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SCWC-12-0000684

IN THE SUPREME COURT OF THE STATE OF HAWAII

________________________________________________________________

STATE OF HAWAII, 

Respondent/Plaintiff-Appellee,

vs.

RICK J. FISHER, 

Petitioner/Defendant-Appellant.

________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0000684; CASE NO. 1DTA-11-04714)

SUMMARY DISPOSITION ORDER

(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Petitioner/Defendant-Appellant Rick J. Fisher (Fisher) 

seeks review of the Intermediate Court of Appeals’ (ICA) July 

14, 2014 Judgment on Appeal, entered pursuant to its June 16, 

2014 Summary Disposition Order, which affirmed the District 

Court of the First Circuit’s (district court) Notice of Entry of 

Judgment and/or Order and Plea/Judgment entered on July 20, 

Electronically Filed

Supreme Court

SCWC-12-0000684

25-APR-2016

12:16 PM
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2

2012.

1 The district court found Fisher guilty of Operating a 

Vehicle Under the Influence of an Intoxicant (OVUII), in 

violation of Hawaiʻi Revised Statutes (HRS) § 291E-61(a)(1) 

and/or (3) (Supp. 2012).2 We accepted Fisher’s Application for 

Writ of Certiorari, and we now affirm the ICA’s Judgment on 

Appeal and the district court’s Judgment. 

On certiorari, Fisher contends (1) he was subject to 

custodial interrogation and should have been informed of his 

Miranda rights guaranteed by Article I, Section 10 of the Hawaiʻi

Constitution; (2) his statutory right to an attorney was 

violated; (3) his due process rights under Article I, Section 5

of the Hawaiʻi Constitution were violated when the police told 

him that he “shall” be subject to up to 30 days in jail if he 

did not take a breath, blood, or urine test; and (4) the 

district court improperly allowed the State to amend its 

 

1 The Honorable Clarence A. Pacarro presided over the proceedings 

that addressed the State’s motion to amend the complaint. The Honorable Lono 

J. Lee presided over Fisher’s trial.

2 HRS § 291E-61 provides in relevant part:

(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; [or]

. . . 

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

hundred ten liters of breath. . . .
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complaint to allege the requisite mens rea for the HRS § 291E61(a)(1) charge and double jeopardy would bar retrial on that 

charge. 

In this court’s recent summary disposition order in 

State v. Kam, No. SCWC-12-0000897 (Haw. Feb. 25, 2016) (SDO), we 

held that “the ICA correctly concluded that the district court 

properly permitted the State to amend” an HRS § 291E-61(a)(1) 

charge to allege the requisite mens rea. Kam, SDO at 2. 

Accordingly, the district court properly permitted the State to 

amend Fisher’s HRS § 291E-61(a)(1) charge to allege mens rea. 

Fisher was convicted for violating both HRS § 291E61(a)(1) and (a)(3). Either subsection can serve as the basis 

for a conviction under HRS § 291E-61. See State v. Caleb, 79 

Hawaiʻi 336, 339, 902 P.2d 971, 974 (1995); State v. Mezurashi, 

77 Hawaiʻi 94, 98, 881 P.2d 1240, 1244 (1994); State v. Grindles, 

70 Haw. 528, 530-31, 777 P.2d 1187, 1189-90 (1989). Insofar as 

the HRS § 291E-61(a)(1) charge was properly amended, and insofar 

as Fisher does not challenge the sufficiency of the evidence 

supporting his conviction for violating HRS § 291E-61(a)(1), his 

OVUII conviction still stands. There is no need for this court 

to address his argument that the breath test result supporting 

his HRS § 291E-61(a)(3) conviction was obtained in violation of 

his Miranda rights, his statutory right to counsel, and/or his 
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due process rights. Additionally, Fisher’s double jeopardy 

argument is irrelevant because we now affirm his conviction.

IT IS HEREBY ORDERED that the ICA’s July 14, 2014

Judgment on Appeal and the district court’s Judgment are

affirmed.

DATED: Honolulu, Hawaii, April 25, 2016.

Jonathan Burge

for petitioner

Brian R. Vincent

For respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack 

/s/ Michael D. Wilson