Alleged DWI could provide test for double jeopardy issue

Cape Girardeau, MO

A local driving-while-intoxicated case could test the waters for an area of law not yet ruled upon in Missouri, Cape Girardeau County Prosecuting Attorney Morley Swingle said.

James Anthony Garrett was arrested June 14 and charged with driving while intoxicated, excessive blood alcohol content, failure to stop at a stop sign, driving while drinking an alcoholic beverage, operating a car knowing the owner had not maintained financial responsibility and displaying plates of another person.

Because Garrett faces charges of both DWI and excessive blood alcohol content, Swingle said it could prove to be a test case for Missouri because a difference of opinion exists as to whether double jeopardy, the legal defense and constitutional right preventing someone from being tried twice for the same crime on the same set of facts, would apply to someone charged with both offenses.

Missouri appellate courts have never ruled on the issue.

Several states have rulings showing that excessive BAC establishes a separate offense from DWI and a defendant may be convicted of both crimes without violating the rule of double jeopardy. An Indiana appeals court ruled in 1986, however, that convicting someone of both DWI and excessive BAC cannot be done without violating double jeopardy.

Swingle said he believes the offenses contain different elements, one referring to simply proof of driving with a BAC higher than 0.08 and the other concerning operating a car while legally intoxicated.

"I'm curious to see what happens," said James Chenault III, senior counsel for the Missouri Department of Revenue, which is responsible for issuing driver's licenses.

Proving a DWI doesn't necessary involve proving a certain BAC, Chenault said, and cases are often made without that element.

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