¶2On the briefs:

¶3Craig W. Jerome, Deputy Public Defender, for Defendant-Appellant.

¶4Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

¶5

SUMMARY DISPOSITION ORDER

¶6NAKAMURA, C.J., FOLEY and FUJISE, JJ.

¶7Defendant-Appellant Henry Huang (Huang) appeals from the Judgment filed on February 26, 2009 in the District Court of the First Circuit, Honolulu Division (district court).^[1]

¶8The district court convicted Huang of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and (3) and (b)(1) (Supp. 2008).

¶9On appeal, Huang contends the district court erred by denying his oral motion to dismiss the charge because the charge failed to state an essential element of the offense, i.e., that Huang operated or assumed actual physical control of a vehicle upon a public way, street, road, or highway.

¶10Upon 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, as well as the relevant statutory and case law, we resolve Huang's point of error as follows:

"[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." State v. Wheeler, 121 Hawai`i 383, 393, 219 P.3d 1170, 1180 (2009). The failure to allege that at the time of the offense, Huang was driving a vehicle upon a public way, street, road, or highway rendered the charge deficient. Id.

¶11Therefore,

¶12IT IS HEREBY ORDERED that the Judgment filed on February 26, 2009 in the District Court of the First Circuit, Honolulu Division, is vacated and this case is remanded to the district court with instructions to dismiss the charge without prejudice.

NOTES

¶13[1] The Honorable William Cardwell presided.