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SJC-12158

COMMONWEALTH vs. WILLIAM J. HEBB.

Suffolk. February 7, 2017. - June 30, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Motor Vehicle, Operating under the influence. Constitutional 

Law, Double jeopardy. Practice, Criminal, Double jeopardy, 

Verdict.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on July 19, 2016.

The case was reported by Spina, J.

Christopher DeMayo for the defendant.

Donna-Marie Haran, Assistant District Attorney, for the 

Commonwealth.

Timothy St. Lawrence, pro se, amicus curiae, submitted a 

brief.

HINES, J. In this case, we decide whether double jeopardy 

principles preclude the Commonwealth from retrying the defendant 

on a complaint charging a violation of G. L. c. 90, 

§ 24 (1) (a) (1), on the theory of operation of a motor vehicle 

with a percentage of alcohol in his blood of .08 or greater (per 
2

se violation), after a jury acquitted him on the theory of 

operation of a motor vehicle while under the influence of 

intoxicating liquor (impaired ability violation). The 

Commonwealth prosecuted the one-count complaint on both 

theories, and after the jury returned a verdict on the impaired 

ability violation only, the judge declared a mistrial on the per 

se violation. A new complaint issued charging only a per se

violation of G. L. c. 90, § 24 (1) (a) (1). Claiming that 

retrial violated his double jeopardy rights where the complaint 

issued after an acquittal on the impaired ability violation, the 

defendant filed a motion to dismiss the complaint. The judge 

denied the motion.

The defendant sought relief in the county court pursuant to 

G. L. c. 211, § 3. The case is before us on a reservation and 

report from a single justice of this court. We conclude that 

double jeopardy principles do not preclude retrial where the 

Commonwealth prosecuted the case on both theories and the jury 

reached a verdict on only one of those theories.

Background. We set forth the facts the jury could have 

found. On May 16, 2013, the defendant was struck by a vehicle 

while he was operating his motorcycle on a public way.

1 At the 

scene of the collision, the defendant admitted to having had 

 

1 The parties stipulated that the defendant was operating 

his motorcycle on a public way.
3

several alcoholic beverages and was uncooperative with the 

paramedics. After the defendant complained of pain, he was 

transported to the Milford Hospital emergency department.

The treating physician observed that the defendant's skin 

appeared "flushed" and that his speech was slurred, and detected

"an odor of alcohol on [his] breath." Based on these 

observations, the physician determined that the defendant was 

"intoxicated[,] probably with alcohol." With the defendant's 

consent, medical personnel drew blood samples for alcohol levels 

to be determined. Subsequent testing of the blood samples by a 

blood analyst in the State police crime laboratory showed a 

blood alcohol level of .133. On cross-examination, the blood 

analyst acknowledged that the tubes holding the defendant's 

blood samples also contained an anticoagulant to prevent blood 

clotting and that if the anticoagulant is not properly 

activated, the blood sample could clot, and yield an 

artificially high blood alcohol test result.

During closing arguments, defense counsel urged a finding

that the defendant had not been impaired while operating his 

motorcycle, and that the blood alcohol test results were 

unreliable because the Commonwealth failed to present evidence 

that the anticoagulant was properly activated prior to testing. 

The prosecutor argued that (1) the defendant's behavior and 

appearance at the scene of the collision and at the hospital 
4

proved the impaired ability violation; and (2) the defendant's 

blood alcohol level of .133 proved the per se violation.

The verdict slip conformed to the complaint, charging both 

the impaired ability violation and the per se violation, and

provided the jury the following options: (I) "Operating a Motor 

Vehicle Under the Influence of Liquor: 1. Not Guilty; 2.

Guilty"; and (II) "Operating a Motor Vehicle with a Blood 

Alcohol Level of .08% or greater: 1. Not Guilty; 2. Guilty." 

During the deliberations, the jury reported in writing the 

following: "Made decision on first count; however, saw evidence 

that was supposed to be redacted, swaying our decision [on the 

second count]. What is our next step?" In response, the judge 

summoned the jury to the court room and conducted a voir dire. 

During the colloquy, the judge learned that although the 

information indicating that the defendant was being prosecuted 

for a fourth offense had been redacted from the exhibits, the 

jury were able to discern the word "fourth" next to OUI. This

information swayed the jury's decision as to option II, the per 

se violation, but not as to option I, on which the jury returned

a not guilty verdict. The jury left the verdict slip blank for 

option II, marking neither "not guilty" nor "guilty." 

Accordingly, the judge accepted the verdict on option I and

declared a mistrial on option II.

In December, 2015, a second criminal complaint issued 
5

against the defendant, charging one count of operating with a 

blood alcohol level percentage of .08 or greater, fourth

violation, under G. L. c. 90, § 24 (1) (a) (1). The defendant 

filed a motion to dismiss, arguing that retrial violated his 

double jeopardy rights. A second judge denied the motion, and 

the defendant filed a petition pursuant to G. L. c. 211, § 3, 

seeking review of that judge's order. A single justice of this 

court reserved and reported the case to the full court on August 

12, 2016.

Discussion. Generally, "[t]he denial of a motion to 

dismiss in a criminal case is not appealable until after trial, 

and we have indicated many times that G. L. c. 211, § 3, may not 

be used to circumvent that rule." Jackson v. Commonwealth, 437 

Mass. 1008, 1009 (2002). However, we have recognized a limited 

exception "where a defendant's motion to dismiss raises a double 

jeopardy claim of substantial merit." Azubuko v. Commonwealth, 

464 Mass. 1002, 1003 (2012). Because the double jeopardy issue 

raises a question of law, our review of the judge's decision is 

de novo. See Commonwealth v. Rodriguez, 476 Mass. 367, 369 

(2017); Commonwealth v. Carlino, 449 Mass. 71, 72 n.7 (2007).

In its broadest sweep, "[t]he double jeopardy principle 

'protects against three specific evils -- "a second prosecution 

for the same offense after acquittal; a second prosecution for 

the same offense after conviction; and multiple punishments for 
6

the same offense"'" (citation omitted). Commonwealth v. Brown, 

470 Mass. 595, 603 (2015). The "evil" to be prevented by the 

double jeopardy principle in the circumstances presented by this 

case is a second prosecution after an acquittal. Thus, the 

issue to be decided here is whether an acquittal of only one of 

the charged violations is, in effect, an acquittal of both 

violations. We conclude that it is not.

First, the statute as written provides that a defendant may 

be convicted on one or both violations. In 2003, the 

Legislature amended G. L. c. 90, § 24 (OUI statute), "to 

strengthen the protections afforded the public from drivers who 

might be impaired by the consumption of alcohol." Commonwealth

v. Colturi, 448 Mass. 809, 813 (2007). With this amendment, 

"the Legislature added language to the OUI statute, making it a 

violation to operate a motor vehicle not only under the 

influence of intoxicating liquor [(impaired ability violation)], 

but also with a blood alcohol level of .08 or more [(per se 

violation)]." Id. at 811. Thus, the statutory framework 

created by the 2003 amendment established alternative theories 

under which a violation of the OUI statute could be charged and 

proved, each containing a factual element not necessary to prove 

the other. See Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 20 

(2011). In other words, to prove a per se violation of the OUI 

statute, the Commonwealth need not establish that the defendant 
7

was under the influence of intoxicating liquor. See G. L. 

c. 90, § 24 (1) (a) (1). See also Filoma, supra. Likewise, to 

prove an impaired ability violation of the statute, the 

Commonwealth need not show that the defendant's blood alcohol 

level was .08 per cent or more. See id. at 20-21.

Here, the complaint charged the defendant with an impaired 

ability violation and, in the alternative, a per se violation. 

Thus, the charging decision was consistent with the legislative 

purpose to minimize the risk to public safety from drivers who 

are either actually impaired or presumed to be impaired based on 

their blood alcohol level. Consistent with its charging 

decision, the Commonwealth affirmatively pursued both 

alternatives at trial, and the verdict slip permitted the jury 

to choose either or both alternatives.

Second, "the protection of the [d]ouble [j]eopardy [c]lause 

by its terms applies only if there had been some event, such as 

an acquittal, which terminates the original jeopardy."

Commonwealth v. Johnson, 426 Mass. 617, 625 (1998), quoting 

Richardson v. United States, 468 U.S. 317, 325 (1984). And, as 

we have said, "where a verdict does not specifically resolve all 

the elements of the offense charged, it is defective and cannot 

operate as either an acquittal or a conviction," Brown, 470 

Mass. at 603-604, and thus does not trigger double jeopardy 

protections. Therefore, double jeopardy protections were not 
8

triggered here, because the jury's not guilty verdict on the 

impaired ability charge did not resolve the factual element 

necessary to establish a per se violation -- that the defendant 

operated a motor vehicle with a blood alcohol level of .08 per 

cent or greater. The jury's resolution of that factual element, 

a live issue in the prosecution, was foreclosed by the mistrial 

declaration. In sum, the double jeopardy bar does not prohibit 

the Commonwealth from seeking to retry a defendant "where other 

theories (supported by evidence at a first trial) would support 

a defendant's conviction in the second." Marshall v. 

Commonwealth, 463 Mass. 529, 538 (2012).

Our conclusion that double jeopardy principles do not bar 

retrial on the per se violation where the defendant was 

acquitted on the impaired ability violation is consistent with 

this court's application of double jeopardy principles in cases 

involving trials for murder under multiple theories. For 

example, in Commonwealth v. Zanetti, 454 Mass. 449, 459-461

(2009), we held that the Commonwealth could retry a defendant 

for murder on a theory on which the jury had not reached a 

verdict at the first trial. Likewise, in Brown, 470 Mass. at

605-606, we held that where the jury in the first trial failed 

to reach a verdict on the "facts and merits" of the charge of 

murder in the first degree on the theory of deliberate 

premeditation, double jeopardy principles did not prohibit the 
9

Commonwealth from retrying the defendant on that theory at a 

second trial. "The 'interest in giving the prosecution one 

complete opportunity to convict those who have violated its 

laws' justifies treating the jury's inability to reach a verdict 

as a nonevent that does not bar retrial." Yeager v. United 

States, 557 U.S. 110, 118 (2009), quoting Arizona v. Washington, 

434 U.S. 497, 509 (1978).

The defendant contends that the United States Supreme 

Court's decision in Sanabria v. United States, 437 U.S. 54 

(1978), forecloses retrial on the per se violation because the 

jury acquitted him on the impaired ability violation. We 

disagree. In Sanabria, the trial judge entered an acquittal on

the entire count charging violations of 18 U.S.C. § 1955, 

"without specifying that [the judge] did so only with respect to 

one theory of liability." Id. at 67. Because Sanabria is 

distinguishable from this case, it does not advance the 

defendant's argument.

Conclusion. For the reasons explained above, we remand the 

matter to the county court for entry of an order denying the 

defendant's G. L. c. 211, § 3, petition.

So ordered.