CAV APPLIES DOUBLE JEOPARDY BAR TO DUI 2ND

[Posted March 7, 2007] The Court of Appeals has reversed a conviction for DUI, second offense, citing the constitutional proscription of double jeopardy.  The opinion is handed down in Turner v. Commonwealth , decided on Tuesday, March 6.

Kenneth Wayne Turner must have had a rollicking Christmas celebration in 2004; it got him arrested that day and charged with DUI.  Three weeks later, almost before his buzz from the first charge had worn off, he got picked up again, and was charged with DUI second.

As often happens with two charges that are close in time, the first one hadn’t been tried when the second offense occurred.  He was convicted of the first offense and appealed to circuit court.  In the meantime, his trial on the second offense charge came up.  The GDC judge found him guilty of the lesser included offense of DUI first.  He appealed that, too.

The fireworks erupted in the circuit court trial of the second charge; the Commonwealth amended the charge back to DUI second, since an appeal from GDC to circuit results in a trial de novo.  That means it’s just as though the first trial had never occurred.  And if the first trial never occurred, then neither did the implicit acquittal of DUI second, right?

That’s the way the circuit court judge saw it; he denied Turner’s double jeopardy motion and convicted him of DUI second.  Turner appealed, and got a writ from the Court of Appeals.  On Tuesday, the appellate court reverses and remands.  Despite the usual rule that an appealed GDC conviction is of no legal meaning, the court finds that someone who has been implicitly acquitted of a greater offense cannot be retried for that offense merely because he appeals as a matter of right.

This ruling brings to mind the Supreme Court’s April 2006 ruling in Baker v. Elmendorf, in which the court ended generations of trial court practice involving malicious prosecution claims.  For all that time, courts had applied the premise that a conviction in GDC, even if subsequently reversed in circuit court, conclusively established probable cause for the arrest, and effectively barred a claim of malicious prosecution.  In Baker, the Supreme Court put an end to that thinking, holding that a GDC conviction cannot be used for any purpose at all once it is appealed.

But as of Tuesday, an acquittal in GDC can indeed, be used for the constitutionally preferred purpose of double jeopardy.  Turner still won’t get off easy — the trial judge will know about his other conviction, and can sentence him within the statutory limits of a first offense DUI, which are still potentially harsh.