State v. Ben, 362 P.3d 180

Defendant Ferlin Ben was stopped after traffic violations, admitted drinking, performed poorly on field sobriety tests, and had a .08 BAC. He was charged with DWI under NMSA 1978 § 66-8-102, which contains two alternative means: per se (.08+ BAC) and impairment (under the influence/slightest degree).
After a nonjury trial in magistrate court, the court entered a conviction specifying the per se subsection (C)(1); the judgment did not reference the impairment subsection (A).
Defendant appealed de novo to the district court. Over his objection, the State prosecuted both statutory theories; the jury acquitted on the per se theory and convicted on the impairment theory.
Defendant argued on appeal that double jeopardy and jurisdictional principles barred retrial on the impairment theory because the magistrate’s silence as to impairment amounted to an implied acquittal.
The Court of Appeals reviewed de novo and confronted whether an implied acquittal applies when a factfinder convicts on one statutory alternative of a single offense but is silent on another alternative.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether retrial on an alternative theory in a de novo appeal violates double jeopardy	State: de novo statute permits new trial on the merits; conviction in magistrate court was a conviction (not acquittal) so retrial permitted	Ben: magistrate court’s failure to adjudicate impairment impliedly acquitted him of that theory, so retrial on impairment is barred	No implied acquittal; retrial on alternative statutory theory is not barred unless the earlier conviction necessarily resolved a fact inconsistent with guilt on the other theory
Whether the district court lacked jurisdiction to retry the impairment theory	State: §39-3-1 gives district courts authority to try appeals anew as if no lower trial occurred	Ben: magistrate court’s silence deprived district court of authority to retry impairment	District court had jurisdiction to retry de novo; the only potential limit would be double jeopardy, which was not violated

Ludwig v. Massachusetts, 427 U.S. 618 (explains de novo appeals posture and reprosecution following conviction)
Burks v. United States, 437 U.S. 1 (finality of acquittal; cannot retry after acquittal)
Green v. United States, 355 U.S. 184 (implied acquittal doctrine where conviction on lesser necessarily implies acquittal on greater)
United States v. Wood, 958 F.2d 963 (10th Cir.) (no implied acquittal where conviction rests on one alternative means of single offense)
State v. Torrez, 305 P.3d 944 (N.M.) (courts refuse to imply acquittal unless conviction logically excludes guilt of other crime)
Commonwealth v. Carlino, 865 N.E.2d 767 (Mass.) (verdict silence does not constitute true acquittal absent necessary factual inconsistency)