Someone Else’s Blood

The New Jersey Supreme Court affirmed the Appellate Division holding that retrial is not barred by Double Jeopardy on some counts despite an error of the prosecution that led to a mistrial

This case arises from a head-on collision on Paterson Plank Road in Jersey City. Defendant was driving 85 to 88 miles per hour three seconds before the crash; the posted speed limit was 25 miles per hour. The winding road had one lane in each direction. There was evidence that defendant’s car was over the yellow lines, into opposing traffic, at the time of the collision. Defendant’s best friend died in the crash.

Pursuant to a warrant, the State seized and tested what they thought was defendant’s blood. The blood alcohol content (BAC) came back as 0.376%, more than four times the legal limit. Relying on that evidence, the grand jury charged defendant with aggravated manslaughter, death by auto, and three counts that explicitly accused defendant of driving while intoxicated in violation of N.J.S.A. 39:4-50.

After the nurse who drew defendant’s blood testified for the State at trial, the State realized that the blood they believed to be defendant’s had actually come from a person who had died seven months before the accident. Apparently, no detective, prosecutor, or investigator had ever inspected the date of collection or patient number written on the blood vials, both of which demonstrated that it could not have been defendant’s blood.

After the State discovered the error, defendant moved to dismiss the indictment with prejudice because the grand jury had relied on false testimony to indict him. The trial court granted defendant’s motion as to counts three through five, which were dependent on his driving while intoxicated, but denied the motion as to counts one and two, aggravated manslaughter and death by auto. The court found that although the State’s handling of the blood evidence constituted bad faith and inexcusable neglect, allowing defendant to be retried on the counts unrelated to intoxication would not violate his rights under the Double Jeopardy Clause both because defendant consented to the trial’s termination and because there was a manifest necessity to terminate the trial. The Appellate Division affirmed on manifest necessity grounds. The Appellate Division added that while the State could present counts one and two to a new grand jury, it could not present any evidence that defendant was under the influence of alcohol at the time of the collision.

Defendant argues that a retrial, even on the counts unrelated to intoxication, is barred by our State Constitution’s Double Jeopardy Clause. According to defendant, he did not consent to the mistrial and a manifest necessity to terminate the trial would therefore be required. Yet there can be no manifest necessity, defendant contends, when the State has acted in bad faith or is guilty of inexcusable neglect. In the alternative, defendant maintains that if we find he did consent to the mistrial, we should hold that our State Constitution affords greater protection against double jeopardy than the Federal Constitution and adopt the test articulated by the Pennsylvania Supreme Court in Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020), rather than the test we have previously applied from Oregon v. Kennedy, 456 U.S. 667 (1982).

Because we conclude that the trial court did not abuse its discretion in finding manifest necessity justified the mistrial here, we affirm. As the Appellate Division held, the State can present the counts of aggravated manslaughter and death by auto to a new grand jury, without any evidence on intoxication. We do not reach defendant’s alternative argument.

(Mike Frisch)