In March of this year a jury was sworn for a DWI-case. The jury was dismissed for the day, set to come back on a following day for trial. Before that day came, a juror called in to say there was a death in the family and they would not be in.

The Court ordered a mistrial, stating in the order that the motion was made by the defendant.

Fast-forward to October, when the case comes up again on the jury docket. The defense attorney is claiming that jeopardy has attached.

He challenges that it was his motion for mistrial, stating he was out of the county at the time.

The County Court did not rule, and gave him time to file a writ of Habeas Corpus.

He has filed a writ of Habeas corpus to make a double jeopardy claim.

1. Is a Habeas writ the appropriate way to make a double jeopardy claim?

2. Can he file a writ of habeas corpus when the County court did not rule?

1. Yes, a pre-trial writ of habeas corpus is proper to attack on double jeopardy grounds.

2. The ruling is the original mistrial. The trial court need not rule on his new objection for him to file a writ of habeas corpus on the same issue.