OUI Retrial on per Se Violation of Statute Not Precluded by Double Jeopardy Despite Jury Acquittal on Impaired Ability Theory

The Supreme Judicial Court of Massachusetts (SJC) issued a decision today, June 30, 2017, in Commonwealth v. Herb holding that the Commonwealth can move forward with a retrial of a defendant for OUI by prosecuting under the per se theory of the statute even though the defendant had been acquitted of the impaired ability theory.

G.L. c. 90 §24, the OUI statute, allows the Commonwealth to prosecute defendants for OUI in two different ways; (1) under a per se theory by showing that a defendant operated a motor vehicle with a blood alcohol content of .08% or greater, or (2) under an impaired ability theory by showing that a defendant operated a motor vehicle while under the influence of intoxicating liquor. To prove a per se violation, the Commonwealth does not need to establish that the defendant was under the influence of intoxicating liquor. Likewise, to prove an impaired ability violation, the Commonwealth does not need to establish that the defendant's blood alcohol content was .08% or greater.

In Commonwealth v. Herb, a defendant was prosecuted at trial under both the per se theory and the impaired ability theory. The jury reached a verdict on the impaired ability theory and found the defendant not guilty. However, because the jury observed information that was meant to be redacted, specifically information indicating that the defendant was charged with a 4th offense OUI, they did not return a verdict on the per se theory as the jury found that this information swayed their decision. The judge accepted the verdict on the impaired ability theory and declared a mistrial on the per se theory. The Commonwealth chose to continue to prosecute the defendant under the per se theory, and issued a new complaint. The defendant filed a motion to dismiss.

In examining whether this prosecution was in violation of the double jeopardy clause, the SJC reaffirmed that double jeopardy only applies “if there had been some event, such as an acquittal, which terminates the original jeopardy.” “[W]here a verdict does not specifically resolve all the elements of the offense charged, it is defective and cannot operate as either an acquittal or a conviction, and thus does not trigger double jeopardy protections.” Because the impaired ability theory did not resolve a factual element necessary to establish a per se violation -- that the defendant operated a motor vehicle with a blood alcohol content of .08% or greater -- double jeopardy protections were not triggered in this case.

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