Bar Exam (US) Criminal Procedure: The state of Marlboro has recently enacted the following anti-...

Question

The state of Marlboro has recently enacted the following anti-smoking statute:

"It shall be a misdemeanor for any person to smoke a cigarette, cigar, or pipe in any restaurant, bar, cafe, or other establishment within the state that serves food, beer, wine, or liquor. Whoever violates this ordinance shall be fined not more than five hundred dollars, or imprisoned not more than thirty days, or both."

Nick O'Teen was tried in state court for violating the anti-smoking statute. The prosecution's evidence consisted of the testimony of Philip Morris, a patron of Chesterfield's Bar and Grill, who was disturbed by O'Teen's cigar smoking at the restaurant. At the close of all the evidence, O'Teen's lawyer moved for a dismissal of the charge on the ground that applying the statute to smoking at a public restaurant would violate the defendant's equal protection rights. The trial judge agreed and granted the motion.

The state prosecutor appealed the ruling under a statute that permitted prosecutorial appeals in such circumstances. The state won the appeal, but the prosecutor decided not to reprosecute O'Teen. However, the city attorney in the city in which Chesterfield's was located then sought to prosecute O'Teen for the same incident under the city's anti-smoking ordinance, which was identical to the state statute. The city attorney planned to call as her only witness Philip Morris, who testified at O'Teen's first trial. O'Teen moved to dismiss on the ground that the prosecution of the city charge would violate his rights against double jeopardy.

The court should

AnswerChoose the correct answer.Choose all that apply. Correct Partially correct Incorrect Don't Know

  1. A
    Correct Answer
    grant the motion, because jeopardy attached in the first prosecution
  2. B
    Correct Answer
    grant the motion, because the law and the evidence will be identical at the second trial
  3. C
    Correct Answer
    deny the motion, because the city and the state are separate sovereigns
  4. D
    Correct Answer
    deny the motion, because the granting of O'Teen's motion to dismiss was not a judgment of acquittal since it did not resolve any factual elements of the statutory offense
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