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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2005-304 THE STATE OF NEW HAMPSHIRE v. JAMES MURRAY Argued: May 17, 2006 Opinion Issued: June 27, 2006 Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The defendant, James Murray, was convicted in Superior Court (Coffey, J.) of driving while certified as a habitual offender, see RSA 262:23 (Supp. 2000), and driving while intoxicated, see RSA 265:82 (2004). He appeals, arguing that his second trial after a mistrial was barred by double jeopardy. We affirm. The record reflects the following facts. On May 11, 2001, at around 11:00 p.m., the defendant and his girlfriend, Lucy Halle, were driving in Halle's van on Hooksett Road in Auburn. Officer Willie Scurry saw the van stop alongside the road and the defendant exit the driver's side of the van and walk

away. Scurry pulled up behind the van, exited the cruiser and asked the defendant what he was doing. The defendant told him that he was looking for a gas station in order to use the bathroom. Scurry asked the defendant for his license and the defendant produced a non-driver's identification card. Observing that the defendant appeared intoxicated, Scurry called for assistance and another officer arrived at the scene. The officers administered field sobriety tests and concluded that the defendant was intoxicated. They then arrested him and took him to the Auburn police station. The defendant was charged with one count of driving while certified as a habitual offender and two alternative counts of driving while under the influence of liquor. Prior to trial, the defendant stipulated that on May 11, 2001, he was a certified habitual offender. The only issue at trial was whether the defendant was the operator of the vehicle. In her opening statement, defense counsel argued that Halle was driving the van and that the defendant exited the driver's side door because the passenger side door was inoperable. Officer Scurry, the only witness at the aborted trial, testified that he saw the defendant driving the van before it pulled over, and that he saw the defendant exit from the driver's side of the van. He testified that he arrested the defendant and brought him to the Auburn police department. At a bench conference, the prosecutor, who is not counsel for the State on appeal, told the trial court that Scurry would testify that during booking procedures he had asked the defendant if he had been driving and the defendant had answered yes. The defendant objected, arguing that this statement was inadmissible because the State had not given him notice of it, as is required by Superior Court Rule 98. The trial court agreed and ruled that the statement was inadmissible. Later, during redirect examination, the following exchange took place: Prosecutor: .... Scurry: Prosecutor: Scurry: Prosecutor: From the time I pulled in back of the vehicle? Yes. I want to say approximately 15, 20 minutes. And during that time, did the defendant tell you that he wasn't driving? Did he make any statements? How long were you on the scene with the defendant?

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Well, strike that. Did he make any statement as to whether he was driving, at the scene? Scurry: Prosecutor: Scurry: Prosecutor: Scurry: Yes. He indicated to you one way or the other whether he was driving, at the scene? Yes. And what was that? Well, when I spoke to him, he was

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