State v. Lewis, 986 N.W.2d 739

On Oct. 11, 2020, Maylesha Lewis drove off the roadway and struck a light pole; her passenger, Thomas Martin, suffered life-threatening injuries. Lewis admitted consuming alcohol and marijuana and had an elevated BAC.
Days later Lewis was charged with and pled guilty to Class IIIA DUI resulting in serious bodily injury (DUI/SBI); she was sentenced on Mar. 22, 2021 while Martin remained alive in a persistent vegetative state.
Several months after sentencing Martin died from his injuries. On Dec. 20, 2021, the State charged Lewis with Class IIA motor vehicle homicide while operating under the influence (motor vehicle homicide/DUI).
Lewis filed a plea in bar asserting the second prosecution violated double jeopardy; the district court sustained the plea, applying the Blockburger same-elements test and treating DUI/SBI as a lesser-included offense of motor vehicle homicide/DUI.
The State filed an exception to the district court’s ruling under Neb. Rev. Stat. § 29-2315.01; the Nebraska Supreme Court granted bypass and reviewed the double jeopardy issue.
The Supreme Court reversed the district court, holding the Diaz exception applies (death occurred after the initial prosecution), and remanded because jeopardy had not attached in the second prosecution.

Issue	Plaintiff's Argument (Lewis)	Defendant's Argument (State)	Held
Whether the Blockburger same-elements test bars the second prosecution	Blockburger shows DUI/SBI is the same offense (lesser-included) as motor vehicle homicide/DUI, so double jeopardy bars reprosecution	Blockburger not controlling here; either the legislature intended separate offenses or Diaz governs when additional facts (death) occur later	Court declined to resolve lesser-included question and applied Diaz instead — Blockburger not dispositive in these facts
Whether successive prosecution for motor vehicle homicide/DUI is barred when death occurred after conviction for DUI/SBI	Second prosecution is a forbidden successive prosecution for the same offense	Death was an element of the greater offense that had not occurred at the first prosecution, so successive prosecution is allowed under Diaz exception	Diaz exception applies: no double jeopardy bar because death (element) occurred after the initial prosecution
Effect of appellate exception under §29-2316 (can reversal reinstate prosecution?)	Implicit: prior conviction places defendant in jeopardy such that appellate reversal cannot lead to rearrest	§29-2316 looks to whether defendant was "placed in jeopardy in the trial court" on the matter appealed; here no jeopardy had attached in the second prosecution	Jeopardy had not attached in the second (pending) prosecution, so appellate reversal permits remand and further proceedings

Blockburger v. United States, 284 U.S. 299 (1932) (same-elements test for determining whether two offenses are the same for double jeopardy purposes)
Diaz v. United States, 223 U.S. 442 (1912) (successive prosecution permitted where additional facts necessary for greater offense occur after initial prosecution)
Brown v. Ohio, 432 U.S. 161 (1977) (general double jeopardy rule; cites Diaz exception where greater offense could not be prosecuted initially)
Jeffers v. United States, 432 U.S. 137 (1977) (recognizes exceptions to successive-prosecution bar when events necessary to greater crime had not yet occurred)
State v. Jedlicka, 305 Neb. 52 (2020) (interpreting §29-2316: appellate relief under exception procedure turns on whether defendant was placed in legal jeopardy in trial court)