State v. Elliott

The defendant had been convicted of driving under the influence of intoxicating liquor. The sole question presented by this appeal is whether he would be put in jeopardy a second time for the “same of-*438fence” in violation of the Fifth Amendment① if subjected to a prosecution for negligent homicide based upon the same act of driving a motor vehicle. The circuit court allowed defendant’s plea of former conviction and dismissed the negligent homicide indictment. The state appeals pursuant to ORS 138.060 (2).

Various tests have been devised for defining the term “same offence” in the double…