Georgia Court of Appeals dismisses DUI charge based on double jeopardy

Georgia - On August 5, 2009, the Court of Appeals of Georgia issued a new DUI case opinion dismissing DUI charges against Michael Freeman based on double jeopardy. The three panel court agreed that the trial judge was out of line in declaring a mistrial. Judge Blackburn authored the opinion of the court. Mr. Freeman was represented by Wesley Matthew Woolverton, and the State was represented in the appeal by Brian Keith Fortner and Evelyn Proctor.

On April 19, 2005, Mr. Freeman was arrested for DUI in Georgia after being stopped at a police roadblock. After failing several field sobriety tests he refused to submit to a breath test. In August of 2007 he was tried on the charge, but the trial court declared a mistrial on the charge after the jury was unable to agree on a verdict.

Freeman was retried on September 22, 2008. During the early stages of the trial the Court informed the parties that it would not allow to arresting officer to testify about the alleged correlation between clues on the horizontal gaze nystagmus (HGN), which is the eye test given as part of the standardized field sobriety test battery. The prosecutor complained about the ruling and asked for time to research its position, which the court granted.

When the trial reconvened after a two day recess, the prosecutor moved to suspend the trial. After some legal wrangling, the court, frustrated and seemingly confused and tripping over itself declared a mistrial based on unfairly surprising the prosecutor. In order to declare a mistrial in that situation, the court needed to find "manifest necessity."

The next day, Freeman filed a motion to bar further prosecution based on former jeopardy. The court sat it the motion for a few months, and when it apparantly became obvious that the court just couldn't bury its head in the sand any longer, denied the motion.

Freeman then appealed.

The Georgia Constitution says that:

No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in the case of a mistrial.

And the United States Constitution says:

Once a jury is impaneled and sworn, jeopardy attaches and an accused is entitled to have the trial proceed to an acquittal or conviction by that jury.

Georgia caselaw established that a court could declare a mistrial on its own if there is a demonstration of manifest necessity for the mistrial.

Here, the jury was empaneled and sworn, so jeopardy attached. There was no evidence that the Judge considered any less burdensome alternatives to declaring a mistrial. There were no urgent circumstances present.

This case boils down to a huge mistake on the parts of the prosecutor and judge, and the Court of Appeals of Georgia acknowledged that much and dismissed the case against Mr. Freeman.