*** NOT FOR PUBLICATION ***
 

NO. 22937
 

IN THE SUPREME COURT OF THE STATE OF HAWAI`I


STATE OF HAWAI`I, Plaintiff-Appellant


vs.

ADI ADOLF BUCAR, also known as Adi A. Bucar,
Defendant-Appellee

APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 98-1915)
 

SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)

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liquor or drugs (Habitual DUI), in violation of HRS §§ 291-4.4(a)(1) and/or 291-4.4(a)(2) (Supp. 1996) (1)  (repealed on January 1, 2000 and replaced by HRS § 291E-61.5 (Supp.2003)) (Count I); (2) one count of unsafe lane change while driving on roadways laned for traffic, in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) (2) (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) (3) (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 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.

DATED: Honolulu, Hawai`i, January 21, 2004.
 

On the briefs:
 

Caroline M. Mee,
Deputy Prosecuting Attorney,
for the plaintiff-appellant

Theodore Y.H. Chinn,
Deputy Public Defender,
for the defendant-appellee
Adi Adolf Bucar
 
 

1.     HRS § 291-4.4 provides:

(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.
2.     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.

3.     HRS § 291-4.5 provides in relevant part: