Argued: October 25, 2017
Jeffrey M. Silverstein, Esq. (orally), Silverstein-Law, PA,
Bangor, for appellant Michael Martinelli
Christopher Almy, District Attorney, and Mark A. Rucci, Asst.
Dist. Atty. (orally), Prosecutorial District V, Bangor, for
appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Michael Martinelli appeals from an order entered by the trial
court (Penobscot County, Lucy, J.) denying his
motion to dismiss a complaint charging him with operating
under the influence (OUI) (Class D), 29-A M.R.S. §
2411(1-A)(C)(1) (2016). He contends that, because he had
already been convicted after a jury trial on a complaint
containing the identical charging language, forcing him to
stand trial on the complaint at bar would violate his
constitutional rights to be free from double jeopardy. U.S.
Const, amend. V; Me. Const, art. I, § 8. We conclude
that Martinelli's double jeopardy protections are not
implicated on these facts and affirm the order.
The procedural facts are not disputed. On September 18, 2015,
the State charged Martinelli with OUI (Class D), alleging a
violation of 29-A M.R.S. § 2411(1-A)(C)(1), in a
complaint assigned docket number PENCD-CR-2015-03461
(hereinafter 3461). The complaint alleged:
On or about May 6, 2015, in Bangor, Penobscot County, Maine,
MICHAEL MARTINELLI, did operate a motor
vehicle while under the influence of intoxicants.
MICHAEL MARTINELLI failed to submit to a
test at the request of a law enforcement officer.
hearing on Martinelli's motion to dismiss, the parties
agreed that the incident giving rise to the complaint in 3461
occurred shortly after midnight on May 6, 2015. Martinelli
was convicted of the charge after a jury trial held November
16-17, 2016; the court [Mallonee, J.) entered
judgment and sentenced Martinelli to four days'
incarceration in the Penobscot County Jail, a $600 fine, and
a 150-day license suspension. Martinelli did not appeal.
On June 3, 2015, about three months before the complaint in
3461 was filed, the State had charged Martinelli with OUI
(Class D), also alleging a violation of 29-A M.R.S. §
2411(1-A)(C)(1), in a complaint assigned docket number
PENCD-CR-2015-01568 (hereinafter 1568). At the hearing,
the parties agreed that the incident giving rise to this
complaint occurred at about 11:30 p.m. on May 6, 2015, just
under twenty-four hours after the incident charged in 3461.
As later amended, the charging language of the two complaints
On November 29, 2016, Martinelli moved to dismiss the
complaint in 1568 with prejudice on the ground that forcing
him to defend against the charge violated his rights under
the federal and state constitutions to be free from double
jeopardy. The court held a hearing and denied the motion by
written order, concluding that "the State has met its
burden of demonstrating that this case does not involve the
same conduct for which Defendant has already been
convicted." Martinelli filed this interlocutory appeal,
which we entertain as an exception to the final judgment
rule. State v. Hoover, 2015 ME 109, ¶ 10 n.l,
121 A.3d 1281.
Martinelli is protected from being "twice put in
jeopardy of life or limb" by the United States and Maine
Constitutions, which afford coextensive protections. U.S.
Const, amend. V; Me. Const, art. I, § 8; Ayotte v.
State,2015 ME 158, ¶ 12, 129 A.3d 285. Pertinent
to this case, "[t]he constitutional prohibitions against
double jeopardy prohibit... a second prosecution for the same
offense after conviction and . . . multiple punishments for
the same offense." Ayotte,2015 ME 158, ¶
13, 129 ...