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North Carolina v. Brunson11/21/1989
Judge Becton dissenting.
Believing that defendant was twice put in jeopardy on the impaired driving offense in violation of guarantees contained in our State and the United States Constitutions, I dissent.
In criminal cases, jeopardy attaches when the prosecutor calls the case for trial and the tribunal is constitutionally or statutorily ready to hear the case. In jury trials, the tribunal is ready to hear the case when jurors are impaneled and sworn. Jeopardy attaches then -- at that moment -- and not later when witnesses are sworn or when evidence is presented. The rule should not be different in bench trials. In my view, when the prosecutor calls the case for trial and the judge is constitutionally or statutorily ready to hear the case, jeopardy attaches. I therefore dissent. See State v. Coats, 17 N.C. App. 407, 194 S.E.2d 366 (1973).
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