***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed

Supreme Court

SCWC-30720

30-APR-2012

08:24 AM

NO. SCWC-30720

IN THE SUPREME COURT OF THE STATE OF HAWAI#I ________________________________________________________________

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

REW T. SHINSATO, Petitioner/Defendant-Appellant. ________________________________________________________________

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(ICA NO. 30720; CASE NO. 1DTA-10-00597)

SUMMARY DISPOSITION ORDER (By: Recktenwald, C.J., Nakayama, Duffy, and McKenna, JJ.;

with Acoba, J., concurring and dissenting)

Petitioner Rew T. Shinsato (“Shinsato”) seeks review of the Intermediate Court of Appeal’s August 2, 2011 Judgment on Appeal, entered pursuant to its June 29, 2011 Summary Disposition Order, which affirmed the District Court of the First Circuit’s June 22, 2010 Judgment and Notice. The District Court adjudged Shinsato guilty of Operating a Vehicle Under the Influence of an Intoxicant, in violation of Hawai#i Revised Statutes (“HRS”) ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER*** §§ 291E-61(a)(1) and (a)(3)(2007).1 We accepted Shinsato’s application for writ of certiorari and now affirm the ICA’s Judgment on Appeal.

On certiorari, Shinsato contends that the ICA gravely erred in holding that mens rea need not be alleged in either an HRS § 291E-61(a)(1) or an HRS § 291E-61(a)(3) charge. In State v. Nesmith, we recently held that (1) 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; and (2) mens rea need not be alleged (or proven) in an HRS § 291E-61(a)(3) charge, as the legislative intent to impose absolute liability for an HRS § 291E-61(a)(3) offense plainly appears. State v. Nesmith, ____ Hawai#i ___, ___ P.3d ____ (2012). Accordingly, the ICA gravely erred in holding that mens rea need not be alleged in an HRS § 291E-61(a)(1) charge. Therefore, Shinsato’s HRS § 291E-61(a)(1) charge was deficient for failing to allege mens rea.

1

HRS § 291E-61(a) provided, at the time of the alleged offense, the following:

A person commits the offense of operating a vehicle under

the influence of an intoxicant if the person operates or

assumes actual physical control of a vehicle:

(1) While under the influence of alcohol in an amount

sufficient to impair the person’s normal mental faculties or

ability to care for the person and guard against casualty;

(2) While under the influence of any drug that impairs the

person’s ability to operate the vehicle in a careful and

prudent manner;

(3) With .08 or more grams of alcohol per two hundred ten

liters of breath; or

(4) With .08 or more grams of alcohol per one hundred

milliliters or cubic centimeters of blood.

2 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

However, the District Court adjudged Shinsato guilty of violating both HRS §§ 291E-61(a)(1) and (a)(3). Subsections (a)(1) and (a)(3) can each serve as the basis for a conviction under HRS § 291E-61. See State v. Grindles, 70 Haw. 528, 530-31, 777 P.2d 1187, 1189-90 (1989); State v. Caleb, 79 Hawai#i 336, 339, 902 P.2d 971, 974 (1995); State v. Mezurashi, 77 Hawai#i 94, 98, 881 P.2d 1240, 1244 (1994). Insofar as the HRS § 291E- 61(a)(3) charge was sufficient, and insofar as Shinsato does not challenge the sufficiency of the evidence as to that basis, his conviction still stands.

IT IS HEREBY ORDERED that the ICA’s Judgment on Appeal is affirmed.

DATED: Honolulu, Hawai#i, April 30, 2012. Timothy I. MacMaster /s/ Mark E. Recktenwald for petitioner/ defendant-appellant /s/ Paula A. Nakayama Keith M. Kaneshiro, /s/ James E. Duffy, Jr. Prosecuting Attorney, and Anne K. Clarkin, /s/ Sabrina S. McKenna Deputy Prosecuting Attorney, for respondent/plaintiff- appellee

3