ICA issues published opinion clarifying mens rea requirements in OVUII complaints

On June 22, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Nesmith, NO. CAAP-10-0000072 (Published opinion written by Nakamura, C.J., panel: Nakamura, Reifurth, J. with Foley, J. concurring separately). This is an appeal from the District Court of the First Circuit, Hon. Paula Devens presiding. On the brief were Timothy I. McMaster, Esq. for Defendant-Appellant and Delanie D. Prescott-Tate, Esq. for Plaintiff-Appellee.

Defendant was charged with operating a vehicle under the influence of an intoxicant, a violation of HRS § 291E-61. Appellant argued that the complaint charging the offense was insufficient because it failed to allege a specific mens rea (mental element of the crime), namely that he committed the offense “intentionally, knowingly or recklessly.”

A person can commit a violation of HRS § 291E-61 in four ways. The complaint in this case alleged Defendant violated the law two of these ways- by being “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” and/or driving “with .08 or more grams of alcohol per two hundred ten liters of breath.”

The ICA held that the statute defining the charged OVUII offense, HRS § 294E-61 (Supp. 2009), does not specify a required state of mind. In regard to the “.08” charge, the ICA held that an HRS § 291E-61(a)(3) violation is an absolute liability offense that does not require proof of mens rea. Because violation of HRS § 291E-61(a)(3) is an absolute liability offense, the State was not required to allege any mental state in charging Defendant with OVUII in violation of HRS § 291E-61(a)(3).

In respect to violation of an “impairment” charge, mens rea is not an essential element of that violation and can be inferred from the allegations in the complaint. The referenced allegations in the complaint and the nature of the charged offense are sufficient to imply and connote that Defendant committed the charged OVUII offense intentionally, knowingly, or recklessly. Accordingly, the complaint was sufficient to charge Defendant with OVUII in violation of HRS § 291E-61(a)(1).

Judgment affirmed.

Justice Foley’s concurrence was simply: “I concur in the result. The charge was sufficient under State v. Wheeler, 121 Hawai'i 383, 219 p.3D 1170 (2009).”

Note- On June 14, 2011, the ICA came to similar conclusion in State v. Pai, No. 30516 (ICA- Unpublished Summary Disposition Order. Panel: Foley, Reifurth and Ginoza).