Commonwealth v. Hebb (Lawyers Weekly No. 10-116-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12158 COMMONWEALTH vs. WILLIAM J. HEBB. Suffolk. February 7, 2017. – June 30, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Motor Vehicle, Operating under the influence. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy, Verdict. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 19, 2016. The case was reported by Spina, J. Christopher DeMayo for the defendant. Donna-Marie Haran, Assistant District Attorney, for the Commonwealth. Timothy St. Lawrence, pro se, amicus curiae, submitted a brief. HINES, J. In this case, we decide whether double jeopardy principles preclude the Commonwealth from retrying the defendant on a complaint charging a violation of G. L. c. 90, § 24 (1) (a) (1), on the theory of operation of a motor vehicle with a percentage of alcohol in his blood of .08 or greater (per se violation), after a jury acquitted him on the theory of operation of a motor vehicle while under the influence of intoxicating liquor (impaired ability violation). The Commonwealth prosecuted the one-count complaint on both theories, and after the jury returned a verdict on the impaired ability violation only, the judge declared a mistrial on the per se violation. A new complaint issued charging only a per se violation of G. L. c. 90, § 24 (1) (a) (1). Claiming that retrial violated his double jeopardy rights where the complaint issued after an acquittal on the impaired ability violation, the defendant filed a motion to dismiss the complaint. The judge denied the motion. The defendant sought relief in the county court pursuant to G. L. c. 211, § 3. The case is before us on a reservation and report from a single justice of this court. We conclude that double jeopardy principles do not preclude retrial where the Commonwealth prosecuted the case on both theories and the jury reached a verdict on only one of those theories. Background. We set forth the facts the jury could have found. On May 16, 2013, the defendant was struck by a vehicle while he was operating his motorcycle on a public way.[1] At the scene of the collision, the defendant admitted to having had several alcoholic beverages and was uncooperative with the paramedics. After the defendant complained of pain, he was transported to the Milford Hospital emergency department. The treating physician […]