§ 3.9.1—Summary

The Double Jeopardy Clauses in the Fifth Amendment to the U.S. Constitution and in article II, section 18 of the Colorado Constitution generally protect a person from being prosecuted or punished twice for the same conduct. In furtherance of these constitutional protections, C.R.S. § 18-1-301(1) also bars a second trial for the same offense. The constitutional protections also bar the imposition of more than one sentence for the same offense. However, administrative sanctions that are imposed for the same conduct that is the basis of a DUI prosecution — notably sanctions imposed by the DMV — do not amount to a "sentence" for purposes of the Double Jeopardy Clause.

The policy consideration that is basic to double jeopardy protection is that the government should not be given repeated chances to obtain a conviction of an accused:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

People v. Schwartz, 678 P.2d 1000, 1010 (Colo. 1984) (citing Green v. United States, 355 U.S. 184, 187-88 (1957)).

§ 3.9.2—Jeopardy Resulting from a Prior Prosecution

The Double Jeopardy Clauses protect against a second prosecution for the same offense after an acquittal or a conviction, and the imposition of more than one punishment for the same offense.

A "prior prosecution" for the purposes of double jeopardy analysis does not include a contempt prosecution based on the same conduct. In People v. Allen, 868 P.2d 379 (Colo. 1994), the Colorado Supreme Court held that a defendant who was found in criminal contempt and sentenced to jail for violating a restraining order did not have double jeopardy protection against a criminal prosecution for trespass based on the same general conduct. The elements of the contempt charge were different from the elements of the trespass charge. Nor are probation or parole revocation proceedings considered to be "prosecutions" for double jeopardy purposes. People v. Preuss, 920 P.2d 859 (Colo. App. 1995) (probation); People v. Gallegos, 914 P.2d 449 (Colo. App. 1995)...

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