United States v. James E. Govro

James E. Govro appeals the district court’s reversal of the magistrate’s dismissal of the government’s information and the remand of his case for retrial. We have jurisdiction under 28 U.S.C. § 1291 . We reverse because further prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment.

FACTS AND PROCEEDINGS

After observing Govro’s erratic driving, the Schofield Military Police (MP’s) stopped him on suspicion of driving under the influence of alcohol (D.U.I.). The MP’s administered a field sobriety test, which Govro failed. The MP’s then took Govro into custody and attempted to administer an intoxilyzer test. Because most of Govro’s breath escaped before it could be channeled into the tube, the test was unsuccessful in registering blood alcohol content. After five similarly unsuccessful attempts to administer the test, the MP’s recorded Gov-ro’s behavior as a refusal. Approximately one hour later, Govro requested that he be given another chance to take the test. The MP’s, based on Army policy, refused to test Govro again. The government charged Govro with driving under the influence of alcohol, in violation of Haw.Rev. Stat. § 291-4(a)(l), a federal offense under…