Jeopardy Clause. The State now appeals, arguing that the district court 

erred in concluding that double jeopardy barred the State's prosecution of 

the felony because: (1) double jeopardy does not bar subsequent 

prosecution when the court lacks jurisdiction to hear all the charges; and 

(2) Blenka cannot avoid prosecution for a felony DUI by pleading guilty to 

a misdemeanor DUI. 

The double jeopardy clause does not permit Blenka's continued prosecution 

for a felony DUI after pleading guilty to misdemeanor DUI arising from 

the same set of facts as the felony charge 

The parties do not dispute that misdemeanor DUI is a lesser 

included offense of felony DUI for double jeopardy purposes. The felony 

DUI offense in question cannot be committed without committing the 

lesser offense of misdemeanor DUI. NRS 484C.110 establishes the 

elements that give rise to a DUI offense. The only difference between 

misdemeanor DUI and felony DUI lies in the criminal penalties and 

punishments under NRS 484C.400 and NRS 484C.410. The only 

additional element for Blenka's felony DUI charge is the presence of a 

prior felony DUI conviction. Blenka argues that the Double Jeopardy 

Clause prohibits continued prosecution of his felony DUI offense. The 

State argues that an exception applies to the Double Jeopardy Clause. We 

disagree with the State and affirm the district court's order. 

We review constitutional challenges de novo, including double 

jeopardy claims. See Jackson v. State, 128 Nev. , , 291 P.3d 1274, 

1277 (2012); Davidson v. State, 124 Nev. 892, 896, 192 P.3d 1185, 1189 

(2008) ("A claim that a conviction violates the Double Jeopardy Clause 

generally is subject to de novo review on appeal."). The Double Jeopardy 

Clause of the Fifth Amendment guarantees that no person shall be 

"subject for the same offense to be twice put in jeopardy of life or limb." 

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U.S. Const. amend. V. This protection applies to the states through the 

Fourteenth Amendment of the United States Constitution and Article 1, 

Section 8, of the Nevada State Constitution. See State v. Combs, 116 Nev. 

1178, 1179 n.1, 14 P.3d 520, 520-21 n.1 (2000). The Nevada Legislature 

codified the Double Jeopardy Clause in NRS 171.070, which states "[w]hen 

an act charged as a public offense is within the jurisdiction of another 

state or territory, as well as of this state, a conviction or acquittal thereof 

in the former is a bar to the prosecution or indictment therefore in this 

state." (Emphasis added). "The Double Jeopardy Clause protects against 

three abuses: (1) a second prosecution for the same offense after acquittal, 

(2) a second prosecution for the same offense after conviction, and (3) 

multiple punishments for the same offense." Jackson, 128 Nev. at , 291 

P.3d at 1278. This case involves the third abuse, multiple punishments 

for the same offense. 

Nevada follows the test set forth in Blockburger v. United 

States, 284 U.S. 299, 304 (1932), to determine whether a defendant may be 

subjected to multiple convictions for the same act or transaction. See 

Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (2006). "Under 

this test, two offenses are separate if each offense requires proof of a fact 

that the other does not." Id. "The general test for determining the 

existence of a lesser included offense is whether the offense in question 

'cannot be committed without committing the lesser offense." McIntosh v. 

State, 113 Nev. 224, 226, 932 P.2d 1072, 1073 (1997) (quoting Lisby v. 

State, 82 Nev. 183, 184, 414 P.2d 592, 594 (1966)). 

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The jurisdictional exception to the double jeopardy clause does not 

permit the continued prosecution of Blenka 

The State argues that the jurisdictional exception to the 

Double Jeopardy Clause applies to these facts and does not bar Blenka's 

subsequent prosecution of the felony DUI offense because the municipal 

court lacked jurisdiction over this felony offense. We disagree. 

The prosecution of a greater offense is prohibited after a 

conviction for a lesser offense. See Ohio v. Johnson, 467 U.S. 493, 501 

(1984) ("[T]he Double Jeopardy Clause prohibits prosecution of a 

defendant for a greater offense when he has already been tried and 

acquitted or convicted on the lesser included offense."); Illinois v. Vitale, 

447 U.S. 410, 421 (1980) ("[Al conviction on a lesser-included offense bars 

subsequent trial on the greater offense."); Brown v. Ohio, 432 U.S. 161, 

169 (1977) ("Whatever the sequence may be, the Fifth Amendment forbids 

successive prosecution and cumulative punishment for a greater and 

lesser included offense."). Additionally, political subdivisions of a state are 

not separate sovereigns for double jeopardy purposes. Waller v. Florida, 

397 U.S. 387, 394-95 (1970). 

The State relies on Diaz v. United States, 223 U.S. 442 (1912), 

to support its argument that a jurisdictional exception applies to these 

facts. We conclude that Diaz is distinguishable from this case. In Diaz, 

the Philippine justice court only had jurisdiction to hear and convict the 

defendant of assault and battery, but had no power to hear a homicide 

charge, which was imposed after the first prosecution when the victim 

died. 223 U.S. at 444. The Court held that the Philippine Civil 

Government Act provisions against double jeopardy did not apply for 

multiple reasons: (1) the offenses were distinct both in law and fact, (2) it 

was only possible to put the accused in jeopardy for homicide once the 

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homicide was committed (after the victim died), and (3) the justice of the 

peace did not have jurisdiction to try the defendant for homicide. Id. at 

448-49. 

The municipal court had the full power and authority to 

sentence Blenka on the misdemeanor charge of DUI. Applying the 

Blockb urger test, Blenka was not charged with two distinct offenses. See 

Estes, 122 Nev. at 1143, 146 P.3d at 1127. Both the LVCA and CCDA 

agree that the facts giving rise to the misdemeanor DUI and felony DUI 

arose from the same incident. The only difference in the charges is that 

CCDA sought a punishment enhancement for felony DUI because Blenka 

had a prior felony DUI conviction on his record. Unlike the homicide 

charge in Diaz, the felony DUI charge was already pending in justice court 

when the LVCA negotiated Blenka's plea in municipal court. Given that 

the municipal court had jurisdiction to hear the only charge alleged 

against Blenka in that court, and Blenka's misdemeanor DUI and felony 

DUI were not separate offenses under the Blockburger test, the 

jurisdictional exception discussed in Diaz does not apply here. 

Because the justice court and municipal courts are not 

separate sovereigns for double jeopardy purposes, the justice court and 

municipal court may not both punish Blenka since they derive their 

authority from the State of Nevada. See Waller, 397 U.S. at 394-95. We 

conclude that because the misdemeanor DUI is a lesser included offense to 

felony DUI, the municipal court's adjudication of the misdemeanor offense 

pursuant to the LVCA negotiated plea precludes the State from continuing 

to pursue felony DUI charges against Blenka. See State v. Witcher, 737 

So. 2d 584, 586 (Fla. Dist. Ct. App. 1999) (holding that simple DUI is a 

continuing offense for which only one conviction can be maintained for 

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each episode regardless of whether a county court lacked jurisdiction over 

felony DUI when it accepted the defendant's plea to misdemeanor DUI); 

State v. Bernert, 100 P.3d 221, 224 (Utah Ct. App. 2004) (holding that the 

trial court's acceptance of a defendant's plea to the charge of misdemeanor 

DUI and subsequent conviction of the defendant on a felony DUI charge 

arising out of the same conduct violated the prohibition against double 

jeopardy). 

The State overreached with its continued prosecution of Blenka 

The State argues that pursuant to Ohio v. Johnson, 467 U.S. 

493, 501-02 (1984), Blenka cannot foreclose his prosecution for a more 

serious crime by pleading guilty to a lesser offense. The State also argues 

that Blenka is the primary cause of his continued prosecution because he 

was the only one aware of both prosecutions and should have informed the 

municipal court of the pending felony DUI. We disagree. 

First, the Johnson case is distinguishable. Unlike the 

defendant in Johnson, Blenka did not plead guilty over the State's 

objections. See 467 U.S. at 496 (after the defendant was arraigned on four 

charges—one count of each murder, involuntary manslaughter, 

aggravated robbery, and grand theft—the trial court accepted the 

defendant's guilty pleas, over the state's objections, to the two lesser 

charges). Instead, Blenka was incarcerated seven days in jail after police 

arrested him pursuant to a bench warrant for failing to appear at the 

municipal court arraignment. He was held on a $20,000 bail, transported 

from jail to municipal court, and then faced the LVCA's prosecution on the 

misdemeanor charge. Blenka then pleaded, with the cooperation of the 

LVCA, to a reduced charge of misdemeanor DUI. Additionally, unlike 

Johnson, Blenka did not attempt to resolve only part of the charges 

against him in the municipal court. But see id. at 501-02 (holding the 

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Johnson defendant could not resolve only part of the charges against him 

where "efforts were directed to separate disposition of counts in the same 

indictment where no more than one trial of the offenses charged was ever 

contemplated"). The record does not indicate that Blenka's two attorneys 

conversed on this case. Therefore, the State's use of Johnson to support 

its argument is unavailing. 

Second, the State improperly attempts to shift the burden to 

Blenka, who was under no legal obligation to speak up in municipal court. 

See Rosas v. State, 122 Nev. 1258, 1265-66, 147 P.3d 1101, 1106-07 (2006) 

(holding that a defendant is not required to present a defense, or evidence 

consistent with such defense, or to admit culpability for a lesser included 

offense in order to obtain an instruction on a lesser included offense). The 

Sixth Amendment requires the government to inform Blenka of the nature 

and cause of the accusation against him, not the other way around. See 

U.S. Const. amend IV (indicating that the defendant must "be informed of 

the nature and cause of the accusation"). The LVCA and CCDA were the 

ones with the resources and power in this situation, including the position 

to know of Blenka's concurrent charges. See Green v. United States, 355 

U.S. 184, 187 (1957) ("The underlying idea. . . is that the State with all its 

resources and power should not be allowed - to make repeated attempts to 

convict an individual for an alleged offense, thereby subjecting him to 

embarrassment, expense and ordeal and compelling him to live in a 

continuing state of anxiety and insecurity. ."). We conclude that it 

would be an unreasonable burden to expect Blenka (a layman) to know 

that his cases needed to be consolidated, even though attorneys from two 

governmental entities were proceeding with a course of action that 

violated the Double Jeopardy Clause. The record does not indicate that 

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EZEIMEINEEMI 
the attorney representing Blenka in municipal court knew of his pending 

felony case in justice court. Therefore, Blenka was under no obligation to 

inform the municipal court of his pending felony DUI charge. 

We conclude that Blenka did not frustrate the State's efforts to 

hold a single trial for the two DUI charges because the actions of the 

LVCA and CCDA, not those of Blenka, led to his dual prosecutions. The 

record indicates that the LVCA has access to the CCDA's case 

management system. As indicated by the declaration of Assistant City 

Attorney Bernard Little, the LVCA's choice to prosecute the misdemeanor 

DUI was a tactical decision made without awareness that the CCDA had 

approved a felony DUI charge. Because Blenka was already convicted of 

misdemeanor DUI, the Double Jeopardy Clause bars the State from 

further prosecuting him for felony DUI. 1 

Accordingly, we ORDER the judgment of the district court 

AFFIRMED. 

Saitta 

1We have considered the State's remaining arguments and conclude 

they are without merit. 

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cc: Hon. Abbi Silver, District Judge 

Clark County District Attorney 

Attorney General/Carson City 

Clark County Public Defender 

Eighth District Court Clerk 

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