MEMORANDUM OPINION (By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

Respondent/Defendant-Appellant Jeffrey Bortel (Defendant) seeks review of the March 19, 2012 Notice of Entry of Judgment and/or Order and Plea/Judgment of the district court of the first circuit (the court)1 that adjudged Defendant guilty of Excessive Speeding, Hawai#i Revised Statutes (HRS) § 291C- 105(a)(1) (2007 & Supp. 2008).2 Petitioner/Plaintiff-Appellee also ask for dismissal on that. [THE STATE]: Um, all -- all definitions in this section fall under [HRS §] 291C-1 unless otherwise specified. The court summarily denied the motion.

At the conclusion of the bench trial, the court found Defendant guilty as charged.

In his opening brief, Defendant raised three points of error: 1. The district court erred in denying [Defendant’s] motion to dismiss because the oral charge failed to allege the requisite mens rea.

2. The district court violated [Defendant’s] constitutional right to testify when it failed to properly advise him of his right pursuant to Tachibana v. State[, 79 Hawai#i 226, 900 P.2d 1293 (1995)] and ensure whether [Defendant’s] waiver of such right was voluntary and knowing.

3. The [court] erred because the State did not establish sufficient foundation for the accuracy of the speed reading and that Officer Maeshiro was qualified to operate the Ultralyte laser.

The State answered each point of error:

for transfer in State v. Gonzalez, No. SCAP-11-0000500, 128 Hawai#i 314, 288 P.3d 788, 2012 WL 5970946 (Nov. 28, 2012), which presented identical issues with respect to the sufficiency of a charge of excessive speeding. A published opinion in Gonzalez was filed on November 28, 2012.

III.

Logically, the discretionary issue pertaining to strict liability must be answered first. The State raises nearly identical arguments to those it raised in Gonzalez regarding strict liability. In Gonzalez, we held that “neither the plain language of the statute nor the legislative history supported the State’s contention that HRS § 291C-105(a) is a strict liability offense.” 2012 WL 5970946 at *9 (citing State v. Buch, 83 Hawai#i 308, 316, 926 P.2d 599, 607 (1996)). Therefore, “HRS § 702-204 applies to HRS § 291C-105(a),” and “the State must prove that a defendant acted intentionally, knowingly, or recklessly,” in a charge of excessive speeding. Id. (citing Buch, 83 Hawai#i at 316, 926 P.2d at 607). HRS § 291C-105(a) then is not a strict liability offense, but instead requires that the State prove that a defendant acted intentionally, knowingly, or recklessly. Id.

IV. The mandatory transfer issue in the instant case was also raised in Gonzalez. In Gonzalez, “after the charge was read, Defendant orally moved to dismiss the charge, arguing that the oral charge ‘fail[ed] to state the requisite state of mind’ under HRS § 702-204.” Id. at *1.7 The State “responded by arguing that a defendant’s state of mind is not an element of an offense, and, as such, need not be alleged in an oral charge.” Id. The district court “denied Defendant’s motion, ruling that when a statute does not expressly set forth the culpable state of mind, but rather imports the mens rea element from [HRS § 702- 212], that ‘obviates the need of the [S]tate to articulate a state of mind.’” Id. In Gonzalez, the State agreed that, if HRS § 291C-105(a) contains a mens rea requirement, then the oral charge in that case was insufficient under State v. Nesmith, 127 Hawai#i 48, 276 P.3d 617 (2012). Gonzalez, 2012 WL 5970946 at *9.

This court held in Gonzalez that, “as in Nesmith, the defendant objected to the failure to allege the requisite state of mind at trial.” Id. at *9 (citing Nesmith, 127 Hawai#i at 51, 276 P.3d at 620.). Gonzalez stated that in Nesmith, “this court reasoned that ‘state of mind requirements, though not an element of an offense” were required to be included in the charges against the defendant in order ‘to alert the defendants of precisely what they needed to defend against to avoid a conviction.’” Id. (quoting Nesmith, 127 Hawai#i at 56, 276 P.3d at 625.)). According to Gonzalez, Nesmith “held that the state of mind must be included in a charge or the case must be dismissed without prejudice.” Id. (citing Nesmith, 127 Hawai#i at 54, 276 P.3d at 623)). Because the charge in Gonzalez did not refer to the requisite states of mind, Nesmith “mandate[d] dismissal without prejudice.” Id. Likewise, the absence of an allegation of the requisite states of mind in the instant case requires dismissal of the excessive speeding charge without prejudice.

V. Based on the foregoing, we vacate Defendant’s conviction and remand this case to the court with instructions to dismiss the charge without prejudice, because HRS § 291C-105(a) is not a strict liability offense and the oral charge herein failed to allege the requisite states of mind.

DATED: Honolulu, Hawai#i, February 25, 2013. Brandon H. Ito, /s/ Mark E. Recktenwald for petitioner /s/ Paula A. Nakayama Evan S. Tokunaga, for respondent, /s/ Simeon R. Acoba, Jr. on the briefs /s/ Sabrina S. McKenna

/s/ Richard W. Pollack