Commonwealth v. Hebb, 77 N.E.3d 308

On May 16, 2013, defendant Hebb was operating a motorcycle and was struck; at the scene and in the hospital he exhibited signs of alcohol use and slurred speech.
Hospital blood draws (with consent) later tested at .133% blood alcohol; testing caveat: anticoagulant activation issue could affect result.
Commonwealth charged a single-count complaint under G. L. c. 90, § 24 (1)(a)(1) on two theories: (A) operating under the influence (impaired ability) and (B) per se operation with BAC ≥ .08.
Jury returned a not guilty verdict on the impaired-ability theory (A), but left the per se box (B) blank after exposure to improperly redacted evidence; the judge accepted the acquittal on (A) and declared a mistrial as to (B).
Commonwealth refiled a new complaint charging only the per se violation; Hebb moved to dismiss on double jeopardy grounds. Trial judge denied the motion; defendant sought review under G. L. c. 211, § 3.
Supreme Judicial Court held double jeopardy did not bar retrial on the per se theory because the jury’s acquittal on the impaired-ability theory did not resolve the distinct factual element (BAC ≥ .08) required for the per se offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether double jeopardy bars retrial on per se OUI after acquittal on impaired-ability theory when both were charged together	Commonwealth: retrial permitted because jury did not resolve per se theory and mistrial on that theory leaves prosecution able to retry	Hebb: acquittal on impaired-ability (one count) is effectively an acquittal of the whole charge and bars reprosecution on the per se theory	Retrial allowed: acquittal on impaired-ability did not adjudicate the distinct BAC element; mistrial on per se leaves jeopardy unresolved for that theory
Whether a verdict that does not resolve all elements can operate as an acquittal triggering double jeopardy	Commonwealth: a defective/unresolved verdict does not terminate jeopardy	Hebb: jury’s not guilty on one theory should bar retrial on related theory charged in same complaint	Court: a verdict that fails to resolve elements is defective and cannot operate as an acquittal; double jeopardy not triggered

Commonwealth v. Brown, 470 Mass. 595 (Mass. 2015) (verdict that does not resolve all elements is defective and cannot operate as acquittal)
Commonwealth v. Zanetti, 454 Mass. 449 (Mass. 2009) (retrial permitted on theory not resolved at first trial)
Commonwealth v. Colturi, 448 Mass. 809 (Mass. 2007) (2003 amendment created alternative OUI theories: impaired ability and per se)
Commonwealth v. Filoma, 79 Mass. App. Ct. 16 (Mass. App. Ct. 2011) (per se and impaired-ability theories contain distinct elements)
Sanabria v. United States, 437 U.S. 54 (U.S. 1978) (distinguishable; acquittal must be clear and explicit to bar retrial on alternative theories)
Yeager v. United States, 557 U.S. 110 (U.S. 2009) (prosecution entitled to one complete opportunity to convict; inability to reach verdict does not bar retrial)
Richardson v. United States, 468 U.S. 317 (U.S. 1984) (double jeopardy protection applies only after an event that terminates original jeopardy)