
    Argued and submitted October 10,
    reversed and remanded for trial October 19, 1983
    STATE OF OREGON, Appellant, v. RICHARD LEONARD CURL, Respondent.
    
    (3829 M; CA A28638)
    670 P2d 1058
    Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
    No appearance for respondent.
    Before Gillette, Presiding Judge, and Warden and Young, Judges.
    PER CURIAM
   PER CURIAM

The trial court’s conclusions in this driving under the influence of intoxicants case that (1) a prosecutor’s mistake was “gross” negligence and (2) that mistake, which led to a mistrial, required dismissal of this case on prior jeopardy grounds are in error. The district attorney’s error was simple negligence, at most. Even if it were gross negligence, however, that would not create a prior jeopardy problem. See State v. Kennedy, 295 Or 260, 616 P2d 1316 (1983).

Reversed and remanded for trial.  