  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-30703
                                                               30-JUL-2012
                                                               10:08 AM

                              NO. SCWC-30703

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

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

                                     vs.

         DANYELA CASTRO, Petitioner/Defendant-Appellant.
_________________________________________________________________

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (ICA NO. 30703; CASE NO. 1DTA-10-01758)

                    SUMMARY DISPOSITION ORDER
   (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ.,
    and Circuit Judge Border, in place of Duffy, J., recused)

      Petitioner Danyela Castro (“Castro”) seeks review of the
Intermediate Court of Appeals’ (“ICA”) May 3, 2012 Judgment on
Appeal, entered pursuant to its April 4, 2012 Summary Disposition
Order (“SDO”), affirming the District Court of the First
Circuit’s (“district court”) July 20, 2010 Judgment and Notice.
The district court adjudged Castro guilty of Operating a Vehicle
Under the Influence of an Intoxicant in violation of Hawai#i
Revised Statutes (“HRS”) § 291E-61(a)(1) (Supp. 2010).1             We
accepted Castro’s application for writ of certiorari and now


      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: . . . (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[.]
  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

vacate the ICA’s Judgment on Appeal and remand this case to the
district court with instructions to dismiss Castro’s Complaint
without prejudice.
      On certiorari, Castro contends that the ICA erred in
affirming her judgment of conviction, concluding that mens rea
need not be alleged in a Complaint charging a violation of HRS §
291E-61(a)(1).2    Days after the ICA issued its decision, this
court held that mens rea must be alleged in an HRS § 291E-
61(a)(1) charge in order to provide fair notice to the defendant
of the nature and cause of the accusation.          State v. Nesmith, ___
Hawai#i ___, ___, ___ P.3d ___, ___ (2012).          Without the mens rea
allegation, the HRS § 291E-61(a)(1) charge was deficient.
Therefore,
      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.3
      DATED: Honolulu, Hawai#i, July 30, 2012.

Richard L. Holcomb                  /s/ Mark E. Recktenwald
for petitioner
                                    /s/ Paula A. Nakayama
Brian R. Vincent
for respondent                      /s/ Simeon R. Acoba, Jr.

                                    /s/ Sabrina S. McKenna

                                    /s/ Patrick W. Border


      2
         Castro also contends on certiorari that the ICA erred by (1) holding
that the district court may hold a suppression hearing on the same date as
trial and incorporate hearing evidence into the trial; and (2) holding that
the district court properly denied Castro’s motion to suppress. Based on the
facts of this case, Castro’s arguments are without merit, and the ICA did not
err as to these two issues, which will not be further discussed herein.

      3
         The State has proposed amending pending HRS § 291E-61(a)(1) charges
pursuant to Hawai#i Rules of Penal Procedure Rule 7(f)(1) post-Nesmith, but
Nesmith makes it clear that the remedy for the deficient HRS § 291E-61(a)(1)
charges is dismissal without prejudice.

                                      2
