                     08:48 AM




                       NO. SCWC-10-0000243

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

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

                               vs.

    WILLIAM A. DANIELS, JR., Petitioner/Defendant-Appellant.
________________________________________________________________

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
        (ICA NO. CAAP-10-0000243; CASE NO. 1DTA-10-01712)

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

          Petitioner William A. Daniels, Jr. (“Daniels”) seeks

review of the Intermediate Court of Appeal’s November 10, 2011

Judgment on Appeal, entered pursuant to its October 24, 2011

Summary Disposition Order, which affirmed the District Court of

the First Circuit’s December 8, 2010 Judgment and Notice.    The

District Court adjudged Daniels guilty of Operating a Vehicle

Under the Influence of an Intoxicant, in violation of Hawai#i
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Revised Statutes (“HRS”) §§ 291E-61(a)(1) and (a)(3)(2007).1                     We

accepted Daniels’ application for writ of certiorari and now

affirm the ICA’s Judgment on Appeal.

                 On certiorari, Daniels 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.2                  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

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




      1
        HRS § 291E-61(a) 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:
      (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.

         2
             The other questions presented in Daniels’ application are without
merit.

                                           2
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§ 291E-61(a)(1) charge.    Therefore, Daniels’ HRS § 291E-61(a)(1)

charge was deficient for failing to allege mens rea.

          However, the District Court adjudged Daniels 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 Daniels 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, 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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