***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** 

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***NOT FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** 

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.


/s/ Sabrina S. McKenna


/s/ Dexter D. Del Rosario
 

for petitioner
 

James M. Anderson
 

for respondent 

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