Opinion
3829 M; CA A28638
Argued and submitted October 10, 1983
Reversed and remanded for trial October 19, 1983
Appeal from District Court, Umatilla County.
James M. Monce, Judge.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
No appearance for respondent.
Before Gillette, Presiding Judge, and Warden and Young, Judges.
PER CURIAM
Reversed and remanded for trial.
The trial court's conclusions in this driving under the influence of intoxicants case that (1) a prosecutor's mistake was "gross" negligence and (2) that mistake, which led to a mistrial, required dismissal of this case on prior jeopardy grounds are in error. The district attorney's error was simple negligence, at most. Even if it were gross negligence, however, that would not create a prior jeopardy problem. See State v. Kennedy, 295 Or. 260, 616 P.2d 1316 (1983).
Reversed and remanded for trial.