No person is to be placed in jeopardy more than once for the same offense. The Fifth Amendment of the United States Constitution embodies that principle, and it is binding on the states by virtue of the Fourteenth Amendment. See State v. Ebron, 61 N.J. 207, 214-15 (1972) (citing Benton v. Maryland, 395 U.S. 784, 796, 89 S. Ct. 2056, 2063, 23 L. Ed. 2d 707, 717 (1969)).
It is important to note at the outset that the New Jersey Supreme Court has determined that motor vehicle violations are within the category of offenses subject to the double jeopardy clause. State v. Dively, 92 N.J. 573, 586 (1983).
New Jersey’s double jeopardy jurisprudence mirrors the federal standard by incorporating the ‘elements test’ enunciated in Blockburger v. United States, 284 U.S. 299, 303-304, 52 S. Ct. 180, 181-182, 76 L. Ed. 306, 309 (1932), and the ‘evidence test’ enunciated in Illinois v. Vitale, 447 U.S. 410, 420, 100 S. Ct. 2260, 2267, 65 L. Ed. 2d 228, 238 (1980). Dively, supra, 92 N.J. at 578, 582-583; State v. DeLuca, 108 N.J. 98, 102, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987).
The ‘elements’ test requires 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.” State v. Yoskowitz, 116 N.J. 679, 689 (1989) (quoting Blockburger, supra, 284 U.S. at 303-304, 52 S. Ct. at181-182, 76 L. Ed. at 309). The test is codified in New Jersey in N.J.S.A. 2C:1-10(a)(3)(a), with the added requirement that “the law defining each of such offenses is intended to prevent a substantially different harm or evil.”
The ‘evidence’ test requires a determination of “whether the evidence actually used to establish guilt in the first prosecution is identical to that that will be used in the second prosecution.” Dively, supra, 92 N.J. at 581. “If the same evidence used in the first prosecution is the sole evidence in the second, the prosecution of the second offense is barred.” De Luca, supra, 108 N.J. at 107. If either part of this two-prong test is satisfied, the second prosecution will be barred on double jeopardy grounds. Ibid. In a non-jury trial, jeopardy attaches when the first witness is sworn. State v. Lynch, 79 N.J. 327, 341 (1979) (citing Crist v. Bretz, 437 U.S. 28, 37, 98 S. Ct. 2156, 2162, 57 L. Ed. 2d 24, 32 (1978)).
In addition to the constitutional prohibition, N.J.S.A. 2C:1-9 provides statutory protection from double jeopardy:
A prosecution of a defendant for a violation of the same provision of the statutes based upon the same facts as a former prosecution is barred by such former prosecution under the following circumstances:
a. The former prosecution resulted in an acquittal by a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
b. The former prosecution was terminated, after the complaint had been filed or the indictment found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense. This subsection shall not apply to an order or judgment quashing an indictment prior to trial.
c. The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.
d. The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts. Termination under any of the following circumstances is not improper:
- The defendant consents to the termination or waives, by motion to dismiss or otherwise, his right to object to the termination.
- The trial court finds that the termination is necessary because of the failure of the jury to agree upon a verdict after a reasonable time for deliberation has been allowed.
- The trial court finds that the termination is required by a sufficient legal reason and a manifest or absolute or overriding necessity.