Sylvia

In a single count 1 Peter Sylvia was accused of felony drunk driving (Veh. Code, § 23101). The trial jury decided he was not guilty of the charged offense, but apparently could not agree on the lesser included offense of misdemeanor drunk driving (Veh. Code, § 23102, subd. (a)). The petition for an extraordinary writ presents the question, does acquittal on the charge of felony drunk driving prohibit retrial of the lesser included offense (not separately charged) of misdemeanor drunk driving? We conclude it does.

*311 The case was submitted to the jury for deliberation on the felony drunk driving charge and the uncharged offense of misdemeanor drunk driving. The jury was given separate verdict forms for the offense charged, the uncharged misdemeanor offense, and one of not guilty. The unanimous not guilty verdict was recorded. The judge then questioned the jury about possible further deliberations on the included misdemeanor offense; they indicated further deliberations would not be productive and were discharged. An amended information was then filed bearing the same superior court case number, but charging a violation of Vehicle Code section 23102, subdivision (a), a…