Defendant Dalmon Landry appeals his conviction for criminal threatening with a dangerous weapon and tampering with a witness on the ground of double jeopardy.1 We conclude that the Superior Court’s finding of a manifest necessity for the declaration of a mistrial is unsupported in the record, and we vacate the convictions.
In 1989, defendant was indicted for criminal threatening with a dangerous weapon (17-A M.R.S.A. § 209 (1983)) and witness tampering (17-A M.R.S.A. § 454 (1983)). The two charges were consolidated for trial with a charge of assault. At the end of a two-day trial in Superior Court (Somerset County, Alexander, J), the jury commenced deliberations at 11:38 a.m. At 1:36 p.m. the jury sent a note stating that its members were divided on the criminal threatening and witness tampering charges, but had reached a verdict on the *102assault charge. The presiding justice brought the jury into the courtroom for reinstruction on the two crimes. The jury resumed deliberations at 1:43 p.m. and an hour later the foreman notified the court that the jury was unable to agree to a verdict on the two charges. With the agreement of counsel, the presiding justice brought the jury into the courtroom to take the verdict on the assault charge and to determine if the jury was deadlocked on the remaining charges.
In open court, the presiding justice asked the foreman if he thought it possible for the jury to reach a verdict on the criminal threatening and witness tampering charges. The foreman answered no. The presiding justice then asked the jury, collectively, if they would be able to reach a verdict on the two charges. Based on his observations of their nonverbal responses, he found the jury to be “emphatically, unequivocally ... in disagreement.” Finding manifest necessity, he declared a mistrial over the objections of both counsel. Prior to the second trial, defendant moved to dismiss on the ground of double jeopardy. The motion justice {Brody, C.J.), relying on the presiding justice’s characterization of the jury’s response, denied the motion.
The power to declare a mistrial “ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” State v. Linscott, 416 A.2d 255, 261 (Me.1980) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824)). We have held that a defendant cannot be deprived of the important right to trial by a particular tribunal unless the defendant consents or “urgent, manifest or imperious necessity” requires a mistrial. State v. Flick, 495 A.2d 339, 346 (Me.1985) (quoting State v. Sanborn, 157 Me. 424, 446, 173 A.2d 854, 865 (1961)).
In cases involving jury disagreement, the jury must be genuinely deadlocked and there must be no reasonable probability of an agreement before manifest necessity for a mistrial exists. State v. Linscott, 416 A.2d 255, 260 (Me.1980). Although, on a later motion to dismiss on the ground of double jeopardy, the motion justice defers to any factual findings that are made by the presiding justice and are supported by the record, it is the ruling of the motion justice that we review. We are required to determine whether the deference afforded by the motion justice is appropriate, whether the findings of fact on the motion are supported by substantial evidence, and whether the legal conclusion is correct. See State v. Friel, 500 A.2d 631, 634 (Me.1985). In reviewing a determination that the necessity for a mistrial is manifest, i.e., evident, obvious, and apparent, we have focused on the following objective factors:
1) The number of hours the jury had deliberated, 2) the number of communications from the jury indicating an inability to reach a verdict, 3) whether each individual juror was asked whether any reasonable expectations of reaching a verdict existed, and 4) whether the defendant’s counsel was provided an opportunity to participate in the decision to declare a mistrial.
State v. Derby, 581 A.2d 815, 817 (Me.1990).
We conclude that the record before the motion justice in the present case fails to demonstrate a manifest necessity for the granting of a mistrial. The jury had been deliberating for only about three hours, including the time that it had been served lunch and the time it was in the courtroom to receive additional instructions. The jury had communicated its inability to reach a verdict on only two occasions. The members of the jury were not polled individually, the trial justice concluding from responses unrevealed by the record that the jurors would be unable to reach a verdict. Finally, defense counsel’s opportunity to participate in the decision to declare a mistrial was confined to an objection to the court’s announced intention to take such an action. At that time, defense counsel disagreed that there was any factual basis for concluding that a mistrial was necessary. The presiding justice’s action was predicated solely on his observation that the jury’s nonverbal response was emphatic and un*103equivocal. The motion justice, accepting the presiding justice's conclusion at face value, failed to consider the four objective factors discussed in Derby. Clearly, the concept of “urgent, manifest or imperious” necessity requires that the record contain more than the subjective impressions of the presiding justice before a defendant is stripped of his constitutional protection against double jeopardy.
The entry is:
Judgments vacated. Remanded to the Superior Court with directions to enter an order granting defendant’s motion to dismiss the indictment.
ROBERTS, GLASSMAN and COLLINS, JJ., concurring.
. Both article I, § 8, of the Maine Constitution and the fifth amendment of the United States Constitution, applied to the states by the fourteenth amendment, prohibit the government from twice putting a person in jeopardy for the same offense.