To Reiterate: You Gotta Include Mens Rea in the DUI Charge

By Benjamin Lowenthal -
State v. Maharaj (HSC November 18, 2013)
Background. Peter Maharaj was charged with a single count of operating a vehicle while under the influence of an intoxicant, better known as driving under the influence. Specifically, the charge was in violation of HRS § 291E-61(a)(1), which requires proof that Maharaj was operating a vehicle while under the influence of “alcohol in an amount sufficient to impair the person’s normal mental faculties or ability to care for the person and guard against casualty[.]” Maharaj was orally charged in the district court. The charge did not include a state of mind. He was ultimately convicted at trial and then appealed to the ICA. The ICA affirmed after it noted that a transcript for the motion to suppress was never included in the record.

Then, the HSC issued its decision in State v. Nesmith, 127 Hawaii 48, 276 P.3d 617 (2012). Maharaj filed a motion for reconsideration on the grounds that the oral charge was defective ala Nesmith. Maharaj argued that the defective charge was a jurisdictional problem that was “not waivable.” The ICA denied the motion and noted that it was simply unclear if this was a jurisdictional issue. Maharaj petitioned for certiorari.

Challenging the Sufficiency of a Charging Instrument. When the defendant challenges the sufficiency of the charge for the first time on appeal, the defendant must “show prejudice or that the indictment cannot within reason be construed to charge a crime.” State v. Motta, 66 Haw. 89, 91, 657 P.2d 1019, 1020 (1983). Here, the oral charge did not allege a state of mind and it cannot be construed to be a crime. State v. Elliot, 77 Hawaii, 309, 313, 884 P.2d 372, 376 (1994). The analysis was largely based on the precedent in State v. Nesmith, supra, and State v. Apollonio. Accordingly, the case must be dismissed without prejudice. Moreover, the failure to include this “essential fact” renders the charge deficient pursuant to Hawaii Rules of Penal Procedure Rule 7(d).

Chief Justice Recktenwald’s Dissent. The CJ dissented for the exact same reasons he dissented in Apollonio. Justice Nakayama joined (presumably for the exact same reasons she joined in Apollonio.).

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