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[T] State v. Bucar1/21/2004
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
Plaintiff-appellant State of Hawaii [hereinafter, "the prosecution"] appeals from the October 13, 1999 order of the circuit court of the first circuit, the Honorable Sandra A. Simms presiding, granting Adi Adolf Bucar's motion to dismiss and dismissing the indictment. On September 2, 1998, Bucar was indicted on: (1) one count of habitually driving under the influence of intoxicating liquor or drugs (Habitual DUI), in violation of HRS §§ 291-4.4(a)(1) and/or 291-4.4(a)(2) (Supp. 1996) (repealed on January 1, 2000 and replaced by HRS § 291E-61.5 (Supp.2003)) (Count I); (2) one count of unsafe lane change while driving on roadways laned for traffic, in violation of HRS § 291C-49 (1993) (Count II); and (3) and one count of driving while license suspended, revoked or restricted for driving under the influence of intoxicating liquor (DUI), in violation of HRS § 291-4.5 (1993) (Count III). On October 13, 1999, the circuit court granted Bucar's motion to dismiss and dismissed the indictment, namely Counts I, II, and III.
On appeal, the prosecution argues that "the lower court erroneously concluded that the state failed to prove that defendant had 3 prior DUI convictions because [the prior convictions] were vacated between the time of the offense and defendant's indictment." The prosecution further argues that, even if the circuit court properly concluded that the prosecution was required to establish that Bucar's prior DUI convictions were outstanding at the time of the indictment, the circuit court erred by dismissing the entire indictment.
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold that the circuit court did not err in concluding that the prosecution failed to meet its burden of establishing the elements of Habitual DUI. See State v. Veikoso, 102 Hawaii 219, 223, 74 P.3d 575, 579 (2003); State v. Shimabukuro, 100 Hawaii 324, 327-28, 60 P.3d 274, 277-78 (2002). However, we further hold that the circuit court erred in dismissing the indictment, inasmuch as the proceedings should have continued on Count II, Count III, and the lesser included offense of DUI in Count I. See Shimabukuro, 100 Hawaii at 329, 60 P.3d at 279. Therefore,
IT IS HEREBY ORDERED that the judgment from which the appeal is taken is vacated and this case is remanded for further proceedings.
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