On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Michels, P.J.A.D.
Plaintiff State of New Jersey (State) appeals from a judgment of the Law Division that dismissed a Dover Township Municipal Court complaint charging defendant Linda DeLuca (defendant) with operating a motor vehicle while under the influence of alcohol, a violation of N.J.S.A. 39:4-50. Judge Giovine, in the Law Division, held that requiring defendant to face trial on the driving while under the influence of intoxicating liquor charge (N.J.S.A. 39:4-50) would constitute double jeopardy, in light of her prior acquittal on a death by auto charge (N.J.S.A. 2C:11-5), which arose from the same incident. We agree and affirm.
As a result of a fatal motor vehicle accident involving a pedestrian which occurred on January 29, 1984, defendant was issued two summonses by the Dover Township Police Department. One summons charged defendant with operating a motor vehicle while under the influence of alcohol, in violation of N.J.S.A. 39:4-50. The other charged her with reckless driving, in violation of N.J.S.A. 39:4-96. In addition, subsequently, on April 4, 1984, the Ocean County Grand Jury indicted defendant and charged her with death by auto, in violation of N.J.S.A. 2C:11-5. Defendant was first tried on the death by auto charge in the Law Division, where she was acquitted by a jury.
Following this acquittal, prosecution was commenced in the Dover Township Municipal Court, where the driving while intoxicated and reckless driving charges had been stayed pending the outcome of the trial on the indictable offense. Defendant moved before the municipal court to dismiss both charges, alleging that prosecution under N.J.S.A. 39:4-50 (driving while intoxicated) and N.J.S.A. 39:4-96 (reckless driving) would be violative of the double jeopardy clauses of both the Federal and State Constitutions. Although the State conceded that double jeopardy barred prosecution of the reckless driving charge, it argued that it did not bar prosecution of the driving while intoxicated charge. The municipal court agreed and granted
defendant's motion to dismiss the reckless driving charge. However, it denied her motion to dismiss the driving while intoxicated charge, concluding that there was no double jeopardy violation since operating a motor vehicle while under the influence of alcohol did not constitute a lesser included offense of death by auto.
Pursuant to leave granted by the Law Division, defendant thereafter appealed the municipal court determination on the ground of double jeopardy. After hearing oral arguments, but before reaching his decision on the double jeopardy issue, the Law Division judge spoke with the assistant prosecutor who had presented the prior death by auto case to the jury. The assistant prosecutor confirmed, as defendant had asserted, that the proofs in the death by auto case went to the element of recklessness and were limited solely to matters dealing with defendant's intoxication. The Law Division judge thereupon granted defendant's motion and dismissed the driving while intoxicated charge, finding that prosecution of the charge would constitute double jeopardy, in light of defendant's acquittal for death by auto. The State appealed.
On appeal the State contends that the Law Division judge erred in dismissing the driving while intoxicated charge since the prosecution of that offense was not barred by principles of double jeopardy. The constitutional principles, upon which the State relies, are found within the Double Jeopardy Clause of the Fifth Amendment to the Federal Constitution which provides that no person shall "be subject, for the same offense, to be twice put in jeopardy of life and limb. . . ." U.S. Const., Amend. V. The Constitution of this State contains a narrower double jeopardy proscription which provides that "[n]o person shall, after acquittal, be tried for the same offense." N.J. Const. (1947), Art. I, par. 11. These constitutional provisions have been construed to be coextensive in application. State v. Dively, 92 N.J. 573, 578 (1983); State v. Barnes, 84 N.J. 362, 370 (1980); State v. Rechtschaffer, 70 N.J. 395, 404 (1976). Such a construction is compelled, at least in part, because the
Fifth Amendment proscription of double jeopardy has been held enforceable against the states by virtue of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969).
In considering the scope of the Double Jeopardy Clause, the United States Supreme Court has set forth three separate constitutional protections found to be embodied within:
[The clause] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 656, 664-665 (1969) (Emphasis supplied and footnotes omitted)].
It is, of course, the first protection listed above which is most relevant to the issue raised by the State on this appeal. However, whatever the sequence of the various prosecutions may be, the Fifth Amendment forbids successive prosecution where principles of double jeopardy are applicable. See Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 2227, 53 L. Ed. 2d 187, 196 (1977).
The Double Jeopardy Clause ensures that "the State shall not be permitted to make repeated attempts to convict the accused, 'thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . . .'" State v. Barnes, supra, 84 N.J. at 370 (citing Green v. United States, 355 U.S. 184, 187-188, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199, 204 (1957)). Accordingly, it is clear that "[a] State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense." Green v. United States, supra, 355 U.S. at 187, 78 S. Ct. at 223, 2 L. Ed. 2d at 204.
Although there can be no doubt of the value of such a constitutional safeguard against multiple prosecutions, courts have long wrestled with the difficulty of determining when they are confronted with "the same offense", as contemplated by the Double Jeopardy Clause.
The significance of the term "same offense" is not limited to the same offense as an entity and designated as such by legal name, but it comprehends any integral part of such offense which may subject the offender to indictment and punishment. (citation omitted). Where a lesser offense is a necessary ingredient or component part of the principal or greater offense and grows out of the same transaction, conviction or acquittal of the lesser bars further prosecution for the greater crime. [State v. Williams, 30 N.J. 105, 114 (1959) (Emphasis supplied)].
In State v. Currie, 41 N.J. 531, 537-539 (1964), the New Jersey Supreme Court set forth the "same transaction", "same evidence" and "included offense" tests, along with supporting case law, in an effort to show the futility of adopting a single legal test to be applied in double jeopardy analysis. See also State v. Davis, 68 N.J. 69, 81 (1975) (while a distinct standard for determining the existence of same offenses would be desirable, court recognized probable futility of this goal). Cf. State v. Gregory, 66 N.J. 510, 517 (1975) (narrow and mechanical application of traditional ...