On the briefs:

Timothy I. Mac Master, for Defendant-Appellant.

Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

SUMMARY DISPOSITION ORDER

NAKAMURA, Chief Judge, FOLEY, and LEONARD, JJ.

Defendant-Appellant Scott A. Liesemeyer (Liesemeyer) appeals from the Judgment filed on April 28, 2009, in the District Court of the First Circuit, Honolulu Division (district court).^[1]

Liesemeyer was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes §§ 291E-61(a)(1) and (b)(1) (Supp. 2008).

On appeal, Liesemeyer contends that the district court erred by denying his motion to dismiss the OVUII charge because the written complaint and the oral charge failed to state an essential element of the offense, namely, that Liesemeyer operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway.^[2]

Upon careful review of the record and the briefs submitted by the parties, we resolve Liesemeyer's point of error as follows:

"[T] he operation [or the assumption of actual physical control] of a vehicle on a public way, street, road, or highway is an attendant circumstance of the offense of OVUII, and is therefore an element of the offense." State v. Wheeler, 121 Hawai'i 383, 393, 219 P.3d 1170, 1180 (2009). The OVUII charge brought against Liesemeyer was insufficient because it failed to allege that Liesemeyer operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway. Id.

Therefore,

IT IS HEREBY ORDERED THAT the April 28, 2009, Judgment of the district court is vacated, and this case is remanded to the district court with instructions to dismiss the OVUII charge without prejudice.

NOTES

[1] The Honorable William A. Cardwell presided.

[2] Liesemeyer moved pretrial to dismiss the charge as insufficient and the district court denied Liesemeyer's motion before trial.