August 14, 2013
STATE OF HAWAI'I, Plaintiff-Appellee,
DJOMAR ROMUALDO ARIOS, Defendant-Appellant
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL PROM THE DISTRICT COURT OF THE FIRST CIRCUIT 'EWA DIVISION (Case No. 1DTA-11-00601).
Richard L. Holcomb, for Defendant-Appellant.
Sonja P. McCullen Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Fujise, Presiding Judge, Leonard and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Djomar Romualdo Arios (Arios) appeals from the Notice of Entry of Judgment and/or Order, entered on September 27, 2011 in the District Court of the First Circuit, 'Ewa Division (District Court) in 1DTA-11-00601.
On February 14, 2 011, Arios was charged by written complaint with Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(3) (Supp. 2012).
On September 20, 2 011, the court called two matters, Case Nos. 1DTA-11-00601 and 1DTI-11-0001838. Arios was orally charged with OVUII, in violation of HRS § 291E-61(a)(1). The State elected not to proceed with trial upon a charge of violating HRS § 291E-61(a)(3). Arios was also orally charged with driving a motor vehicle 4 9 miles per hour in a 35 miles per hour zone, in violation of HRS § 2910102(a) (1) . Immediately after being charged, Arios moved to dismiss the OVUII charge for failing to state an essential fact, mens rea. The motion was denied, and after a trial, Arios was convicted of OVUII.
On appeal, Arios contends that the OVUII charge was deficient for failing to allege the requisite mens rea. The State concedes that the OVUII charge failed to state the requisite mens rea as required by State v. Nesmith, 127 Hawai'i 48, 276 P.3d 617 (2012) .
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve Arios's points of error as follows:
In Nesmith, the Supreme Court held that mens rea must be alleged in a charge asserting a violation of HRS § 291E-61(a) (1) in order to provide, fair notice of the nature and cause of the accusation. Nesmith, 127 Hawai'i at 52-56, 276 P.3d at 621-25. Where the charge does not contain the requisite mens rea, Nesmith mandates dismissal without prejudice. State v. Gonzalez, 128 Hawai'i 314, 324, 288 P.3d 788, 798 (2012). As such, we need not address Arios's argument regarding the laser speed reading to the extent it pertains to the OVUII charge. See Gonzalez, 128 Hawai'i at 324, 288 P.3d at 798.
IT IS HEREBY ORDERED that the Notice of Entry of Judgment and/or Order, entered on September 27, 2011 in the District Court of the First Circuit, 'Ewa Division in 1DTA-11-00601 is vacated and the case is remanded with instructions to dismiss the charge without prejudice.