NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (Case No. 1DTA-12-00941)
R. Patrick McPherson, for Defendant-Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
Fujise and Reifurth, JJ., with Nakamura, C.J. concurring separately
SUMMARY DISPOSITION ORDER
Defendant-Appellant Alexander H. Li (Li) appeals from the Judgment, entered on June 18, 2012 in the District Court of the First Circuit, Honolulu Division (District Court).
Li was found guilty of Operating a Vehicle under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(3) (Supp. 2012).
On appeal, Li contends the District Court erred by (1) denying his motion to dismiss because the amended complaint was pled in the disjunctive and (2) admitting a supervisor's sworn statements regarding the accuracy of an Intoxilyzer because they were testimonial in nature and he was not provided the opportunity to question the supervisor which violated his right to confront a witness.
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 Li's points of error as follows:
(1) Li claims that the District Court erred by denying his Motion to Dismiss because the charge was stated in the disjunctive. On appeal, Li challenges three disjunctive terms:
On or about the 5th day of February, 2012, in the City and County of Honolulu, State of Hawaii, ALEXANDER H. LI . . . did operate or [the 1st "or"] assume actual physical control of a vehicle upon a public way, street, road, or [the 2d "or"] highway with .08 or [the 3d "or"] more grams of alcohol per two hundred liters of breath, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Section 291E-61 . . . (a)(3) of the Hawaii Revised Statutes. ALEXANDER H. LI is subject to sentencing as a first offender in accordance with Section 291E-61(b)(1) of the Hawaii Revised Statutes.
However, during his arraignment, Li orally stated his objection as follows:
I'm just going to move to dismiss the complaint inasmuch as the complaint says basically "intentional, knowing, or recklessly operate or assume on a public road, street, or highway while under the influence of alcohol sufficient to impair his mental faculties or ability to care for his — guard against himself and casualty." And this complaint is completely pled in the disjunctive. Under Jendrush and the McCarthy case it is a pleading that should be dismissed, and I would move to dismiss it at this time.
Li did not object to the "third or" he identifies on appeal. Therefore, that point of error is waived. Hawai'i Rules of ...