*** NOT FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER ***

SCWC

- 1 2

- 000 0684
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

- 1 2

- 000 0684 ; CASE NO. 1DTA

- 1 1

- 0 4714 )

SUMMARY DISPO SITION 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 , 201 4 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Order and Plea/Judgment entered on July 20 , Electronically Filed Supreme Court SCWC-12-0000684 25-APR-2016 12:16 PM*** NOT FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER ***

2 2012
. 1 The district court found Fisher guilty of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawai ʻ i 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
.

O n 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 Hawai ʻ i
C onstitution ; (2) his statutory right to an att orney was violated; (3) his due process rights under Article I, Section 5
of the Hawai ʻ i 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 m otion to a mend the c omplaint
. 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 suffi cient 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
. . . .*** NOT FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER ***

3 complaint to allege the requisite mens rea for the HRS § 291E

61(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 § 291E

61(a)(1) and (a)( 3 ). Either subsection can serve as the basis for a conviction under HRS § 29 1E

- 61. See State v. Caleb , 79 Hawai ʻ i 336, 339, 902 P.2d 971, 974 (1995); State v. Mezurashi , 77 Hawai ʻ i 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 argum ent 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*** NOT FOR PUBLICATION IN WEST’S HAWAI  I REPORTS AND PACIFIC REPORTER ***

4 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 A ppeal and the district court ’s J udgment 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