January 7, 2013
STATE of Hawaii, Plaintiff-Appellee,
Ronald IONA, Defendant-Appellant.
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
Appeal from the District Court of the First Circuit (Honolulu Division) (Case No. 1DTA-11-04699).
James S. Tabe, Deputy Public Defender, on the briefs, for Defendant-Appellant.
Sonja P. McCullen, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.
NAKAMURA, Chief Judge, and FUJISE and GINOZA, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Ronald Iona (Iona) appeals from the Judgment filed on March 1, 2012, in the District Court of the First Circuit (District Court).  Iona was charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp.2011). Prior to trial, Iona orally moved to dismiss the OVUII charge for failure to allege a mens rea. The District Court denied the motion. After a bench trial, the District Court found Iona guilty as charged.
On appeal, Iona argues that the District Court erred in denying his motion to dismiss because the OVUII charge was deficient for failing to allege a mens rea. In State v. Nesmith, 127 Hawaii 48, 53, 61, 276 P.3d 617, 622, 630 (2012), the Hawaii Supreme Court held that a mens rea must be alleged in an OVUII charge asserting a violation of HRS § 291E-61(a)(1) in order to provide fair notice of the nature and cause of the accusation. Plaintiff-Appellee State of Hawaii concedes error, and we agree with that concession. Pursuant to Nesmith, we conclude that Iona's HRS § 291E-61(a)(1) charge was deficient for failing to allege a mens rea.
IT IS HEREBY ORDERED that the District Court's Judgment is vacated, and the case is remanded to the District Court with instructions to dismiss the complaint without prejudice.