As Amended March 19, 2015.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT, HONOLULU DIVISION. 1DTA-13-00639.
On the briefs: Ryan A. Ha, Deputy Public Defender, for Defendant-Appellant.
Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.
NAKAMURA, CHIEF JUDGE, AND FOLEY AND FUJISE, JJ.
Defendant-Appellant Lori L. Turping (Turping) appeals her conviction for operating a vehicle under the influence of an intoxicant (OVUII). At 3:00 a.m., the sound of a horn honking intermittently drew the attention of police officers to Turping's vehicle. The vehicle was stopped, for no apparent reason, in the middle of the road, approximately 50 to 60 feet before the intersection, requiring other vehicles to drive around it. Turping was in the driver's seat, with her head slightly tilted backward, mouth open, and eyes closed. She appeared to be sleeping. Turping's car then began to drift toward the intersection at about 5 miles per hour. An officer ran to the vehicle, opened the door, and stepped on the brake. The car came to a stop as it struck the curb.
[136 Hawai'i 334] In checking to see whether Turping was okay, the officers noticed an odor of alcohol coming from her vehicle. Turping agreed to perform field sobriety tests, but informed the officers that she was disabled and under a doctor's care for problems with her leg and back. Turping performed poorly on the sobriety tests. She swayed from side to side and was unable to keep her balance. In addition, Turping's eyes were glassy, she smelled of alcohol, and her faced was flushed. The police arrested Turping for OVUII.
Turping testified that she had " two beers" at a lounge in the early evening before her arrest. According to Turping, after helping a friend for several hours, her car overheated as she drove home, so she pulled over to rest the engine. While waiting, she started to fall asleep. When her car cooled off, she resumed driving. Turping admitted, however, that she " fell asleep again at . . . the light." Turping acknowledged performing poorly on the field sobriety tests but attributed this to back and knee injuries. She stated that she needed crutches to walk at that time. The District Court of the First Circuit (District Court) found Turping guilty of OVUII.
Turping was charged with OVUII for operating " a vehicle . . . while under the influence of alcohol[,]" in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) (1) (Supp. 2014). On appeal, Turping contends that her OVUII charge was " fatally defective" because it only used the term " alcohol" and did not allege the statutory definition of alcohol, which contains an exception for " denatured or other alcohol that is considered not potable under the customs laws of the United States." HRS § 291E-1 (2007). Turping argues that by using the term " alcohol" without also alleging the exception in the statutory definition, the OVUII charge failed to provide her with fair notice of the charge against her.
As explained below, we reject Turping's argument. We hold that Turping's OVUII charge was sufficient and provided her with fair notice of the offense for which she was charged.
Plaintiff-Appellee State of Hawai'i (State) charged Turping by complaint with OVUII, as follows:
On or about the 10th day of February, 2013, in the City and County of Honolulu, 'State of Hawaii, LORI L. TURPING did intentionally, knowingly or recklessly operate or assume actual physical control of a vehicle upon a public way, street, road, or highway while under the influence of alcohol in an amount sufficient to impair her normal mental faculties or ability to care for herself and guard against casualty, thereby committing the offense of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Section 291E-61 ...