Can I Be Prosecuted Twice for a Single OUI in Massachusetts?

The Massachusetts Supreme Judicial Court today ruled a defendant who has been found not guilty of operating under the influence of alcohol under one theory of liability can be prosecuted again for the same incident under a different theory of liability.  The name of the case is Commonwealth v. Hebb.

The defendant was riding his motorcycle on a public road in May of 2013 when he was hit by a car.  The defendant was uncooperative with the paramedics but admitted to having consumed several drinks before the accident.  He was transported to the hospital for treatment of his injuries.  A doctor testified at trial that the defendant appeared flushed and he was speaking with slurred speech.  After smelling alcohol on the defendant’s breath, the doctor concluded he was intoxicated.  The defendant’s blood was drawn and sent to the state crime lab for testing, which returned a result of a .13 blood alcohol content (BAC).  The defendant was charged with OUI.  However, at trial, the Commonwealth’s blood expert acknowledged that the tubes containing the defendant’s blood also contained an anticoagulant that sometimes causes test results to be artificially high.

The defendant was prosecuted under two theories of liability.  The first theory (known as the impairment theory) alleged that the defendant had consumed enough alcohol prior to getting on his motorcycle that his ability to safely drive had been impaired.  The second theory (known as the per se theory) alleged that the defendant had been driving when his blood alcohol content was .08 percent or higher.  In these types of cases, the prosecutor urges the jury to convict the defendant on both theories, but a conviction results if the jury finds the defendant guilty under either theory.  At the end of the trial, the jurors are provided with a verdict slip that lists the two theories of liability with options of “guilty” or “not guilty” on each theory.  In this case, the jury found the defendant not guilty under the impairment theory.  However, the jurors could not make a decision with respect to the per se theory, and the trial judge declared a mistrial.  Because the defendant had been acquitted of being impaired, double jeopardy principles prohibit the prosecutor from retrying him on that theory.  The question for the Supreme Judicial Court was whether the Commonwealth can still prosecute the defendant under the per se theory (where the jury hung on that theory at the first trial).

The Court pointed out that the OUI statute was amended in 2003 to allow a driver to be convicted solely upon proof that his BAC was a .08 or higher (before the amendment, a defendant’s blood alcohol content could be considered evidence of impairment but could not, by itself, be the basis of criminal liability).  In this case, the Commonwealth pursued both theories of liability and the verdict slip allowed the jury to consider both alternatives.  While the jury concluded the Commonwealth had not proven the defendant was impaired by alcohol, it was unable to decide if the Commonwealth had proven the defendant’s blood alcohol content was illegally high.  Accordingly, the per se theory of liability still has not been decided, and it’s proper, said the SJC, to allow a new jury to consider only that theory.

While the Court’s legal reasoning in this case is correct, it does seem fundamentally unfair that a defendant who was acquitted of operating under the influence of alcohol will be required to return to court for another trial related to the same incident.  OUI cases can sometimes present complex legal issues that need to be addressed by experienced defense counsel.  If you have been charged with OUI, contact an attorney today.