jeopardy did not preclude the ordering of a new hearing
limited solely to the question of the admissibility of the
breathalyzer results, since correction of this error at a new
trial flowed from the trial judge’s erroneous ruling that
these prerequisites were not necessary, and not flow from
the State’s inability to produce a prima facie case against
defendant.
IV. SAME OFFENSE
Before 1983, as many as three different tests may
have been applied by New Jersey courts to determine the
“same offense” issue: (1) the “same evidence” test, State
v. Hoag, 21 N.J. 496 (1956), aff’d 356 U.S. 464, 78 S.Ct.
829, 2 L.Ed.2d 913 (1957); State v. Thomas, 114 N.J.
Super. 360 (Law Div. 1971), mod. 61 N.J. 314 (1972);
(2) the “same transaction” test, State v. Hoag, supra; State
v. Mowser, 92 N.J.L. 474 (E. & A. 1919); and (3) the
“lesser included offense” test, State v. Wolf, 46 N.J. 301
(1966); State v. Dixon, 40 N.J. 180 (1963).
Between 1983 and 1987, New Jersey courts applied
the test enunciated in State v. Dively, 92 N.J. 573 (1983),
namely a same- elements and same-conduct test. The
Dively court, interpreting Illinois v. Vitale, 447 U.S. 410,
100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), concluded that
an offense was the same offense for double jeopardy
purposes only if it met both the same-elements test and
the same-conduct test. State v. Dively, supra, 92 N.J. at
581 (“It is only when both prongs are met that double
jeopardy attaches.”) In 1987, however, the New Jersey
Supreme Court retreated from Dively and, interpreting
Vitale anew, concluded that an offense was the same
offense for double jeopardy purposes if it met either the
same-elements test or the same-conduct test. State v.
DeLuca, 108 N.J. 98 (1987), cert. denied, 484 U.S. 944,
108 S.Ct. 331, 98 L.Ed.2d 358 (1987). In State v.
Yoskowitz, 116 N.J. 679 (1989), the Supreme Court
reviewed Dively and confirmed DeLuca. Thus, Yoskowitz
remains the last significant pronouncement on same-
offense jurisprudence in New Jersey.
Federal law also underwent abrupt change during
the same period. Before Vitale, the basic Blockburger
same-elements test prevailed: offenses are not the same if
each one requires proof of an additional fact which the
other does not. In Illinois v. Vitale, 447 U.S. 410, 100
S.Ct. 2260, 65 L.Ed.2d 228 (1980), the United States
Supreme Court addressed a double jeopardy claim by
analyzing not only the elements of the two offenses but
also the conduct that would be introduced to prove them.
Then, not unlike the New Jersey Court in DeLuca, and
citing Vitale, the United States Supreme Court in Grady
v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d
548 (1990), held that even if a second prosecution
survives the Blockburger test, “the Double Jeopardy
Clause bars a subsequent prosecution if, to establish an
essential element of the offense charged in that
prosecution, the government will prove conduct that
constitutes an offense for which the defendant has already
been prosecuted.” Id. at 510.Three years later however, in United States v. Dixon,
509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993),
the Supreme Court overruled Grady v. Corbin and
returned to the Blockburger test: “We have concluded
however that Grady must be overruled. Unlike
Blockburger analysis, whose definition of what prevents
two crimes from being the ‘same offence,’ U.S. Const.,
Amend. 5, has deep historical roots and has been
accepted in numerous precedents of this Court, Grady
lacks constitutional roots. The ‘same conduct’ rule it
announced is wholly inconsistent with earlier Supreme
Court precedent and with the clear common-law
understanding of double jeopardy.” 509 U.S. at 704.The same-offense cases should be read against this
backdrop. A case decided one way in 1986, for example,
may have been decided differently had it been decided
two years later. Further, although New Jersey Courts
assert that double jeopardy protection in New Jersey is
coextensive with federal protection, see, e.g., State v.
Barnes, 84 N.J. 362 (1980), New Jersey may, or may not,
offer more protection under DeLuca than the United
States offers under Dixon. See State v. Capak, 272 N.J.
Super. 397, 403 (App. Div. 1994), certif. denied, 137 N.J.
164 (1994) (“We ... do not read DeLuca or Yoskowitz as
requiring adherence to the DeLuca test in light of
Dixon.”)In State v. DeLuca, 108 N.J. 98 (1987), cert. denied,
484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987),
the question was whether a motor vehicle offense of
driving while intoxicated, in violation of N.J.S.A. 39:4-
50, is “same offense” for double jeopardy purposes as the
criminal offense of death by auto, in violation of N.J.S.A.
2C:11-5. After defendant was acquitted of the greater
offense of death by auto, she was charged with the lesser
offense of driving while intoxicated. Since death by auto
and driving while intoxicated each contains an element
that the other does not (death in the former, and
intoxication in the latter) the offenses are not the “same
offense” under the same-elements test. The Court ruled,
however, that an offense is the “same offense” for double
jeopardy purposes if it meets either the same-elements or
the same-conduct test. Thus, the Court remanded the