dissenting.
I must respectfully dissent with the judgment reached by the majority. In this case, the defendant did nothing to contribute to any dilemma in which the court found itself. The defendant did not request the mistrial and objected strenuously thereto. I agree with the majority that the only basis available under these facts for declaring a mistrial is a proper finding of “manifest necessity” for doing so.
“The power of a trial court to interrupt the proceedings on its own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. Retrial is permissible only if a manifest necessity existed for the declaration of the mistrial.” (Punctuation omitted.) Stevens v. State, 215 Ga. App. 718 (452 SE2d 176) (1994).
*262Here the trial court heard argument on defendant’s objection to the introduction of the breath test results at trial, took same under advisement and proceeded with the trial. Three months after the trial, the judge decided that he had been so affected by the existence of the breath test strip and the testimony related thereto, that he could not ignore same, and declared a mistrial. Whatever the trial court’s reaction to the breath test, he was fully aware of such feelings at the time he heard such testimony. The judge did not decide to grant the mistrial until three months after he received the briefs he requested from the parties and had decided defendant’s objection had to be sustained.
“Manifest necessity. Doctrine of ‘Manifest necessity’ which will authorize granting of mistrial in criminal case, and preclude defendant from successfully raising plea of former jeopardy, contemplates a sudden and overwhelming emergency beyond control of court and unforeseeable, and it does not mean expediency.” (Citation omitted; emphasis supplied.) Black’s Law Dictionary, 5th ed.
The majority’s reliance on Commonwealth v. Smith, 467 A2d 888 (Pa. 1983) is misplaced. That case dealt with the judge’s inability to be objective after he recognized witnesses in the case. A finding of “manifest necessity” for a mistrial in a bench trial setting is appropriate in such circumstances as the defendant does not have the opportunity to “strike” potential members from serving as triers of fact.
The facts of this case do not support a finding that a manifest necessity existed for the declaration of a mistrial pursuant to OCGA § 16-1-8.1 would find that the trial court erred in denying defendant’s motion to dismiss and plea of former jeopardy.
I am authorized to state that Judge Smith joins in this dissent.