California, United States of America
The following excerpt is from Dunn v. Superior Court, 159 Cal.App.3d 1110, 206 Cal.Rptr. 242 (Cal. App. 1984):
In seeking a meaning of the term "the same offense" in section 1387, attention has been directed by petitioner to the case of Wallace v. Municipal Court (1983) 140 Cal.App.3d 100, 189 Cal.Rptr. 886, where the court considered whether driving with a blood-alcohol level of 0.10 (Veh.Code, 23152, subd. (b)) was the same offense as driving under the influence of alcohol (Veh.Code, 23152, subd. (a)) for purposes of Penal Code section 853.6. This section bars the prosecutor from charging the same misdemeanor after a failure to file a notice to appear within 25 days of arrest. The court likened this bar to the bar of section 1387 and, after reviewing several cases, stated: "The general rule which can be distilled from these examples is that when the essence of the offense charged in a second action is the same as the essence of the offense in a previously dismissed action the second action will be barred." (140 Cal.App.3d at p. 107, 189 Cal.Rptr. 886.) The court concluded that the essence of the two offenses before it was not the same. Although the court did not go on to provide a definition of "essence," it pointed out that either offense could be committed without committing the other and held that "[t]hus the essence of the two offenses is different...." (Id., at p. 109, 189 Cal.Rptr. 886.)
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