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State v. Bucar1/21/2004
nse has been revoked, suspended, or otherwise restricted pursuant to part XIV of chapter 286 or section 291-4 shall operate a motor vehicle either upon the highways of this State while the person's license remains suspended or revoked or in violation of the restrictions placed on the person's license....
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 Hawai'i 219, 223, 74 P.3d 575, 579 (2003); State v. Shimabukuro, 100 Hawai'i 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 Hawai'i 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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