State v. Cummings2/24/2003
LEVINSON and ACOBA, JJ., and INTERMEDIATE COURT OF APPEALS JUDGE LIM, ASSIGNED BY REASON OF VACANCY, AND MOON, C.J., DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
The defendant-appellant Craig Neal Cummings appeals from the September 20, 2000 judgment of conviction and sentence of the district court of the third circuit, the Honorable Joseph P. Florendo presiding, convicting him of and sentencing him for the offenses of driving under the influence of intoxicating liquor (DUI), in violation of HRS § 291-4(a)(1) (Supp. 1998), operating a vehicle without no-fault insurance, in violation of HRS § 431:10C-104(a) (Supp. 1998), and operation of a motor vehicle without a certificate of inspection, in violation of HRS § 286-25 (1993). Cummings urges this court to reverse his DUI conviction and sentence on the bases that the district court erred: (1) in denying his oral motion to dismiss the DUI charge and/or for judgment of acquittal at the conclusion of the prosecution's case-in-chief because the charge, as set forth in the complaint, failed to allege the material elements of DUI; (2) in admitting the testimony of Michael Beshoner, M.D., regarding his treatment of Cummings following the accident because the testimony was privileged pursuant to Hawaii Rules of Evidence (HRE) Rule 504 (1993); and (3) in finding that the vehicle that Cummings was operating crossed into the opposite lane of travel, notwithstanding evidence presented by the defense to the contrary.
For the reasons discussed infra, we hold that the district court erred in denying Cummings's motion to dismiss Count I of the complaint on the basis that it failed to allege the material elements of DUI. Because the foregoing is outcome dispositive of the present appeal, we do not address Cummings's other points of error. Accordingly we reverse Cummings's conviction of and sentence for DUI.
I. BACKGROUND
On August 11, 1999, the prosecution charged Cummings by complaint with DUI, in violation of HRS § 291-(a)(1) (Count I), see supra note 1, negligent injury in the third degree, in violation of HRS § 707-706(1) (1993) (Count II), operating a vehicle without no-fault insurance, in violation of HRS § 431:10C-104(a) (Count III), and operation of a motor vehicle without a certificate of inspection, in violation of HRS § 286-25 (Count IV). Count II of the complaint was subsequently dismissed with prejudice, and, on August 16 and September 20, 2000, the district court conducted a bench trial with respect to the remaining charges, in the course of which the prosecution adduced the following evidence.
On March 11, 1999, Cummings was driving a jeep on Palani Road in the County of Hawaii when his vehicle crossed the center line and collided head-on with a vehicle driven by Tavita Laasaga. Randall Acquino, a passenger in Laasaga's car, exited the vehicle and approached Cummings's jeep, whereupon Cummings apologized to Acquino. Acquino noticed that Cummings was slurring his speech and smelled "a lot of liquor" on Cummings's breath.
Hawaii County Police Department (HCPD) Officer Robert Sakata arrived at the scene shortly thereafter and noticed that Cummings's eyes were bloodshot and glassy, that his speech was slurred, that he appeared as if he was "in a daze," and that there was a "very strong" "odor of alcoholic beverage on his breath." Hawaii County Firefighter Mark Evans, who also arrived at the scene shortly after the accident, found Cummings to be conscious but uncooperative and likewise noticed "a strong odor of alcohol" on Cummings's breath.
Cummings was subsequently transported to Kona Community Hospital (KCH) where Dr. Beshoner, a physician certified in emergency medicine, treated him
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