Judge Susan Kluewer

Archer sought to dismiss the second count of an accusatory instrument claiming it was barred by a prior prosecution. She was accused of driving while intoxicated. The accusatory instruments alleged Archer struck stopped vehicle and after examining the damage and conversing with the other driver sped away again. She pleaded guilty to driving while impaired in Queens County Criminal Court. Archer now sought dismissal of this indictment on the same charge claiming it arose from the same criminal transaction, thus double jeopardy principles prohibited prosecuting her twice for the same offense. The court disagreed finding each prosecution was premised on two separate decisions to drive after allegedly consuming alcohol such that it impaired her ability to drive. The first decision was made to drive before the occurrence of the accident, and the second after the accident, stopping and conversing with the driver, then speeding off again. Thus, as the Queens prosecution was premised on her second decision to drive, the court ruled it was permissible to prosecute Archer in this county for her first, separate election to drive while allegedly intoxicated. Hence, Archer’s motion was denied.