No. SCWC-30701, Wednesday, August 29, 2012, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. BRANDY IWALANI C. AVILLA, Petitioner/Defendant-Appellant.

(Operating a Vehicle While Under the Influence of an Intoxicant)

Attorney(s) for Petitioner/Defendant-Appellant:

John M. Tonaki, Public Defender, and Trisha Y. Nakamura, Deputy Public Defender

Attorney(s) for Respondent/Plaintiff-Appellee:

Keith M. Kaneshiro, Prosecuting Attorney, and Brian R. Vincent, 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 assigning Circuit Court Judge Bert I. Ayabe due to a vacancy, filed 07/12/12.

NOTE: Order accepting Application for Writ of Certiorari, filed 07/26/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ, and Circuit Court Judge Bert I. Ayabe due to a vacancy.

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Brief Description:

Petitioner Brandy Iwalani C. Avilla, was charged via complaint and convicted of Operating a Motor Vehicle Under the Influence of an Intoxicant (OVUII), Hawai`i Revised Statutes (HRS) § 291E-61(a)(1). During trial, Respondent State of Hawai`i introduced evidence of Petitioner’s performance on the “[h]orizontal gaze nystagmus” (HGN) test, through the testimony of Honolulu Police Department Officer Daniel Cunningham. Petitioner argues that the court abused its discretion in admitting the evidence of Petitioner’s performance on the HGN test because the Respondent did not lay the proper foundation to establish Officer Cunningham’s qualifications to conduct the test, and that the court’s error was not harmless.

Petitioner also argues that the complaint was insufficient, pursuant to State v. Nesmith, 127 Hawai`i 48, 276 P.3d 617 (2012), because it failed to allege the intentional, knowing, and reckless states of mind required to state an offense under HRS § 291E-61(a)(1). Petitioner contends that she was prejudiced by Respondent’s failure to allege mens rea, that the charge failed to state an offense, and that a conviction based on a charge that fails to state an offense must be reversed, even when the defect is raised for the first time on appeal, as was the case here.