LAW L|BRARY

NOT FOR PUBLICATION ]N WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

NO. 29764

IN THE INTERMEDIATE COURT OF APPEALS

 

€3?.`§"`?§»..%

OF THE STATE OF HAWAIT

  

-»~

SO"""*V '€Avuawz

sTATE oF HAWAI‘I, Plainr;iff-Appellee, 
BETHANN AHSING, Defendanc-Appellanc w

APPEAL FROM THE DlSTRICT COURT OF THE FIRST CIRCUIT

HONOLULU DIVISION
lDTA-08-O9ll7)

(HPD Traffic No.

SUMMARY DISPOSITION ORDER
(By: Foley, Presiding Judge, Fujise and Leonard, JJ.)
Defendant-Appellant Bethann Ahsing (Ahsing) appeals the
in the District Court of the

2009,

entered on March 3,
(district court).1

Judgment,
First Circuit, Honolulu Division

Ahsing was convicted of Operating a Vehicle Under the
Influence of an Intoxicant (OVUII), in violation of Hawaii

§ 29lE-6l(a) and (b) (Supp. 2009) and
(Supp. 2009).

Revised Statutes (HRS)
EXcessive Speeding, in violation of HRS § 29lC~lO5
On appeal, Ahsing contends (1) that although she did
not object, the written complaint and oral charge for OVUII
failed to state an essential element of the offense, i.e., that

Ahsing operated or assumed actual physical control of a vehicle
upon a public way, street, road, or highway, and (2) the district
court erred by admitting a speed check card over her objection
because it lacked proper foundation and was not authenticated as
a business record and therefore there was insufficient evidence

to convict her of Excessive Speeding.
Upon careful review of the record and the briefs2

submitted by the parties and having given due consideration to

The Honorable william Cardwell presided.
20l0, on

1

2 In compliance with this court's order, entered on March 23,

20lO, Ahsing, and on April l2, 20l0, the State submitted
supplemental briefs addressing whether the OVUII charge in this case was

March 25,
sufficient and whether the "Motta/Wells" rule of liberal construction applied
These supplemental briefs were also carefully considered in

in this case.
reaching our decision.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER s

the arguments advanced and the issues raised by the parties, we
resolve Ahsing's points of error as follows:

(1) "[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 HawaFi 383, 393, 219 P.3d 1170, 1180
(2009). The failure to allege that Ahsing was driving a vehicle
upon a public way, street, road, or highway at the time of the
offense rendered the charge deficient. ld4

(2) The State failed to establish

(1) how and when the speed check was performed, including
whether it was performed in the manner specified by the
manufacturer of the equipment used to perform the check, and
(2) the identity and qualifications of the person performing
the check, including whether that person had whatever
training the manufacturer recommends in order to competently
perform it.

State v. Fitzwater, No. 28584, 2010 WL 717551, at *23 (Haw.

' Mar. 3, 2010). Therefore, there was insufficient foundation to

admit the speed check card into evidence. Without admission of
the speed check card into evidence, there was insufficient
evidence to convict Ahsing of Excessive Speeding.

Therefore,

IT IS HEREBY ORDERED THAT the Judgment, entered On
March 3, 2009, in the District Court of the First Circuit,
Honolulu Division is vacated in part and reversed in part. The
conviction and sentence for the offense of Excessive Speeding is
hereby reversed. The remainder of the case is remanded to the
district court with instructions to dismiss the OVUII charge
without prejudice.

DATED: Honolulu, HawaiHq May 21, 2010.

On the briefs:  

Samuel P. King, Jr., Presiding Judge
for Defendant-Appellant.

Stephen K. Tsushima,

Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellee.

 

