Does a Mistrial Mean I Can’t Be Tried Again for DWI?

October 17th, 2018 by Tad Nelson in DWI

Drunk driving is a criminal offense in Texas. This means that as with any crime, you have the constitutional right to a jury trial. You also enjoy constitutional protection against “double jeopardy.”

The concept of double jeopardy is often misunderstood by the general public. Some people think it means you can never be tried twice for the same criminal charge. That isn’t exactly true. There are circumstances where a judge may declare a mistrial but still allow the prosecution to re-try the case. These situations include cases where there is some “manifest necessity,” or where the defendant gives his or her consent to retrial.

Court of Criminal Appeals: Silence Does Not Automatically Equal Consent

The Texas Court of Criminal Appeals recently addressed a case where the prosecution and a DWI defendant disagreed as to whether either of these exceptions applied. Prosecutors initially charged the defendant with misdemeanor DWI. She demanded a jury trial. At the beginning of the trial, the prosecution called the arresting officer as its first witness.

The defense raised a procedural objection at this point. The state intended the officer to testify as an “expert” witness. Under Texas court rules, the prosecution was required to designate its expert witnesses no later than 20 days before the start of jury selection. Here, the prosecution waited until less than a week before trial. Accordingly, the defense asked the judge to bar the officer from testifying “in any expert capacity.”

The prosecution admitted it messed up, but it then asked for a two-week delay in the trial to remedy the situation. The defense rejected that proposal, as it wanted the officer’s testimony excluded. The judge, acting on his own initiative, decided to declare a mistrial instead over the state’s strenuous objections.

A few months later, the prosecution moved to retry the defendant. She objected, arguing that double jeopardy applied due to the mistrial. The state replied that the mistrial was the product of “manifest necessity,” and even if it wasn’t, the defendant gave her “implied consent” by failing to object to the judge’s decision at the time. The judge denied the motion, and an intermediate appeals court rejected the defendant’s appeal, holding she gave implied consent.

But the Court of Criminal Appeals disagreed. There was no evidence in the trial court’s record the defendant consented to the mistrial. The Court explained the burden of proof is on the state to prove the defendant gave her consent, not for her to show she “did enough to oppose the mistrial.” It was improper for the trial court to infer consent from the defendant’s silence.

That said, the Court of Criminal Appeals left it to the lower courts to decide whether or not “manifest necessity” supported the mistrial and therefore does not bar retrying the defendant on her drunk driving charge.

Speak with a Galveston or League City DWI Defense Lawyer Today

Due process matters–even when you are charged with a misdemeanor DWI. And having an experienced Houston DWI defense attorney at your side may be the difference between conviction and acquittal. If you have been arrested or charged with drunk driving and need immediate assistance, contact the Law Offices of Tad Nelson & Associates today at (281) 280-0100 .

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