The opinion
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
NO. 29852
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee, v.
JASON ERIC THON, Defendant-Appellant
CS:L WY S82 NN 0102
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
LIHU'E DIVISION
(CASE NO. 5DTA-08-00415)
SUMMARY DISPOSITION ORDER
(By: Fujise and Leonard, JJ.,
with Nakamura, C.J., concurring separately)
Defendant-Appellant Jason Eric Thon (Thon) appeals the
Judgment, entered on April 30, 2009, in the District Court of the
Fifth Circuit, Lihu‘e Division (district court) .}
On April 30, 2009, Thon pled no contest to Operating a
Vehicle Under the Influence of an Intoxicant (OVUII), in
violation of Hawaii Revised Statutes (HRS) § 291E-61(a) and (b)
(Supp. 2009).
In Thon's Opening Brief, filed on October 9, 2009, Thon
contends the district court erred by denying his Motion to
Suppress and Exclude Intoxilyzer Test, filed on March 4, 2009
(Motion to Suppress). Thon contends the district court's
conclusion that the State complied with HRS § 291E-11 and that
the traffic stop was not pretextual were erroneous.
The State argues that the district court did not err by
denying Thon's Motion to Suppress. The State also argues that
State v. Wheeler, 121 Hawai‘i 383, 219 P.3d 1170 (2009), issued
on November 17, 2009, is inapplicable or that any deficiency in
the charge was waived when Thon entered into a no contest plea.
In Thon's Reply Brief, filed on January 4, 2010, he
raises a claim that the charge against Thon was deficient
' The Honorable Trudy K. Senda presided.
gad
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
pursuant to Wheeler because it failed to state that Thon operated
or assumed actual physical control of a vehicle upon a public
way, street, road, or highway.
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 Thon's points of error as follows:
(1) Although Thon entered into a no contest plea, he
may still challenge the sufficiency of the charge on the grounds
that there is a defect bearing upon the State's authority to
compel him to answer to the charge in court. State v. Morin, 71
Haw. 159, 162, 785 P.2d 1316, 1318 (1990).
(2) "(T]he operation 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."
Wheeler, 121 Hawai‘i at 393, 219 P.3d at 1180. The failure to
allege that Thon was driving a vehicle upon a public way, street,
road, or highway at the time of the offense rendered the charge
fatally deficient. Id. Therefore, the charge must be dismissed
for lack of jurisdiction and we need not address Thon's other
point of error.
Therefore,
IT IS HEREBY ORDERED that the Judgment, entered on
April 30, 2009, in the District Court of the Fifth Circuit,
Lihu'e Division is vacated. The matter is remanded to the
district court with instructions to dismiss the OVUII charge
without prejudice.
DATED: Honolulu, Hawai‘i, June 28, 2010.
On the briefs:
Daniel G. Hempey,
for Defendant-Appellant.
Tracy Murakami,
Deputy Prosecuting Attorney,
County of Kauai,
for Plaintiff-Appellee.