(1) If a prosecution is for a violation of the same provision of law and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances:
The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense even though the conviction is subsequently set aside.
The former prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated, and that necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction that has not been reversed or vacated, a verdict of guilty that has not been set aside and that is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two instances, failure to enter judgment must be for a reason other than a motion of the defendant.
The former prosecution was improperly terminated. Except as otherwise provided insubsection (2) of this section, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury is sworn if the case is tried by a jury or after the first prosecution witness is sworn if trial is by court following waiver of jury trial.
(2) Termination is not improper under any of the following circumstances:
The defendant consents to the termination or waives his right to object to the termination. The defendant is deemed to have waived all objections to a termination of the trial unless his objections to the order of termination are made of record at the time of the entry thereof.
The trial court finds that:
The termination is necessary because it is physically impossible to proceed with thetrial in conformity with the law; or
There is a legal defect in the proceedings that would make any judgment enteredupon a verdict reversible as a matter of law; or
Prejudicial conduct has occurred in or outside the courtroom making it unjust eitherto the defendant or to the state to proceed with the trial; or
The jury is unable to agree upon a verdict; or
False statements of a juror on voir dire prevent a fair trial.
Source: L. 71: R&RE, p. 396, § 1. C.R.S. 1963: § 40-1-401.