When the elements of a lesser charge are incorporated in another and greater crime, double jeopardy bars prosecutors from charging the defendants with the lesser crime
Reyna-Abarca v. People, 2017 BL 59224, Colo., No. 13SC725, 2/27/17.
The Colorado Supreme Court held that double jeopardy bars charges of lesser crimes that incorporate the same elements of similar, yet greater, crime. In the case, the defendant was charged with a DUI as well as vehicular homicide-DUI, which incorporates the same elements of the DUI charge. The court used the test developed in Schmuck v. United States, 489 U.S. 705, 716 (1989), which defines a “lesser included offense.” In the test, if all of the elements of a lesser offense are also included in the greater offense, then the lesser offense is barred.