MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	217	
Docket:	   Pen-17-49	
Argued:	   October	25,	2017	
Decided:	  November	28,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 STATE	OF	MAINE	
                                        	
                                       v.	
                                        	
                               MICHAEL	MARTINELLI	
	
	
MEAD,	J.	

      [¶1]		Michael	Martinelli	appeals	from	an	order	entered	by	the	trial	court	

(Penobscot	County,	Lucy,	J.)	denying	his	motion	to	dismiss	a	complaint	charging	

him	 with	 operating	 under	 the	 influence	 (OUI)	 (Class	 D),	 29-A	 M.R.S.	

§	 2411(1-A)(C)(1)	 (2016).	 	 He	 contends	 that,	 because	 he	 had	 already	 been	

convicted	 after	 a	 jury	 trial	 on	 a	 complaint	 containing	 the	 identical	 charging	

language,	forcing	him	to	stand	trial	on	the	complaint	at	bar	would	violate	his	

constitutional	 rights	 to	 be	 free	 from	 double	 jeopardy.	 	 U.S.	 Const.	 amend.	 V;	

Me.	Const.	art.	I,	§	8.		We	conclude	that	Martinelli’s	double	jeopardy	protections	

are	not	implicated	on	these	facts	and	affirm	the	order.	
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                                         I.		BACKGROUND	

	        [¶2]		The	procedural	facts	are	not	disputed.		On	September	18,	2015,	the	

State	 charged	 Martinelli	 with	 OUI	 (Class	 D),	 alleging	 a	 violation	 of	

29-A	 M.R.S.	 §	 2411(1-A)(C)(1),	 in	 a	 complaint	 assigned	 docket	 number	

PENCD-CR-2015-03461	(hereinafter	3461).		The	complaint	alleged:	

       On	 or	 about	 May	 6,	 2015,	 in	 Bangor,	 Penobscot	 County,	 Maine,	
       MICHAEL	MARTINELLI,	did	operate	a	motor	vehicle	while	under	
       the	 influence	 of	 intoxicants.	 	 MICHAEL	 MARTINELLI	 failed	 to	
       submit	to	a	test	at	the	request	of	a	law	enforcement	officer.	
       	
At	 the	 hearing	 on	 Martinelli’s	 motion	 to	 dismiss,	 the	 parties	 agreed	 that	 the	

incident	giving	rise	to	the	complaint	in	3461	occurred	shortly	after	midnight	on	

May	 6,	 2015.	 	 Martinelli	 was	 convicted	 of	 the	 charge	 after	 a	 jury	 trial	 held	

November	 16-17,	 2016;	 the	 court	 (Mallonee,	 J.)	 entered	 judgment	 and	

sentenced	Martinelli	to	four	days’	incarceration	in	the	Penobscot	County	Jail,	

a	$600	fine,	and	a	150-day	license	suspension.		Martinelli	did	not	appeal.	

	        [¶3]		On	June	3,	2015,	about	three	months	before	the	complaint	in	3461	

was	filed,	the	State	had	charged	Martinelli	with	OUI	(Class	D),	also	alleging	a	

violation	 of	 29-A	 M.R.S.	 §	 2411(1-A)(C)(1),	 in	 a	 complaint	 assigned	 docket	

number	 PENCD-CR-2015-01568	 (hereinafter	 1568).1	 	 At	 the	 hearing,	 the	




     1		It	is	unclear	why	the	two	complaints	proceeded	separately,	or	with	such	different	timelines.	
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parties	agreed	that	the	incident	giving	rise	to	this	complaint	occurred	at	about	

11:30	 p.m.	 on	 May	 6,	 2015,	 just	 under	 twenty-four	 hours	 after	 the	 incident	

charged	 in	 3461.	 	 As	 later	 amended,	 the	 charging	 language	 of	 the	 two	

complaints	is	identical.	

	     [¶4]		On	November	29,	2016,	Martinelli	moved	to	dismiss	the	complaint	

in	 1568	 with	 prejudice	 on	 the	 ground	 that	 forcing	 him	 to	 defend	 against	 the	

charge	violated	his	rights	under	the	federal	and	state	constitutions	to	be	free	

from	 double	 jeopardy.	 	 The	 court	 held	 a	 hearing	 and	 denied	 the	 motion	 by	

written	order,	concluding	that	“the	State	has	met	its	burden	of	demonstrating	

that	 this	 case	 does	 not	 involve	 the	 same	 conduct	 for	 which	 Defendant	 has	

already	been	convicted.”	 	Martinelli	filed	this	interlocutory	appeal,	which	we	

entertain	 as	 an	 exception	 to	 the	 final	 judgment	 rule.	 	 State	 v.	 Hoover,	

2015	ME	109,	¶	10	n.1,	121	A.3d	1281.	

                                    II.		DISCUSSION	

	     [¶5]		Martinelli	is	protected	from	being	“twice	put	in	jeopardy	of	life	or	

limb”	by	the	United	States	and	Maine	Constitutions,	which	afford	coextensive	

protections.	 	 U.S.	 Const.	 amend.	 V;	 Me.	 Const.	 art.	 I,	 §	 8;	 Ayotte	 v.	 State,	

2015	ME	158,	¶	12,	129	A.3d	285.		Pertinent	to	this	case,	“[t]he	constitutional	

prohibitions	against	double	jeopardy	prohibit	.	.	.	a	second	prosecution	for	the	
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same	 offense	 after	 conviction[]	 and	 .	 .	 .	 multiple	 punishments	 for	 the	 same	

offense.”		Ayotte,	2015	ME	158,	¶	13,	129	A.3d	285	(quotation	marks	omitted).		

We	review	the	trial	court’s	double	jeopardy	determination	de	novo.		Id.	¶	12.	

	     [¶6]	 	 Martinelli	 contends	 that,	 for	 the	 purpose	 of	 invoking	 his	 double	

jeopardy	protections,	“[b]ecause	the	allegations	in	[3461]	are	not	more	specific	

than	 alleging	 OUI	 on	 May	 6,	 2015,	 in	 Bangor,	 Penobscot	 County,	 these	

allegations	are	broad	enough	to	include	an	OUI	anytime	on	May	6,	2015,	and	

anywhere	within	Bangor.”		In	his	view,	that	problem	cannot	be	cured	by	simply	

amending	 the	 complaint	 in	 1568	 to	 include	 additional,	 potentially	

distinguishing	 details,	 because	 those	 facts	 “would	 necessarily	 be	 included	

within	the	non-specific	allegations	of	[3461].”	

	     [¶7]		Relevant	to	Martinelli’s	argument,	in	assessing	whether	successive	

complaints	violate	the	Double	Jeopardy	Clause,	we	have	said	that	

       [b]ecause	 a	 person,	 by	 one	 act	 or	 transaction,	 may	 violate	
       multiple	 criminal	 laws,	 courts	 apply	 the	 Blockburger	 test	 to	
       determine	 whether	 the	 crimes	 enumerated	 by	 those	 multiple	
       statutes	 are	 the	 same	 offense	 for	 purposes	 of	 double	 jeopardy	
       protections.	 	 See	 Blockburger	 v.	 United	 States,	 284	 U.S.	 299,	 304	
       (1932).		The	test	asks	whether	each	statutory	provision	requires	
       proof	of	a	fact	that	the	other	does	not.		If	each	statutory	provision	
       requires	a	unique	proof	of	fact,	the	Blockburger	test	is	satisfied	and	
       there	is	no	double	jeopardy	violation	by	subsequent	prosecutions	
       or	multiple	punishments.	
       	
Id.	¶	14	(citations	and	quotation	marks	omitted).	
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	       [¶8]	 	 The	 parties’	 arguments	 may	 be	 summarized	 this	 way.	 	 Martinelli	

contends	 that	 because	 the	 State	 chose	 to	 draft	 the	 two	 complaints	 to	 recite	

identical	elements,	he	was	charged	twice	with	the	same	offense,	and,	applying	

the	 Blockburger	 test,	 the	 Double	 Jeopardy	 Clause	 requires	 the	 dismissal	 of	

1568.2	 	 In	 Martinelli’s	 view,	 his	 concession	 that	 the	 complaints	 arose	 from	

different	factual	circumstances	is	irrelevant.		The	State	counters	that	because	

the	 factual	 circumstances	 giving	 rise	 to	 the	 two	 complaints	 are	 different,	

Martinelli	committed	two	separate	offenses,	and	so	neither	the	Blockburger	test	

nor	the	Double	Jeopardy	Clause	is	implicated.	

	       [¶9]		The	State’s	position	is	persuasive.		In	Blockburger,	the	United	States	

Supreme	Court	said	that	

     [t]he	 applicable	 rule	 is	 that	 where	 the	 same	 act	 or	 transaction	
     constitutes	a	violation	of	two	distinct	statutory	provisions,	the	test	
     to	be	applied	to	determine	whether	there	are	two	offenses	or	only	
     one,	is	whether	each	provision	requires	proof	of	an	additional	fact	
     which	the	other	does	not.	
     	
284	U.S.	at	304	(emphasis	added);	see	Ayotte,	2015	ME	158,	¶	14,	129	A.3d	285	

(referring	to	the	Blockburger	test	as	applying	to	“one	act	or	transaction”).		Here,	

the	parties	agree	that	the	two	complaints	did	not	arise	from	“the	same	act	or	



    2		At	oral	argument,	Martinelli	agreed	that	the	State	could	have	avoided	the	issue	he	raises	simply	

by	drafting	the	complaints	so	as	to	include	a	differentiating	feature	in	each,	presumably	the	time	of	
the	offense,	for	example.	
6	

transaction,”	Blockburger,	284	U.S.	at	304—they	charge	conduct	separated	by	

almost	twenty-four	hours.		Applying	the	plain	language	of	Blockburger,	its	test	

and	double	jeopardy	analysis	generally	are	inapplicable.		Other	courts	are	in	

accord	with	our	analysis.3	

	           [¶10]	 	 In	 sum,	 for	 the	 purpose	 of	 double	 jeopardy	 analysis,	 Martinelli	

committed	 (allegedly,	 in	 the	 case	 of	 1568)	 two	 unrelated	 crimes	 on	

May	6,	2015.		The	answer	to	the	trial	court’s	question	at	the	hearing—“So	does	

the	.	.	.	Constitution	.	.	.	give	[Martinelli]	the	right	to	.	.	.	commit	the	same	crime	

over	and	over	again	on	the	same	day	if	the	State	is	not	precise	enough	to	start	

putting	 times	 in	 their	 complaints?”—is	 no.4	 	 See	 Hoover,	 2015	 ME	 109,	 ¶	 11,	



     3	 	See	 United	 States	 v.	 Trabelsi,	 845	 F.3d	 1181,	 1198	 (D.C.	 Cir.	 2017)	 (Pillard,	 J.,	 concurring)	
(“Blockburger	permits	a	subsequent	prosecution	under	an	indictment	listing	identical	legal	elements	
so	long	as	it	charges	a	different	set	of	facts.		That	much	is	obvious.”);	Smith	v.	Montgomery	Police	Dep’t,	
No.	2:16-CV-156-WKW,	2016	U.S.	Dist.	LEXIS	177867,	at	*2	(M.D.	Ala.	Dec.	23,	2016)	(“Charges	arising	
out	 of	 different	 transactions	 or	 occurrences	 are	 not	 charges	 for	 the	 ‘same	 offense’	 and	 do	 not	
implicate	 the	 Double	 Jeopardy	 Clause.”);	 United	 States	 v.	 Kee,	 No.	 S1	 98	 CR	 778	 (DLC),	
2000	 U.S.	 Dist.	 LEXIS	 8784,	 at	 *11	 (S.D.N.Y.	 June	 27,	 2000)	 (stating,	 in	 discussing	 Blockburger,	
“Neither	the	principle	of	multiplicity	nor	the	Double	Jeopardy	Clause	prevents	a	defendant’s	being	
charged	 with	 more	 than	 one	 violation	 of	 the	 same	 statute	 where	 different	 acts	 underlie	 each	
violation.”);	State	v.	Lola	Mae	C.,	408	S.E.2d	31,	36	n.9	(W.	Va.	1991)	(“Since	we	conclude	that	factually	
two	separate	criminal	acts	have	occurred,	we	find	that	the	application	of	the	[Blockburger]	test	.	.	.	is	
inapplicable	 .	 .	 .	 .”);	 State	 ex	 rel.	 G.E.,	 94	 So.	 3d	 863,	 867	 (La.	 Ct.	 App.	 2012)	 (“The	 [defendant’s]	
argument	that	[the	two	charges]	contain	the	same	elements	and	therefore	constitute	double	jeopardy	
is	 without	 merit.	 	 In	 the	 instant	 case,	 the	 charges	 .	 .	 .	 stem	 from	 different	 acts	 or	 transactions.”);	
State	 v.	 Jordan,	 No.	 14AP-978,	 14AP-979,	 2015	 Ohio	 App.	 LEXIS	 4353,	 at	 ¶	 16	 (Ohio	 Ct.	 App.	
Oct.	27,	2015)	(“If	the	offenses	charged	are	separate	and	distinct	because	they	arise	from	different	
transactions,	 and	 different	 evidence	 is	 required	 to	 prove	 each,	 then	 double	 jeopardy	 is	 not	
applicable.”	(quotation	marks	omitted)).	
    	
    4	 	 In	 his	 brief,	 Martinelli	 argues	 that	 his	 position	 is	 supported	 by	 the	 “same	 conduct”	 test	

announced	by	the	Supreme	Court	in	Grady	v.	Corbin,	495	U.S.	508,	521	(1990),	which	we	applied	in	
                                                                                                                7	

121	A.3d	1281	(“The	double	jeopardy	clause	bars	multiple	punishments	for	the	

same	offense.”	(emphasis	added)	(quotation	marks	omitted)).	

	        The	entry	is:	

                            Order	denying	motion	to	dismiss	affirmed.	
	
	      	     	     	     	      	
	
Jeffrey	M.	Silverstein,	Esq.	(orally),	Silverstein-Law,	PA,	Bangor,	for	appellant	
Michael	Martinelli	
	
R.	 Christopher	 Almy,	 District	 Attorney,	 and	 Mark	 A.	 Rucci,	 Asst.	 Dist.	 Atty.	
(orally),	Prosecutorial	District	V,	Bangor,	for	appellee	State	of	Maine	
	
	
Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2015-1568	
FOR	CLERK	REFERENCE	ONLY	




State	 v.	 Ricci,	 611	 A.2d	 572,	 573-75	 (Me.	 1992).	 	 After	 Ricci	 was	 decided,	 Grady	 was	 overruled	 by	
United	States	v.	Dixon,	509	U.S.	688,	704,	711-12	(1993).	
