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State v. Zerk4/18/2005
NOT FOR PUBLICATION
SUMMARY DISPOSITION ORDER
By its January 14, 2004 notice, Plaintiff-Appellant State of Hawaii (the prosecution) appeals from the December 18, 2003 "Findings of Fact, Conclusions of Law, and Order Granting Defendant's Motion to Dismiss" of the district court of the first circuit (the court) dismissing, without prejudice, Count II of the September 12, 2002 indictment charging Defendant-Appellee Fred Douglas Zerk (Defendant) with Count I, habitually driving under the influence of intoxicating liquor or drugs (habitual DUI), Hawaii Revised Statutes (HRS) §§ 291-4.4(a)(1) (Supp. 2000); Count II, driving after license suspended or revoked for driving under the influence of intoxicating liquor (suspended license for DUI), (HRS) § 291-4.5 (Supp. 2000); and Count III, driving without no-fault insurance, HRS § 431:10C-104 (no no-fault). On appeal the prosecution argues, inter alia, that "the trial court abused its discretion when it dismissed the indictment as the [prosecution] properly charged Defendant under the statute that was in effect at the time Defendant committed the offense" and "assuming arguendo, that the indictment incorrectly cited to HRS § 291-4.5, the dismissal of the indictment was improper as such alleged error was a 'formal defect' that did not mislead Defendant to his prejudice." State v. Young, No. 25610, slip op. at 3-4 (Mar. 30, 2005), held that HRS § 291-4.5 (2003 & Supp. 2000) was substantially re-enacted in HRS § 291E-62 (Supp. 2004) and is dispositive of Count II. Therefore,
In accordance with Hawaii Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs submitted by the parties, and duly considering and analyzing the law relevant to the arguments and issues raised by the parties,
IT IS HEREBY ORDERED that the court's order with respect to Count II is vacated, along with Count III, and the case remanded to the court in accordance with the order.
OPINION BY ACOBA, J., DISSENTING IN PART AND CONCURRING IN PART, WITH WHOM NAKAYAMA, J., JOINS
For the reasons stated in the dissenting opinion in Young, I respectfully disagree with the summary disposition order except with respect to Count III.
Page 1 Hawaii DUI Attorneys
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