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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-29934
                                                              10-JAN-2014
                                                              09:59 AM




                             NO. SCWC-29934


             IN THE SUPREME COURT OF THE STATE OF HAWAI'I



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


                                    vs.


     KEVIN HIROYUKI AKITAKE, Petitioner/Defendant-Appellant.



           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

               (ICA NO. 29934; CASE NO. 1DTA-08-09688)


                      SUMMARY DISPOSITION ORDER

    (By:   Acoba and McKenna, JJ., and Circuit Judge Del Rosario, 

                    in place of Duffy, J., recused; 

  with Recktenwald, C.J., dissenting, with whom Nakayama, J., joins)


     Petitioner/Defendant-Appellant Kevin Hiroyuki Akitake


(“Akitake”) seeks review of the Intermediate Court of Appeals’


November 9, 2011 Judgment on Appeal, entered pursuant to its


October 17, 2011 Summary Disposition Order, which affirmed the


District Court of the First Circuit’s (“district court”) June 15,


2009 Notice of Entry of Judgment and/or Order and Plea/Judgment. 


The district court had adjudged Akitake guilty of Operating a


Vehicle Under the Influence of an Intoxicant (“OVUII”) in

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violation of Hawai'i Revised Statutes (“HRS”) §§ 291E-61(a)(1),

(a)(3), (b)(1), and (b)(2) (Supp. 2008).1



     1
         At the time of the alleged offense, HRS § 291E-61(a)(1), (a)(3),

(b)(1), and (b)(2) provided the following:

            (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;

            . . . .

            (3) With .08 or more grams of alcohol per two hundred ten

            liters of breath[.]

            . . . .

            (b) A person committing the offense of operating a vehicle

            under the influence of an intoxicant shall be sentenced

            without possibility of probation or suspension of sentence:

            (1) Except as provided in (2), for the first offense, or any

            offense not preceded within a five-year period by a

            conviction for an offense under this section or section

            291E-4(a):

            (A) A fourteen-hour minimum substance abuse rehabilitation

            program, including education and counseling, or other

            comparable program deemed appropriate by the court;

            (B) Ninety-day prompt suspension of license and privilege to

            operate a vehicle during the suspension period, or the court

            may impose, in lieu of the ninety-day prompt suspension of

            license, a minimum thirty-day prompt suspension of license

            with absolute prohibition from operating a vehicle and, for

            the remainder of the ninety-day period, a restriction on the

            license that allows the person to drive for limited work-

            related purposes and to participate in substance abuse

            programs;

            (C) Any one or more of the following:

            (i) Seventy-two hours of community service work;

            (ii) Not less than forty-eight hours and not more than five

            days of imprisonment; or

            (iii) A fine of not less than $150 but not more than $1,000;

            (D) A surcharge of $25 to be deposited into the neurotrauma

            special fund; and

            (E) May be charged a surcharge of up to $25 to be deposited

            into the trauma system special fund if the court so orders;

            (2) For a first offense committed by a highly intoxicated

            driver, or for any offense committed by a highly intoxicated

            drive not preceded within a five-year period by a conviction

            for an offense under this section or section 291E-4(a):

            (A) A fourteen-hour minimum substance abuse rehabilitation

            program, including education and counseling, or other

            comparable program deemed appropriate by the court;

            (B) Prompt suspension of a license and privilege to operate

            a vehicle for a period of six months with an absolute

            prohibition from operating a vehicle during the suspension


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     On certiorari, Akitake presents the following questions: 

           A. Whether the ICA gravely erred in holding that the

           district court did not err as a matter of law in ruling that

           it had jurisdiction notwithstanding that State v. Wheeler

           held that the district court had no jurisdiction as to a

           charge that failed to allege “the pu[b]lic road” element[.]

           B. Whether the ICA gravely erred in holding that the

           district court did not abuse its discretion in continuing

           Akitake’s trial to a fourth trial day?


As to Akitake’s second question presented, we find no error in


the ICA’s conclusion that the district court did not abuse its


discretion in granting the State’s motion to continue the trial


for a fourth day because it had already determined that trial


would not be completed on the third day.


     As to Akitake’s first question presented, however, we


conclude that the charge failed to allege the attendant


circumstance that the defendant operated his vehicle on a public


roadway.   See State v. Wheeler, 121 Hawai'i 383, 392, 219 P.3d

1170, 1179 (2009).     As the charge lacked an allegation of an


attendant circumstance, which is an element of the offense of


OVUII, it failed to state the offense of OVUII.          Cf. State v.




           period; 

           (C) Any one or more of the following:

           (i) Seventy-two hours of community service work;

           (ii) Not less than forty-eight hours and not more than five

           days of imprisonment; or

           (iii) A fine of not less than $150 but not more than $1,000;

           (D) A surcharge of $25 to be deposited into the neurotrauma

           special fund; and

           (E) May be charged a surcharge of up to $50 to be deposited

           into the trauma system special fund if the court so

           orders[.]




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Apollonio, 130 Hawai'i 353, 358, 311 P.3d 676, 681 (2013)

(dismissing without prejudice excessive speeding complaint, the

deficiency of which was raised for the first time on appeal,

because complaint failed to allege mens rea, and could therefore

not be construed to state the offense of excessive speeding).

     Akitake’s OVUII charge was deficient.         Consequently, we


vacate the ICA’s Judgment on Appeal and remand this case to


the district court with instructions to dismiss Akitake’s


Complaint without prejudice. 


          DATED: Honolulu, Hawai'i, January 10, 2014.


R. Patrick McPherson              /s/ Simeon R. Acoba, Jr.

for petitioner

                                  /s/ Sabrina S. McKenna

James M. Anderson

for respondent                    /s/ Dexter D. Del Rosario





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