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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
                                                                    2


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

     1
       The parties stipulated that the defendant was operating
his motorcycle on a public way.
                                                                   3


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 observed that the defendant's skin

appeared "flushed" and that his speech was slurred, and detected

"an odor of alcohol on [his] breath."   Based on these

observations, the physician determined that the defendant was

"intoxicated[,] probably with alcohol."   With the defendant's

consent, medical personnel drew blood samples for alcohol levels

to be determined.   Subsequent testing of the blood samples by a

blood analyst in the State police crime laboratory showed a

blood alcohol level of .133.   On cross-examination, the blood

analyst acknowledged that the tubes holding the defendant's

blood samples also contained an anticoagulant to prevent blood

clotting and that if the anticoagulant is not properly

activated, the blood sample could clot, and yield an

artificially high blood alcohol test result.

    During closing arguments, defense counsel urged a finding

that the defendant had not been impaired while operating his

motorcycle, and that the blood alcohol test results were

unreliable because the Commonwealth failed to present evidence

that the anticoagulant was properly activated prior to testing.

The prosecutor argued that (1) the defendant's behavior and

appearance at the scene of the collision and at the hospital
                                                                         4


proved the impaired ability violation; and (2) the defendant's

blood alcohol level of .133 proved the per se violation.

    The verdict slip conformed to the complaint, charging both

the impaired ability violation and the per se violation, and

provided the jury the following options:      (I) "Operating a Motor

Vehicle Under the Influence of Liquor:      1.   Not Guilty; 2.

Guilty"; and (II) "Operating a Motor Vehicle with a Blood

Alcohol Level of .08% or greater:   1.     Not Guilty; 2.   Guilty."

During the deliberations, the jury reported in writing the

following:   "Made decision on first count; however, saw evidence

that was supposed to be redacted, swaying our decision [on the

second count].   What is our next step?"     In response, the judge

summoned the jury to the court room and conducted a voir dire.

During the colloquy, the judge learned that although the

information indicating that the defendant was being prosecuted

for a fourth offense had been redacted from the exhibits, the

jury were able to discern the word "fourth" next to OUI.          This

information swayed the jury's decision as to option II, the per

se violation, but not as to option I, on which the jury returned

a not guilty verdict.   The jury left the verdict slip blank for

option II, marking neither "not guilty" nor "guilty."

Accordingly, the judge accepted the verdict on option I and

declared a mistrial on option II.

    In December, 2015, a second criminal complaint issued
                                                                    5


against the defendant, charging one count of operating with a

blood alcohol level percentage of .08 or greater, fourth

violation, under G. L. c. 90, § 24 (1) (a) (1).    The defendant

filed a motion to dismiss, arguing that retrial violated his

double jeopardy rights.    A second judge denied the motion, and

the defendant filed a petition pursuant to G. L. c. 211, § 3,

seeking review of that judge's order.    A single justice of this

court reserved and reported the case to the full court on August

12, 2016.

    Discussion.     Generally, "[t]he denial of a motion to

dismiss in a criminal case is not appealable until after trial,

and we have indicated many times that G. L. c. 211, § 3, may not

be used to circumvent that rule."    Jackson v. Commonwealth, 437

Mass. 1008, 1009 (2002).    However, we have recognized a limited

exception "where a defendant's motion to dismiss raises a double

jeopardy claim of substantial merit."    Azubuko v. Commonwealth,

464 Mass. 1002, 1003 (2012).    Because the double jeopardy issue

raises a question of law, our review of the judge's decision is

de novo.    See Commonwealth v. Rodriguez, 476 Mass. 367, 369

(2017); Commonwealth v. Carlino, 449 Mass. 71, 72 n.7 (2007).

    In its broadest sweep, "[t]he double jeopardy principle

'protects against three specific evils -- "a second prosecution

for the same offense after acquittal; a second prosecution for

the same offense after conviction; and multiple punishments for
                                                                       6


the same offense"'" (citation omitted).       Commonwealth v. Brown,

470 Mass. 595, 603 (2015).     The "evil" to be prevented by the

double jeopardy principle in the circumstances presented by this

case is a second prosecution after an acquittal.      Thus, the

issue to be decided here is whether an acquittal of only one of

the charged violations is, in effect, an acquittal of both

violations.     We conclude that it is not.

    First, the statute as written provides that a defendant may

be convicted on one or both violations.       In 2003, the

Legislature amended G. L. c. 90, § 24 (OUI statute), "to

strengthen the protections afforded the public from drivers who

might be impaired by the consumption of alcohol."       Commonwealth

v. Colturi, 448 Mass. 809, 813 (2007).    With this amendment,

"the Legislature added language to the OUI statute, making it a

violation to operate a motor vehicle not only under the

influence of intoxicating liquor [(impaired ability violation)],

but also with a blood alcohol level of .08 or more [(per se

violation)]."    Id. at 811.   Thus, the statutory framework

created by the 2003 amendment established alternative theories

under which a violation of the OUI statute could be charged and

proved, each containing a factual element not necessary to prove

the other.    See Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 20

(2011).   In other words, to prove a per se violation of the OUI

statute, the Commonwealth need not establish that the defendant
                                                                       7


was under the influence of intoxicating liquor.    See G. L.

c. 90, § 24 (1) (a) (1).     See also Filoma, supra.   Likewise, to

prove an impaired ability violation of the statute, the

Commonwealth need not show that the defendant's blood alcohol

level was .08 per cent or more.    See id. at 20-21.

    Here, the complaint charged the defendant with an impaired

ability violation and, in the alternative, a per se violation.

Thus, the charging decision was consistent with the legislative

purpose to minimize the risk to public safety from drivers who

are either actually impaired or presumed to be impaired based on

their blood alcohol level.    Consistent with its charging

decision, the Commonwealth affirmatively pursued both

alternatives at trial, and the verdict slip permitted the jury

to choose either or both alternatives.

    Second, "the protection of the [d]ouble [j]eopardy [c]lause

by its terms applies only if there had been some event, such as

an acquittal, which terminates the original jeopardy."

Commonwealth v. Johnson, 426 Mass. 617, 625 (1998), quoting

Richardson v. United States, 468 U.S. 317, 325 (1984).       And, as

we have said, "where a verdict does not specifically resolve all

the elements of the offense charged, it is defective and cannot

operate as either an acquittal or a conviction," Brown, 470

Mass. at 603-604, and thus does not trigger double jeopardy

protections.   Therefore, double jeopardy protections were not
                                                                    8


triggered here, because the jury's not guilty verdict on the

impaired ability charge did not resolve the factual element

necessary to establish a per se violation -- that the defendant

operated a motor vehicle with a blood alcohol level of .08 per

cent or greater.   The jury's resolution of that factual element,

a live issue in the prosecution, was foreclosed by the mistrial

declaration.   In sum, the double jeopardy bar does not prohibit

the Commonwealth from seeking to retry a defendant "where other

theories (supported by evidence at a first trial) would support

a defendant's conviction in the second."   Marshall v.

Commonwealth, 463 Mass. 529, 538 (2012).

    Our conclusion that double jeopardy principles do not bar

retrial on the per se violation where the defendant was

acquitted on the impaired ability violation is consistent with

this court's application of double jeopardy principles in cases

involving trials for murder under multiple theories.     For

example, in Commonwealth v. Zanetti, 454 Mass. 449, 459-461

(2009), we held that the Commonwealth could retry a defendant

for murder on a theory on which the jury had not reached a

verdict at the first trial.   Likewise, in Brown, 470 Mass. at

605-606, we held that where the jury in the first trial failed

to reach a verdict on the "facts and merits" of the charge of

murder in the first degree on the theory of deliberate

premeditation, double jeopardy principles did not prohibit the
                                                                   9


Commonwealth from retrying the defendant on that theory at a

second trial.   "The 'interest in giving the prosecution one

complete opportunity to convict those who have violated its

laws' justifies treating the jury's inability to reach a verdict

as a nonevent that does not bar retrial."   Yeager v. United

States, 557 U.S. 110, 118 (2009), quoting Arizona v. Washington,

434 U.S. 497, 509 (1978).

    The defendant contends that the United States Supreme

Court's decision in Sanabria v. United States, 437 U.S. 54

(1978), forecloses retrial on the per se violation because the

jury acquitted him on the impaired ability violation.     We

disagree.   In Sanabria, the trial judge entered an acquittal on

the entire count charging violations of 18 U.S.C. § 1955,

"without specifying that [the judge] did so only with respect to

one theory of liability."   Id. at 67.   Because Sanabria is

distinguishable from this case, it does not advance the

defendant's argument.

    Conclusion.   For the reasons explained above, we remand the

matter to the county court for entry of an order denying the

defendant's G. L. c. 211, § 3, petition.

                                    So ordered.
