January 31, 2014
STATE of Hawaii, Respondent/Plaintiff-Appellee,
Brandy Iwalani C. AVILLA, Petitioner/Defendant-Appellant.
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
Complaint, charging defendant with operating a vehicle under the influence of an intoxicant, failed to allege the mens rea required for such a charge, and therefore, the charge was deficient, and as such, the charge would be dismissed without prejudice because it violated due process. U.S.C.A. Const.Amend. 14; HRS § 291E-61(a)(1).
Certiorari to the Intermediate Court of Appeals (ICA
No. 30701; Case No. 1DTA-10-00518).
Trisha Y. Nakamura, for
Brian R. Vincent, for respondent.
ACOBA, and McKENNA, JJ., with Circuit Judge AYABE, assigned by reason of vacancy, concurring in the result; with RECKTENWALD, C.J., dissenting, with whom NAKAYAMA, J. joins.
SUMMARY DISPOSITION ORDER
Petitioner Brandy Iwalani C. Avilla (" Avilla" ) seeks review of the Intermediate Court of Appeal's April 24, 2012 Judgment on Appeal, entered pursuant to its April 9, 2012 Summary Disposition Order, which affirmed the District Court of the First Circuit's " Notice of Entry of Judgment and/or Order and Plea/Judgment" filed on June 9, 2010. The District Court adjudged Avilla guilty of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Hawaii Revised Statutes (" HRS" ) § 291E-61 (a)(1) (2007). 
We accepted Avilla's application for writ of certiorari and now vacate the ICA's Judgment on Appeal and remand this case to the District Court with instructions to dismiss Avilla's Complaint without prejudice.
On certiorari, Avilla contends that the ICA order affirming her conviction constitutes an obvious inconsistency with the Supreme Court's April 12, 2012 decision in State v. Nesmith, 127 Hawaii 48, 276 P.3d 617. In State v. Nesmith, we held that mens rea must be alleged in an HRS § 291E-61(a)(1) charge in order to provide fair notice of the nature and cause of the accusation. State v. Nesmith, 127 Hawaii at 54-55, 276 P.3d at 623-24. The Complaint against Avilla failed to allege the mens rea required in an HRS § 291E-61(a)(1) charge. Therefore, Avilla's HRS § 291E-61(a)(1) charge was deficient for failing to allege mens rea.
Unlike Nesmith, however, Avilla challenged the sufficiency of the Complaint for the first time on appeal. This court recently issued a decision in which the sufficiency of a charge was similarly challenged for the first time on certiorari. See State v. Apollonio, 130 Hawaii 353, 311 P.3d 676. In State v. Apollonio, the majority of this court held, " a charge that fails to charge a requisite state of mind cannot be construed reasonably to state an offense and thus the charge is dismissed without prejudice because it violates due process." Id. at 359, 311 P.3d at 682. Avilla's Complaint failed to charge a requisite state of mind, and thus, the ICA's Judgment on Appeal must be vacated and the charge must be dismissed without prejudice because it violates due process.
IT IS HEREBY ORDERED that the ICA's Judgment on Appeal is vacated, and this case is remanded to the District Court with instructions to dismiss the Complaint without prejudice.
Concurrence by Circuit Judge AYABE.
I concur in the result.