The double jeopardy clause prohibits the government from prosecuting a citizen twice or from imposing multiple sentences for the same offense. Recently, an appellate panel analyzed the application of the double jeopardy clause in the context of a drunk driving/DWI prosecution.

In that case, the defendant drove a motor vehicle across a roller hockey rink and two baseball fields and in the process, struck a barrier, a tree and some trash cans; he narrowly missed a group of children playing on the field. His blood-alcohol concentration at the time of his arrest was .237 which is nearly 3 times the limit authorized by New Jersey’s drunk driving/DWI law.  Ultimately, the defendant was charged with drunk driving/DWI, reckless driving, failure to wear a seatbelt and operating a motor vehicle in an area of recreation. He was also charged with operating a motor vehicle recklessly and creating widespread risk of injury or damage while intoxicated which is a criminal offense under New Jersey’s Criminal Code.

Later, the defendant pled guilty to the criminal offense and in his factual basis to support his plea arrangement he testified about his level of intoxication. Once the indictable offense was resolved, the Municipal Court require the defendant to answer the motor vehicle accusations. There, defendant’s counsel requested the municipal court judge to dismiss the drunk driving/DWI conviction because of double jeopardy principles. That request was denied.  Defendant ultimately pled to the DWI offense, reserving his a right to appeal the double jeopardy ruling. On de novo appeal to the Law Division, Judge Connors of Cape May County granted defendant’s request to dismiss the drunk driving/DWI charge on the basis of double jeopardy, concluding that the “same evidence” test established by the Supreme Court in the case titled State v. DeLucia left him with no other alternatives.

The case was taken to the Appellate Division. There the prosecutor argued that it could have used other evidence to prove the creation of the widespread risk charge and therefore double jeopardy should not apply. The Appellate Division rejected that argument concluding that what could have occurred is not would did occur and, since defendant’s intoxication was an element of the widespread risk charge, double jeopardy obtained. The government also sought to convince the court that the double jeopardy clause should not apply where the conviction is based on a guilty plea, as opposed, to a jury verdict. The Appellate Division dismissed that argument out-of-hand.