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State v. Bucar1/21/2004
Plaintiff-appellant State of Hawai'i [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liquor or drugs (Habitual DUI), in violation of HRS §§ 291- 4.4(a)(1) and/or 291-4.4(a)(2) (Supp.1996) [FN1] (repealed on January 1, 2000 and replaced by HRS § 291E-61.5 (Supp.2003)) (Count I); (2) one count of unsafe lane change while driving on roadways laned for traffic, in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) [FN2] (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) [FN3] (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.
FN1. HRS § 291-4.4 provides:
(a) A person commits the offense of habitually driving under the influence of intoxicating liquor or drugs if, during a ten-year period the person has been convicted three or more times for a driving under the influence offense; and
(1) The person operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor, meaning that the person is under the influence of intoxicating liquor in an amount sufficient to impair the person's normal mental faculties or ability to care for oneself and guard against casualty;
(2) The person operates or assumes actual physical control of the operation of any vehicle with .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood or .08 or more grams of alcohol per two hundred ten liters of breath; or
(3) A person operates or assumes actual physical control of the operation of any vehicle while under the influence of any drug which impairs such person's ability to operate the vehicle in a careful and prudent manner.
The term "drug" as used in this section shall mean any controlled substance as defined and enumerated on schedules I through IV of chapter 329.
(b) For the purposes of this section a driving under the influence offense means a violation of section 291-4, 291-7, or 707-702.5, or violation of laws in another jurisdiction which requires proof of each element of the offenses punishable under either section 291-4, 291-7, or 707-702.5 if committed in Hawaii.
(c) Habitually driving under the influence of intoxicating liquor or drugs is a class C felony.
FN2. HRS § 291C-49 provides in relevant part:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that such a movement can be made with safety.
(2) Upon a roadway which is divided into three lanes and provides for two-way movement of traffic, a vehicle shall not be driven in the center lane except when overtaking and passing another vehicle traveling in the same direction when the center lane is clear of traffic within a safe distance,
or in preparation for making a left turn or where the center lane is at the time allocated exclusively to traffic moving in the same direction that the vehicle is proceeding and such allocation is designed by official traffic control devices.
FN3. HRS § 291-4.5 provides in relevant part:
(a) No person whose driver's lice
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