West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          The Double Jeopardy Clause, which is contained in the Fifth Amendment to the United States Constitution, states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

          The Double Jeopardy Clause is designed to protect individuals accused of committing crimes against the following three things:

1. It protects against a second prosecution for the same crime after acquittal;
2. It protects against a second prosecution for the same offense after conviction; and
3. It protects against multiple punishments for the same crime.

          Whether or not the Double Jeopardy Clause was violated was the issue decided just last month by the United States Court of Appeals for the Eleventh Circuit in the case of United States v. McIntosh.  In that particular case, Mr. McIntosh was indicted for the crimes of possession with intent to distribute five kilograms of crack cocaine and carrying a firearm during and in relation to a drug trafficking offense.  Two months later, he pled guilty to both crimes.

          The following month, the Assistant United States Attorney handling the case advised the judge and McIntosh's lawyer that the date contained in the indictment pertaining to when the two crimes occurred was incorrect.  A month after that, McIntosh was indicted again for the exact same crimes, but the new indictment contained the correct date regarding when the offenses happened.

          In response, McIntosh's attorney filed a motion to dismiss the second indictment in which he argued that the Double Jeopardy Clause prohibited McIntosh from being prosecuted for the exact same charges a second time.  The U.S. District Judge deciding the motion ruled against McIntosh in part because of his belief that jeopardy did not attach when McIntosh pled guilty since the first indictment was defective.

          Fortunately for Mr. McIntosh, the appellate court that heard his appeal disagreed with the lower-court judge and ruled that the motion to dismiss should have been granted.  In doing so, the Eleventh Circuit Court of Appeals reasoned that the Double Jeopardy Clause "plainly protects against a second prosecution for the same offense after conviction.  The acceptance of McIntosh's unconditional plea of guilt to the first indictment constituted convictions for the drug and firearm offenses:  The acceptance of an unconditional plea is itself a conviction.  Like a verdict of a jury it is conclusive.  More is not required; the court has nothing to do but give judgment and sentence.  A second conviction for the same offense violates the Double Jeopardy Clause."

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          Jeff Norman of The Huffington Post recently emailed me the following question:

          "What makes it legal for police to detain a DUI arrestee until he or she is 'sober,' when the only purpose of the detention is to maintain safety, and there is no intent to bring the arrestee before a judge for arraignment?  I’m not questioning anything about the arrest or booking process; I’m only asking about the extended detention (usually an overnight jail stay) that begins when the booking process has been completed.  I believe such detentions are illegal, despite conventional wisdom which suggests otherwise.  Your thoughts?"

          What Jeff is referring to is Florida statute section 316.193(9) which states:

          "A person who is arrested for [DUI] may not be released from custody:

          (a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance . . ., or any [controlled] substance . . . and affected to the extent that his or her normal faculties are impaired;

          (b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or

          (c) Until 8 hours have elapsed from the time the person was arrested."

          Florida's Fifth District Court of Appeal dealt with Jeff's question in the case of State of Florida v. Atkinson.  In Atkinson, one of the issues that the Court was asked to decide was whether putting someone in jail for 8 hours after he is arrested for DUI is a violation of the double jeopardy clause of the Florida Constitution and the United States Constitution.  In other words, is a person who is jailed for 8 hours after being arrested for DUI being punished twice if he is subsequently prosecuted for DUI?  If the answer is yes, then such a procedure is a double-jeopardy violation, and the prosecuting authority should not be permitted to prosecute that person for DUI.

          The Atkinson Court did not agree, however, that locking someone up for 8 hours after being arrested for DUI and later prosecuting that same person for DUI is a double-jeopardy violation.  The Court reasoned that:

          "The practice of detaining an intoxicated driver is to protect that driver and the community from an unreasonable danger imposed by drunken driving.  It is a situation analogous to the detention of persons under quarantine orders wherein a threat is posed to the public health and safety. . . .  There is no claim or indication in this case that the statute is being arbitrarily enforced in an unconstitutional manner."

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