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Double Jeopardy

Double Jeopardy Principle in California - Penal Code 687 PC

The Constitution of the United States prohibits the government from putting a defendant into "double jeopardy"—that is, trying a person more than once for the same crime.

In California law, this protection is codified in Penal Code 687 PC, which states: "No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted."

Double Jeopardy Principle in California - Penal Code 687 PC
The double jeopardy principle protects people from being prosecuted twice for the same crime.

In other words, the double jeopardy clause guarantees that there will be no prosecution after an acquittal for the same crime, no dual convictions for the same crime, and there are no multiple punishments for the same crime.

Because this is a right guaranteed by the Constitution and by the State, claiming double jeopardy can be a powerful defense when you are charged with a crime violating that protection.

It's a concept of criminal law that prohibits repeated attempts to convict someone for the same alleged offense. State prosecutors have vast resources and legal authority to pursue charges against someone.

Any repeated attempts to convict someone could be considered harassment and increases the chances that an innocent person could be found guilty.

As with most laws, case law has refined and clarified this principle over the years, giving us a better idea of when double jeopardy applies and when it does not.

However, double jeopardy does not apply to every situation. For instance, it doesn't stop the prosecution of Vehicle Code 23152 VC DUI charges after the California Department of Motor Vehicles (DMV) has already penalized you by suspending your driver's license.

What Is Double Jeopardy?

The term "double jeopardy" has two essential components. The first is that it only applies when someone has already been "prosecuted" for a crime. In other words, it is not enough that you have been charged with a crime.

You must have already gone through some portion of the criminal justice process, including a trial. Once you have been acquitted or convicted of a crime, you may not be prosecuted for that same crime again.

The second part of the double jeopardy principle only applies to the "same offense."

In other words, if you are prosecuted and acquitted of one crime, you may still be charged with a different crime—even if it is related to the first crime. For example, if you are acquitted of burglary, you may still be prosecuted for grand theft (the crime of stealing property worth more than $950).

When Can You Invoke the Legal Defense of Double Jeopardy?

Under California law, the double jeopardy defense may apply in many different situations. Some common examples are discussed below.

When you were acquitted of the crime, if your trial is concluded and you are acquitted, the prosecution cannot appeal the verdict, nor can they bring a new trial against you. Period.

When Can You Invoke the Legal Defense of Double Jeopardy?
Double jeopardy can apply in many situations.

When you were convicted of the crime, after you've been convicted of or pled guilty to the charges, prosecutors cannot bring a new charge for the same crime.

When you pled guilty in a plea bargain, if you agreed to plead guilty to a lesser offense as part of a plea deal, the prosecution can't charge you again for the greater crime.

When you are currently on trial for the same crime, California recognizes that jeopardy "attaches" when the trial has officially begun—specifically, once the jury is selected and a witness has been called. Once the trial starts, you can't be charged separately for the crime.

When a mistrial is declared, or the jury is discharged without your consent. Barring a legal necessity, the defendant should approve a mistrial or discharge of a jury. If this happens without your permission, your attorney can claim that jeopardy attaches to the new trial.

When the case was dismissed based on the merits of the charge, if there is insufficient evidence against you to warrant a trial and the case is dismissed, prosecutors can't bring the charge again.

Likewise, if the court dismisses a misdemeanor for failure to bring the case to trial on time, or two failures to bring a felony to trial, prosecutors can't keep bringing new charges for these crimes.

When Does Double Jeopardy Not Apply?

There are also situations where double jeopardy can't be used as a valid defense. These include, but are not limited to:

  • Multiple convictions/acquittals at the same trial. If you're facing multiple charges for the same incident at a single trial, you can't claim double jeopardy because they are considered separate crimes. Each charge may result in conviction or acquittal on its own merits.
  • Federal versus state charges. This rarely happens, but if your alleged actions violated federal and state laws, there's nothing to stop both entities from filing charges against you for the same crime.
  • Civil versus criminal offenses. Being convicted of a crime doesn't prevent the victims from bringing a civil case against you to seek damages.
  • A new trial or reversal on appeal. If you appeal a conviction and have it overturned on appeal, prosecutors may have the option, in some cases, to bring a new trial. However, they cannot charge you with a greater offense than the original trial. Similarly, if you file a motion for a new trial after being convicted, and that trial is granted, you waive your double jeopardy protection in doing so.
  • DMV license suspension on DUI cases. If you are arrested for DUI, you are entitled to an Administrative Per Se hearing to determine whether your driver's license should be suspended. Jeopardy does not attach to these proceedings.

On the issue of civil proceedings, which are a reasonably common occurrence after criminal proceedings.

When Does Double Jeopardy Not Apply?
Double jeopardy can't always be used as a defense.

Suppose someone was driving while under the influence and stuck and killed another person crossing the street. The perpetrator is prosecuted and convicted of California Penal Code 191.5(a) PC gross vehicular manslaughter while intoxicated.

The victim's family sues the perpetrator in civil court for damages on a wrongful death lawsuit and is awarded 1 million dollars in damages.  

In this example, the perpetrator can't raise a double jeopardy defense because the civil proceeding did not attach jeopardy for the purposes of a criminal case.

If you or a family member has been charged with a crime where double jeopardy might apply, then reach out to us to review the details and legal options. Eisner Gorin LLP is based in Los Angeles, California. You can contact us for an initial case consultation by phone or fill out the contact form.

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