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.