                Jeopardy Clause. The State now appeals, arguing that the district court
                erred in concluding that double jeopardy barred the State's prosecution of
                the felony because: (1) double jeopardy does not bar subsequent
                prosecution when the court lacks jurisdiction to hear all the charges; and
                (2) Blenka cannot avoid prosecution for a felony DUI by pleading guilty to
                a misdemeanor DUI.
                The double jeopardy clause does not permit Blenka's continued prosecution
                for a felony DUI after pleading guilty to misdemeanor DUI arising from
                the same set of facts as the felony charge
                            The parties do not dispute that misdemeanor DUI is a lesser
                included offense of felony DUI for double jeopardy purposes. The felony
                DUI offense in question cannot be committed without committing the
                lesser offense of misdemeanor DUI. NRS 484C.110 establishes the
                elements that give rise to a DUI offense. The only difference between
                misdemeanor DUI and felony DUI lies in the criminal penalties and
                punishments under NRS 484C.400 and NRS 484C.410. The only
                additional element for Blenka's felony DUI charge is the presence of a
                prior felony DUI conviction. Blenka argues that the Double Jeopardy
                Clause prohibits continued prosecution of his felony DUI offense. The
                State argues that an exception applies to the Double Jeopardy Clause. We
                disagree with the State and affirm the district court's order.
                            We review constitutional challenges de novo, including double
                jeopardy claims. See Jackson v. State, 128 Nev. , , 291 P.3d 1274,
                1277 (2012); Davidson v. State, 124 Nev. 892, 896, 192 P.3d 1185, 1189
                (2008) ("A claim that a conviction violates the Double Jeopardy Clause
                generally is subject to de novo review on appeal."). The Double Jeopardy
                Clause of the Fifth Amendment guarantees that no person shall be
                "subject for the same offense to be twice put in jeopardy of life or limb."

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U.S. Const. amend. V. This protection applies to the states through the
Fourteenth Amendment of the United States Constitution and Article 1,
Section 8, of the Nevada State Constitution.    See State v. Combs, 116 Nev.
1178, 1179 n.1, 14 P.3d 520, 520-21 n.1 (2000). The Nevada Legislature
codified the Double Jeopardy Clause in NRS 171.070, which states "[w]hen
an act charged as a public offense is within the jurisdiction of another
state or territory, as well as of this state, a conviction or acquittal thereof
in the former is a bar to the prosecution or indictment therefore in this
state." (Emphasis added). "The Double Jeopardy Clause protects against
three abuses: (1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction, and (3)
multiple punishments for the same offense." Jackson, 128 Nev. at , 291
P.3d at 1278. This case involves the third abuse, multiple punishments
for the same offense.
            Nevada follows the test set forth in Blockburger v. United
States, 284 U.S. 299, 304 (1932), to determine whether a defendant may be
subjected to multiple convictions for the same act or transaction.         See
Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (2006). "Under
this test, two offenses are separate if each offense requires proof of a fact
that the other does not."     Id.   "The general test for determining the
existence of a lesser included offense is whether the offense in question
'cannot be committed without committing the lesser offense." McIntosh v.
State, 113 Nev. 224, 226, 932 P.2d 1072, 1073 (1997) (quoting Lisby v.
State, 82 Nev. 183, 184, 414 P.2d 592, 594 (1966)).




                                      3
                      The jurisdictional exception to the double jeopardy clause does not
                      permit the continued prosecution of Blenka
                            The State argues that the jurisdictional exception to the
                Double Jeopardy Clause applies to these facts and does not bar Blenka's
                subsequent prosecution of the felony DUI offense because the municipal
                court lacked jurisdiction over this felony offense. We disagree.
                            The prosecution of a greater offense is prohibited after a
                conviction for a lesser offense.   See Ohio v. Johnson, 467 U.S. 493, 501
                (1984) ("[T]he Double Jeopardy Clause prohibits prosecution of a
                defendant for a greater offense when he has already been tried and
                acquitted or convicted on the lesser included offense."); Illinois v. Vitale,
                447 U.S. 410, 421 (1980) ("[Al conviction on a lesser-included offense bars
                subsequent trial on the greater offense."); Brown v. Ohio, 432 U.S. 161,
                169 (1977) ("Whatever the sequence may be, the Fifth Amendment forbids
                successive prosecution and cumulative punishment for a greater and
                lesser included offense."). Additionally, political subdivisions of a state are
                not separate sovereigns for double jeopardy purposes.       Waller v. Florida,
                397 U.S. 387, 394-95 (1970).
                            The State relies on Diaz v. United States, 223 U.S. 442 (1912),
                to support its argument that a jurisdictional exception applies to these
                facts. We conclude that Diaz is distinguishable from this case. In Diaz,
                the Philippine justice court only had jurisdiction to hear and convict the
                defendant of assault and battery, but had no power to hear a homicide
                charge, which was imposed after the first prosecution when the victim
                died. 223 U.S. at 444. The Court held that the Philippine Civil
                Government Act provisions against double jeopardy did not apply for
                multiple reasons: (1) the offenses were distinct both in law and fact, (2) it
                was only possible to put the accused in jeopardy for homicide once the
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                homicide was committed (after the victim died), and (3) the justice of the
                peace did not have jurisdiction to try the defendant for homicide.      Id. at
                448-49.
                            The municipal court had the full power and authority to
                sentence Blenka on the misdemeanor charge of DUI. Applying the
                Blockb urger test, Blenka was not charged with two distinct offenses.     See
                Estes, 122 Nev. at 1143, 146 P.3d at 1127. Both the LVCA and CCDA
                agree that the facts giving rise to the misdemeanor DUI and felony DUI
                arose from the same incident. The only difference in the charges is that
                CCDA sought a punishment enhancement for felony DUI because Blenka
                had a prior felony DUI conviction on his record. Unlike the homicide
                charge in Diaz, the felony DUI charge was already pending in justice court
                when the LVCA negotiated Blenka's plea in municipal court. Given that
                the municipal court had jurisdiction to hear the only charge alleged
                against Blenka in that court, and Blenka's misdemeanor DUI and felony
                DUI were not separate offenses under the              Blockburger test, the
                jurisdictional exception discussed in Diaz does not apply here.
                            Because the justice court and municipal courts are not
                separate sovereigns for double jeopardy purposes, the justice court and
                municipal court may not both punish Blenka since they derive their
                authority from the State of Nevada.       See Waller, 397 U.S. at 394-95. We
                conclude that because the misdemeanor DUI is a lesser included offense to
                felony DUI, the municipal court's adjudication of the misdemeanor offense
                pursuant to the LVCA negotiated plea precludes the State from continuing
                to pursue felony DUI charges against Blenka.        See State v. Witcher, 737
                So. 2d 584, 586 (Fla. Dist. Ct. App. 1999) (holding that simple DUI is a
                continuing offense for which only one conviction can be maintained for

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                each episode regardless of whether a county court lacked jurisdiction over
                felony DUI when it accepted the defendant's plea to misdemeanor DUI);
                State v. Bernert, 100 P.3d 221, 224 (Utah Ct. App. 2004) (holding that the
                trial court's acceptance of a defendant's plea to the charge of misdemeanor
                DUI and subsequent conviction of the defendant on a felony DUI charge
                arising out of the same conduct violated the prohibition against double
                jeopardy).
                      The State overreached with its continued prosecution of Blenka
                             The State argues that pursuant to Ohio v. Johnson, 467 U.S.
                493, 501-02 (1984), Blenka cannot foreclose his prosecution for a more
                serious crime by pleading guilty to a lesser offense. The State also argues
                that Blenka is the primary cause of his continued prosecution because he
                was the only one aware of both prosecutions and should have informed the
                municipal court of the pending felony DUI. We disagree.
                             First, the Johnson case is distinguishable. Unlike the
                defendant in Johnson, Blenka did not plead guilty over the State's
                objections. See 467 U.S. at 496 (after the defendant was arraigned on four
                charges—one count of each murder, involuntary manslaughter,
                aggravated robbery, and grand theft—the trial court accepted the
                defendant's guilty pleas, over the state's objections, to the two lesser
                charges). Instead, Blenka was incarcerated seven days in jail after police
                arrested him pursuant to a bench warrant for failing to appear at the
                municipal court arraignment. He was held on a $20,000 bail, transported
                from jail to municipal court, and then faced the LVCA's prosecution on the
                misdemeanor charge. Blenka then pleaded, with the cooperation of the
                LVCA, to a reduced charge of misdemeanor DUI. Additionally, unlike
                Johnson, Blenka did not attempt to resolve only part of the charges
                against him in the municipal court.       But see id. at 501-02 (holding the
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                 Johnson defendant could not resolve only part of the charges against him
                 where "efforts were directed to separate disposition of counts in the same
                 indictment where no more than one trial of the offenses charged was ever
                 contemplated"). The record does not indicate that Blenka's two attorneys
                 conversed on this case. Therefore, the State's use of Johnson to support
                 its argument is unavailing.
                             Second, the State improperly attempts to shift the burden to
                 Blenka, who was under no legal obligation to speak up in municipal court.
                 See Rosas v. State, 122 Nev. 1258, 1265-66, 147 P.3d 1101, 1106-07 (2006)
                 (holding that a defendant is not required to present a defense, or evidence
                 consistent with such defense, or to admit culpability for a lesser included
                 offense in order to obtain an instruction on a lesser included offense). The
                 Sixth Amendment requires the government to inform Blenka of the nature
                 and cause of the accusation against him, not the other way around.         See
                 U.S. Const. amend IV (indicating that the defendant must "be informed of
                 the nature and cause of the accusation"). The LVCA and CCDA were the
                 ones with the resources and power in this situation, including the position
                 to know of Blenka's concurrent charges.     See Green v. United States, 355
                 U.S. 184, 187 (1957) ("The underlying idea. . . is that the State with all its
                 resources and power should not be allowed - to make repeated attempts to
                 convict an individual for an alleged offense, thereby subjecting him to
                 embarrassment, expense and ordeal and compelling him to live in a
                 continuing state of anxiety and insecurity. ."). We conclude that it
                 would be an unreasonable burden to expect Blenka (a layman) to know
                 that his cases needed to be consolidated, even though attorneys from two
                 governmental entities were proceeding with a course of action that
                 violated the Double Jeopardy Clause. The record does not indicate that

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  EZEIMEINEEMI
                the attorney representing Blenka in municipal court knew of his pending
                felony case in justice court. Therefore, Blenka was under no obligation to
                inform the municipal court of his pending felony DUI charge.
                             We conclude that Blenka did not frustrate the State's efforts to
                hold a single trial for the two DUI charges because the actions of the
                LVCA and CCDA, not those of Blenka, led to his dual prosecutions. The
                record indicates that the LVCA has access to the CCDA's case
                management system. As indicated by the declaration of Assistant City
                Attorney Bernard Little, the LVCA's choice to prosecute the misdemeanor
                DUI was a tactical decision made without awareness that the CCDA had
                approved a felony DUI charge. Because Blenka was already convicted of
                misdemeanor DUI, the Double Jeopardy Clause bars the State from
                further prosecuting him for felony DUI. 1
                             Accordingly, we ORDER the judgment of the district court
                AFFIRMED.




                                                    Saitta



                      1 We have considered the State's remaining arguments and conclude
                they are without merit.

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                cc:   Hon. Abbi Silver, District Judge
                      Clark County District Attorney
                      Attorney General/Carson City
                      Clark County Public Defender
                      Eighth District Court Clerk




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