dissenting. I disagree with the majority’s holding that, in a successive prosecution case, two offenses can be considered the “same offense” for double jeopardy purposes where the same evidence or conduct proves both offenses even though the same two offenses would not be considered the same offense if brought in a single prosecution. I would reverse the Appellate Court and hold that the Block-burger test should be applied in successive prosecution cases to determine what constitutes the “same offense” for double jeopardy purposes.
Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), affirmed that the Blockburger test, as set forth in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), is “the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 304 [52 S. Ct. 180, 76 L. Ed. 306] (1932), which in turn relied on Gavieres v. United States, 220 U.S. 338, 342-343 [31 S. Ct. 421, 55 L. Ed. 489] (1911), [the United States *94Supreme Court] held that ‘ “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” ’ 432 U.S., at 166. [The United States Supreme Court] recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” Illinois v. Vitale, supra, 416. “[T]he Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). “The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the [less serious offense] to establish an element of [the more serious offense] would not be sufficient to bar the latter prosecution.” Illinois v. Vitale, supra, 419.1 Thus, the United States Supreme Court has repeatedly recognized that a second prosecution will not be barred on double jeopardy grounds simply because the evidence offered in the second prosecution may be duplicative of the evidence admitted in the first.
In Brown v. Ohio, the court outlined the policy behind the double jeopardy clause in successive prosecution cases. “Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for *95the defendant’s benefit.’ . . . That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal . . . and from attempts to secure additional punishment after a prior conviction and sentence . . . .” (Emphasis added, citations omitted.) Brown v. Ohio, supra, 165-66. Here, however, the state is not attempting to relitigate the facts underlying the prior acquittal. “The trial court [in the first prosecution] ruled that the state had failed to prove beyond a reasonable doubt that the defendant’s alleged intoxication had caused the death of [the victim] and, accordingly, granted the defendant’s motion for judgment of acquittal.” State v. Lonergan, 16 Conn. App. 358, 360, 548 A.2d 718 (1988).
The sole issue determined by the trial court was that the defendant’s alleged intoxication was not the cause of the death of the victim as required for manslaughter in the second degree with a motor vehicle. The trial court never decided any of the elements of operating a motor vehicle while under the influence. Thus, the conduct of which the defendant was acquitted is not an element of the less serious crime for which the state now desires to prosecute him.2
While I agree that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense”; Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), this principle only *96applies when the state is attempting to relitigate the same offense. “[T]he United States Supreme Court has consistently declined to hold that double jeopardy requires the prosecution ‘to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.’ (Emphasis added.) Ashe v. Swenson, [397 U.S. 436, 453-54, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)] (Brennan, J., concurring). . . . ” State v. Ellis, 197 Conn. 436, 474, 497 A.2d 974 (1985).
Under the majority’s analysis, the two offenses, operating a motor vehicle while under the influence and manslaughter in the second degree with a motor vehicle, constitute two different offenses and can be punished separately if the state brings both charges in a single trial. If, however, the state chooses to prosecute the crimes in two separate trials, they are considered the “same offense” apparently even if the first trial did not resolve the elements necessary to prove the second offense. Thus, the definition of what constitutes the “same offense” for double jeopardy purposes will vary depending upon whether the charges are brought in a single rather than a successive prosecution. The practical result of the majority’s opinion will be to force the state to bring both charges in the same proceeding; a result previously not required by the double jeopardy clause. The policies underlying the double jeopardy clause do not support this analysis and I cannot agree with such an inconsistent approach.
Accordingly, I dissent.
“The‘same evidence’test is not constitutionally required. It . . . has never been squarely held by this Court to be the required construction of the constitutional phrase ‘same offense’ in a case involving multiple trials; indeed, in that context it has been rejected. See In re Nielson, 131 U.S. 176 [9 S. Ct. 672, 33 L. Ed. 118 (1889)], discussed in Abbate v. United States, [359 U.S. 187, 201, 79 S. Ct. 666, 674, 3 L. Ed. 2d 729 (1959)].” Ashe v. Swenson, 397 U.S. 436, 452-53, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (Brennan, J., concurring).
The majority cites footnote 6 in Brown v. Ohio, 432 U.S. 161, 166-67, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), to support its conclusion that the Blockburger rule is not the sole test for determining whether successive prosecutions involve the same offense. In Brown, the court stated: “[E]ven if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by theftr&t.” (Emphasis added.)Brown v. Ohio, supra, 166-67 n.6. As mentioned, however, in this case the state is not attempting to relitigate facts already resolved by the first prosecution.