No. SCWC-10-0000072, Friday, January 20, 2012, 9 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. KEVIN K. NESMITH, Petitioner/Defendant-Appellant.

(Operating a Vehicle Under the Influence of an Intoxicant)

 Attorney for Petitioner/Defendant-Appellant: Timothy I. Mac Master

Attorneys for Respondent/Plaintiff-Appellee: Keith M. Kaneshiro, Prosecuting Attorney, and Delanie D. Prescott-Tate, Deputy Prosecuting Attorney

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Order accepting Application for Writ of Certiorari, filed 10/21/11.

COURT: MER, CJ; PAN, SRA, JED, & SSM, JJ.

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Brief Description:

Petitioner Kevin Nesmith filed an application for writ of certiorari to review the Intermediate Court of Appeals’ July 12, 2011 Judgment on Appeal, entered pursuant to its June 22, 2011 published opinion, which affirmed the District Court of the First Circuit’s July 7, 2010 Judgment.

Nesmith was convicted of operating a vehicle under the influence of an intoxicant (“OVUII”) under Hawai`i Revised Statutes sections 291E-61(a)(1) and/or (a)(3). A person commits the offense of OVUII under section 291E-61(a)(1) if he or she “operates or assumes actual physical control of a vehicle . . . [w]hile 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[.]” A person commits the offense of OVUII under section 291E-61(a)(3) if he or she “operates or assumes actual physical control of a vehicle . . . [w]ith .08 or more grams of alcohol per two hundred ten liters of breath[.]”

At issue is whether the Complaint charging Nesmith with violating HRS sections 291E-61(a)(1) and/or (a)(3) should have been dismissed because it did not allege state of mind. As to a OVUII based on HRS section 291E-61(a)(1), the ICA held that state of mind need not be alleged in the charge, because it can be inferred from the conduct alleged in the charge. As to OVUII based on HRS section 291E-61(a)(3), the ICA held that state of mind need not be alleged in the charge, as a legislative intent to make that type of OVUII an absolute liability offense plainly appears.