Michael Freeman appeals the denial of his plea in bar of former jeopardy. He argues that the trial court erred in finding that manifest necessity required the declaration of a mistrial, after the court determined that an evidentiary issue needed to be addressed before the case could be tried. We agree that it was unnecessary to declare a mistrial in this matter, and thus we reverse the trial court’s denial of Freeman’s plea in bar of former jeopardy. “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” Punctuation omitted. Leonard v. State .1 In this matter, the record shows that on April 19, 2005, Freeman was arrested and charged with one count of driving under the influence of alcohol to the extent that it was less safe for him to drive DUI less-safe,2 after he was stopped at a police roadblock, failed several field sobriety tests, and refused to submit to the state-administered chemical breath test. In August 2007, he was tried on the charge, but the trial court declared a mistrial after the jury was unable to reach a unanimous verdict.
Freeman’s retrial on the DUI less-safe charge began on September 22, 2008. At some point during jury selection, the trial court convened a bench conference sua sponte and informed the parties that it was not going to allow the arresting officer to testify regarding the alleged correlation between the number of clues that a DUI suspect exhibits during a horizontal gaze nystagmus HGN test and the suspect’s blood-alcohol content. Shortly thereafter, jury selection was completed and the jury was sworn. In another bench conference immediately following jury selection, the State’s prosecutor argued that the court’s decision to exclude testimony regarding a correlation between HGN test results and blood-alcohol content was contrary to case precedent, and that the court should grant a continuance so that the prosecutor could research the issue. Over Freeman’s objection, the court agreed and granted a continuance for two days.
