Appeal from the Superior Court of the District of Columbia; (Hon. Nicholas S. Nunzio, Trial Judge)
Before Ferren,* Schwelb, and King, Associate Judges.
The opinion of the court was delivered by: King
KING, Associate Judge: This case presents two issues: whether the trial Judge properly dismissed a criminal information on the ground that the facts set forth in the prosecutor's opening statement were insufficient to establish a prima facie case *fn1 and, if the trial Judge erred in dismissing on that ground, whether double jeopardy principles bar further prosecution.
The Office of Corporation Counsel appeals the trial court's dismissal of informations charging appellee with operating a motor vehicle while intoxicated, *fn2 operating a motor vehicle without a permit, *fn3 and operating an unregistered motor vehicle. *fn4 We reverse.
The case came before the trial Judge for a non-jury trial, *fn5 and the prosecutor made the following opening statement:
Your Honor, in this matter, the Government will prove beyond a reasonable doubt that the defendant was operating a motor vehicle. The defendant was observed by United States Park Police urinating by his car. The car . . . had the lights on and the key was in the ignition, but the defendant was operating without a D.C. permit, and that the car that he was operating was an unregistered vehicle.
The Government will also prove; that the defendant was informed of the D.C. Consent Act, and he consented to take the test and his scores were a .11 . . . and that the incident occurred in the District of Columbia.
The car light was on. The keys were in the car. He was by the car. He admitted to driving the car.
In response, counsel for appellee remarked, "we maintain that the law states operating in the District of Columbia. At no time did the policemen see this defendant in the vehicle." After some Discussion *fn6 among the trial court and both counsel, the trial court dismissed the informations, ruling:
you['ve] got to kind of see him in control of the car, and I don't say somebody standing outside in control the car.
Well, if he's not in the car and I don't put him into the car, I just -- it kind of suggests they couldn't stop him to check for anything else.
As to the unregistered car and the D.W.I., I can't see. He's not in the car. . . . The case has got to demonstrate beyond a reasonable doubt that he's guilty, and based upon ...